The U.S. Supreme Court has ruled on National Aeronautics and Space Administration v. Nelson, an informational privacy case that I’ve written about before. The case concerns a George W. Bush-era security policy on background investigations of all civilian employees at the Jet Propulsion Laboratory in La Cañada Flintridge, but the contractors raised privacy objections and said the questions were intrusive and unnecessary. The employees said less than 10% of their work involved classified data, and the people at JPL who worked on those projects were already required to undergo the government’s security clearance processes. The Ninth Circuit Court of Appeals found for the NASA workers, barring implementation of the Bush policy. The Supreme Court agreed to review the case; it heard oral arguments in October.
In an 8-0 decision (Justice Kagan did not participate), the Supreme Court overturned (pdf) the ruling of the Ninth Circuit. Justice Alito wrote the opinion, which said that the government had a history of “reasonable investigations of applicants and employees,” and federal contractors such as the JPL employees could be required to undergo the same screening as civil servants.
We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon. We hold, however, that the challenged portions of the Government’s background check do not violate this right in the present case. The Government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U. S. C. §552a, satisfy any “interest in avoiding disclosure” that may “arguably ha[ve] its roots in the Constitution.” Whalen, supra, at 599, 605. […]
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. So exacting a standard runs directly contrary to Whalen. […]
In light of the protection provided by the Privacy Act’s nondisclosure requirement, and because the challenged portions of the forms consist of reasonable inquiries in an employment background check, we conclude that the Government’s inquiries do not violate a constitutional right to informational privacy.