Informational Privacy in Government Employment Background Checks: Analysis of NASA v. Nelson

Introduction

National Aeronautics and Space Administration et al. v. Nelson et al., 562 U.S. 134 (2011), is a landmark Supreme Court decision addressing the balance between governmental interests in security and employees' constitutional rights to informational privacy. The case arose when contract employees at NASA's Jet Propulsion Laboratory (JPL) challenged the Agency's implementation of the National Agency Check with Inquiries (NACI) background check process. The respondents contended that certain questions in the background check forms, specifically Standard Form 85 (SF-85) and Form 42, infringed upon their constitutional right to informational privacy.

The key issues revolved around whether the mandatory disclosure of drug treatment information and the use of open-ended questions in employment references violated constitutional protections. The parties involved were NASA, the California Institute of Technology (Cal Tech) operating JPL, and the contract employees (respondents) who were subject to the new background check requirements.

Summary of the Judgment

The Supreme Court, in a majority opinion authored by Justice Alito, reversed the Ninth Circuit Court of Appeals' decision that had previously favored the respondents by enjoining parts of the background check forms. The Supreme Court held that, assuming the existence of a constitutional right to informational privacy, the Government's background check inquiries in SF-85 and Form 42 did not violate such a right. The Court emphasized that the background checks were reasonable, employment-related inquiries essential for managing NASA's internal operations and safeguarding its facilities. Additionally, the information collected was protected under the Privacy Act of 1974, which imposes strict limits on public disclosure.

Justices Scalia and Thomas concurred in the judgment but argued separately that there is no constitutional right to informational privacy, thereby reinforcing the Court's decision without relying on the assumption of such a right.

Analysis

Precedents Cited

The Court referenced two pivotal cases from over three decades prior: WHALEN v. ROE, 429 U.S. 589 (1977), and NIXON v. ADMINISTRATOR OF GENERAL SERVICES, 433 U.S. 425 (1977). Both cases recognized a broad constitutional interest in avoiding the disclosure of personal matters.

• WHALEN v. ROE: Upheld a New York law collecting prescription drug information, emphasizing that statutory safeguards against public disclosure protected individuals' privacy interests.
• NIXON v. ADMINISTRATOR OF GENERAL SERVICES: Supported the collection of former President Nixon's records under the premise that the statute included protections against undue dissemination.

The Court acknowledged that since these cases, there has been limited Supreme Court discussion on the constitutional right to informational privacy, with various lower courts interpreting these precedents differently.

Legal Reasoning

The Court undertook a detailed analysis, assuming the existence of a constitutional right to informational privacy without explicitly deciding on its existence. It concluded that the Government's background checks were:

• Reasonable and Employment-Related: The questions in SF-85 and Form 42 were standard in employment background checks and aimed at ensuring the reliability and security of NASA's workforce.
• Protected by the Privacy Act: The collected information was shielded from public disclosure through the Privacy Act of 1974, which mandates confidentiality and restricts information sharing.

The Court rejected the respondents' arguments that specific questions, such as those about drug treatment and open-ended reference inquiries, were overly intrusive. It held that these questions were justified by the Government's legitimate interests and were consistent with practices in both public and private sectors.

The concurring opinions by Justices Scalia and Thomas further argued that there is no constitutional basis for claiming a right to informational privacy, emphasizing that such a right is not explicitly mentioned in the Constitution and should not be presumed.

Impact

This judgment reinforces the authority of the Government to conduct comprehensive background checks for its employees and contractors, provided that such processes are reasonable and safeguarded against unauthorized disclosure. It clarifies that, within the context of managing internal operations and security, the Government's data collection practices are constitutionally permissible.

The decision has significant implications for future cases involving informational privacy, particularly in governmental employment contexts. It establishes a precedent that supports the expansion or maintenance of background check protocols without constituting a constitutional violation, as long as appropriate legal safeguards are in place.

Additionally, the concurring opinions signal a judicial reluctance to expand constitutional protections beyond explicitly enumerated rights, potentially limiting the scope of privacy rights in other contexts.

Complex Concepts Simplified

Informational Privacy

Informational Privacy refers to an individual's right to control information about themselves. In this case, it pertains to the data collected during employment background checks by NASA.

National Agency Check with Inquiries (NACI)

NACI is a standard background check process involving questionnaires like Standard Form 85 and reference checks through forms like Form 42. It assesses an individual's suitability for employment based on various personal and professional factors.

Privacy Act of 1974

The Privacy Act of 1974 governs the collection, maintenance, use, and dissemination of personal information by federal agencies. It ensures that personal data is only used for authorized purposes and is protected against public disclosure.

Substantive Due Process

Substantive Due Process is a principle allowing courts to protect certain fundamental rights from government interference, even if procedural protections are present. Justices Scalia and Thomas argued that this doctrine does not support a constitutional right to informational privacy.

Conclusion