In the wake of an 8-0 setback by the United States Supreme Court last week, the JPL plaintiffs in the HSPD12 case said they would now wait to see what NASA does in response to the decision. In a communication released to the JPL staff today the employees said “The ball is now in NASA’s court. The Supreme Court has ruled that it is legal for NASA to conduct such background investigations but does not require them. NASA can still determine the nature and scope of the investigators’ questions and the methods to evaluate the results.”
While expressing disappointment at the setback, Lead Plaintiff in the case, Robert M. Nelson told colleagues last Friday that the Court’s decision was narrowly crafted so as to permit six of the eight justices to acknowledge that expectations of informational privacy have a constitutional basis, however the court did not apply these protections to federal contract employees. Two justices (Thomas and Scalia) ruled that no one has an expectation of informational privacy based in the constitution.
The ruling permits NASA, should it choose, to require JPL employees to ‘voluntarily’ authorize unknown government agents to probe into every intimate detail of an employee’s personal life without limit. If the employee declines to ‘volunteer’ they face termination from employment. The court also permitted the NASA investigators to assemble dossiers on the employees based on questioning of anyone who might have reason to know the employee including professional associates, landlords and ex-spouses. The Court ruled that the federal government could be trusted to keep such information secure and safe from misuse under terms of the Privacy Act.
The employees did cite a small gain, noting that the Department of Justice, in advancing the case to the Supreme Court had refused to defend NASA’s proposed method of evaluating an employee’s suitability once the background dossiers had been assembled. Nelson told his colleagues, “…in the last stage of the appeals process the Department of Justice announced that NASA was not using the evaluation criteria previously circulated to JPL employees, which included evaluations based on moral criteria such as ‘carnal knowledge’. We are told that NASA now has, or is developing, a new set of suitability factors that is similar but much more vague and nuanced in tone. (i.e. Carnal knowledge could be a factor in evaluation but it is not outrightly specified as it was before.)”
The JPL employees do not have security clearances and do not have access to classified material. Many federal agencies including the National Science Foundation and the Department of Energy do not require background investigations of employees who do not have access to classified information.
Nelson conjectured in his letter to colleagues that the Court’s decision was motivated by outside factors not related to the JPL employees-particularly future challenges to the Roe v Wade abortion rights decision and two other significant woman’s rights decisions. Roe is strongly based on an assumption of a right to privacy. He speculated to colleagues that, “… abortion rights supporters on the court and the within the DOJ did not want to jeopardize the three landmark women’s rights decisions in our case. So they developed a very clever scheme, which permitted them to get six judges to rule in favor of the notion of informational privacy (but not for JPL employees).
The JPL legal case evolves from a 2007 federal court hearing in which employees of NASA’s JPL sought injunctive relief against their employer, Caltech, and NASA in order to prevent intrusive personal background investigations. Caltech and NASA argued that these intrusions were required under Homeland Security Presidential Directive #12, an executive order signed by President George W. Bush. Most JPL employees (including all of the plaintiffs in the case) do no classified work.
Federal District Judge Otis Wright III dismissed the case on October 3, 2007. The employees appealed to the Ninth Circuit Court of Appeals, and an emergency temporary injunction was granted on October, 5 2007, just hours before JPL was to begin advertising for replacements for those employees who were deemed non-compliant.
A second panel of the Ninth Circuit Court heard arguments on this case on December 5. On January 11, 2008, the Ninth Circuit Court of Appeals found that “The Appellants have demonstrated serious questions as to certain of their claims on which they are likely to succeed on the merits, and the balance of hardships tips sharply in their favor. We therefore conclude that the district court abused its discretion in denying Appellants’ motion for a preliminary injunction, and we reverse and remand.” In addition, the Ninth Circuit Court reinstated Caltech as a defendant in the case stating, “The court found Caltech did do more [than merely follow government orders]—it established, on its own initiative, a policy that JPL employees who failed to obtain federal identification badges would not simply be denied access to JPL, they would be terminated entirely from Caltech’s employment.”
All court documents relevant to the case can be found at HSPD12JPL.org
January 25, 2011