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Government Investigations:

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.

Related Posts (on one page):

  1. Government Investigations:
  2. Turducken
Le Messurier (mail):
When I was in the business of doing background checks We often did "character references" (as opposed to employment checks). The prospective employee had to sign a consent form which laid out the items that were apt to be checked. It was a condition of employment and yes it was intrusive, but for many occupations the intrusions were deemed necessary. For example asking about any adverse information" concerning "financial integrity," "abuse of alcohol and/or drugs," "mental or emotional stability," and "other matters" make perfect sense when the potential for the employer being sued for NOT doing a thorough background check is about 100% when a third party is effected by an employee's bad behavior. The odds of the third party winning such a suit are very great.

This suit sounds like a lawsuit brought by a union or at the instigation of a union. I say check 'em out and if they've got something to hide they shouldn't be hired! Believe me, even when good background checks are done, bad behavior sometimes slips through. It also sounds like the court hasn't got a clue about the non-economic risks of running a business. But hey, this is the age of hope and change and let's all get along and it will all work out.
6.4.2009 7:54pm
rfg:
1. In a criminal investigation, the agent is looking for evidence concerning a specific crime or event. In a background investigation, the agent is looking for information that will allow a determination of future behavior, which is harder, I agree. I'm not comfortable with the idea of snoops checking up on my past, but it was an accepted price of having a security clearance (which I do not need or have any more- it feels great!). In this sense it's voluntary, and the plaintiffs should take up another line of work if they feel it's too invasive.

2. The really disturbing part of your post was the level of information that is apparently routinely provided to law enforcement upon request. I have already experienced banks asking questions I thought were inappropriate in order to get credit approval (example1- show how you are qualified for your present position- my answer: I have the job- that proves my qualifications; example 2- provide complete copies of your bank statements for the last three months, including details of all your expenditures- my answer: none of your business. You should care if I pay my bills on time, but not how often I go to Starbucks). I was quite willing to write off the loan if that was the penalty- fortunately we got the mortgage anyway, despite my lack of cooperation.

Should I now worry that any busybody with a badge can get stuff that I won't release willingly?

I wonder how many people will now write in to tell me it's really the bank's business how often I go to Starbucks?
6.4.2009 8:07pm
John McCall (mail):
In particular, the Circuit concluded that it was unlikely unconstitutional for the government to ask various people who knew the employees

I assume you mean likely unconstitutional. [D'oh! Fixed, thanks. -EV]

The legal aspects of the following I can't speak much to, but socially speaking, privacy is by nature variant over persons: just because I've disclosed a thing to Jane doesn't mean I want it disclosed to Joe. If you ask whether it's a violation of my privacy for Person P to know Fact F, I have to know who P is before I can answer. So it doesn't seem totally impossible to me that I could have an enforceable right to privacy prohibiting miscellaneous government agencies from investigating my private life, while acknowledging that I have no such right against the police. In fact, I would even argue that that's a common-sense explanation for a great many rules about police sharing of evidence gained during an investigation.

But again, I can't speak to whether that's a workable legal rule, or to whether there's constitutional support for it.
6.4.2009 8:10pm
GD:
Can this help me avoid the hassle of the moral character application when I waive into DC?
6.4.2009 8:11pm
ArthurKirkland:
Few people can abuse power in the manner that law enforcement personnel can. Perhaps every police officer, prosecutor, and judge should be investigated in this manner every couple of years, and in the intervening years we could check up on elected officials.

Plus, every board should wish to ensure that a company's executive officers are clean. What's good for the executive officers would be great for directors.

After such a good start, our society could weigh whether more people should have flashlights jammed up their butts on a regular basis.
6.4.2009 10:20pm
David Schwartz (mail):
You keep missing the entire point. This wasn't about how the government could interact with third parties. It was about what it could make a person agree to as a condition of their employment.
6.4.2009 10:32pm
zippypinhead:
"a federal constitutional right to informational privacy"
Dear Ninth Circuit, I think your penumbras are showing!

But seriously, to put it a little differently - now it's a Constitutional violation for a Federal agent to ask others to voluntarily provide information known to them about your "private" matters?

How much worse is the violation of "privacy" for the same answers to be compelled by an ex parte grand jury subpoena that in the Federal system is almost never approved in advance by a competent judicial officer? The [il]logical conclusion is that a grand jury investigating, say, money laundering, will need probable cause and a warrant to obtain "private" bank records? Probable cause which, incidentally, is roughly the same standard required for the grand jury to indict at the CONCLUSION of the investigation?

This is frighteningly broad. If the Ninth Circuit is right, it's time to shut down all financial, national security, and other investigations that need to obtain "private" evidence about subjects from third parties. Not to mention the entire national security background clearance process....

The cynic might say that if you really want to keep adverse information "private," then you probably ought to keep it out of sight of the nosy neighbors, and out of third party hands in general.
6.4.2009 10:44pm
zippypinhead:
This wasn't about how the government could interact with third parties. It was about what it could make a person agree to as a condition of their employment.
There's no Fourth Amendment (or other Constitutional) right for any person to be employed in a job that exposes them to classified or SBU government information, no matter how much of a security risk. Uncovering and disqualifying such risks is the purpose of the background investigation. If Congress wants to shield the sort of information at issue here within some broad statutory protection, well, that decision is above my pay grade. But this simply shouldn't be a Constitutional issue.
6.4.2009 10:53pm
John Burgess (mail) (www):
I sure want intrusive inquiries into the background of people who are to hold jobs that require security clearances. Various and notorious spy cases might have been avoided had the questioning been a bit more intrusive and the security clearance reviews a bit more frequent.

If the job needs no security clearances, then the level of intrusiveness should be lower, granted. But just what these NASA jobs entailed is not clear.

And anyway, the 9th needs to maintain is frequency for having its judgments overturned. This one certainly will be.

The quip about 'penumbras', though, wins the day...
6.4.2009 11:01pm
Eugene Volokh (www):
David Schwartz: My view is that 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.

But if you're right and the government can't require an employee to agree to such asking around, then that must be because there is such a constitutional right, which would bar the asking around if the employee doesn't waive the right. And if employees have a constitutional right not to have the government ask around about them, then so would ordinary citizens who are being considered as possible suspects in a criminal investigation.
6.4.2009 11:39pm
David Schwartz (mail):
There's no Fourth Amendment (or other Constitutional) right for any person to be employed in a job that exposes them to classified or SBU government information, no matter how much of a security risk. Uncovering and disqualifying such risks is the purpose of the background investigation. If Congress wants to shield the sort of information at issue here within some broad statutory protection, well, that decision is above my pay grade. But this simply shouldn't be a Constitutional issue.
So if the government wants to implement a formal policy of not hiring black people to handle SBU information, that's okay with you? After all, there's no right to be employed. I guess black people can just work for the other Federal government.
6.4.2009 11:45pm
ArthurKirkland:
The government employs law enforcement personnel. It would conduct the investigations, starting with judges, then moving to police officers and prosecutors.

Companies employ officers and directors and would conduct the relevant investigations.

Any judge, police officer, prosecutor, officer or director who dislikes the policy would be free to find employment elsewhere.

I would start, in every context, with an investigation of every person who introduces or approves such a policy.
6.5.2009 12:10am
zippypinhead:
So if the government wants to implement a formal policy of not hiring black people to handle SBU information, that's okay with you? After all, there's no right to be employed. I guess black people can just work for the other Federal government.
Inapposite straw man argument. Race has long been recognized as a suspect class, Constitutionally. And then there are the statutory race-based employment protections codified in Title VII, etc. But "informational privacy?" I seem to be having a hard time finding that one in the Constitution or S.Ct. caselaw in an employment-related context. There are numerous statutory protections for confidential information, ranging from HIPAA to the Privacy Act to the Bank Secrecy Act and a host of others. But those weren't what the Ninth Circuit relied on in its holding.

At most, the permissibility of public-sector employment background investigations should be subject to a rational basis standard of review, and at least this pinhead can't think of a winning argument why a security clearance or SBU access-level investigation as done by the Feds nowadays wouldn't easily pass muster (even after having read the Ninth Circuit's rather alarmist views to the contrary).
6.5.2009 11:01am
Nony Mouse:
Arthur,
What ever gave you the idea that police officers don't go through such investigations as a condition of employment? Most departments (and I would argue, all good departments) do take a very close look at who they're about to hand the power of a badge that might be used on their own families.
As for why NASA might want to do such a thing... NASA is funded by US taxpayers. As such, certain technical achievements should be considered properly the realm of American achievement. Go find pictures of the Buran, and then try to tell me that industrial spies aren't at work in the esteemed business of space.
Speaking strictly from personal experience, the non-sensitive form is similar to the sensitive one, but there are a few differences. I do know that they check your references, unlike high school english teachers, and are generally pretty good at finding your references. And they WILL find time to talk to anyone who claims to have adverse information. If it turns out to be nothing, you'll not have a problem.
6.5.2009 11:14am
David M. Nieporent (www):
So if the government wants to implement a formal policy of not hiring black people to handle SBU information, that's okay with you? After all, there's no right to be employed. I guess black people can just work for the other Federal government.
No, but there is a right to not be discriminated against on the basis of race, which is what we have in your hypo, which is what makes it inapposite.
6.5.2009 11:18am
Nony Mouse:
I should point out that I have no difficulties with the application of additional safeguards, if any are needed, to prevent the disclosure of non-criminal findings of the investigation. But I also haven't heard of any being needed. What I know about 'adverse information' had to do with non-investigating personnel talking about (or admitting to, take your pick) what had happened, not from the government's end of things. I haven't heard about investigators doing any kind of blackmail or gossip.
6.5.2009 11:27am
David M. Nieporent (www):
You keep missing the entire point. This wasn't about how the government could interact with third parties. It was about what it could make a person agree to as a condition of their employment.
No; you keep missing the entire point. An employer can "make you agree to" anything as a condition of employment, unless that "anything" is a violation of some statute, public policy, or (in the case of a government employer) the constitution. The specific issue here is whether the "anything" here violates the constitution, and the "anything" here is "asking questions about you of third parties."

And the court's claim is that asking questions of third parties about you violates the constitution.
6.5.2009 11:32am
Nony Mouse:
Note that this 'condition of employment' isn't limited to adults-only workplaces... sort of like the ones around schools. I've volunteered at several, and every single one has run some sort of background check as a condition of employment. No one wants to be the one to let a monster into an elementary school.
6.5.2009 11:45am
starman:
One issue seems to have been missed in this thread. These investigations were going to be done on long-time employees of JPL. It would seem to be one thing to say that background investigations are a condition of employment when you sign up for a job.
Insisting on background checks to keep your job after you are 20 plus years into your career seems another thing entirely.
cheers
6.5.2009 3:59pm
pintler:

then that must be because there is such a constitutional right, which would bar the asking around if the employee doesn't waive the right.


Surely it's OK for the bride's parents to ask mutual acquaintances what they know about the groom. AFAIK, it's legal for me to call up Antonin Scalia's neighbors and ask if they have seen any strange goings on (although he may not like it).

Yet employers, and e.g. the range I belong to, ask people to sign consent forms for background checks. Why do they do that? Am I misunderstanding the legality of my making nosy inquiries about random people? If not, why is it not OK if that person works for me, or join my club?
6.5.2009 4:44pm
zippypinhead:
It would seem to be one thing to say that background investigations are a condition of employment when you sign up for a job.
Insisting on background checks to keep your job after you are 20 plus years into your career seems another thing entirely.
Why? Every government employee or contractor with a security clearance, and in some agencies anybody with access to SBU information, has to go through a full field background clearance renewal every five years (or for SCI with poligraph, potentially more frequently). Things change, and the government needs to make sure there's nothing currently going on in your life that makes you a security risk.

In the civil employment litigation context, requiring someone already employed to execute an employment contract that adversely affects his terms of employment can, in some jurisdictions, be voidable for lack of consideration if all that the employer does in return is permit continued at-will employment. But that rule doesn't apply in the security arena - incumbent employees can and do lose their clearances.
6.5.2009 7:06pm
starman:
zippypinhead

agreed. clearances are updated at times. The point here, I thought, was that the plaintiffs have not held security clearances for the past many years on the job, are not working on classified projects, and don't want to work on classified projects.
cheers
6.5.2009 8:02pm
ReaderY:
It's quite likely that society needs greater protection for private information, but I believe providing such protection is the business of the legislature or of a constitutional amendment. The problems involve a particularly large number of interconnected actors and difficult-to-foresee consequences, and hence courts are particularly bad places to reach reliable decisions.
6.7.2009 5:54am
David Schwartz (mail):
No; you keep missing the entire point. An employer can "make you agree to" anything as a condition of employment, unless that "anything" is a violation of some statute, public policy, or (in the case of a government employer) the constitution. The specific issue here is whether the "anything" here violates the constitution, and the "anything" here is "asking questions about you of third parties."
It's not asking questions about you of third parties. It's demanding that you authorize third parties to release information they would otherwise keep confidential

Do you really see no problem in a policy that required all people seeking government jobs to authorize all third parties to release any and all confidential information they may have about them?
6.8.2009 2:15am
markm (mail):
David, this isn't just any government job. It's a job in a research facility that often handles highly classified information. When I was in the Air Force, I underwent such a security check every five years, and the secrets of maintaining 20-year old F-111's seems to me to be a whole lot less critical than many JPL projects.
6.8.2009 7:59pm
David Schwartz (mail):
markm: I'm responding to the argument that there's no constitutional issue at all, even in theory. So I'm using reductio ad absurdum. I agree that the factual situation here is more complex than my example -- I'm just trying to show there's a genuine right at issue.
6.9.2009 7:58am

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