Case 22.2

FACTS The National Aeronautics and Space Administration (NASA) is an independent federal agency charged with planning and conducting "space activities." One of NASA's facilities is the Jet Propulsion Laboratory (JPL) in Pasadena, California, which is staffed exclusively by contract employees. In 2007, under newly implemented standards, contract employees with longterm access to federal facilities were ordered to complete a standard background check-the National Agency Check with Inquiries (NACI). The NACI is designed to obtain information on such issues as counseling and treatment, as well as mental and financial stability. Robert Nelson and other JPL employees filed a lawsuit in a federal district court against NASA, claiming that the NACI violated their privacy rights. The court denied the plaintiffs' request to prohibit use of the NACI, but the U.S. Court of Appeals for the Ninth Circuit reversed this decision. NASA appealed to the United States Supreme Court, arguing that the Privacy Act of 1974 provides sufficient protection for employees' privacy. This act allows the government to retain information only for "relevant and necessary" purposes, requires written consent before the information may be disclosed, and imposes criminal liability for violations.

ISSUE Can the U.S. government require employees of private contractors, who work at federal facilities, to undergo NACI background checks without violating their privacy rights?

DECISION Yes. The United States Supreme Court reversed the judgment of the federal appellate court and remanded the case. The inquiries made by the NACI are reasonable and do not violate an individual's right to privacy. The Privacy Act protects against the disclosure of private information. REASON The Court reasoned that even if it presumed that the government's inquiries implicated a constitutional right to privacy, that does not prevent the government from asking reasonable questions as part of an employment background check. Moreover, the Privacy Act provides safeguards against the public disclosure of an individual's private information without the individual's consent. The Court pointed out that the government has conducted employment investigations of applicants for the federal civil service for more than fifty years. With the guidelines implemented in 2007, a decision was made to extend this requirement to contract employees with long-term access to federal facilities. "Reasonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent, reliable workforce."

WHAT IF THE FACTS WERE DIFFERENT? Suppose that after the decision in this case, a JPL employee refused to cooperate in an NACI background check. What would be the most likely consequences?