January 20, 2011
SCOTUS on the Right to Informational Privacy for Government Contractors
The U.S. Supreme Court issued a unanimous verdict yesterday in NASA v. Nelson, a case in which some employees of government contractors challenged background checks that they were required to undergo in order to retain their positions. The plaintiffs, scientists and engineers at Jet Propulsion Laboratories, alleged that the new, expanded background checks violated their rights to informational privacy. Many of them had worked at the lab for decades and had never previously been subjected to such background checks. The forms asked employees to state whether or not they had used illegal drugs in the past year, provide details regarding that drug use and state whether they had sought counseling for such drug use. The form also required the employee to list all prior schools, employers and residences so that each of those entities could be sent a form on which they could note any positive or negative reflections on the employee's character. The Ninth Circuit found these aspects of the background check constitutionally problematic.
Justice Alito, writing for six Justices, assumed without deciding that a right to informational privacy exists but found that the background checks did not violate any such right. Justice Kagan, who had had a hand in designing the new background checks, did not participate in the case.
Justice Scalia wrote separately to scold his fellow Justices for being so obtuse as to even entertain the possibility that a right to informational privacy might exist. Justice Thomas joined Justice Scalia and also added his own two cents in which he pointed to prior opinions in which he had stated that no general right to privacy exists and that the Due Process Clause cannot be a wellspring of unenumerated rights. Justice Alito had assumed arguendo that a right to informational privacy exists only because the Supreme Court had referenced such a right in two prior cases. Moreover, Justice Alito pointed out in a footnote, as neither party to the case questioned the existence of a right to informational privacy, the issue had not been briefed and it would thus have been inappropriate for the Court to address it.
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