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Science Policy AlertsSupreme Court Case Involves NASA
and Scientists at Jet Propulsion Laboratory
5 October 2010
AGU Science Policy Alert 10–31
The U.S. Supreme Court on 5 October heard oral arguments in a case involving whether NASA's implementation of a 2004 Homeland Security Presidential Directive (known as HSPD–12) impinges on a constitutional right to informational privacy of scientists and others who work for the California Institute of Technology (Caltech) at NASA's Jet Propulsion Laboratory (JPL) on unclassified projects, and who have been deemed by NASA as "low risk" due to the nature of their work. Twenty–eight Caltech employees working at JPL are plaintiffs in the case, National Aeronautics and Space Administration et al. v. Robert M. Nelson et al.
Following the terrorist attacks of September 11, 2001, in the United States, then–president George W. Bush instituted a number of security measures including HSPD–12 in an effort to establish a mandatory, common identification standard for federal employees and contractors. The plaintiffs in the Supreme Court case argue that the agency's implementation of HSPD–12 goes far beyond what is required by the directive because it requires that Caltech employees working at JPL respond to a number of sensitive and open–ended questions that they state affect privacy and could, they say, have a chilling effect on research at JPL, a Federally Funded Research and Development Center (FFRDC). Some plaintiffs have said the Supreme Court's decision also could have ramifications at the nation's other FFRDCs.
In its legal brief, the federal government argues that the Supreme Court previously has made it clear that constitutional privacy concerns are not triggered just because the government collects information about an individual, and that the case involves only routine collection of employment–related information by the government acting in its capacity as an employer and proprietor.
The government's brief indicates that background checks have been required by executive order for all civil service employees for more than 50 years and that personal information collected through two specific documents in question, including the Standard Form 85 questionnaire, are protected by the federal Privacy Act. "Although approximately 39,000 NASA contract employees had completed the requisite background investigations as of September 21, 2007," the brief states, "respondents [i.e., plaintiffs] have not identified any example of an investigator seeking improper information, nor have they shown that anyone was denied a credential based on the use of improper criteria."
The plaintiffs and their lawyers say that if the case is decided against them, there could be serious and negative impacts on U.S. science and scientists. "This case will answer a simple question: Can our government force employees whose jobs have no effect on national security to reveal private information in order to keep their jobs?" Virginia Keeney, attorney for the scientists, said at a 30 September press teleconference.
"The government has tried to walk a dangerous line in this case," Keeney continued. "They have, in their brief to the Supreme Court, indicated that they believe that there is a constitutional right to informational privacy, and they fully support that. And yet they are also trying to argue that in this case those rights should be encroached so that they can gather this type of information. I think it's just an entirely inconsistent position for the administration to take," Keeney said.
During the teleconference, lead plaintiff Robert Nelson, a planetary astronomer working at JPL, said the plaintiffs sued NASA to stop the agency from instituting "intrusive background searches". "We think they are illegal and unjustified invasions of our privacy," he said. "This case is not simply about the civil rights of a few research workers. It impacts us all. What's at stake is whether anyone can have an expectation of informational privacy in the face of government intrusion."
He added that the plaintiffs were "entirely perplexed" about why the Obama administration is continuing this case, noting that the administration is "indistinguishable" from that of the Bush administration concerning national security.
Following the oral arguments at the Supreme Court on 5 October, Nelson summed up: "At issue is a NASA demand that employees, who don't do classified work, undergo unconstrained background investigations into the most intimate details of their private lives. The information being demanded is irrelevant to our ability to perform our jobs. NASA has made this demand without providing justification. NASA has no need to know."
For more information, see the 12 October issue of Eos and visit http://www.supremecourtpreview.org, http://hspd12.nasa.gov, and http://hspd12jpl.org.
— Randy Showstack, AGU Staff Writer
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