NASA v. Nelson

Background

NASA relies on two Supreme Court cases in arguing that the Constitution does not prohibit it from requiring that contract employees of JPL undergo NACI background checks. See Brief for Petitioners, NASA, et al. at 20–21. In the first case, Whalen v. Roe, which involved the government’s collection of information about prescription drug users, the Court differentiated between information gathered for government use and information shared with the public. See Whalen v. Roe, 429 U.S. 589 (1977). The second case, Nixon v. Administrator of General Services, involved the attempted review of President Nixon’s official papers and private matters as a means to archive the business-related papers. Nixon v. Adm’r of Gen. Servs, 433 U.S. 425 (1977). NASA interprets these two cases as standing for the Court’s allowance of mandatory reporting of private information, even where it affects constitutional rights. See Brief for Petitionersat 25. NASA argues that the courts, in considering the constitutionality of governmental information gathering, must consider the safeguards implemented to prevent disclosure and whether an individual has already shared the information with the public. See id.at 25–26.

On the other hand, Nelson contends that Whalen and Nixon stand for the proposition that individuals have the right to prevent public disclosure of private matters. See Brief for Respondents, Nelson, et al. at 16. Although the Supreme Court has not commented on the breadth of informational privacy, the circuit courts agree that the right applies to medical information. See id. at 17–18. Therefore, Nelson argues that cases involving medical information invoke heightened scrutiny and require courts to balance the interest of the individual in withholding the information against the interest of the government in obtaining the information. See id. at 18.

The Relevance of Form SF-85’s Drug Treatment Question

The Ninth Circuit held that it was acceptable for NASA to ask whether an individual has used illegal substances. See Brief for Petitionersat 39. But the court found that inquiries into whether an individual has sought treatment for the use of illegal drugs invoke a constitutionally protected right to informational privacy and that the government failed to justify its interest in obtaining such information. Seeid.Nelson agrees, stating that the right to informational privacy clearly protects medical treatment information. See Brief for Respondents at 20–21. Nelson claims that medical history in general is a private matter and that treatment information is especially sensitive because it applies a stigma to individuals, who may avoid counseling if they fear disclosure of the information. See id. at 21. Nelson warns that this concern is especially apparent in employment settings, where treatment disclosure may make it more difficult for an individual to find a job. See id. at 22.

NASA contends that the Ninth Circuit applied an overly broad definition of informational privacy by failing to first examine whether the asserted right was fundamental and thus entitled to constitutional protection. See Brief for Petitionersat 48–49. NASA contends that the courts have not previously recognized drug treatment as a core concern that invokes a right to informational privacy under the Due Process Clause, such as marriage or procreation. See id.at 39–40.

NASA argues that it has a legitimate interest in knowing whether an individual is dealing with continuing substance abuse because it may affect an individual’s ability to fulfill his or her work responsibilities. See Brief for Petitionersat 40. But Nelson argues that the government does not explain how this information helps determine employability. See Brief for Respondents at 26. Rather, Nelson claims that this concern is best addressed by asking simply whether the applicant is currently using drugs, an inquiry the Ninth Circuit has already found to be constitutional. See id.

The government also argues that knowledge of an applicant’s treatment history may prevent discrimination, because the Rehabilitation Act of 1973 states that past abusers who have undergone treatment may be considered disabled. See Brief for Petitionersat 43. Nelson argues that the government has not explained how this information prevents discrimination and that such inquiries seem to only increase the likelihood that an applicant will face discrimination by potential employers. See Brief for Respondents at 27. Additionally, Nelson argues that employers are not permitted to seek treatment information unless the employer has objective evidence that leads it to reasonably believe that the employee will be unable to perform at work or that the disability creates a direct threat. See id.

The Scope of Form 42

NASA disagrees with the Ninth Circuit’s finding that the use of Form 42 is unconstitutional on the grounds that it asks broad questions that are not tailored to the government’s informational needs. See Brief for Petitionersat 44. NASA claims that the questions confirm information already provided by the individual and seek only to verify and assess an individual’s assertions and character. See id.at 44–45. NASA argues that employers have a long tradition of using background checks to verify applications. See id.at 34–35. NASA contends that government checks like this one are especially important because JPL is a premier research facility, funded by American taxpayers and staffed entirely with contractors. See id.at 35–36. The government claims that it must acquire background information on such employees because the contractors have significant access to NASA facilities and are responsible for advanced and critical tasks. See id.at 36–37.

NASA argues that the explicit scope and rationale of these forms discounts Nelson’s contention that the government may collect information unrelated to employment capabilities. See id.at 32. Additionally, NASA points out that the Privacy Act prohibits the collection of information unrelated to employment, and only allows governmental agencies to collect information that is “necessary and relevant” to the government’s purpose. See id.at 45. NASA also claims that the fact that the applicant has already disclosed the information to others weakens any alleged privacy claims. See id. at 47.

Nelson contends that NASA seeks information beyond that which is necessary to determine employability. See Brief for Respondents at 29–30. NASA uses a suitability matrix to make employment decisions, and this matrix, according to Nelson, enables NASA to look into highly sensitive matters, including private sexual matters, and to gather information from any source, not just the applicants and listed references. See id. If NASA sincerely wished to ensure the narrow scope of its inquiries, Nelson claims that the government should be required to explicitly guarantee that it will not use the matrix. See id. at 33. Nelson argues that the broad scope of the inquiries is especially difficult to justify in this case because he is already a JPL employee. See id. at 34–35. Caltech already performed the standard background and reference checks prior to offering him a job. See id. at 52. Finally, Nelson contends that the fact that he previously disclosed certain information to others does not weaken his privacy claims. See id. at 53. On the contrary, claims Nelson, in Nixon, the Court held that informational privacy rights likewise apply to communications with third parties. See id. at 55.

Public Disclosure v. Internal Use

NASA contends that the privacy interest in withholding the information is weakened by the fact that the government intends to use the information for its own purposes, and not for public dissemination. See Brief for Petitionersat 48–49. Moreover, NASA claims that safeguards ensure that the government’s collection of information will not result in public disclosure. See id.at 50–51. First, NASA has explicitly stated that all the background information it gathers is protected by the Privacy Act. See id.at 27. The Act allows federal agencies to collect only necessary information and prohibits disclosure of this information to anyone outside of the agency without consent or a statutory exception. See id.at 28. If privacy is breached, individuals are afforded civil remedies and agency employees may be held criminally liable. See id. Moreover, the Commerce Department and the Office of Management and Budget provide additional protections, including technological standards, oversight positions, and sanctions against violators. See id.at 29–30.

Nelson contends that the protections provided by Whalen and Nixon apply to the government’s collection of private information, and are not limited to material intended for public dissemination. See Brief for Respondents at 36. Nelson claims that lack of public dissemination does not eliminate an individual’s privacy interest, but simply provides another factor to consider when balancing the interests of the government and the individual. See id. at 38.Additionally, Nelson contends that the Privacy Act does not provide sufficient safeguards because it includes exceptions whereby employers may release information in any way that is related to the original reasons for collection.See id. at 43. Additionally, NASA can provide the information to any potential source from whom it seeks background information. See id. at 44. Nelson argues that while the Act may allow damages for improper disclosure, it provides no mechanism whereby an individual may petition the government to keep the information private. See id.