The U.S. Supreme Court is scheduled to hear arguments tomorrow (Oct. 5) from NASA and a group of scientists objecting to what they say are unrestricted and intrusive background checks.
The 28 plaintiffs are government contractors engineers and scientists at NASA's Jet Propulsion Laboratory at the California Institute of Technology in Pasadena, Calif. who argue that their work is low-risk and unclassified, not requiring security clearance.
The plaintiffs said in a statement that they do not challenge the government's right to perform comprehensive background checks when necessary, but that it is not necessary for unclassified work that does not threaten national security.
Their lawsuit, stemming from a 2004 NASA rule, argues that the checks violate their rights under the First, Fourth and Fifth Amendments and the Federal Privacy Act.
In 2007 the JPL scientists sued NASA to challenge the background checks as illegal, unjustified violations of their privacy. On Oct. 3, 2007, the Federal District Court in Los Angeles dismissed the suit. Two days later the U.S. 9th Circuit Court of Appeals agreed with the scientists and issued an emergency injunction that stopped the checks.
The federal government appealed, and the Supreme Court agreed to hear the case.
The case raises questions about constitutional privacy rights, and the longstanding federal policy that protects the independence of federally funded research institutions such as JPL. The plaintiffs say it also raises concerns about attracting researchers to these types of institutions.
Robert Nelson, a senior JPL scientist and the lead plaintiff in the case, said in a statement: "It would be one thing if our work was classified, but it has nothing to do with national security or the threat of terrorism. This rule has the potential to create an atmosphere of intimidation among our researchers."
The controversy began in 2004 when NASA, then under the direction of Michael Griffin, ordered all scientists working at JPL to undergo comprehensive, open-ended background checks beyond the standard pre-hiring reviews for federal employees or risk losing their jobs.
NASA maintains it was following an executive order from President George W. Bush, who issued the rule to tighten security following the terrorist attacks of Sept. 11, 2001. Yet Bush's original order did not mention background investigations; the staff at NASA headquarters added them later.
Other departments covered by Bush's tightened rule, such as the Department of Energy, did not institute similar checks for scientists doing unclassified research, the NASA scientists say. Agreeing to these background checks would hand the government free rein to investigate every aspect of their lives, including their financial and medical records, they argue.
Next stop: Supreme Court
The Union of Concerned Scientists, a science-based nonprofit organization headquartered in Cambridge, Mass., filed a "friend of the court" brief with the federal appeals court in October 2007 in support of the JPL plaintiffs. Last year, the UCS asked U.S. Attorney General Eric Holder not to appeal the case to the Supreme Court.
The organization filed another amicus brief last month.
The UCS has a keen interest in the case based on its long history of working to shield science from political interference, said Kurt Gottfried, a co-founder of the union.
"It is very disappointing that the Obama administration has decided to pursue this appeal, which conflicts with its policy of restoring science to its rightful place," said Gottfried, an emeritus professor of physics at Cornell University.
"If the government succeeds in this attempt to delve into the private lives of scientists doing unclassified research on its behalf, it will harm its ability to attract high-caliber researchers, and undermine the quality of scientific institutions like the Jet Propulsion Laboratory, which have put the United States at the cutting edge of science and technology," he said.