Jan 24, 2011

Supreme Court Upholds Contractor Background Checks

On January 19, the Supreme Court rejected a challenge to the federal government's standard background check (called the National Agency Check with Inquiries, or NACI). The majority opinion assumed -- without deciding -- that there is a right to informational privacy, but found that this right wasn't violated by the background checks. (You can read the case here.) 

In the case, a group of employees at the Jet Propulsion Laboratory, a research lab jointly run by Cal Tech and NASA, claimed that two aspects of the NACI violated their rights to privacy: a question about rehabilitation and treatment for illegal drug use, and a requirement that they authorize the government to ask open-ended questions of former landlords, employers, and other references, in which the references are asked broadly about the applicants' financial integrity, "mental and emotional stability," and "general behavior and conduct," among other things. 

The employees who challenged the NACI were government contractors; their official employer was Cal Tech. They were already working at the JPL when they were asked to submit to the screening. (Although federal government employees were already subject to the NACI screening procedures when applying for jobs, contractors were not, until the 9/11 Commission recommended that they also be screened.)

The Supreme Court's opinion began by assuming -- without deciding -- that there is a Constitutional right to informational privacy. This assumption has been seen as a victory by employee advocates, some of whom believed the Court might use this case as an opportunity to decide otherwise. As Justice Scalia wishes it had: His concurring opinion indicates that he sees the Court's failure to decide this issue as a dereliction of duty. He believes the Court should have simply decided that there is no right to informational privacy; his opinion begins with the observation, "Like many other desirable things not included in the Constitution, 'informational privacy' seems like a good idea . . . " (He also believes that the majority's opinion, which weighs the government's need and use for the information against the employees' assumed privacy rights, is "a generous gift to the plaintiff's bar.")

The majority's opinion discusses a number of factors that, in its view, weigh in the government's favor, such as the existence of protections against unnecessary disclosure of the information once it is gathered; the government's role in this case as a manager of its employees (rather than a sovereign of its citizens); the important -- and taxpayer funded -- work done by the employees who brought the case; the common practice in private industry of asking open-ended reference questions such as those on the NACI; and, in the case of the question about drug rehab and treatment, the government's stated intention of using that information for good rather than evil, by considering an employee's efforts to turn things around as a favorable quality. 

These considerations, however compelling, seem to skirt an important issue, which the Court didn't spend much time on: Why does the government need this information in the first place? If there is a privacy right, then the government must have a strong interest in the information it seeks, and the way it goes about getting that information may not be unnecessarily intrusive. It isn't enough to say that everyone else gathers this type of information too, and we'll keep it confidential once we get it. To me, it looks like the Court's assumption of a privacy right was fairly half-hearted. The opinion doesn't read as if the Court thought this information was protected by a privacy right but the government's need for it outweighed the employees' interests. Instead, it seems the Court didn't much believe in the right it assumed, and accorded it relatively little weight in the balance. 

Because this case involves public employment and a (possibly) Constitutional right, it does not apply directly to the private sector. And, despite the Court's claims to the contrary, many private employers don't go this deep in their background checks, at least not for employees who won't hold the highest ranks on the company ladder. The main takeaway from this case may be simply that privacy continues to be a divisive, tentatively handled issue on the Supreme Court -- with this timely reminder arriving only a few days before the anniversary of the Court's ultimate privacy case, Roe v. Wade.