NASA v. Nelson
The Supreme Court ruled that the government did not violate an employee’s privacy rights when it performed intrusive background checks in its role as an employer. Justice Alito's majority opinion found that whatever the scope of the constitutional right to personal privacy, it did not prevent the government from investigating employees. Acting as an employer, the government had a legitimate interest in asking open-ended questions regarding past criminal history, drug use and other sensitive issues. Additionally, the Privacy Act provided sufficient protection from public disclosure of this private information. The Court stated that the fear of a data breach or other unintentional public disclosure of private information was not, by itself, proper grounds for challenging government collection of that information. Justice Scalia concurred in the judgment, arguing that the case could be easily decided because a "federal constitutional right to 'informational privacy' does not exist."
- Supreme Court Affirms Right to Informational Privacy, But Says Privacy Act Safeguards Sufficient for NASA Records: The Supreme Court has issued a decision in NASA v. Nelson, a case brought by NASA scientists who argued that the government's invasive background checks violated the Constitution. The Supreme Court found that the inquiries implicate "a privacy interest of Constitutional significance" but that the requests were reasonable and that the information would be protected under the Privacy Act. Writing in concurrence, Justice Scalia said the Court's opinion "will dramatically increase the number of lawsuits claiming violations of the right to informational privacy." EPIC authored a amicus brief, cosigned by 27 technical experts and legal scholars, which highlighted problems with the Privacy Act, including the "routine use" exception, security breaches, and the agency's authority to carve out its own exceptions. For more information, see EPIC: NASA v. Nelson and EPIC: Workplace Privacy. (Jan. 19, 2011)
- Supreme Court to Hear Arguments in NASA Privacy Case: On October 5, 2010 the Supreme Court will hear arguments in a case that will determine whether public contract employees have a right to limit the government's collection of their personal information. The case, NASA v. Nelson, was brought by a NASA scientist who argued that the Constitution grants a right to privacy from invasive government background checks. NASA claims that the Privacy Act provides sufficient legal protections. EPIC authored a "friend of the court" brief in the case, cosigned by 27 technical experts and legal scholars. EPIC's brief highlights exceptions in the Privacy Act, claimed by the federal agency, that place the scientists' personal information at risk. For more information, see EPIC: NASA v. Nelson and EPIC: Workplace Privacy. (Oct. 4, 2010)
- EPIC Urges Supreme Court to Protect NASA Scientists' Privacy: EPIC filed a "friend of the court" brief in the United States Supreme Court, urging the Justices to protect the privacy of scientists working at NASA's Jet Propulsion Laboratory. Twenty-seven legal and technical experts signed the brief. In NASA v. Nelson, the Court has been asked to determine whether the scientists' right to "informational privacy" prohibits NASA from collecting information concerning the individuals' medical records as a condition of employment. The agency admits that the scientists perform unclassified, non-sensitive work. EPIC's brief argues that compelled disclosure would risk exposing sensitive, personal health information that is insufficiently protected by NASA. For more information, see EPIC NASA v. Nelson. (Aug. 9, 2010)
(1) Whether the government violates a federal contract employee's constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee's response is used only for employment purposes and is protected under the Privacy Act.
(2) Whether the government violates a federal contract employee's constitutional right to informational privacy when it asks the employee's designated references for any adverse information that may have a bearing on the employee's suitability for employment at a federal facility, the reference's response is used only for employment purposes, and the information obtained is protected under the Privacy Act.
The issue presented in Nelson is whether federal contract employees have a constitutional right to keep some personal information private when undergoing a background check. Contract employees (Appellants), including scientists, engineers and administrative support personnel, at the Jet Propulsion Laboratory (JPL) filed suit against the National Aeronautics and Space Administration (NASA), the California Institute of Technology (Caltech) and the Department of Commerce on August 30, 2007, alleging that NASA's new requirement that such employees submit to in-depth background investigations violates the Administrative Procedure Act, their constitutional right to informational privacy and the Fourth Amendment. The Appellants are employed by Caltech, and are not government employees. Rather, they are "low risk" contract employees that do not work with classified material. Caltech operates the JPL pursuant to a contract with NASA.
NASA's new policy requires every JPL employee to submit to a National Agency Check with Inquiries (NACI), which is the same background investigation required of government civil service employees. Such an investigation mandates the applicant to complete a form that asks for (1) background information, including residential, educational, employment and military histories, (2) the names of three references that "know you well," and (3) disclosure of any illegal drug use within the past year, along with any treatment or counseling received for such use. All of this information is then checked against four government databases. Lastly, an applicant is required to sign an authorization for allowing the government to collect further information, including soliciting "any adverse information" about the applicant from the applicant's references, employers and landlords. Such information may include "violations of law," "financial integrity," "abuse of alcohol and/or drugs," "mental or emotional stability," "general behavior or conduct," or "other matters."
Since 1958, NASA has conducted NACI investigations of its civil servant employees, but not of its contract employees. However, in 2000, NASA decided that not requiring NACI investigations of its contract employees posed a security risk. Such requirements became applicable to JPL employees on January 29, 2007. Caltech initially opposed the change, but was forced to comply based on its contract with NASA. On its own accord, Caltech made it a policy that all employees who did not pass the NACI requirements would no longer be employed.
In Whalen v. Roe, the Supreme Court recognized the right to informational privacy as, "the individual interest in avoiding disclosure of personal matters." 429 U.S. 589, 599, 97 S. Ct. 869, 876 (1977). This right was later cited in Nixon v. Administrator of General Services, finding that government officials, including the President, do not wholly give up their constitutional privacy rights in matters of personal life unrelated to acts done in their public capacity. 433 U.S. 425, 457, 97 S. Ct. 2777, 2797 (1977).
The Appellants moved for a preliminary injunction on September 24, 2007, seeking to avoid termination for not complying with NASA's requirements by October 5, 2007. The district court denied the motion, finding statutory support for the background investigations in the Space Act of 1958. This Act allows NASA to establish security requirements as deemed "necessary in the interest of national security." The court further found that NASA's form was narrowly tailored to further the government's legitimate security interest. Lastly, the court did not find that the investigation was a "search" under the Fourth Amendment.
In response, the Appellants filed an emergency motion to stay the district judge's order, and on appeal a motions panel granted a temporary injunction. The motions panel found that the information sought in the investigations raised serious privacy issues and it was questionable as to whether the forms were narrowly tailored to meet a legitimate government interest. Upon review by the merits panel, the Ninth Circuit agreed with the motions panel's findings. The court stated that because the Appellants were not "sensitive" employees, but "low-risk" employees, the district court interpreted the Space Act's reach improperly. Additionally, the court found that the questions on NASA's form implicated informational privacy rights because the questions were "open-ended," and "designed to elicit a wide range of adverse, private information that 'is not generally disclosed by individuals to the public.'" 512 F.3d 1134, 1145. However, the court did agree that the government's actions in this instance were not "searches" within the meaning of the Fourth Amendment.
Shortly after this opinion was handed down, the Ninth Circuit vacated its opinion and filed a superseding one. In this opinion the court backtracked finding for the Appellants in their APA claim, and conceded that the Space Act grants NASA the authority to require the investigations at issue. However, the court kept the appellants' informational privacy claims alive, stating that both questions asking about treatment and counseling received for drug treatment in the questionnaire and the written inquiries submitted to third parties "require the disclosure of information and each presents a ripe controversy." 530 F.3d 865, 878.
On June 4, 2009, the Ninth Circuit denied a request for rehearing en banc, and the appellees petitioned for a writ of certiorari, which was granted on March 8, 2010. The petition asked the Supreme Court to further define what is included in the right to informational privacy. The petition also asked specifically whether an employee has an expectation of privacy in questions relating to counseling and treatment for illegal drug use or adverse information that may come from references.
The case was argued on October 5, 2010. The Supreme Court issued its decision on January 19, 2011, reversing the Ninth Circuit and remanding to the lower court.
EPIC has a particular interest in protecting individuals’ 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 argued in its brief that NASA may not compel rocket scientists to disclose personal health information as a condition of employment.
The Ninth Circuit’s determination in the present case protected the informational privacy of scientists working at the Jet Propulsion Laboratory. Now that the Court has overruled the Ninth Circuit, government scientists must disclose sensitive, personal information that is insufficiently protected by the Privacy Act and at substantial risk of disclosure.
- Supreme Court Opinion (PDF)
- Audio Recording of Oral Argument (MP3)
- Transcript of Oral Argument (PDF)
- "Friend of the Court" Brief for EPIC (PDF)
- Brief for Petitioner (PDF)
- Brief for Respondents (PDF)
- Reply Brief for Petitioner (PDF)
- NASA v. Nelson Docket
- Grant of Certiorari (PDF)
- Questions Presented (PDF)
Certiorari-Stage Documents (PDFs)
Ninth Circuit Court of Appeals
- Opinion Below (Denial for Panel Rehearing and Rehearing en Banc)
- Superseding Opinion
- Initial Opinion
- Order Granting Injunction Pending Appeal
Supreme Court Precedent
- Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869 (1977)
- Nixon v. Administrator of General Services, 433 U.S. 425, 97 S. Ct. 2777 (1977)
Circuit Court Opinions on Informational Privacy
- Borucki v. Ryan, 827 F.2d 836 (1st Cir. 1987)
- Barry v. City of New York, 712 F.2d 1554 (2d Cir. 1983)
- United States v. Westinghouse, 638 F.2d 570 (3d Cir. 1980)
- Greenville Women’s Clinic v. Comm’r, S. C. Dep’t of Health & Env’t Control, 317 F.3d 357 (4th Cir. 2002)
- Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978)
- J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981); Lambert v. Hartman, 517 F.3d 433 (6th Cir. 2008)
- Denius v. Dunlap, 209 F.3d 944 (7th Cir. 2000)
- Tucson Woman’s Clinic v. Eden, 379 F.3d 531 (9th Cir. 2004)
- Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986)
- Tavoulareas v. Washington Post, Co., 724 F.2d 1010 (U.S. App. D.C. 1984)
Law Review Articles and Books on Informational Privacy
- Protecting Privacy in Surveillance Societies (1998), David H. Flaherty
- At-Home Spying: Privacy Wanes as Technology Gains; Surveillance may be legal, but is that the only standard?, Gary T. Marx, Commentary, Los Angeles Times, May 28, 2002
- Privacy in Context: Technology, Policy, and the Integrity of Social Life Helen Nissenbaum (2010)
- Cyberspace Privacy: A Primer and Proposal, Jerry Kang, 26 Hum. Rts. 3 (1999)
- Informational Privacy in Cyberspace Transactions, Jerry Kang, 50 STAN. L. REV. 1193 (1998)
- Examined Lives: Informational Privacy and the Subject as Object, Julie E. Cohen, 52 Stanford Law Review 1373 (2000)
- Privacy As Intellectual Property, Pamela Samuelson, 52 Stanford Law Review 1125 (2000)
- The Big Picture, Peter G. Neumann, Communications of the ACM, Sept. 2004
- Our Vanishing Privacy and What You Can Do To Protect Yours, Robert Ellis Smith (1993)
- Privacy on the Line: The Politics of Wiretapping and Encryption, Whitfield Diffie & Susan Landau (1998)
- Law Memo: NASA v. Nelson
- SCOTUSblog: NASA v. Nelson
- SCOTUSWiki: NASA v. Nelson
- Electronic Frontier Foundation: NASA v. Nelson
- Court: Feds can pry into NASA scientists' lives, Bob Egelko, San Francisco Chronicle, Jan. 21, 2011.
- Supreme Court rules NASA background checks don't violate privacy rights, Scott Gold and David G. Savage, LA Times, Jan. 20, 2011.
- Supreme Court upholds NASA employee background checks, James Vicini, Reuters, Jan. 19, 2011.
- High Court Upholds NASA's Broad Background Checks< Nina Totenberg, NPR, Jan. 19, 2011.
- Supreme Court: NASA Can Impose Background Checks on Contractors, Chloe Albanesius, PC World, Jan. 19, 2011.
- Legal Issues Loom for Security Clearances As Supreme Court Considers NASA v. Nelson (PDF), Philip Carter, BNA, Inc., Nov. 9, 2010
- Supreme Court Hears Arguments on Background Checks, Adam Liptak, New York Times, Oct. 5, 2010.
- High Court Accepts Background-Check Case, Mark Walsh, Education Week, Mar. 17, 2010..
- Informational Privacy on Trial at Supreme Court, Chloe Albanesius, PC Magazine, Mar. 10, 2010.
- High court to rule on federal background probes, Bob Egelko, San Francisco Chronicle, Mar. 9, 2010.
- Court will decide if NASA checks can continue, Jesse J. Holland, Associated Press, Mar. 8, 2010.
- Supreme Court to decide if JPL background checks can continue, Emma Gallegos, Pasadena Star News, Mar. 8, 2010.
- NASA v. Nelson, Daniel Solove, Concurring Opinions, Jan. 20, 2011.
- NASA wins right to investigate scientists, Eugenie Samuel Reich, Nature: The Great Beyond, Jan. 20, 2011.
- NASA Scientists Lose Supreme Court Case on Background Checks, Eli Kintisch, AAAS Science Insider, Jan. 20, 2011.
- Court says NASA background checks can continueAssociate Press, The Daily Caller, Jan. 20, 2011.
- Feds Can Check Contract Workers, High Court SaysCourthouse News Service, Jan. 20, 2011.
- Supreme Court rules federal contract workers must submit to background checksRobert Barnes, The Washington Post: Federal Eye, Jan. 20, 2011.
- Supreme Court Upholds Intrusive Government Background Checks, David Kravets, Wired: Threat Level, Jan. 19, 2011.
- NASA Employees Have No Constitutional Right to Avoid Certain Background Checks, Eugene Volokh, The Volokh Conspiracy, Jan. 19, 2011.
- Is There a Right of Informational Privacy? Supreme Court Avoids the Issue in NASA Opinion, PogoWasRight, Jan. 19, 2011.
- Oral Argument in NASA v. Nelson, the Informational Privacy Case, Will Huhn, Akron Law Cafe, Oct. 10, 2010.
- Supreme Court hears privacy arguments in NASA v. Nelson, Sara Jerome, The Hill: Hillicon Valley, Oct. 7, 2010.
- NASA v. Nelson and Public Employee Informational Privacy, Paul M. Secunda, Marquette University Law School Faculty Blog, Oct. 6, 2010.
- How Nosy Can Feds Be? High Court Hears Privacy-Contractor Case, Jack Moore, Executive Gov, Oct. 6, 2010.
- Some Justices Unmoved by Objections to Fed's Job Screening, Tony Mauro, Oct. 6, 2010.
- NASA v. Nelson Oral Argument Aftermath - What Should the Majority Opinion Look Like?, Lior Strahilevitz, University of Chicago Law School Faculty Blog, Oct. 6, 2010.
- NASA v. Nelson Oral Argument Aftermath - What Will Justice Scalia Do?, Lior Strahilevitz, PrawfsBlawg, Oct. 6, 2010.
- The Pragmatics of Informational Privacy, Mike Sacks, First One @ One First, Oct. 5, 2010.
- Argument recap: Caution on privacy, Lyle Denniston, SCOTUSblog, Oct. 5, 2010
- Argument Preview: Personal Privacy, Lyle Denniston, SCOTUSblog, Oct. 1, 2010.
- The Centenarian Who Wasn’t, NASA v. Nelson, and the Constitutional Right to Information Privacy, Lior Strahilevitz, University of Chicago Law School Faculty Blog, Sep. 23, 2010.
- Supreme Court Takes Case on Background Checks, Lisa Guerin, Nolo's Employment Law Blog, Mar. 16, 2010.
- Supreme Court to Decide Constitutionality of Certain Background Check Questions for Federal Contractors, Ilyse Schuman, Littler Washington D.C. Employment Law Update, Mar. 9, 2010.
- NASA v. Nelson: Is there a Constitutional Right to Information Privacy?, Daniel Solove, Concurring Opinions, Mar. 9, 2010.
- NASA v. Nelson: The Merits of the Case, Daniel Solove, Concurring Opinions, Mar. 9, 2010.
- Supreme Court Takes ‘Informational Privacy’ Case, David Kravets, Wired.com, Mar. 9, 2010.
- New Supreme Court Case on the Constitutional Right to Informational Privacy, Eugene Volokh, The Volokh Conspiracy, Mar. 8, 2010.
EPIC relies on support from individual donors to pursue our work.
Subscribe to the EPIC Alert
The EPIC Alert is a by-monthly newsletter highlighting emerging privacy issues.