The US Supreme Court [official website; JURIST news archive] on Wednesday unanimously overturned [opinion, PDF] a lower court's ruling [JURIST report] in NASA v. Nelson [Cornell LII backgrounder; JURIST report] and upheld the background checks that NASA uses for employees of companies working under contract. In 2008 the Court of Appeals for the Ninth Circuit [official website] held that 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 and 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. NASA has been conducting background checks of employees since it was founded in 1958, but contract employees were only included after the agency revised its Security Program Procedural Requirements [official backgrounder] in 2006. Justice Samuel Alito, writing the opinion for the court, stated that the government has an interest in conducting basic employment background checks to ensure "the security of its facilities and in employing a competent, reliable work-force." Furthermore, the investigations were the same as the standard background checks given to civil servants, and both contract employees and civil servants preform "functionally equivalent duties." Due to the reasonableness of the inquiries and recently-enacted security provisions, the government did not have a constitutional burden to demonstrate that its questions are "necessary" or the least restrictive means of furthering its interests, and, therefore, did not violate a constitutional right to information privacy. Alito was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Antonin Scalia wrote an opinion concurring in the judgment, which was joined by Justice Clarence Thomas. Justice Thomas also filed his own opinion concurring in the judgment. Justice Elena Kagan did not participate in the decision.
The case arose in 2007 when NASA [official website] began requiring background checks for all contract employees, including low-risk employees at the Jet Propulsion Laboratory (JPL) [official website]. A group of 28 employees filed suit seeking an injunction, but their claims were rejected by the District Court. Counsel for NASA argued, "the background checks' mere collection of information with accompanying safeguards vitiates no constitutional privacy interest. These checks have been going on for millions of employees for dozens of years. They are part of the employment process. They are manifestly not roving checks on random individuals." Counsel for the respondents argued that the background checks violate their rights under the Fifth Amendment.