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Supreme Court weighs need for background checks for NASA scientists

Top scientists at a NASA lab say government background checks aren't necessary and violate their right to privacy. At a Supreme Court hearing Tuesday, justices questioned their position.

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Mr. Katyal said the government could meet that standard, if required, but that it would cause significant problems. “This is a roadmap for anyone to come in and say, ‘This question isn’t suitable for me,’ “ Katyal said.

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He added that such protests would create a “practical burden for the government.”

In the past five years, Katyal said, 74,000 contractors have undergone background investigations. He said adverse information obtained in the investigative process disqualified 128 of them. None was disqualified for revealing he or she had engaged in drug treatment, he said. In each case, the information remained private between the individual and the government, he said.

Stormer said applying the background checks to scientists at JPL is overkill. He said it was a badge procedure for low-risk employees in a campus-like atmosphere.

“Does Al Qaeda know this,” Justice Antonin Scalia quipped.

“It wouldn’t matter,” Stormer replied. The researchers are engaged in open source, nonsensitive science.

Katyal disputed this. He said the research at JPL is scientifically sensitive and that a JPL badge could gain its holder access to every NASA facility, including a position six to 10 feet from the space shuttle prior to launch.

In the most significant attack on Stormer’s position, Justice Scalia questioned the existence of a constitutional right to informational privacy. “I just don’t see it anywhere in the Constitution,” he said.

Stormer answered that it resided in the Fifth Amendment’s protection of life, liberty, and property. “It is the liberty to control information about one’s self without governmental intrusion,” he said.

The session included some questions friendly to Stormer’s position. Justice Sonia Sotomayor asked whether the government was free to ask anything it wanted in a background investigation. For example, could investigators seek to determine an individual’s genetic makeup to try to prevent hiring employees who might be more likely to be diagnosed with cancer? she asked.

Justice Samuel Alito asked if the government could collect information about someone’s diet, smoking habit, reading materials, hobbies, and sexual practices.

Chief Justice John Roberts asked whether citizens retain any right to tell the government in response to an inquiry that “It is none of your business.”

Katyal said the government is free to collect intimate personal information when it is acting as an employer or proprietor so long as the intimate information is not disclosed. “The government is simply mirroring what private employers do,” he said.

Scalia suggested that Congress could place limits on government background investigations if the investigations became too intrusive.

The acting solicitor general said the federal Privacy Act prevents the unauthorized disclosure of intimate personal information by the federal government.

Only eight of the nine justices participated in the oral argument session. The court’s newest justice, Elena Kagan, agreed not to participate in the case because she had worked on it during her recent tenure as solicitor general.

A decision in the case, NASA v. Nelson, is expected later in the term.

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