NASA v. Nelson: Is There a Constitutional Right to Information Privacy?
posted by Daniel Solove
The U.S. Supreme Court has just granted cert. on NASA v. Nelson, 512 F.3d 1134 (9th Cir. 2008). In this case, NASA required employees to undergo background checks and answer questions about very private matters,including “any adverse information” about financial integrity, alcohol and drug abuse, and mental and emotional stability. Plaintiffs, a group of “low risk” contract employees, sought a preliminary injunction that the investigation violated their constitutional rights. The U.S. Court of Appeals for the 9th Circuit granted the injunction.
There is a lot at stake in this case, for it potentially involves whether or not a constitutional right exists — the little-known constitutional right to information privacy. Despite its obscurity, this right is recognized by the vast majority of federal circuit courts and there are scores of decisions involving this right.
Here are the issues cert. was granted on:
1. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee’s response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a.
2. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility, the reference’s response is used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. 552a.
The cert. questions are narrowly posed, so there’s hope the Supreme Court will not eliminate the right. But I see it as a possibility. Ultimately, I believe the following:
1. The constitutional right to information privacy does (and should) exist.
2. The court’s holding in NASA v. Nelson constitutes a big expansion of the constitutional right to information privacy. It doesn’t follow from most of the cases interpreting that right.
3. There may be a First Amendment argument to support the plaintiffs.
I will address the first contention in this post, and the other two in a subsequent post.
The constitutional right at issue is a little-known spinoff right to the constitutional right to privacy, most famously declared in Griswold v. Connecticut, 381 U.S. 478 (1965) and Roe v. Wade, 410 U.S. 113 (1973). In these cases, the Supreme Court recognized that the Constitution protects a “right to privacy” grounded in the First, Third, Fourth, Fifth, and Ninth Amendments. The Supreme Court issued an extensive line of cases involving the constitutional right to privacy, and these cases have generally involved freedom from government interference in making certain kinds of private decisions about one’s health, contraception, child-rearing, and abortion.
The constitutional right to information privacy emerged in a case called Whalen v. Roe, 429 U.S. 589 (1977). The case involved a government record system of people taking prescriptions for certain medications. Although the government promised that the information was confidential and secure, the plaintiffs feared the possibility of the information leaking out.
The Supreme Court began its opinion by noting that the right to privacy protects not only “independence in making certain kinds of important decisions” but also the “individual interest in avoiding disclosure of personal matters.” Ultimately, the Court concluded that the plaintiffs lost because the government provided adequate security to the information, thus meeting its constitutional obligations to avoid disclosure. At the end of the opinion, the Court stated:
We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. . . . The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. . . . [I]n some circumstances that duty has its roots in the Constitution.
There has long been a debate about what the Court was doing in Whalen. Some believe that the discussion of the constitutional right to information privacy was just dicta, and the Court was just reiterating an argument plaintiffs in that case made and than waxing eloquent at the end of the opinion. But I don’t believe this is the case.
In addition to Whalen, the Supreme Court decided one other case involving the constitutional right to information privacy — Nixon v. Administrator of General Services, 433 U.S. 425 (1977). President Nixon asserted a privacy interest in his communications and records while President. The Court concluded that the Constitution protected the privacy of his personal communications with his family but not his records dealing with his official duties. In so holding, the Court cited Whalen:
One element of privacy has been characterized as “the individual interest in avoiding disclosure of personal matters. . . .” Whalen v. Roe, 429 U.S. 589 599 (1977). We may agree with appellant that, at least when Government intervention is at stake, public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity. Presidents who have established Presidential libraries have usually withheld matters concerned with family or personal finances, or have deposited such materials with restrictions on their screening.
Whalen and Nixon were the only two Supreme Court cases to mention the constitutional right to information privacy.
But in subsequent years, a majority of federal circuit courts have explicitly recognized the right, including the 2nd, 3rd, 4th, 5th, 7th, and 9th Circuits. The 6th Circuit recognizes the right, but less broadly than the circuit courts above. “Absent a clear indication from the Supreme Court we will not construe isolated statements in Whalen and Nixon more broadly than their context allows to recognize a general constitutional right to have the disclosure of private information measured against the need for disclosure.” J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981). The only circuit to express doubts about the constitutional right to information privacy is the D.C. Circuit.
I believe that the constitutional right to information privacy exists, and it ensures that whenever the government collects personal information, it has a duty to avoid unwarranted disclosures. This duty consists in avoiding the intentional disclosure of the information when there isn’t a compelling reason to do so. It also consists in providing adequate data security.
I hope that the Supreme Court does not use NASA v. Nelson as an opportunity to eliminate the constitutional right to information privacy. For one, I’d have to do a major revision of my casebook since I include many cases involving this right, see Daniel J. Solove & Paul M. Schwartz, Information Privacy Law (3rd ed. 2009) — and that certainly wouldn’t be fun! But more importantly, the constitutional right to information privacy serves a profound function in today’s Information Age. The government has vast powers to gather personal information and maintains extensive dossiers of people’s data, and this information can be very sensitive, critical to people’s reputations and well-being, and the leaking of it can result in serious harm. I doubt we can go back to the early days of government where not much personal data was collected. But if the government is going to keep our data, it should have a responsibility to avoid unwarranted disclosures and to keep it secure. The constitutional right to information privacy is a sensible extension of the right to privacy.
I will address the specific holding in NASA v. Nelson in a subsequent post.