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Oral Argument in NASA v. Nelson, the Informational Privacy Case

by Professor Will Huhn on October 10, 2010

in Constitutional Law,Right to Privacy,Wilson Huhn

     Last Wednesday the Supreme Court heard oral arguments in NASA v. Nelson, in which employees of the Jet Propulsion Laboratory have challenged the authority of the government to ask certain questions in order to obtain clearance to work.  Soliciter General Neal Katyal represented the government, and attorney Dan Stormer represented the employees.  Here is a link to the transcript of the oral argument.  An analysis follows.

     A few years ago the government began to ask the employees of government contractors the same questions that it asks when it hires its own employees.  These questions are very broad-ranging.  The government asks, for example, whether the employee has engaged in the use of any illegal drugs, and whether the employee has sought treatment for drug or alcohol abuse.  The government also requires prospective employees to sign releases allowing the government to ask employers, landlords, and other references for "any adverse information" about the employee.  Employees of the Jet Propulsion Laboratory brought this lawsuit claiming that some of the questions are overbroad and that the government is prohibited from intruding into people's personal lives to this degree.  The employees claim that the Constitution extends a right of "informational privacy" to all individuals.

     The Ninth Circuit ruled that there is a right to "informational privacy," but it upheld almost all of the questions on the employment forms that the government used.  The Ninth Circuit struck down the government's employment forms in two respects: it ruled that the government may not ask employees whether they had sought treatment for alcohol or drug abuse, and it found that the government does not have the right, under the Constitution, to ask for "any adverse information" from informants.  According to Soliciter General Neal Katyal, the standard that the Ninth Circuit used to evaluate the constitutionality of the government's employment questions requesting private information was as follows:

"If the Government's actions compel disclosure of private information, it has the burden of showing that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet the legitimate interest."  (Page 55 of transcript of oral argument)

     The foregoing standard is a combination of "rational basis" and "intermediate scrutiny" tests.  The government need only have a "legitimate interest" not a "compelling" one to ask questions seeking private information, but the questions must be "narrowly tailored" to meet that interest.  The Ninth Circuit placed upon the government of proving that its questions were narrowly tailored to serve a legitimate state interest.

     This standard creates a practical problem that several justices raised in oral argument.  Do the courts have the time or the energy to flyspeck government employment forms for every conceivable invasion of privacy?  Does it make sense to require the government to prove that every question is job-related and necessary to assure safety, security, and efficiency?  Several of the Justices expressed this concern:

JUSTICE BREYER: …each such case would have to be justified. Is that — is that your theory? (32)

JUSTICE SCALIA:  But we can handle those details. My goodness, it's all right there in the Constitution. And we can decide what — what employees have to know what, and what questions you can ask them, and how much privacy is too much privacy, right?


JUSTICE SCALIA: It's a piece of cake.  (42)

     A related argument is whether there is a practical alternative to open-ended questions.  If the Court were to uphold the decision of the Ninth Circuit prohibiting "open-ended" questions, then the government would have to design specific questions to cover every eventuality that might bear on employability.  Justice Alito challenged Mr. Stormer on this point:

JUSTICE ALITO: I don't see what the alternative, as a practical matter, is to asking this sort of open-ended question. The — the alternative would seem to be to try to compile a list of every possible thing that the — the person might do that would raise serious questions about suitability for employment or would be disqualifying for employment. And that seems to be impractical.

There's almost no limit to the — the sorts of things that might be relevant in that respect; isn't that right?  (37-38)

Suppose the person who works at the — at the gift shop or the snack bar — I think that's what you mentioned — has a big sign on his front lawn that says, "I hope the space shuttle blows up."

Is that information the Government has a legitimate reason to get?

MR. STORMER: I would agree that — that in that instance, "I hope the space shuttle blows up," would certainly implicate some First Amendment issues, but the Government should know that information.

JUSTICE ALITO: And now, what's the alternative to acquiring that information through an open-ended question? You have to have a specific question on the form: Does this individual have a big sign on his front lawn that says —


JUSTICE ALITO: — "I hope the space shuttle blows up"?

MR. STORMER: I wouldn't think that that would be needed. I think that —

JUSTICE ALITO: Do you see what I am getting at? I don't see how you are going to do this, other than by asking an open-ended question.  (39-40)

     The straightforward solution to these practical concerns would be that there simply is no right to informational privacy.  Under the Constitution, the government is free to ask any question it wishes, no matter how intrusive, no matter how irrelevant, no matter how personal.  It is entirely up to Congress to decide what information the government may seek and what it does with that information.  This is the approach that Justice Scalia took in his line of questioning. 

JUSTICE SCALIA:  I think it's a very nice thing that the Government shouldn't ask intrusive questions. I also think it's a nice thing that the Government should pay a living wage to its employees, but I don't feel authorized to go around saying how much the Government should pay each of its employees because there is nothing in the Constitution about that, and the question is left to Congress.  (28)

     Soliciter General Katyal did not take this approach, however.  He conceded that there is a constitutional right to informational privacy.  He admitted that the government may not ask certain questions of prospective employees or the employees of government contractors.  Here are some of the questions the justices asked and the answers he gave – or avoided giving:

JUSTICE SOTOMAYOR: Could you ask somebody, what's your genetic make-up, because we don't want people with a gene that's predisposed to cancer, whatever other — could you ask that?

GENERAL KATYAL: Well, I think that the Court doesn't need to confront that fairly — (4)

JUSTICE ALITO: Is it — is it your argument that the Government can collect whatever information it wants from private individuals so long as the information is not publicly disseminated?

GENERAL KATYAL: No, that's not our position. Our position here is that the Government can collect information so long as it is not disseminated in the employment context. (10)

JUSTICE ALITO: What is the test — what is the test for determining what sort of questions can be asked in the employment context? Is there any limit?

Suppose the — suppose the Government says, well, we want to know all about your diet; we want to know whether you smoke cigarettes; we want to know everything you read; we want to know what your hobbies are, what forms of entertainment you enjoy, sexual practices, every aspect of your private life, just because that gives us a better picture of who you are as an employee. Is that okay?

GENERAL KATYAL: Sure. No, there are limits, and I should have said this earlier. If the Government's collection of information or the disclosure of the information burdens some other fundamental constitutional right, that is certainly one limit.

So if the Government were collecting information, Justice Alito, on sexual practices of its employees, it may burden the exercise of other rights. (13)

     These concessions by Soliciter General Katyal enormously complicate the work of the Court in this case.  Instead of just saying that there is no constitutional right and the rational basis test applies and that the questions are unconstitutional only in situations where the government does not have even a rational basis for requesting the information, the Soliciter General has agreed that the courts must accept the fact that a constitutional right to informational privacy exists, and that the courts must determine whether the government has placed adequate safeguards on the acquisition, distribution, and use of this information.

     That is a very significant concession.  General Katyal is essentially telling the Court that it is constitutional for the government to acquire this information because the Privacy Act prohibits the government from sharing this information with anyone else.  First of all, this is a weak argument because it makes a constitutional right turn upon the existence of a statute.  Second, the argument trusts the government to abide by and enforce the Privacy Act.  Both of those arguments amount to saying, "Trust us – we won't let the police or your employer or your ex-spouse learn about this!"  The Electronic Information Privacy Center filed an amicus brief in this case.  Its website discussing this case contends that federal law does not contain adequate safeguards protecting the confidentiality of information that the government acquires in these background checks:

EPIC has a particular interest in protecting individualsâ right to informational privacy. EPIC supports the right of individuals to keep confidential their personal health information. EPIC has filed several amicus briefs concerning the critical importance of limiting the collection and disclosure of sensitive medical data. This right is particularly important in light of the incomplete privacy protections provided by statute and the substantial risk of data breaches. EPIC argues in its brief that NASA may not compel rocket scientists to disclose personal health information as a condition of employment.

     These concerns will give the Court pause in deciding whether to allow the government to acquire this information in the first place.

     For his part, Mr. Stormer also made some significant concessions.  He argued, for instance, that the State of California has enacted laws protecting the privacy of employees from questions such as these, and that the Court should adopt these same rules as constitutional standards.  Justice Scalia responded by questioning whether, in light of such laws, it was necessary for the Court to establish constitutional standards:

JUSTICE SCALIA: Why do you say a private employer could not ask a question of such detail? Why could not —

MR. STORMER: Because, in virtually every State, there are laws requiring the disclosure of private information —

JUSTICE SCALIA: Well, you mean that legislatures take care of these matters? I find it curious that in order to establish a Federal constitutional right, which turns this area over to this Court, you invoke laws that have been democratically enacted by State legislatures. I mean, if indeed that's — that's the criterion, maybe you don't need us. (49-50)

     Justice Scalia's response proves too much.  Before Gideon v. Wainwright some states provided by statute that persons accused of crime must be represented by counsel, and must be provided an attorney if they could not afford one.  Many states had enacted laws desegregating the public schools before Brown v. Board of Education.  Before Lawrence v. Texas most states did not treat homosexuals as criminals.  The existence of statutes protecting certain rights if anything constitutes support for the proposition that the Constitution may protect the same right – it certainly is not evidence that there the Constitution does not protect individuals in that respect.

     It is disturbing to think that the government has the right to ask these questions and compile this information absolutely free from constitutional restraint.  It is even more disturbing to consider what the government might do with that information. 

     Instead of taking the position that the Constitution plays absolutely no role in this matter, Soliciter General Katyal urged the Court to issue a narrow ruling overruling the decision of the Ninth Circuit and upholding the constitutionality of the questions about treatment for drug abuse and asking for "any adverse information" from people who know the candidate, and to avoid a more general ruling attempting to describe the precise boundaries of the constitutional right to informational privacy.  More difficult questions – situations where the government is more intrusive on people's privacy, or where it fails to protect the confidentiality of the information it obtains – can be left for another day.  I predict that that is precisely what the Court will do.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. Visit his website for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.


trevor hevron December 6, 2010 at 2:11 pm

i think that some times the statment about NASA that is said is obsurd and very violent.

trevor hevron December 6, 2010 at 2:12 pm

and i'm gay

trevor hevron December 6, 2010 at 2:13 pm

ya gooodd

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