Supreme Court: NASA's intrusive background checks OK
NASA scientists had challenged background checks that included questions about past drug use. The Supreme Court ruling sidesteps the issue of whether there is a right to informational privacy.
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Federal civil service employees have faced background checks since 1953. The checks were expanded to federal contractors in 2007.Skip to next paragraph
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JPL exists as a campus-like environment where basic scientific research is conducted, none of it classified. Many of the suing scientists had been working successfully at JPL for 20 years or more and objected to what they saw as a sudden unwarranted intrusion into their private lives.
Lawyers for the scientists argued that the Constitution prevents the government from requiring individuals to confess intimate details of their life unless the government can first demonstrate a legitimate state interest justifying the intrusion. Even then, the lawyers said, the intrusion must be narrowly tailored.
The high court disagreed. “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,” Alito wrote.
Some 74,000 contractors have undergone background checks in the past five years, according to the government. Of those, 128 were disqualified by adverse information uncovered during the investigations.
The high court’s decision included only eight justices because Justice Elena Kagan recused herself from the case because of her prior involvement in the issue as solicitor general.
Right 'does not exist'
Two justices, Antonin Scalia and Clarence Thomas, issued concurrences to Alito’s majority opinion. They said that while they agreed with the outcome of the case, they would have resolved the case by declaring that there is no federal constitutional right to informational privacy.
In his concurrence, Justice Scalia said he could find no reference to informational privacy in the Constitution.
“Like many other desirable things not included in the Constitution, ‘informational privacy’ seems like a good idea – wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information,” he wrote. “But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them.”
He added: “A federal constitutional right to ‘informational privacy’ does not exist.”
Scalia warned that the high court’s failure to directly address the constitutional issue will encourage future lawsuits. He called the decision “a generous gift to the plaintiff’s bar.”