On October 5, 2010, the U.S. Supreme Court will hear oral arguments in a very interesting case concerning the right – or, more likely, the lack thereof – of federal contractors to informational privacy. The U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, granted a preliminary injunction against a new NASA requirement, starting in 2007, that employees at California Institute of Technology’s Jet Propulsion Laboratory, complete questionnaires for a NACI review of their suitability to have long-term access to federal facilities. NASA has a contract with Caltech and owns the JPL, but the people who work there are employees of Caltech, not NASA. The NACI questionnaire is part of a process whereby the government reviews employee-submitted information and solicits information about the employee from former landlords, employers, neighbors and other references. JPL employees were told that their continued access to the JPL facility required them to complete the NACI questionnaire, and that a failure to complete it would constitute a resignation. The employees, many of whom are scientists who have worked at JPL for decades, asked how exactly NASA would use the information gathered in the NACI process to assess their “suitability.” NASA management responded by posting on its website a “suitability matrix” which listed various factors which would be used to determine suitability. The factors which NASA said it would treat as suitability criteria included:
carnal knowledge, sodomy, indecent exposure, voyeurism, obscene telephone calls, indecent proposals, incest, bestiality, homosexuality, cohabitation, adultery, illegitimate children, and mental, emotional, psychological, or psychiatric issues.
Yikes! Should being gay really affect your access to the building where your job is located? How about having children out of wedlock? Or shacking up before you get married? Or seeking mental health care for depression or other common psychiatric conditions?
A group of 28 JPL employees sued, arguing that requiring them to complete the NACI questionnaire violated their right to informational privacy – the right not to have to disclose certain private information (about medical treatment or sexual relationships) to the government. The district court denied their request for an injunction to protect them from having to complete the questionnaires until the case was resolved, but on appeal the Ninth Circuit reversed and granted an injunction. Thus, so far JPL employees have been able to avoid submitting NACI questionnaires while their case proceeds to trial.
Injunctions are not granted lightly. In this case the Court did so after finding that the employees “had raised serious questions as to the merits of their informational privacy claim and the balance of hardships tips sharply in their favor” – after all, if the suitability reviews were not stayed, JPL employees would face the unpalatable choice of either filling out the mandatory questionnaires and thereby probably having their constitutional rights violated, or losing their jobs. Oh, and unlike federal employees, the JPL employees who are determined to be “unsuitable” would not have any due process rights to be told why they were found unsuitable or an opportunity to respond to unfavorable determinations.
The question presented to the Supreme Court is whether two parts of the NACI process:
(1) a requirement to disclose any recent treatment or counseling for illegal drug use, and
(2) a questionnaire which is sent to pretty much everyone you’ve ever known which asks them to provide any adverse information which should be considered as part of the suitability review process,
violate the right to avoid disclosing certain private information to the government.
Based on the briefs, the Solicitor General will be arguing that the government, like any other employer, has the right to conduct background checks. The government will also argue that it is not eliciting private sexual information and is only seeking standard background check information, i.e., verifying residences, educational claims, and former employment. However, the JPL employees point out that they already passed standard-issue background checks when they were hired by Caltech, and that the NACI process goes far beyond verifying their identities and work histories: it collects information for a review of their “suitability.” Complicating the government’s claim that it is not concerned with private sexual information, there is that rather disturbing “matrix” which NASA itself provided when asked how the NACI information would be used. The matrix suggests that the agency is very interested in the JPL employees’ sexual practices, sexual orientations, and intimate relationships, and that it intends to make employment decisions based on that information.
Information about psychotherapy and consensual sexual relationships is about as “private” as it gets. Is there a legitimate government interest in delving into these areas when deciding whether long-time JPL employees will continue to be given access to their own offices in a federal facility? Should the fact that some JPL employees are working on super-cool space and robotics projects make a difference? Only time and the Supremes will tell.