Nelson v. NASA: All Your Information Are Belong to Us
On January 19, 2011, in Nelson v. NASA, the Supreme Court decided 8-0 in an opinion written by Samuel Alito that any government employee, even those who do not work with classified materials must submit to intrusive background checks. The case begun under Bush and argued before the Supreme Court under Obama revolves around Bush's Homeland Security Presidential Directive 12 (HSPB-12) issued August 27, 2004 which established “a mandatory, Government-wide standard for secure and reliable forms of identification issued by the Federal Government to its employees and contractors” for the purposes of “gaining physical access to Federally controlled facilities and logical access to Federally controlled information systems.” The standard used was drawn up by the Commerce Department. It required that government employees sign a release to allow former landlords and references to receive a Form 42. This form
asks if the reference has “any reason to question” the employee’s “honesty or trustworthiness.” Id., at 97. 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 the answer is yes to any of these open-ended questions, the reference is asked to provide details
A suit was brought by contract employees of the Jet Propulsion Laboratory (JPL) which is managed by CalTech for NASA. They were working at JPL before this new directive but were being forced to comply with it or be terminated. Alito wrote that the material was covered by the Privacy Act of 1974, that it was in line with private sector practices, that the government had wide latitude in how it managed its internal operations, and that it had no Constitutional responsibility to prove that its questions were necessary to the stated purpose.
We reject the argument that the Government, when it requests job-related personal information in an employment background check, has a constitutional burden to demonstrate that its questions are “necessary” or the least restrictive means of furthering its interests.
There is a fairly glaring contradiction here. Alito asserts that the Privacy Act is sufficient to safeguard employees' "informational" privacy, but what the Act actually says is that
Each agency that maintains a system of records shall--
(1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by Executive order of the President [5 U. S. C. §552a(e)(1)]
The requirement that Alito says isn't in the Constitution is in the statute, language which he himself cites in his opinion. So even if there is no Constitutional issue, Alito leaves unadressed the government's violation of its own law. This is not to say the Privacy Act is not without its problems. It has a very large loophole. Disclosure is allowed
to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought [5 U. S. C. §§552a(b)(7)]
Alito dismisses this as a concern, but it is really the heart of the matter. The government has a long history going back decades of violating legal restrictions on the kinds and amount of information it can collect on us, and what it does with it. Since 9/11, domestic surveillance has increased exponentially. Form 42 is just another avenue for this. The Court has not only blessed the government's unnecessary collection of data on its employees but through weaknesses in the Privacy Act and the government's record of abusing such weaknesses, it has effectively gutted the Act and paved the way for the information it was supposed to protect to be disseminated to various government databases.
This is not an overreaction. We saw something similar with National Security Letters, warrantless demands for information, where the FBI promised to monitor them assiduously and use them judicially. Individual NSLs became blanket NSLs. The FBI didn't follow its own procedures in who could issue them or for what. Nor did it keep track of how many were being issued until forced to do so. It turned out it was in the hundreds of thousands. Then too there is a whole plethora of projects involving domestic databases from fusion centers to the old JPEN TALON program to Main Core to TIA and many, many more. The telecoms abetted illegal warrantless government wiretapping for years. When this became known the Congress immunized them with the FISA Amendments Act. As I said above, the government has a history of abuse and illegal activity in this area. The Court in refusing to take this into consideration was not just being disingenuous but complicit.
Finally, Nelson v. NASA illustrates two important points about the current Court. It continues to turn a blind eye to excesses no matter how egregious when national security is invoked (just as long as its own turf is not infringed upon, think Hamdan and Boumediene). And as its appeal to the extremely invasive practices of the private sector shows, while it has 5 arch-conservative justices, it has 9 pro-business ones.