Courtroom sketch courtesy William Hennessy
How much personal information should a job applicant have to give up to a prospective employer? That’s the question the Supreme Court wrestled with Tuesday as it heard arguments in the privacy case NASA v. Nelson. Marcia Coyle of The National Law Journal was in the courtroom.
Set the stage for us. What was it like inside the court?
MARCIA COYLE: The first argument of day involved the National Aeronautics and Space Administration, or NASA, which had been sued by a group of scientists from the California Institute of Technology. Those scientists were working as contract employees in one of NASA’s research labs in California. The court was full, as usual, with a large group of spectators, which the court will continue to see likely until the weather gets colder.
The arguments in the NASA case were really quite spirited. The case involves an issue which on its face really applies to government employees, but can have implications for employees in private companies as well. The case really asks how much information the government can demand in background investigations of potential employees before violating what’s come to be called a constitutional right to informational privacy.
What is the background of the case? How did NASA v. Nelson reach the Supreme Court?
MARCIA COYLE: In 2005, NASA implemented a new background investigation of contract workers, and that would include the scientists involved in this case. In doing those investigations, there are very extensive questionnaires. The scientists didn’t object to most of the questions, but they had problems with essentially two of the questions on two different forms. They did not object to being asked whether they had used, possessed or supplied illegal drugs in the past year, but they did object to information requests about any treatment or counseling they had received. On another form, they objected to the open-ended question by the government which asked references if they had any information bearing on the person’s suitability for employment — derogatory as well as positive information.
They sued NASA, claiming their privacy right was violated, and a federal appellate court agreed that those particular questions were too broad or not narrowly tailored to achieve what the government was trying to accomplish with the background checks. The appellate court issued what is known as a preliminary injunction, barring the government from asking those particular questions.
How did the lawyers for each side interact with the justices on the bench?
MARCIA COYLE: During the arguments today, there was a lot of lively questioning, and some of the justices themselves appeared to have conflicting concerns about the background investigations. For example, Justice Sotomayor asked Solicitor General Neal Katyal, who is representing NASA, “Are there any limits on what the government can ask? Can the government ask someone about his genetic makeup because we don’t want someone prone to cancer?” And Justice Alito asked the scientists’ lawyer, “Does NASA have a right to know that an employee has a sign on his front lawn saying, ‘I hope the space shuttle blows up’?”
In answering questions from Justice Sotomayor and the other justices, the government’s lawyer stressed that there is no constitutional limit on the government’s collection of information in the employment context, as long as there are adequate privacy safeguards. And here, he said, the Federal Privacy Act provides the necessary protections against disclosure. He warned that if the appellate court’s reasoning is upheld, it could preclude the government from asking for all kinds of information.
The scientists’ lawyer also faced skeptical questioning. In answering Justice Alito’s question about the sign in the front yard, the scientists’ lawyer said, “NASA had a right to know about that sign.” But Justice Alito then said, “I don’t see how to do that without open-ended questions. You would have to have a question on the form asking, ‘Does the person have a sign on their front lawn saying I hope the space shuttle blows up?'” Justice Alito said it was unpractical to have a list of everything that makes an employee unsuitable for employment and put that on a questionnaire.
Justice Scalia challenged the existence of a right to informational privacy. He said that legislatures, including Congress, have acted to protect private information. “Maybe you don’t need us,” he told the scientists’ lawyer.
What exactly is informational privacy?
MARCIA COYLE: The Supreme Court has never used the term “right to informational privacy,” but in two cases from the 1970s, the justices have said that the right to privacy contains an individual interest in avoiding disclosure of personal matters. As the lower courts have dealt with issues related to information and privacy, that individual interest has come to be known as the right to informational privacy.
Justice Elena Kagan recused herself from this case due to her involvement with it as Solicitor General. Were there any clues as to which way the other eight justices were leaning?
MARCIA COYLE: I don’t usually predict outcomes of cases based on the arguments, because the justices are so good at playing devil’s advocate on both sides. But I did have a sense that the scientists faced an uphill battle here. Since eight justices will decide the case, there is always the potential of a 4-4 split. If the court decides to say more about the scope of the right to informational privacy, their ultimate decision could have implications beyond employment with the government.
What are the potential impacts of this decision? Who would be affected?
MARCIA COYLE: The case has drawn a lot of attention from civil-rights groups and groups involved with electronic information, as well as groups that represent private employees and employers. They all will be watching to see if the court gives any guidance on the kind of information that potential employees may be required to give up if they want a particular job.