The Supreme Court of the United States has scheduled October 5, 2010 to hear argument on the matter of open-ended background investigations of federal contractors arising from Homeland Security Presidential Directive #12 (Nelson et al. vs NASA, No. 09-530). The High Court will review an injunction issued by the Ninth Circuit Court of Appeals that blocked unconstrained investigations into the intimate details of the personal lives of employees at NASA’s Jet Propulsion Laboratory in Pasadena, California. The employees do not have security clearances and do not access classified material. The Ninth Circuit Injunction, issued unanimously by a three Judge panel in January 2008, found that the investigations were not narrowly tailored to meet specific needs. The injunction was upheld by the entire set of judges of the Ninth Circuit upon en banc review in June 2009.
A matter of considerable interest to the judges in this case pertained to the demand by Caltech, which manages the JPL employees under contract with NASA, that every JPL employee “voluntarily” agree to submit to an open ended background investigation, conducted by unknown investigators, in order to receive an identification badge that was compliant with HSPD#12. The government argued that there were no limits to the extent of the investigation. Furthermore, any adverse finding of the investigators could not be appealed to the courts. If an employee refused to “volunteer”, Caltech would terminate the employee.
In addition to briefs filed by the Justice Department and the attorneys for the JPL employees, eight amicus curiae (friend of the Court briefs) have been filed with the Supreme Court by numerous groups with various interests in the case.
Briefs Supporting the JPL Employee’s Privacy Rights
Seven separate amicus curiae briefs have been submitted in support of the JPL employees. The American Astronomical Society and the Union of Concerned Scientists discussed in separate briefs the limiting effect these investigations would have on free, unfettered, open scientific research. The American Civil Liberties Union emphasized the more general impact on civil rights of all citizens. The Electronic Privacy Information Center and the Electronic Frontier Foundation discussed the nature of uncontrolled background investigations in an age of widespread government surveillance of all communications between individual citizens. The Drug Policy Alliance noted the deterring effect these investigations would have on those who have received or might need to receive drug therapy. The California Employment Lawyers Association raised questions pertaining to employment law and developed the legal argument that the investigation must be narrowly tailored to meet the specific needs of the employer, particularly for those who are already employed. Many of these groups noted that the existing privacy laws offer limited protection and that these protections are further limited in the case of those who “volunteer” to be investigated. For two of these groups, the AAS and the UCS, submitting an amicus curiae brief was unprecedented.
Brief Supporting the Background Investigations
A single amicus curiae brief in support of the government position was submitted by a consortium of four groups: the Consumer Data Industry Association, the Association of Professional Background Screeners, the Netherlands based publisher, Reed Elsevier , and the National Association of Screening Agencies. All these organizations might possibly suffer economic consequences in the event that extensive background screening be limited. Two of these groups represent organizations who conduct background investigations, one represents the consumer market research industry, and one publishes a journal on background screening. These groups argued that there were sufficient privacy protections in place and that restricting these investigations would hamper government.
Robert M. Nelson, a Senior Research Scientist at JPL and the lead plaintiff in the case said, “We are very inspired and deeply grateful for the outstanding support we have received from such a diverse constituency. This case is not about 28 JPL employees; it is about the fundamental values of a civilized society. A free society cannot permit the government to have unfettered access to every intimate detail of one’s personal life.”
All documents relevant to this case are posted at HSPD12JPL.org
All briefs submitted to the Supreme Court in this matter can be found at the websites of the Supreme Court or the American Bar Association.