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Supreme Court rules NASA background checks don't violate privacy rights

The unanimous ruling in a case brought by JPL scientists and researchers says that questions of drug use and other personal matters aren't privacy violations.

January 20, 2011|By Scott Gold and David G. Savage, Los Angeles Times

Reporting from Los Angeles and Washington — In a case that raised questions on whether the government had overreached after 9/11, the Supreme Court ruled Wednesday that government scientists and contractors are lawfully subject to background security checks.

The case was brought by 28 veteran scientists and researchers at NASA's Jet Propulsion Laboratory in La Cañada Flintridge and challenged a directive by then-President George W. Bush to extend background checks to all corporate, college and think tank employees who worked on government-funded projects.

In its unanimous decision, the court ruled that questions of drug use and other personal matters do not constitute a violation of privacy rights. The justices also held that it was reasonable for the government to inquire about the trustworthiness of people working on multibillion-dollar projects such as space telescopes.

Writing for the court, Justice Samuel A. Alito Jr. said that if the government pried into the private lives of ordinary citizens, that could raise concerns. But the government has "wide latitude," he wrote, "in its dealings with employees," making the checks acceptable.

The government has conducted background checks on civil service job applicants since 1953, but Bush's directive applying the checks to non-government employees came in the wake of the Sept. 11, 2001, terrorist attacks.

Critics charged that the move was part of a broader effort to erode scientific independence and politicize the federal government. In 2008, the U.S. 9th Circuit Court of Appeals halted the probes, saying that "limitless" investigations forced the scientists to choose between tolerating a violation of their constitutional rights or losing their jobs. It was that decision that the high court reversed Wednesday.

JPL scientists quickly assailed the ruling.

"This is very bad news for anybody who thinks they have a right to keep their private life private," said Scott Maxwell, who leads the Mars rover driving team and spent Wednesday steering the rover Opportunity. He said the decision means the government could pose open-ended questions "to my psychologist, my priest, my lawyer, my doctor," which he called "a real risk in order to keep a job that I've dreamed about since childhood."

A Justice Department spokeswoman declined to comment on the decision, while NASA said only that it was "pleased."

The court's ruling permits background checks but does not compel them. NASA said it will work with the Justice Department to determine how and when to proceed.

"The ball's in NASA's court," said Dan Stormer, the scientists' Pasadena attorney.

The scientists had argued that the information sought in the background checks was the sort typically involved in classified defense work, though just a narrow slice of the work at JPL is considered classified — and employees who do that work were already subjected to background checks.

They noted that at one point during the debate, government investigators circulated an "employment suitability" matrix asserting the right to probe a surprising array of topics, including credit history, sexuality and "unlawful assembly."

Last year, in court documents, the federal government said it had replaced those wide-ranging guidelines with "a more legitimate analysis of those things that go into employment," Stormer said. Even so, said Robert Nelson, a lead plaintiff in the case and a senior research scientist at JPL: "When government says 'trust me,' it is cause to worry."

Among those things that scientists said they worried about was the possibility that scientific research could invite political criticism. They said they also had concerns about how closely the government safeguarded private information.

NASA's missions have brushed up against politics in recent years, scientists said. In 2007, then-NASA Administrator Michael D. Griffin surprised scientists in his agency when he questioned whether climate change was "a problem." NASA produces significant work in that field; just last week it revealed that 2010 tied with 2005 as the warmest year on record.

"If someone comes in who is hostile to that view, I have great fears that the background information of the scientists conducting the research could be used against us," said Nelson, a 32-year JPL veteran who studies the nature of the surfaces of planetary satellites.

Nelson and Maxwell also scoffed at another of Alito's justifications — that the federal Privacy Act forbids the disclosure of private information collected through background checks.

"I'm kind of surprised in this era of Wikileaks that the Supreme Court could labor under the fantasy that there is any protection of our personal information once its stored in the hands of the government," Nelson said.

scott.gold@latimes.com

david.savage@latimes.com

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