I wanted to blog a bit more about the Ninth Circuit's Nelson v. NASA case, on which the Ninth Circuit has just denied rehearing en banc. In Nelson, various contract employees working indirectly for NASA, challenged NASA's new background check policy, among other things under 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.
But despite the 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 someone 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. And 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. And one way or the other, it seems to me that the Nelson decision has implications far beyond the government's background checks of its own employees.