The Ninth Circuit Court of Appeals issued a decision on Friday in the Nelson v. NASA case. The case is an interesting one, pitting individual rights of informational privacy versus national security.
In the case, NASA had issued a new mandate requiring "low risk" employees and contractors who worked at their Jet Propulsion Lab in Pasadena, California to submit to extensive and invasive background checks, including giving NASA permission to collect any information relating to their activities from:
- Schools
- Residential management agents
- Employers
- Criminal justice agencies
- Retail business establishments, or
- "other sources of information."
The records and information sought may include, but is not limited to:
[the applicant’s] academic, residential, achievement, performance, attendance, disciplinary, employment history, and criminal history record information.
In addition, NASA told personnel that they would also send a form inquiring as to:
"any reason to question [the applicant’s] honesty or trustworthiness” or has “any adverse information about [the applicant’s] employment, residence, or activities” concerning “violations of law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.”
Personnel were then given the opportunity to explain any of this "adverse information." Refusal to give NASA permission to collect this information resulted in termination of employment or one's contract. A number of employees and contractors then sued NASA and Cal Tech (where JPL is located), claiming the new requirements were unlawful and moved for a preliminary injunction against their enforcement. The district court denied the injunction and an appeal ensued.
After dealing with some procedural issues, the Ninth Circuit quickly recognized that every citizen has a constitutional right under the Fifth Amendment to "informational privacy" -- the right to avoid disclosure of "personal matters", including sexual activity, medical information, and financial information. Thus, the government would need to show that it had a legitimate state interest in requesting the information and that the requests were narrowly tailored to that purpose in order to have the court uphold them.
In reviewing the forms at issue, the court held that the sweeping and overbroad nature of the information requested, without any narrowing to the specific purpose of the investigation (national security risks), was unconstitutional. The court also went on to consider whether the inquiries were also a violation of the Fourth Amendment's prohibition against searches and decided that they weren't, since all of the information had been given to third-parties and thus was no longer subject to a reasonable expectation of privacy by the personnel under the Supreme Court's holding in United States v. Miller.