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Supreme Court leans toward NASA on privacy

/ Source: The Associated Press

The U.S. Supreme Court seemed unwilling Tuesday to restrict the government's ability to investigate the people who want to work inside its installations in the post-9/11 world, despite the suggestion that federal officials could go too far when prying into people's private lives in name of safety.

The high court heard arguments from government contractors at the NASA Jet Propulsion Laboratory in California, who are fighting the government's request to have them submit to what they call intrusive background checks as a condition of their continued employment.

The case could have ramifications far beyond NASA. Neal Katyal, the acting solicitor general, said the same questions the contractors were objecting to also are used to investigate full- and part-time federal employees throughout the government.

"It's a big government," said Chief Justice John Roberts, adding the government cannot be expected to individualize background checks to avoid asking questions one person might find intrusive while another might not.

An applicant might have a yard sign proclaiming a wish for the space shuttle to blow up, Justice Samuel Alito said. "I don't see how you're going to get that information without asking open-ended questions," he said.

But with "low-risk or no-risk employees, the government doesn't need to know," said Dan Stormer, who represents 28 scientists and engineers who work at the 177-acre campus east of Los Angeles.

JPL is NASA's premier robotics lab, famous for sending unmanned spacecraft to Mars and the outer solar system. Unlike other NASA research centers, it is run by the California Institute of Technology. Lab scientists, engineers and staff are Caltech employees, but the campus and its buildings are owned by NASA.

Employees said the agency was invading their privacy by requiring the investigations, which included probes into medical records and questioning of friends about everything from their finances to their sex lives. If the workers did not agree to the checks, they were to be barred and fired.

The questions encroached on the employees' "liberty to control information about oneself ... without government intrusion," Stormer said.

None of the JPL workers who sued work on classified projects or have security clearances, although several are involved in high-profile missions, including the twin Mars rovers and the Cassini spacecraft studying Saturn and its moons.

In addition, Stormer insisted that JPL has a college-campus atmosphere, with access granted to outsiders with a simple telephone call from inside the facility to the security gate.

"Does al-Qaida know that?" Justice Antonin Scalia asked.

In 2007, NASA extended background checks for federal employees to its contract workers in response to a presidential directive that ordered government agencies to reinforce security at facilities and computer systems by issuing new identification badges for millions of civil servants and contractors.

This directive was part of the government's attempt to boost security after the al-Qaida terrorist attacks on Sept. 11, 2001 killed thousands of people in New York, Pennsylvania and Virginia.

A federal judge originally refused to stop NASA's background checks, saying they could continue while the lawsuit made its way through the courts. He was overturned by the San Francisco-based appeals court.

Katyal argued that the JPL security badges are more valuable than Stormer portrayed, allowing badge holders access to other NASA facilities, and even getting those workers to within 10 feet of the space shuttle while it is being repaired.

Justices were concerned about how far the government's investigations can go, with Justice Sonia Sotomayor asking if genetic makeup was fair game, and Alito bringing up diets and sexual practices.

"There is no right for any citizen to tell the government, 'None of your business?" Roberts asked.

Not "in the employment context," said Katyal, who also assured justices that privacy laws prevented the government from revealing the information it collected. He also pointed out that the government cannot ask questions that may infringe on an employee's constitutional rights.

Sometimes, however, broad information is needed to ensure that the person is suitable for the job, Katyal said. "That's how law clerks are hired, how baristas at Starbucks are hired," Katyal said.

"We do have a legislature that can place limits on what the government can ask," Scalia chipped in.

The contractors pointed to a chart that showed up on NASA's website after they asked about the criteria for employment decisions. Some of the factors that showed up on that chart to be considered in deciding whether to hire someone included carnal knowledge, sodomy, indecent exposure, homosexuality, cohabitation, adultery and illegitimate children.

Katyal, when asked about the chart by justices, said "NASA does not and will not use" that chart when it comes to making employment decisions.

Justice Elena Kagan disqualified herself from this case because she worked on it as solicitor general before joining the high court.


The case is NASA v. Nelson, 09-530.