U.S. Supreme Court Upholds NASA Background Checks

Posted on January 19, 2011 by Colin J. Zick

In NASA v. Nelson, decided today by the U.S. Supreme Court, the high court rejected a challenge to "a section of a form questionnaire that asks employees about treatment or counseling for recent illegal-drug use . . .  [and] to certain open-ended questions on a form sent to employees’ designated references."

This particular challenge came from 28 employees of the Jet Propulsion Laboratory ("JPL").  JPL is staffed exclusively by contract employees.  NASA owns JPL, but Cal Tech operates the facility under a government contract.  

The Supreme Court acknowledge that "[i]n two cases decided more than 30 years ago, this Court referred broadly to a constitutional privacy “interest in avoiding disclosure of personal matters.” Whalen v. Roe , 429 U. S. 589, 599–600 (1977); Nixon v. Administrator of General Services, 433 U.S. 425, 457 (1977)."  The employees in this case, as federal contract employees working at a Government laboratory, claimed that two parts of a standard JPL employment background investigation violate their rights under Whalen and Nixon.  But the Supreme Court "reject[ed] the argument that the Government, when it requests job-related personal information in an employment background check, has a constitutional burden to demonstrate that its questions are 'necessary'” or the least restrictive means of furthering its interests."

The majority opinion dodged the question of where "there is no constitutional right to informational privacy," although the concurrence of Justice Scalia urged the majority to do so.

The Supreme Court assumed, "without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon."  The Supreme Court held, "however, that the challenged portions of the Government’s background check do not violate this right in the present case. The Government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U. S. C. §552a, satisfy any “interest in avoiding disclosure” that may “arguably ha[ve] its roots in the Constitution.” Whalen , supra , at 599, 605."

 

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Bozeman, Montana Suspends Controversial Requirement That Job Applicants Provide Usernames and Passwords to Facebook Accounts

Posted on July 15, 2009 by David Pardo

When, in June, the City of Bozeman, Montana sought to change its job application to require municipal job seekers to disclose usernames and passwords for popular social networking sites, it immediately drew widespread criticism.  Specifically, Bozeman asked applicants to "Please list any and all, current personal or business websites, web pages or memberships on any Internet-based chat rooms, social clubs or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc."  In the aftermath of media exposure, Bozeman has decided to "suspend its practice of reviewing candidate’s password protected internet information until the City conducts a more comprehensive evaluation of the practice."

On June 19, 2009, city manager Chris Kukulski officially apologized (.pdf) for the intrusive application, stating “[t]he extent of our request for a candidate’s password, user name, or other internet information appears to have exceeded that which is acceptable to our community.”

This controversy is another indication that social networking sites and other digital media are coming under greater scrutiny as employers conduct background checks. For example, the application for high-level political positions in the Obama transition phase required applicants to include copies of e-mails that might embarrass the President, copies of all blog posts, a link to one’s Facebook page, and a list of “all aliases or ‘handles’ . . . used to communicate on the Internet.”

The Bozeman application would have required applicants to violate Facebook’s Terms of Use, which state that “You will not share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account.” In addition, Bozeman’s request apparently was limited to obtaining usernames and passwords and did not seek authorization to access applicants’ sites. Consequently, any access by city officials might have run afoul of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C), which prohibits intentionally accessing a “protected computer” without authorization.

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