The U.S. Supreme Court has upheld the use of background checks by the government on
scientists and other workers at NASA's Jet Propulsion Laboratory (JPL). The unanimous ruling means that NASA will now have to decide whether to
continue a Bush Administration policy, on hold since 2007, to require such checks.
The decision, written by Justice Samuel Alito, declares that, "Reasonable investigations of applicants and employees aid the government in ensuring the
security of its facilities and in employing a competent, reliable workforce."
Now the scientists say they will wait to see what NASA will do. The ruling caps a legal battle began in 2007 when 28 scientists and engineers at JPL,
which is owned by NASA but operated by the California Institute of Technology (Caltech) in Pasadena, filed suit against new security procedures
announced by NASA. They argued that questions on forms they had to fill out relating to drug use, counseling, and "trustworthiness" were too intrusive
and harmed the open environment at JPL. The researchers, who are employed by Caltech, had previously been subject to background checks, but not ones as
broad, and without the protections of civil service laws that government employees enjoy.
The plaintiffs convinced an appeals court the following year that, as contract employees,
they should be subject to less scrutiny than government employees who work with classified material. By the time the case reached the high court,
groups such as the Union of Concerned Scientists (brief) and the American Civil
Liberties Union (brief) had lined up behind them.
But in the end, all eight Supreme Court justices who participated disagreed. (Elena Kagan, a former solicitor general for the Obama Administration,
recused herself.)
The justices rejected the argument that the Caltech workers deserved a different standard of scrutiny than civil servants. In a separate decision
that agreed with the main verdict of the case, Justice Antonin Scalia said:
Respondents claim that even though they are Government contractor employees, and even though they are working with highly expensive
scientific equipment, and even though the Government is seeking only information about drug treatment and information from third parties that is
standard in background checks, and even though the Government is liable for damages if that information is ever revealed, and even though NASA's Privacy Act regulations are very protective of private information, NASA's background checks are unconstitutional.
Ridiculous.
(Justice Antonin Scalia and Justice Clarence Thomas filed a separate decision because they disagreed with the other six justices' refusal to rule out
the existence of a constitutional right not to have the government reveal personal information, known as "informational privacy." See here for a nice explanation.)
Now the focus turns to NASA and other JPL employees, 322 of whom have signed a statement opposing the
new background checks. JPL physicist Josette Bellan called the decision "very disappointing."
Asked if she would leave JPL, Bellan said, "That's a very tough personal decision I plan to make." She noted that the National Science Foundation and
the Department of Energy had not implemented the new background check procedures "with as much force as NASA."
Over the next 2 or 3 months, the lower courts will follow the high court's instructions, and the injunction will be presumably lifted, and NASA will
have to decide how to proceed once the injunction is lifted. "They're bureaucrats, they change gradually, so we'll see," says JPL engineer Dennis
Byrnes, who co-led the plaintiffs. "If it goes back to the way it was, it will damage the mission of NASA."
