Suppose you're working for NASA. Or, more to the point, suppose you've been contracting for NASA for decades as a civilian employee at the Jet Propulsion Laboratory in Pasadena, California, which is owned by NASA but run by CalTech. It's a pretty awesome job. As the Supreme Court notes today, "Most of this country’s unmanned space missions—from the Explorer 1 satellite in 1958 to the Mars Rovers of today—have been developed and run by JPL. JPL scientists contribute to NASA earth-observation and technology-development projects. Many JPL employees also engage in pure scientific research on topics like 'the star formation history of the universe' and 'the fundamental properties of quantum fluids.'"
Sounds like a neat job, and up until 2007 as a private contractor you didn't even need a background check to do it. The 9/11 Commission recommended, however, that this was probably a gap in our security, that private contractors doing parallel government work should have to face the same standard background check as federal employees who do so, and JPL told its employees they had until October 2007 to comply. Twenty-eight JPL scientists sued NASA, saying this violated their constitutional right to informational privacy, because they didn't want to have to answer questions like this:
The last question asks whether the employee has “used, possessed, supplied, or manufactured illegal drugs” in the last year. If the answer is yes, the employee must provide details, including information about “any treatment or counseling received.” A “truthful response,” the form notes, cannot be used as evidence against the employee in a criminal proceeding. The employee must certify that all responses on the form are true and must sign a release authorizing the Government to obtain personal information from schools, employers, and others during its investigation.
And, from there, whoever you listed as a reference or a former landlord gets something in the mail:
Form 42 is a two-page document that takes about five minutes to complete. It explains to the reference that “[y]our name has been provided by” a particular employee or applicant to help the Government determine that person’s “suitability for employment or a security clearance.” After several preliminary questions about the extent of the reference’s associations with the employee, the form asks if the reference has “any reason to question” the employee’s “honesty or trustworthiness.” It also asks if the reference knows of any “adverse information” concerning the employee’s “violations of the law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.” If “yes” is checked for any of these categories, the form calls for an explanation in the space below. That space is also available for providing “additional information” (“derogatory” or “favorable”) that may bear on “suitability for government employment or a security clearance.”
Because of the Privacy Act, the answers to these questions can't be released publicly (via FOIA or other means) without the employee's consent, and between that and the nature of NASA's requests the Supreme Court today agreed 8-0 that this inquiry didn't violate the employee's right to informational privacy -- if the right exists at all.
(Justice Kagan took no part in today's decision.)
In arguing this case for the Government, acting solicitor general Neal Katyal ultimately offered that, in fact, there was no such right:
Acting Solicitor General Neal K. Katyal, in fact, had barely started his argument when Justice Sonia Sotomayor asked whether there are any limits on what questions the government may ask — and wondered specifically if it could inquire into a person’s “genetic makeup” to see if he or she was prone to some dread disease, like cancer. She made it clear she was asking in the context of government questioning as an actual or potential employer.
Katyal tried energetically to avoid answering, saying this case did not require the Court to confront the breadth of such a right, but adding that there is no specific ruling by the Court imposing a definite limit on collection of private information so long as there were safeguards against making it public. ... Ultimately, though, Katyal did say that, if the Court had to confront the question of whether such a right does exist, “our answer would be no.”
And that "if it exists at all" part was the thing which divided the Court today, with Justice Alito writing for himself, the Chief Justice, and Justices Kennedy, Ginsburg, Breyer, and Sotomayor saying "let's just assume it does for right now, because there's some precedent," contra Justices Scalia and Thomas each writing separately to say "the right to what?" If you want to read some conservative-on-conservative judicial (rhetorical) violence, follow me where There's more ...
Justice Alito, for the majority, noted the precedent for finding such a right to exist:
This Court considered a similar claim in [Whalen v. Roe, 429 U.S. 589 (1977)], which concerned New York’s practice of collecting “the names and addresses of all persons” prescribed dangerous drugs with both “legitimate and illegitimate uses.” In discussing that claim, the Court said that “[t]he cases sometimes characterized as protecting ‘privacy’” actually involved “at least two different kinds of interests”: one, an “interest in avoiding disclosure of personal matters”; the other, an interest in “making certain kinds of important decisions” free from government interference....
Whalen acknowledged that the disclosure of “private information” to the State was an “unpleasant invasion of privacy,” but the Court pointed out that the New York statute contained “security provisions” that protected against “public disclosure” of patients’ information. This sort of “statutory or regulatory duty to avoid unwarranted disclosures” of “accumulated private data” was sufficient, in the Court’s view, to protect a privacy interest that “arguably ha[d] its roots in the Constitution.” The Court thus concluded that the statute did not violate “any right or liberty protected by the Fourteenth Amendment."
Four months later, the Court referred again to a constitutional “interest in avoiding disclosure.” Former President Nixon brought a challenge to the Presidential Recordings and Materials Preservation Act, a statute that required him to turn over his presidential papers and tape recordings for archival review and screening. In a section of the opinion entitled “Privacy,” the Court addressed a combination of claims that the review required by this Act violated the former President’s “Fourth and Fifth Amendmen[t]” rights. The Court rejected those challenges after concluding that the Act at issue, like the statute in Whalen , contained protections against “undue dissemination of private materials.” ... Citing Fourth Amendment precedent, the Court also stated that the public interest in preserving presidential papers outweighed any “legitimate expectation of privacy” that the former President may have enjoyed.
So, the Court explained, "[W]e will assume for present purposes that the Government’s challenged inquiries implicate a privacy interest of constitutional significance," but held that "whatever the scope of this interest, it does not prevent the Government from asking reasonable questions of the sort included on SF–85 and Form 42 in an employment background investigation that is subject to the Privacy Act’s safeguards against public disclosure." In part, Justice Alito explained:
The record shows that, as a “practical matter,” there are no “[r]elevant distinctions” between the duties performed by NASA’s civil-service workforce and its contractor workforce. The two classes of employees perform “functionally equivalent duties,” and the extent of employees’ “access to NASA … facilities” turns not on formal status but on the nature of “the jobs they perform.”
At JPL, in particular, the work that contract employees perform is critical to NASA’s mission. Respondents in this case include “the lead trouble-shooter for … th[e] $568 [million]” Kepler space observatory, 7 Record 396; the leader of the program that “tests … all new technology that NASA will use in space,” and one of the lead “trajectory designers for … the Galileo Project and the Apollo Moon landings." This is important work, and all of it is funded with a multibillion dollar investment from the American taxpayer. The Government has a strong interest in conducting basic background checks into the contract employees minding the store at JPL.
And as for the drugs, there was a good enough reason to ask:
The Government has good reason to ask employees about their recent illegal-drug use. Like any employer, the Government is entitled to have its projects staffed by reliable, law-abiding persons who will “ ‘efficiently and effectively’ ” discharge their duties. Questions about illegal-drug use are a useful way of figuring out which persons have these characteristics. See, e.g. , Breen & Matusitz, An Updated Examination of the Effects of Illegal Drug Use in the Workplace, 19 J. Human Behavior in the Social Environment, 434 (2009) (illicit drug use negatively correlated with workplace productivity).
In context, the follow-up question on “treatment or counseling” for recent illegal-drug use is also a reasonable, employment-related inquiry. The Government, recognizing that illegal-drug use is both a criminal and a medical issue, seeks to separate out those illegal-drug users who are taking steps to address and overcome their problems. The Government thus uses responses to the “treatment or counseling” question as a mitigating factor in determining whether to grant contract employees long-term access to federal facilities.
This is a reasonable, and indeed a humane, approach, and respondents do not dispute the legitimacy of the Government’s decision to use drug treatment as a mitigating factor in its contractor credentialing decisions.
The Court takes a similar approach with regards to the questions asked of references. As to all of this, Justices Scalia and Thomas concur only in the judgment, finding no reason for the Court to opine on the contours of a right that doesn't exist in the first place, which certainly doesn't prevent NASA from ensuring that "the Hubble Telescope is not used by recovering drug addict," and it's classic Nino Being Nino:
I agree with the Court, of course, that background checks of employees of government contractors do not offend the Constitution. But rather than reach this conclusion on the basis of the never-explained assumption that the Constitution requires courts to “balance” the Government’s interests in data collection against its contractor employees’ interest in privacy, I reach it on simpler grounds. Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information. But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to “informational privacy” does not exist.
Before addressing the constitutional issues, however, I must observe a remarkable and telling fact about this case, unique in my tenure on this Court: Respondents’ brief, in arguing that the Federal Government violated the Constitution, does not once identify which provision of the Constitution that might be. The Table of Authorities contains citations of cases from federal and state courts, federal and state statutes, Rules of Evidence from four states, two Executive Orders, a House Report, and even more exotic sources of law, such as two reports of the Government Accountability Office and an EEOC document concerning “Enforcement Guidance.” And yet it contains not a single citation of the sole document we are called upon to construe: the Constitution of the United States. The body of the brief includes a single, fleeting reference to the Due Process Clause, buried in a citation of the assuredly inapposite Lawrence v. Texas , 539 U. S. 558 (2003) , Brief for Respondents 42; but no further attempt is made to argue that NASA’s actions deprived respondents of liberty without due process of law. And this legal strategy was not limited to respondents’ filing in this Court; in the Ninth Circuit respondents asserted in a footnote that “courts have grounded the right to informational privacy in various provisions of the Constitution,” Brief for Appellants in No. 07–56424, p. 25, n. 18, but declined to identify which ones applied here.
To tell the truth, I found this approach refreshingly honest. One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution. Regrettably, this Lincolnesque honesty evaporated at oral argument, when counsel asserted, apparently for the first time in this litigation, that the right to informational privacy emerged from the Due Process Clause of the Fifth Amendment . Tr. of Oral Arg. 28–29. That counsel invoked the infinitely plastic concept of “substantive” due process does not make this constitutional theory any less invented.
This case is easily resolved on the simple ground that the Due Process Clause does not “guarante[e] certain (unspecified) liberties”; rather, it “merely guarantees certain procedures as a prerequisite to deprivation of liberty.”
You get the idea, but it's still worth reading in full because it demonstrates the real divide separating Justices Scalia and Thomas from the Chief Justice and Justice Alito. Justice Scalia snipes that "I fail to see the minimalist virtues in delivering a lengthy opinion analyzing that right while coyly noting that the right is 'assumed' rather than'“decided.' Thirty-three years have passed since the Court first suggested that the right may, or may not, exist. It is past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence," to which Justice Alito drops a lengthy footnote in response, using Scalia's past decisions against him:
There are sound reasons for eschewing the concurring opinions’ recommended course. “The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F. 2d 171, 177 (CADC 1983) (opinion for the court by Scalia, J.). In this case, petitioners did not ask us to hold that there is no constitutional right to informational privacy, and respondents and their amici thus understandably refrained from addressing that issue in detail. It is undesirable for us to decide a matter of this importance in a case in which we do not have the benefit of briefing by the parties and in which potential amici had little notice that the matter might be decided.... Justice Scalia provides no support for his claim that our approach in this case will “dramatically increase the number of lawsuits claiming violations of the right to informational privacy,” and will leave the lower courts at sea. We take the same approach here that the Court took more than three decades ago in Whalen and Nixon, and there is no evidence that those decisions have caused the sky to fall. We therefore decide the case before us and leave broader issues for another day.
Bottom line: is there a right to informational privacy? Maybe. That answer's going to have to come some other day.
SCOTUSblog has all the case documents.