Is there a right to privacy?
A decision in a case on the Supreme Court's docket, nearly certainly to be heard and decided next year, will have long-lasting, profound ramifications for all Americans.
How then can it be constitutionally impermissible for the government to ask a subject’s friends, family and neighbors what they know about him? Surely there’s no constitutional right to have the state be the last to know.
So asks Chief Judge Kozinski of the 9th circuit federal appeals court, inviting the pro-executive contingent of the Supreme Court to overturn the pro-"subject" decision of his court's majority.
The case was prompted by a vast broadening of the scope and the universe of individuals subject to a McCarthy era investigation requirement. Following Bush's executive order, Homeland Security Presidential Directive #12,
"suitability" investigation for federal employment extended to contractors and subcontractors of federal agencies, and to everyone accessing government IT resources and federal facilities.
The criteria under which a contractor can be found unsuitable include “sodomy,” “carnal knowledge,” “abusive language,” “personality conflict,” “bad check,” “credit history,” “physical health issues,” and “mental, emotional, psychological or psychiatric issues”.
The Issue Characterization Chart, currently used by the government, indicates that “homosexuality, in and of itself, while not a suitability issue, may be a security issue and must be addressed completely, when indications are present of possible susceptibility to coercion or blackmail”. Ironically, "displaying obscene material" -- as judge Kozinski apparently has done, would disqualify him from a groundskeeper position at his courthouse.
OPM, the agency tasked with conducting the investigations, is continuously expanding their scope, now asking the IRS to come up with a way to access the subject's (and subject's joint filer's) detailed tax return information. The waiver authorizing the investigation is literally limitless.
28 employees of the California Institute of Technology, working on science and engineering programs with no national security implications at JPL, NASA's robotic space exploration center, have refused to sign away their privacy rights and be subjected to the intrusive investigations. They were threatened with termination as they would lose access to the laboratory and would be unable to do their jobs. I wrote about it in a DKos diary just before their first filing in the case that challenged the process.
In the past two years, the investigations at JPL have been on hold thanks to an injunction granted by the 9th circuit court of appeals. In the interim, NASA management has changed, and so did the country's leadership. Yet the crucial decision to take the case to Supreme Court was made not by a corrupt Bush DOJ yes-man. The latest filing is signed by U.S. Solicitor General Elena Kagan, after extensive consultations within the Obama executive branch. JPL employees have till December 2 to respond.
If the Supreme Court decides that privacy as a constitutional right does not exist, the government is free to impose the same kind of inquiry to nearly all citizens. A background investigation of this sort may become a prerequisite to boarding a plane, obtaining a passport, visiting a national park or to any other routine interaction with the federal government.
If you are a congressional staffer, please bring this up with your boss.
If you work for a federal agency, as a civil servant or as a contractor, please educate yourself about what signing the waiver in e-QIP SF 85 entails.
If you are in a position to do so, please consider writing an Amicus brief when the court takes the case.
If you are a citizen with no immediate connection to the federal government, and are concerned that you will be next, please write to your representative, to attorney general Holder, to president Obama and ask them to uphold and protect your rights.
After you have done so, please consider donating to the JPL 28's considerable legal expenses.
My response to judge Kozinski's rhetorical
How then can it be constitutionally impermissible for the government to ask a subject’s friends, family and neighbors what they know about him? Surely there’s no constitutional right to have the state be the last to know.
is
Can democracy survive in a society where the state is the first to know?
A lot more on the case can be found at http://hspd12jpl.org/ .
The best summary of the issues can be found in the appeals court injunction decision, now threatened by a Supreme Court review.
The timeline of the legal proceedings is at http://hspd12jpl.org/... .
Samples of letters to government officials, and other relevant documents, are at http://hspd12jpl.org/... .