Court again takes on issue of employee privacy rights

Defining exactly what, if any, right to privacy employees enjoy is something the U.S. Supreme Court has been hesitant to do.

This past June, the court declined to rule in City of Ontario v. Quon on the level of privacy interest employees have in messages sent on employer-supplied mobile devices.

In October, the justices again wrangled with the issue of privacy rights in NASA v. Nelson. The case, which considers whether information obtained by a government employer in a background check can violate employees’ privacy rights, was brought by several dozen contract employees working at a laboratory facility owned by the National Aeronautics and Space Administration.

In 2007, NASA changed its policies, requiring all current and new employees, even those deemed “low-risk,” to undergo a National Agency Check with Inquiries (NACI) investigation. The background check is designed to obtain information from employees and their references on issues such as previous drug use, drug counseling or treatment, and mental and financial stability.

NASA’s policy states that the information is used only for employment purposes, and that it will not be disclosed to any third party.

The employees claimed the new questionnaires and forms violated their privacy rights.

A U.S. District Court denied their request for an injunction, but the 9th Circuit reversed and enjoined implementation of the new policy. The Supreme Court subsequently granted NASA’s petition for certiorari.

Close enough to touch the space shuttle

At oral arguments, Acting Solicitor General Neal Katyal told the justices the court did not need to determine the limits of employees’ privacy rights to decide the case.

Instead, he argued, the court could simply find that the background check at issue does not rise to the level of violating any privacy interest.

“These checks have been going on for millions of employees for dozens of years,” Katyal said. “They are part of the employment process. They are not roving checks on random individuals.”

Katyal argued that the nature of access at NASA facilities necessitated the background checks, even for workers who had been employed for years before the new policy was implemented.

“It’s such an important credential [because] it would allow them to get within, for example, six to 10 feet of the space shuttle as it is being repaired and readied for launch,” he stated.

But Justice Sonia Sotomayor was not sure the case could be decided without nailing down the parameters of the privacy right.

“Is there any limit to what questions the government can ask?” she queried. “Could you ask somebody: ‘What’s your genetic make-up, because we don’t want people with a gene that is predisposed to cancer?’”

“The court doesn’t need to confront that,” Katyal replied.

“We do,” countered Sotomayor, “because I have to start with the question of: What are the limits on the government, if any?”

But Justice Ruth Bader Ginsburg suggested that the court was considering a much narrower issue — whether the lower court properly granted injunctive relief.

“Why are we getting into this?” Ginsburg asked. “Because this case, it seems to me, is a challenge to a preliminary injunction which was quite narrow.”

Constitutional question?

Dan Stormer, a partner in the Pasadena, Calif., office of Hadsell, Stormer, Keeny, Richardson & Renick, argued on behalf of the employees that the background check went far beyond what was necessary.

“The issue [is] how far may a government go [to] intrude into the private lives of its citizens … in positions that do not involve sensitive issues, classified issues, national security issues or positions of public trust?” Stormer said.

But Justice Antonin Scalia wondered what authority Stormer could point to in support of his argument that this was a constitutional question.

“In your brief … you have cases listed, you have statutes listed. There is not a single citation anywhere in your brief to a provision of the Constitution,” Scalia said. “What do you rely on in the Constitution that enables me to decide how much intrusiveness is too much, rather than leaving that to Congress?”

“It would flow from the ordered concept of the liberty component of the Fifth Amendment,” Stormer replied.

“Due process of law,” Scalia said. “That’s what I thought. You are talking about substantive due process here.”

Stormer then listed cases from the Court that “do talk about the concept of privacy as being the right to control information about oneself.”

“I like that, but I just don’t see it anywhere in the Constitution,” Scalia replied.

Justice Stephen Breyer then picked up on the line of questioning.

“You are saying that the words in the Constitution that protect the right that you claim was violated are the words: ‘No person shall be deprived of life, liberty or property without due process of law,’” Breyer said. “I guess you mean the word ‘liberty’” provides the privacy right.

“That’s correct,” Stormer said.

“Liberty to what?” Breyer asked.

“Liberty to control information about oneself,” Stormer replied.

“There is a right to liberty to control information about oneself?” Breyer asked.

“Without government intrusion,” Stormer stated.

“[So] the state doesn’t have a right to get any information about you?” asked Breyer. “On a driver’s license? When does it come into play?”

Justice Elena Kagan took no part in the consideration of the case, leaving open the possibility of a 4-4 deadlock. Kagan has identified roughly two dozen cases from which she will recuse herself based on her prior involvement as solicitor general.