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Supreme Court Defers on Constitutional Right to Information Privacy; Scalia Predicts Increased Litigation

17 February 2011

On January 19, the Supreme Court decided NASA v. Nelson, a case brought by NASA contractors alleging that questions asked by the federal agency in a background check violated their constitutional right to information privacy -- i.e., a constitutional privacy interest in the government "avoiding the disclosure of personal matters" recognized in a pair of 1977 cases, Whalen v. Roe and Nixon v. Administrator of General Services.  At issue were questions asking whether the contractors received "any treatment or counseling" regarding illegal drug use within the previous year (as a follow up to a question regarding whether they used, possessed, supplied, or manufactured illegal drugs within that year), and questions directed toward references for information bearing on "suitability for government employment or security clearance," including any "adverse information" about a contractor's "honesty or trustworthiness," "violations of the law," "financial integrity," "abuse of alcohol and/or drugs," "mental or emotional stability," "general behavior or conduct," or "other matters."

In an 8-0 opinion (Justice Kagan recused herself), the Court held that even assuming the existence of a constitutional right to information privacy mentioned in Whalen and Nixon, such a right would not prevent NASA's ability as an employer to ask "reasonable, employment-related inquiries" about the backgrounds of its employees that "further the Government's interests in managing its internal operations," commenting that the questions at issue were "of the sort used by millions of private employers."  The Court noted that the federal Privacy Act, which restricts government disclosure of personal information, provided additional assurance that the information collected, though sensitive, would not be disclosed.

In so holding, the opinion was very similar to the Court's much-anticipated (but ultimately narrow) decision in City of Ontario v. Quon about six months prior.  In Quon, the Court assumed for the sake of argument that a public employee has a reasonable expectation of privacy in text messages sent from a pager issued by a government employer.  Nevertheless, as we observed when Quon was decided, the decision made clear that even in areas in which public employees have constitutional rights, if a government employer infringes on that right to accomplish a legitimate business objective, the government action is unlikely to be deemed unconstitutional.

Like Quon, the decision in Nelson only applies to public, and not private, employers.  Also like Quon, the Nelson opinion included some sparring between judges in the majority and Justice Scalia, who concurred in both opinions, regarding its scope.  In Nelson, Scalia lamented that the majority's decision, in assuming for the purposes of argument that a constitutional right existed, would "dramatically increase the number of lawsuits claiming violations of the right to informational privacy."  Though Scalia's concern involved lawsuits against government entities, his admonition merits further scrutiny going forward, as rulings in constitutional privacy cases have a tendency to be cited in lawsuits against private entities.

Still, private employers can be heartened that the Supreme Court has found that the methods of conducting background checks at issue in Nelson are sufficiently "reasonable" to trump even a constitutional right.  Nevertheless, all employers should be careful to conduct all background checks in compliance with all applicable federal and state law, including the Fair Credit Reporting Act.

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