NASA contractors who resisted government background checks over privacy concerns had their case heard before the United States Supreme Court in January 2011.  The contractors claimed that because their work does not require security clearances and because it is not classified and not sensitive that they should not be required to undergo invasive background checks.  The background checks often include the government questioning family and friends, reviewing decades of the worker's confidential medical records, financial records and other personal information.

Amicus briefs were filed for the defendants by The American Astronomical Society, The Union of Concerned Scientists, The American Civil Liberties Union, The Electronic Privacy Information Center, The Electronic Frontier Foundation, The Drug Policy Alliance and The California Employment Lawyers Association (CELA).  Amicus briefs were filed in support of the government's case by The Consumer Data Industry Association, The Association of Professional Background Screeners, Reed Elsevier and the National Association of Screening Agencies.

The Supreme Court issued a decision January 19, 2011 authored by Justice Alito and joined or concurred in by eight Justices with only newly confirmed Justice Kagan taking no part in the consideration or decision of the case.

Click here to read NASA v. Nelson.

The Court reasoned that under earlier case law, when the Government acts in its capacity "as proprietor" and manager of its "internal operation," it has a much freer hand than when it regulates as to citizens generally.  The Court noted that the Government has been conducting employment investigations since the Republic's earliest days and the President has had statutory authority to assess an applicant's fitness for the civil service since 1871.  The court then leaps to the next assertion: this interest is not diminished by the fact that respondents are contract employees because there are no meaningful distinctions in the duties of NASA's civil-service and contract employees, especially at JPL, where contracct employees do work that is critical to NASA's mission and that is funded with a multibillion dollar taxpayer investment.

The Court also reasoned that the contractors' privacy is protected by The Privacy Act, which allows the government to maintain only those records "relevant and necessary to accomplish" a purpose authorized by law, 5 U.S.C. 552a(e)(1), requires written consent before the Government may disclose an individual's records and imposes criminal penalties for willful violations of the nondisclosure provisions.

The plaintiffs' Supreme Court brief can be read here.

The case is NASA v. Nelson, No. 09-530.