[1:58 pm: Bumped up above the other posts on today's cases.]
The Supreme Court has just granted cert in NASA v. Nelson, the Ninth Circuit case I blogged about here and here. Let me repeat below my thinking about the case from that last post:
The case involves a challenge brought by various contract employees working indirectly for NASA, claiming that NASA’s then-new background check policy violated a federal constitutional right to informational privacy. The Ninth Circuit found that the plaintiffs were likely to succeed on this claim, and thus held that they were entitled to a preliminary injunction against enforcement of the policy. In particular, the Circuit concluded that it was likely unconstitutional for the government to ask various people who knew the employees — at least “references, employers, and landlords” and perhaps others — broad questions. Such question presumptively violated a constitutional right to privacy discussed by the Supreme Court in Whalen v. Roe, and the presumption couldn’t be overcome on the grounds that the questioning was “narrowly tailored” to the government’s interests:
Form 42 [which was sent to people who had dealt with the employees] solicits “any adverse information” concerning “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” and “other matters.” These open-ended questions are designed to elicit a wide range of adverse, private information that “is not generally disclosed by individuals to the public”; accordingly, they must be deemed to implicate the right to informational privacy….
Considering the breadth of Form 42’s questions, it is difficult to see how they could be narrowly tailored to meet any legitimate need, much less the specific interests that Federal Appellees have offered to justify the new requirement. Asking for “any adverse information about this person’s employment, residence, or activities” may solicit some information relevant to “identity,” “national security,” or “protecting federal information systems,” but there are absolutely no safeguards in place to limit the disclosures to information relevant to these interests. Instead, the form invites the recipient to reveal any negative information of which he or she is aware. There is nothing “narrowly tailored” about such a broad inquisition.
It seems to me that despite the court’s insistence that the opinion is quite narrow, its implications seem stunningly broad; and in particular, it seems to me they would dramatically affect the course of ordinary government investigations.
Say a police officer — or SEC investigator or FBI agent or a wide range of other government investigator — is trying to investigate a crime. Naturally, to get a search warrant for someone’s property, the officer would need probable cause to believe that the warrant would uncover evidence of a crime. But the officer often doesn’t start out with such probable cause.
Instead, I take it that the officer would often ask around about each person who might be involved in the crime, even if chances are that the person isn’t involved. He might go to landlords, employers, hotel clerks, acquaintances, and others, and ask questions, including open-ended questions. And the questions might deal with private matters, such as the suspect’s romantic entanglements, sexual orientation, political ideology, financial pressures, medical problems, and the like. It would be wrong and possibly unconstitutional for the government to misuse this information, for instance by arresting and prosecuting the suspect because of his political views, even when he wouldn’t have been arrested and prosecuted for the same offense if his views were different. But getting this information might well be helpful, depending on the circumstances, since it might reveal possible motives, associates, and other important information.
What’s more, the police officer would generally be able (with a prosecutor’s help) to order people to answer such questions, by subpoenaing them to testify. The officer and prosecutor can get even highly confidential information, such as bank records, records of the telephone numbers the person has called, and the like, without probable cause: All it would take is a subpoena to the bank, and such subpoenas to third parties don’t violate the Fourth Amendment, even when there is no probable cause for them. I realize that many disagree with this position, as to subpoenas (though I haven’t heard much disagreement as to the asking around mentioned in the preceding paragraphs). But it is pretty clear that this is indeed the Court’s view of the Fourth Amendment.
There are some limits on this; for instance, the officer can’t subpoena privileged lawyer-client communications, and there are likely limits on the officer’s power to subpoena abortion records and the like. But generally speaking a great many records, including bank and telephone records, are available without the need for probable cause or any showing of “narrow tailoring.” In fact, the way that officers are supposed to develop the probable cause needed to get search warrants is precisely by gathering information without search warrants — including asking questions of people who might know the information.
The Ninth Circuit’s decision, however, suggests that all such investigations are potentially subject not just to the Fourth Amendment (and the Fifth Amendment privilege against self-incrimination, when it comes to coercive questioning of the suspect himself), but also to the right of privacy. After all, the police officer or other government investigator is as much a government actor as is NASA. (The right to privacy, if it applies here, applies equally to the federal government and state and local governments.) If anything, the constitutional constraints might apply even more to the government acting as sovereign to investigate private individuals, as opposed to the government acting as employer to investigate its own employees or contractors. They certainly wouldn’t apply any less.
So say an officer is investigating an alleged theft, and there a bunch of people who had the opportunity to commit the theft, though the great majority of them are likely be innocent. The officer will no longer be free to ask people broad questions about what they know about a potential suspect, and in particular whether they have any information about their “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” or “other matter.”
After all, while asking such questions “may solicit some information relevant to [the investigation], there are absolutely no safeguards in place to limit the disclosures to information relevant to these interests.” How could there be? The officer doesn’t know yet exactly what’s going to be relevant, and might not know until much later, when a casual revelation that Joe was sleeping with Mary, coupled with the revelation that Mary had an expensive cocaine habit, might explain why Joe might have had a special motive to commit the crime.
And presumably asking around about a person’s sexual partners, political beliefs, medical condition, financial obligations, and the like would be even more likely unconstitutional, since that would be direct questioning about matters that are most likely to be seen as private. Yet, as I mentioned above, that sort of picture of people’s lives is often vital to figuring out who might have the motive to do something, or who his likely accomplices might be, or even who else might be worth asking about the matter.
Now maybe this is the way things should be. Maybe even when there’s no search or seizure for Fourth Amendment purposes, and when there’s no compelled self-incrimination for Fifth Amendment purposes, there should be an extra constitutional requirement that asking around about a suspect be “narrowly tailored” if the questioning may reveal private information. Maybe the police shouldn’t ask broad questions, but be limited to focused questions that are directly supportable at that point by what the police already know.
But I’m pretty skeptical that this would indeed be a good constitutional law rule — and I see no basis in Whalen or in the Court’s other precedents for suggesting that there’s a constitutional right to information privacy that so constrains the government’s asking questions about people. The government doesn’t need the employee’s agreement to ask around about him, just as it doesn’t need a potential suspect’s agreement to ask around about him. There just isn’t a constitutional right not to have the government ask other people questions about you. So I’m glad the Court agreed to hear the case, and I predict that it will reverse. I’ll go further and say that I doubt there’ll be more than 2 votes to affirm the Ninth Circuit (at least on the informational privacy grounds), and quite possibly fewer.
Orin Kerr says:
Agreed.
March 8, 2010, 12:30 pmPatHMV says:
I agree with you as a matter of law. There’s just no such “right” in the Constitution.
From a policy standpoint, though, this is a pretty ridiculous process. It’s getting to the point where the only people who can get a government contract are those with the blandest imaginable lives. I went through it myself, once, to be a law clerk for a U.S. Attorney’s office. Some woman physically went around asking my professors, friends, and neighbors all sorts of questions about me. At the time (early 90s), she even ended the process with a personal interview with me, asking me (as she was required to do by policy) if I was a homosexual.
I doubt, however, that our risk-averse bureaucrats will every willingly give up asking these sorts of intrusive questions and performing these detailed background checks.
March 8, 2010, 12:32 pmPatHMV says:
Let me add that it’s one thing for the police to ask those kinds of questions as part of an investigation into some particular crime. That’s entirely appropriate. But for the government, as a matter of policy, to require such detailed and private information from every single contract applicant, that’s just too much.
Oh, and what kind of questions do district courts in the 9th circuit ask of potential jurors? Does the right the 9th Circuit has just identified protect jurors from having to disclose such facts, under oath?
March 8, 2010, 12:35 pmruuffles says:
They will also ask random people that happen to be in physical proximity to that individual. I happened to be on the same floor eating lunch as an individual being vetted and an official just sat down and started asking me questions about him.
March 8, 2010, 12:44 pmDangerMouse says:
Hmmm….
I remember hearing from many people that, if you’re a government contractor, or if you take government money, then you play by the government’s rules. That’s why, for instance, the Catholic Church in DC recently stopped providing spousal benefits, because it could not accept government money without violating its religious beliefs. And no one had a problem with that.
So now we’re treated with a situation where there’s a fake so-called “right” of privacy discovered in some B.S penumbra of an emenation of the air of the whisps of the feelings in the words of maybe the “living” Constitution, or something, and all of a sudden this so-called right means that people who want to do business with the government are protected and they don’t have to play by the government’s rules.
That’s certainly a very interesting outcome. You’d think there’d be some consistency, but I guess not. In some cases, when you’re accepting government money, you’re the government’s bitch, and in other cases, you’re not.
Here’s a better solution: don’t talk to the government.
March 8, 2010, 12:56 pmsiskiyou says:
Years ago I held a security clearance pertaining to ordnance r&d. More recently my son has held a clearance at a much higher level in another field. I have been interviewed in depth pertaining to the security status of a relative who was employed by NASA. Yet what it was that Pat “went through” I have absolutely no idea, except to be fairly sure that it was innocuous. (By the way, are US Attorney’s clerks engaged on a contract basis, as distinguished from employees? Or is Pat not aware of the difference?) It is a wonderful thing to be able to enjoy such an exquisite level of sensitivity while we all live in a dangerous neighborhood. Professor Volokh nails the point in his last two paragraphs. The Ninth seems utterly mad, but sensitive.
March 8, 2010, 1:16 pmMikey says:
Perhaps I just didn’t see it in Eugene’s posts, but I was wondering: was this information sought specifically for a security clearance investigation, or for anyone who wanted to be a contractor at NASA?
March 8, 2010, 1:17 pmarbitrary aardvark says:
It seems unusual for the court to take the case at the preliminary injunction stage. I guess they’re just in a hurry to reverse the 9th again?
March 8, 2010, 1:22 pmDavid M. Nieporent says:
Maybe one of the clerks in the cert pool just needs one more slot on his 9th circuit reversal bingo card.
March 8, 2010, 1:45 pmStarman says:
There is another issue in this case that has not been addressed in this blog or comments, as far as I can see. Nor is it in the questions presented.
March 8, 2010, 2:12 pmThe issue when they filed the case was that some of the plaintiffs had worked at JPL for 20 years or longer. I assume in some cases they had pursued a career at JPL rather than at, say, Los Alamos, *because* they did not have to get certain clearances–presumably on principal, not because they had something to hide.
At any rate, it seems reasonable that there could be a difference between JPL saying to an applicant that getting these clearances is a condition of the job, and JPL changing the rules some 20+ years into someone’s career.
PatHMV says:
siskiyou… I am aware of the difference, thank you. I was an employee, not a contractor. The questions were necessary because the job of law clerk to a U.S. Attorney requires some minimal level of security clearance, apparently. I forget the name/number of the standard form I had to fill out, but it’s the same one required for security clearances.
Was it innocuous? Certainly I had nothing to hide and was not ashamed of anything they found out. But that doesn’t mean I didn’t find it intrusive and, particularly the question regarding my sexuality, offensive and insulting. And that’s speaking as a straight man.
I have no problem with real background investigations for security clearances. But for any other jobs, it serves no purpose other than ass-covering for bureaucrats.
These days, the federal government is becoming so large, so ubiquitous, that just about anybody could suddenly find themselves being deemed a federal contractor, and required to submit to the background checks described by the plaintiffs in this case.
March 8, 2010, 2:21 pmPJens says:
Holy cow! Is this a Monday court case dump? Seems like an unusual amount of significant cases worth of Conspiracy mention.
I agree with Profs Volokh and Kerr. The SCOTUS will reverse.
March 8, 2010, 2:51 pmPaddy says:
How is the FBI supposed to conduct security clearance investigations if it can not ask others about their knowledge and experience with the individual seeking a clearance?
March 8, 2010, 2:56 pmCarl Donath says:
How about demanding such detailed and private information from every single citizen re: census? That’s just too much, yet we face a $5000 fine for not fessing up to how many toilets are in the house (among a host of other inane demands for personal info).
March 8, 2010, 3:05 pmRyan says:
You should have seen the extensive questionnaires I filled out/my friends and family answered for my security clearance with the Marine Corps.
Come to think of it, what about the Ohio Bar asking all sorts of questions before I can even sit for the Bar exam?
March 8, 2010, 3:09 pmJohn says:
I am disappointed in how the issues were presented. Comparing a background investigation into a potential contract employee to a criminal investigation is a poor analogy.
Yes, you can lump them under the same ‘privacy’ umbrella. (The 4th and 5th Amendment partially composing the so-called privacy penumbra.) Nevertheless, privacy is a shifting scale and these two circumstances are, in 4th Amendment and privacy law, wholly different.
I also disagree with the generalized legal conclusion of there being no right of protection against this kind of government action. These types of fishing expeditions, made without narrowly tailored purposes (such as security clearance), create situations allowing for inequality in the hiring process.
The deeper question is when the federal government should be viewed similar to private companies, and when it should not. Then, further, when and how should private companies be allowed to root around a potential contractor or employee’s background.
The analogy between criminal law and employment/civil law, however, is a weak at best, and false at worst. It is a straw man argument that is not needed to paint a picture of the potential problems behind such a ruling.
March 8, 2010, 3:17 pmDennis N says:
It’s covered by the Ninth Amendment. The right to privacy is the basis of the Fourth and Fifth amendments.
I’ll drink to that!
March 8, 2010, 3:33 pmMalvolio says:
Certainly. On the one hand is a person who merely wishes to be left alone and instead has an armed policeman asking people if he is a bank-robber or a murderer; on the other a person who requests access to classified information in order to make money and must give consent to a clerk asking people if he is a homosexual or a heavy drinker. If the latter situation is unacceptable, the former is much more so. Given that, do we give up on law enforcement all together?
March 8, 2010, 3:34 pmSteve says:
On the one hand is a person who merely wishes to be left alone and instead has an armed policeman asking people if he is a bank-robber or a murderer…
I feel like “informational privacy” might be a misnomer. After all, the reason you wouldn’t want the cops asking people if you’re a bankrobber isn’t because you are a bankrobber and want to keep that information private. What we’re basically talking about is a constitutional right not to be investigated.
March 8, 2010, 3:55 pmHouston Lawyer says:
If this case is right, then Crimestoppers is all kind of wrong. People asking for anonymous tips on who might have committed a crime, with an award for the winners! Heaven help us.
Did they also challenge their obligation to pee in a cup?
March 8, 2010, 4:18 pmSeaDrive says:
In many places, issue of a handgun carry permit requires assent from the local police chief. Some chiefs have been known to send officers to the applicant’s neighbors saying “Joe next door wants a gun. What do you think?”
I’ve read that this has been done despite state law that says it’s illegal for police conducting a background check to reveal the purpose of said background check.
I agree with EV’s comments about criminal investigation, but I do think it’s an area where a little more check on government intrusion is warranted.
March 8, 2010, 4:27 pmanon_rocketeer says:
I had to fill out one of the forms for this investigation in order to retain a job I had held for over 20 years. Since I was in another court district, the injunction didn’t apply to me, so I filled out the forms. One of the key privacy issues for the plaintiffs was that the investigations were not going to be done by government employees, but by contractors. There was broad language that not only allowed the government or the contractors to investigate anything about you that they wanted, but allowed them to share it with anyone they wanted to. There were no assurances of how the data were to be protected. They were allowed to get credit data, data from physicians, from past employers, from merchants, etc. without limit.
This was for any contract job at NASA, from groundskeeper to engineer to scientist. A separate background check had to be done for access to sensitive areas such as Mission Control. This check was the civilian equivalent of a secret clearance, done by the FBI or DoD and is subject to the laws applicable to security clearances.
March 8, 2010, 4:34 pmStephen Lathrop says:
How about if it isn’t government?
Suppose a private firm decides there is a market for information it can collect by scuttling around and asking your neighbors and associates open ended questions about you, and then selling reports to whomever will pay (that’s how Dun & Bradstreet got started). What if you have been trying to cope with a malicious neighbor who doesn’t like the color you painted your house, and who is willing to make stuff up about you and child pornography? What if the firm selling the information thus compiled won’t show it to you? What if the firm selling the info edits out the obvious potential libel triggers in the reports, but uses them to form an overall negative assessment of you which it does publicize and sell? What if the information isn’t the result of interviews, but of tracking your activity on line? What if it’s your medical information, put together by inference at your pharmacy, and sold to your prospective new employer?
Is there any reason to treat a private for-profit investigation differently than a government investigation? If the answer is yes, what prevents the government from simply buying or trading for the fruits of private investigations and using them? In what contexts, other than criminal investigation, should we tolerate these kinds of intrusions? How about journalism? Should a journalist be able to canvas with open-ended questions the life of a person who is not in any way a public figure?
Quite a while ago someone whose name I wish I could remember said something like, “You aren’t going to have any privacy, get over it. The main thing is to be sure nobody else has any privacy either.” That sounds both dystopian and prophetic.
I’m pretty sure the collection of personal intelligence is about as useful as the collection of military intelligence; in proportion to its reliability it provides some hope of understanding what has happened, and little hope of predicting what will happen. Pretty much every spy who ever made off with government secrets did so after passing an FBI background check.
Reputation is one thing; the business, public or private, of manufacturing and managing reputations seems wrong because it is unreliable, and puts unchecked power into the hands of people who can’t be held to account. That sort of thing rarely leads to good outcomes.
March 8, 2010, 5:32 pmMalvolio says:
And TRW and Equifax and TransUnion.
Without collation of publicly available data, modern credit reporting, and hence modern credit, would cease to exist.
March 8, 2010, 6:59 pmEMB says:
Wouldn’t asking all those personal questions be setting themselves up for a discrimination lawsuit?
March 8, 2010, 7:40 pmMaryG says:
The officer doesn’t know yet exactly what’s going to be relevant, and might not know until much later, when a casual revelation that Joe was sleeping with Mary, coupled with the revelation that Mary had an expensive cocaine habit, might explain why Joe might have had a special motive to commit the crime.
So let me get this straight: based on the info supplied by the person questioned by the cops, you conclude here that Joe is a legit suspect because he’s so in love with Mary he’s funding her coke habit?
Jesus!, that’s quite an imagination you’ve got Prof. Volokh. :-)
I wonder, do you suppose there are any physical clues that someone might look like they’ve just committed a crime for their coked-up gf? Anything cops might pick up on, rather than the all-important info supplied by those questioned by the cops?
No Snitchin’. I’m pretty sure that’s the logical response to those summarily being questioned. Unless of course, you have a good reason to provide additional information about poor Mary and Joe to the cops for some reason… (Didja hear: Peter was trying to get w/Mary? Kept her in powder while ole Joe was out breaking his neck working for the benefits, and now Petey is spilling his guts to the cops about Joe’s motive re. Mary’s habit. Boy this imagination stuff — fun!)
Stephen Lathrop’s words above bear repeating: (Bump) :-)
I’m pretty sure the collection of personal intelligence is about as useful as the collection of military intelligence; in proportion to its reliability it provides some hope of understanding what has happened, and little hope of predicting what will happen. Pretty much every spy who ever made off with government secrets did so after passing an FBI background check.
Reputation is one thing; the business, public or private, of manufacturing and managing reputations seems wrong because it is unreliable, and puts unchecked power into the hands of people who can’t be held to account. That sort of thing rarely leads to good outcomes.
March 8, 2010, 9:00 pmSCOTUSblog » Tuesday round-up says:
[...] at the San Francisco Chronicle reports on yesterday’s cert. grant in NASA v. Nelson. At the Volokh Conspiracy, Eugene Volokh compares background checks to a police officer conducting a criminal investigation [...]
March 9, 2010, 9:48 amJudith says:
You didn’t address the fact that this was done to *existing employees* who had in many cases been in their position for decades. Does an employer have an indefinite right to investigate your private life, as long as you are an employee?
And what about the point raised by rocketeer? If there is absolutely no guarantee that your data will be protected, and not shared with third parties, do you still have to give it up?
March 9, 2010, 2:17 pmDan Simon says:
Everyone here seems to be missing the point. This is simply stage two of a five-stage process.
In stage one, a grand principle–typically a “right”–is invented out of thin air, and connected by some arbitrarily tenuous thread to the US Constitution.
In stage two, legal activists and academics begin bandying this “right” about, writing articles, bringing test cases, and generally advocating the wonderfulness, correctness and Constitutional-ness of this new “right”. The public recoils in horror at the obviously insane implications of this new “right”, and courts generally reject arguments based on it. But the overall effect is to firmly establish the legitimacy of this “right” in academic and legal discourse.
At stage three, a case is found with enough pathos to allow the Supreme Court to use the “right” as their excuse to impose some extremely telegenic outcome. Pandora’s box has now been opened, and what follows is…
Stage four, in which a flurry of cases is brought which massively expand the breadth and depth of the “right”. All sorts of public policy decisions are seized from the democratic branches of government, and imposed by the judiciary, in the name of this right. The public, and their elected representatives howl in protest.
Finally, in stage five, the courts, saddled with the task of wielding some broad swath of combined executive-legislative power, begin sorting out the fine-grained details of the law through a series of complex legal decisions involving this “right”. Using the other branches of government as a foil–for the public is guaranteed to be far away from the judiciary in its preferences–the courts carefully shape the boundaries of the law to their liking, granting their subjects exactly the leeway that they choose to grant, and no more.
The public complains, but in the end they always acquiesce. They are really quite timid, after all, and easily led by their superiors.
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