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