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.”
The U.S. Supreme Court’s decision in NASA v. Nelson on January 19, 2011 was the second time in the past year the court weighed-in on workplace and digital privacy. The first case was Quon v. City of Ontario in June of 2010. These cases will almost certainly have a significant impact on similar privacy cases in the future, and will provide needed guidance to businesses when addressing privacy issues.
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The Quon decision, available at http://www.law.cornell.edu/supct/html/08-1332.ZS.html, comes in a 4th Amendment context, so I’m not sure I draw the same link between the two decisions. But time will tell.