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.