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Supreme Court: Background Investigations on Federal Contract Employees OK

Wednesday, in NASA v. Nelson, the U.S. Supreme Court unanimously held that the government didn’t violate federal contract employees’ constitutional rights by using certain background investigations. In this case, contract employees at NASA’s Jet Propulsion Laboratory sued NASA, alleging that the background checks it was using violated their constitutional rights to informational privacy.

The background checks in question required the employees to fill out a standard form that asked about their involvement with illegal drugs and whether they had received any treatment or counseling. The employees also had to sign a release that authorized the government to acquire personal information from employers, schools, and others, and the government sent questionnaires to the employees’ references. The questionnaires asked open-ended questions about the employees’ “honesty or trustworthiness” and whether the references had “adverse information” related to various other matters.

The Court held that the background investigations were reasonable “in light of the government interests at stake.” The majority opinion assumed (for purposes of the decision) that there is some type of right to informational privacy and noted that the investigations didn’t violate that interest. (In a concurring opinion, Justices Antonin Scalia and Clarence Thomas agreed that the background checks are constitutional but asserted that there is no federal constitutional right to informational privacy.) The Court also stated that the forms used in the background investigations are subject to the Privacy Act, which means they are “subject to substantial protections against disclosure to the public.”

Although this case involves public employment, the Court did reference similar background investigations used by private employers. The Court noted that the questions challenged by the contract employees were the same type of inquires used by millions of private employers in standard background checks.

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