Supreme Court debates privacy rights and government's role as employer

By Robert Barnes
Washington Post Staff Writer
Tuesday, October 5, 2010; 11:01 PM

The Supreme Court seemed disinclined on Tuesday to impose strict limits on how the federal government can investigate the backgrounds of contractors seeking work, but the justices were more split over what a constitutional right to privacy protects.

The court recognized the right to "informational privacy" in the 1970s but has done little to clarify what it means. Justice Anthony M. Kennedy acknowledged during Tuesday's oral arguments that decades later, it remains "somewhat ill-defined or undefined."

Acting Solicitor General Neal K. Katyal agreed but said the case before the court is not the place to explore it.

The justices are hearing a case involving 28 scientists and engineers at the Jet Propulsion Laboratory in Pasadena, Calif. It is run by the California Institute of Technology under a contract with NASA.

When the government began requiring contractors to undergo the same background checks as other government employees, the scientists objected, saying the questioning was overly intrusive.

The U.S. Court of Appeals for the 9th Circuit granted them an injunction, saying a question about drug treatment and counseling on Standard Form 84 went too far and raising concerns about the open-ended questions on Form 42, which is given to an applicant's references.

Katyal told the justices that the appeals court got it wrong and that whatever the right to privacy provided, it should not preclude the government from asking the same kinds of questions any other employer would ask.

"These checks have been going on for millions of employees for dozens of years," he said, adding that the government has required them for civil service employees since 1953 and contractors since 2005.

But members of the court had concerns. Justice Sonia Sotomayor wondered whether the government can ask if a person has a specific genetic characteristic. Justice Samuel A. Alito Jr. asked whether the government can inquire about diet, smoking, hobbies or sexual practices "just because that gives us a better picture of who you are as an employee."

Chief Justice John G. Roberts Jr. pushed Katyal, saying, "I know you don't want us to reach it, but you would say there is no right of any kind for a citizen to tell the government, 'That is none of your business.' "

Katyal avoided specifics, but said some of the hypotheticals posed might not be allowed because they touched on other fundamental rights.

He stressed that in the case at hand, the government has greater leeway when acting as an employer, and he noted that the Privacy Act forbids disclosure of the background checks. He told the court that the forms have been used for 74,000 contractor applicants in the past four years and that only 128 of them have been rejected, none because of their answers to the drug-treatment question.

Pasadena lawyer Dan Stormer said that shows only that the government was collecting information that was not relevant to the applicants, the vast majority of whom are in low-risk jobs that do not have national security implications.

"This goes to the very basic question of: Why does the government need to know this information for these individuals, most of whom have been there for 20 to 30 years?" he said.

But Stormer faced tough questions on two fronts. One was from Justice Antonin Scalia, who challenged the whole notion of a right to informational privacy. "I mean, I like that, but I just don't see it anywhere in the Constitution," he said.

And the justices who had been posing hypotheticals for Katyal turned to Stormer. What's wrong with an open-ended questionnaire, Alito asked, whose goal is to ask references about the suitability of an applicant.

"Suppose the person . . . has a big sign on his front lawn that says, 'I hope the space shuttle blows up,' " Alito said. That's not likely to be a question on a form, but "is that information the government has a legitimate reason to get?"

Justice Ruth Bader Ginsburg seemed reluctant to have the court engage in a broad examination of privacy rights, which also have been used to protect contraception and abortion rights.

She said the court faces narrow issues involving the queries on the form. "Why are we getting into this?" she asked after Sotomayor posed a question about what the informational privacy right would protect.

Since Justice Elena Kagan had asked the court to take the case when she was still solicitor general, she recused herself from it. Finding a five-member majority from just eight justices, rather than the usual nine, might lead to the kind of narrow ruling Ginsburg favors.

There was one moment that drew laughter during the lively hearing. It came as Katyal and Stormer debated the national security aspects of the case. Katyal said the badge the applicants would receive would allow them access to other NASA facilities and get them within feet of the space shuttle as it was being repaired.

But Stormer described the grounds of the laboratory as campus-like, where access is easy and a guard at the gate waves in visitors and deliveries.

"Does al-Qaeda know this?" Scalia thundered.

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