NASA v. Nelson: The Merits of the Case

As I wrote in a previous post, the U.S. Supreme Court granted cert. on NASA v. Nelson, 512 F.3d 1134 (9th Cir. 2008), a case where NASA required employees to answer questions about very private matters.  The U.S. Court of Appeals for the 9th Circuit granted a preliminary injunction because the questions violated the constitutional right to information privacy.

I believe the Supreme Court will reverse.  As I argued in my previous post, I hope it will not reverse based on a conclusion that the constitutional right to information privacy doesn’t exist.  Instead, the 9th Circuit’s opinion expands the constitutional right to information privacy far beyond its current contours.

I. The Constitutional Right to Information Privacy

In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court held that the right to privacy protects not only “independence in making certain kinds of important decisions” but also the “individual interest in avoiding disclosure of personal matters.”  This latter interest has become known as the constitutional right to information privacy.

Whalen involved a challenge to a reporting requirement to the government of certain prescription drugs (many of which were considered controlled substances if not properly prescribed).  The Supreme Court concluded that because the records would be kept confidential and highly secure (the storage facility had many security safeguards), the plaintiffs’ rights weren’t violated.

The focus of the constitutional right to information privacy is a duty to avoid disclosure. The right allows disclosure if the government has a compelling interest that outweighs the privacy interest.  So the way courts address the constitutional right to information privacy is to balance the government’s interest in disclosure against the plaintiffs’ interest in privacy.

But NASA v. Nelson didn’t involve disclosure.  It involved collection. The constitutional right to information privacy isn’t focused around questioning people or gathering information — it is about protecting against unwarranted disclosure. The only other case I’m aware of where a court has used the constitutional right to information privacy to bar information gathering is another 9th Circuit case — Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1269 (9th Cir. 1998).  There, a government lab tested prospective employees blood and urine for syphilis, sickle cell anemia, and pregnancy without their knowledge and consent.  The 9th Circuit held that the testing violated the constitutional right to information privacy, concluding: “Although cases defining the privacy interest in medical information have typically involved its disclosure to ‘third’ parties, rather than the collection of information by illicit means, it goes without saying that the most basic violation possible involves the performance of unauthorized tests.”

But the 9th Circuit’s expansion of the constitutional right to information privacy, however normatively desirable, is not consistent with the bulk of the caselaw.

The only way I see a potential violation of the constitutional right to information privacy based on the probing questions NASA asked is if the information wasn’t protected with adequate security after being collected or if there was an indication by NASA that it would disclose the information.

The cert. questions, it is explicitly noted that the information is “protected under the Privacy Act, 5 U.S.C. 552a.”

My sense is that if the Supreme Court wants to rule narrowly in this case, it can do so as follows:

1. The constitutional right to information privacy protects against unwarranted disclosure of personal information.  It doesn’t protect against the collection of data.

2. The government is under a legal obligation pursuant to the Privacy Act to avoid disclosing the data.

3. The plaintiffs can prevail only if they show that the government fails to provide adequate security to the information.

II. The First Amendment

There is one potential theory that could protect plaintiffs — the First Amendment.   The Supreme Court’s grant of cert. focuses on the constitutional right to information privacy, so I doubt the Court will reach the First Amendment issues.  But in Shelton v. Tucker, 364 U.S. 479 (1960), the Court held that the First Amendment right to free association was violated by asking overly broad questions for state employment as teachers.

Shelton involved  an “Arkansas statute [that] compels every teacher, as a condition of employment in a state-supported school or college, to file annually an affidavit listing without limitation every organization to which he has belonged or regularly contributed within the preceding five years.”   The Court held:

The question to be decided here is not whether the State of Arkansas can ask certain of its teachers about all their organizational relationships. It is not whether the State can ask all of its teachers about certain of their associational ties. It is not whether teachers can be asked how many organizations they belong to, or how much time they spend in organizational activity. The question is whether the State can ask every one of its teachers to disclose every single organization with which he has been associated over a five-year period. The scope of the inquiry required by Act 10 is completely unlimited. The statute requires a teacher to reveal the church to which he belongs, or to which he has given financial support. It requires him to disclose his political party, and every political organization to which he may have contributed over a five-year period. It requires him to list, without number, every conceivable kind of associational tie — social, professional, political, avocational, or religious. Many such relationships could have no possible bearing upon the teacher’s occupational competence or fitness.

In a series of decisions, this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

The questions asked by NASA were quite broad:

(Form 42), which asks whether the recipient has “any reason to question [the applicant’s] honesty or trustworthiness” or has “any adverse information about [the applicant’s] employment, residence, or activities” concerning “violations of law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.”

These broad questions might implicate associational or expressive activity.  If so, there’s an argument that the First Amendment requires they be more circumscribed.

This argument is somewhat of a stretch, but I think it has some plausibility.

Regardless, the Court’s cert. grant appears focused on the constitutional right to information privacy, and I see the Court reversing the 9th Circuit’s decision.

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