Justices consider limits on employer background checks in NASA case

Lawyers for the federal government clashed with lawyers for a group of California scientists at the U.S. Supreme Court on Tuesday over how much information the government can demand in background checks on potential employees before violating their privacy rights.

And the justices themselves appeared to have conflicting concerns about background investigations. "Are there any limits on what the government can ask?" Justice Sonia Sotomayor pressed Acting Solicitor General Neal Katyal shortly after he opened his argument in National Aeronautics and Space Administration v. Nelson. Can the government ask someone about his genetic makeup because "we don't want someone prone to cancer?" she added.

"Does NASA have a right to know that an employee has a sign on his front lawn saying, 'I hope the space shuttle blows up?' " Justice Samuel Alito Jr. asked the scientists' counsel, Dan Stormer of Pasadena, Calif.'s Hadsell Stormer Keeny Richardson & Renick.

Katyal wants the Court to overturn a preliminary injunctionissued by the 9th U.S. Circuit Court of Appeals (Click here). The appellate court agreed with the scientists -- 28 long-term, low-risk, contract employees at a NASA research facility in California -- that certain questions on the NASA background forms for contract employees were so intrusive as to violate their right to informational privacy.

One question involves illegal drug use in the past year. The scientists did not object to being asked whether they used, possessed, supplied or manufactured illegal drugs, but they did object to providing information about any treatment or counseling received. They also objected to an open-ended question on a second form, which seeks any information bearing on the person's suitability for employment -- "derogatory as well as positive information." The questions were not narrowly tailored to achieve legitimate government interests, according to the appellate court.

In answering questions from Sotomayor and other justices, Katyal stressed there is no constitutional limit on the government's collection of information in the employment context as long as there are adequate privacy safeguards. The federal Privacy Act, he added, contains the necessary protections against disclosure.

"This case doesn't force the Court to answer the outer limits of what the government can do," he said. If the 9th Circuit's reasoning is applied to a permanent injunction, he warned, it "could preclude the government from asking for all kinds of information."

Chief Justice John Roberts Jr. asked Katyal why the government needs information about drug counseling or treatment. When Katyal responded, "It's for the good of the employee," Roberts rejoined, "Whenever the government says that, you have to be suspicious. It's one thing to say, ‘I had a drink.' It's another to say, 'I'm in AA.'"

Stormer, too, faced his share of skeptical questioning. In response to Alito's hypothetical about the sign hoping the shuttle would blow up, Stormer conceded that NASA had a right to know about it. Alito then said, "I don't see how to do that without open-ended questions. You would have to have a question on the form asking: Does the person have a sign on the front lawn saying, 'I hope the space shuttle blows up.'"

The alternative to open-ended questions, added Alito, would be to compile a list of everything that makes a person unsuitable for employment -- an "impractical" alternative.

Throughout the hour-long argument, Justice Antonin Scalia challenged the existence of a right to informational privacy. He noted that legislatures, including Congress, have acted in this area to protect private information. "Maybe you don't need us," he told Stormer. The scientists' lawyer said the right was grounded in the Fifth Amendment's concept of ordered liberty.

The Supreme Court has never used the term "right to informational privacy," but in two cases from the 1970s, the justices have said the right to privacy contains "the individual interest in avoiding disclosure of personal matters." As lower courts have dealt with related issues, that interest has come to be known as the right to informational privacy.

(Published by Law.com - October 6, 2010)