Supreme Court hears arguments in NASA privacy case

Justices will decide whether agency's background checks violate contractors' rights.

The U.S. Supreme Court heard oral arguments on Tuesday morning to determine whether NASA's implementation of a 2004 presidential directive violates contractors' privacy rights by requiring them to submit to extensive background checks for federal identification badges.

The high court will review a 2008 9th Circuit Court of Appeals injunction blocking NASA from probing the backgrounds of scientists at the Jet Propulsion Laboratory in Pasadena, Calif., operated by the California Institute of Technology. The appeals court found the investigations were too intrusive, prompting the Justice Department to petition the Supreme Court in November 2009 to review the injunction.

NASA argued the background checks were necessary to comply with Homeland Security Presidential Directive 12, which established a common identification standard for federal employees and contractors to access government buildings and computers. Under the directive, agencies are responsible for determining the level of background investigations, based on the degree of risk assigned to a position.

"At issue is a NASA demand that employees who don't do classified work undergo unconstrained background investigations into the most intimate details of their private lives," Robert Nelson, lead plaintiff in the case, said in a statement outside the court following oral arguments. "The information being demanded is irrelevant to our ability to perform our jobs. NASA has made this demand without providing justification. NASA has no need to know."

In a conversation with Nextgov after his statement, Nelson said he was "particularly disturbed" by the argument of acting U.S. Solicitor General Neal Kumar Katyal, who "continues to propagate the canard that we do classified work," as an explanation for the in-depth background checks. "The facts are that none of [the employees] even have security clearances," Nelson said. "If he doesn't know that, he is ignorant; if he does, then he's misleading the court."

Katyal argued in a brief filed with the Supreme Court in September that "even low-risk employees have access to the entire facility and can get very close to facilities where sensitive or classified work is conducted. ... Indeed, any individual granted long-term access to JPL has the potential to cause serious damage to its publically funded missions."

Nelson said the court is expected to reach a decision in about three months.

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