Case Before the U.S. Supreme Court Could Affect Right to Privacy in the Security Clearance Context

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In October, 2010, the United States Supreme Court heard oral arguments in NASA v. Nelson, a case concerning the Ninth Circuit Court of Appeals' earlier ruling that background checks conducted by NASA for contractor personnel at the Jet Propulsion Laboratory (JPL) in Pasadena, California, were unlawful. At issue is the ability of government employers to conduct background checks involving open-ended questions about an employee's personal life, past substance use, and drug counseling. The case pits the government's interest in security against an employee's right to what has been called "informational privacy."

The right to informational privacy is a derivation of the constitutional right to privacy, as set forth in cases involving freedom from government interference in the private decisions of a person's life. Informational privacy was first discussed in Whalen v. Roe, 429 U.S. 589 (1977), which raised the issue of whether the government could store information about people's prescription medications in a record system. The Supreme Court recognized that there is an "individual interest in avoiding disclosure of personal matters," but found in favor of the government, stating that the government had provided adequate security measures to prevent against the possibility of information leaks. Id. at 599. While Whalen did not explicitly recognize a right to informational privacy, it spawned a series of cases in lower federal courts that discussed the right as if Whalen had established it.

In NASA v. Nelson, the Ninth Circuit explained that one of the most contentious inquiries performed by NASA is contacting the listed references of prospective employees to determine whether they feel that the applicant is trustworthy or reliable. Form SF-85, for example, seeks information concerning past drug treatment and drug counseling. The Ninth Circuit concluded that the checks were not narrowly tailored to meet a legitimate government interest, and thus, were unconstitutional.

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