Wednesday, January 19, 2011

Unanimous US Supreme Court: Constitutional Right to Informational Privacy Not Violated by NASA Background Check

4United States Supreme Court 112904 Much thanks to Ross Runkel over at Employment Law Memo for posting this quick summary of the NASA v. Nelson informational privacy case that was decided this morning.

Here is Ross' summary:

The US Supreme Court unanimously decided that NASA's standard background check, as applied to contract employees, does not violate a constitutional right to informational privacy.

Current employees of contractors working at NASA's Jet Propulsion Laboratory must complete a standard background check (which has long been used for prospective federal civil servants). The process includes a questionnaire asking whether the employee has "used, possessed, supplied, or manufactured illegal drugs" during the past year; if so, the employee must supply information about "treatment or counseling received." Employees must also sign a release allowing the Government to inquire of references about "any reason to question" the employee's "honesty or trustworthiness."

The Court held that the background checks are similar to those used in the public and private sectors for many years, and are reasonable in light of the Government interests at stake. The Court rejected arguments that the Government must show that the questions are "necessary" or are the least restrictive means of furthering its interests. Any information collected is protected from unwarranted disclosure by the Privacy Act.

What I found most interesting is that the language of the test is similar to that used in the recently decided Quon decision (involving the privacy right of a police officer in his employer-provided textting device) and further connects workplace privacy interests between the public and private sector.

Also, of much importance, the Court (in a majority opinion by Justice Alito) unanimously punted on whether there is a right to informational privacy in the constitution, a right that had not been given much play since Whalen v. Roe and Nixon in the late 1970s (Justices Scalia and Thomas both wrote separate concurring opinions disagreeing with the majority approach and would instead provided a definitive answer to the question of whether there is a constitutional right to informational privacy; that answer would be "no.") 

In any event, the Court "[a]ssum[ed], without deciding, that the Government’s challenged inquiries implicate[d] a privacy interest of constitutional significance," but did not address this important right in any more detail. The employees lost here even if there was such a right.  However, because the Court punted here like it did in Quon look for this constitutional right to be raised again when employers do not act in a reasonable manner in seeking to find out private information from prospective or current employees.


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