NASA background checks court fight continues - June 05, 2009
NASA employees’ scored a victory this week in their struggle against background checks they regard as hugely intrusive.
Lawyers for those complaining about the Homeland Security Presidential Directive #12 checks (better known as HSPD 12) welcomed a ruling by the court of appeal in favour of employees at NASA’s Jet Propulsion Laboratory in the ongoing arcane legal wrangling.
Back in 2007 JPL employees took NASA to court over the checks, which could include information health, mental state and sexual histories. An injunction was granted blocking new HSPD-12 checks.
Yesterday’s ruling denied an attempt by the Department of Justice to have the case considered en banc. En banc hearings involve a larger panel of judges.
One of the judges who did back an en banc hearing said it would “clear the brush” that has built up as different bits of the American legal system kick the case back and forth.
“Does one really have a free-standing constitutional right to withhold from the government information that others in the community are aware of?” asked Alex Kozinski, “I don’t think so. How then can it be constitutionally impermissible for the government to ask a subject’s friends, family and neighbours what they know about him? Surely there’s no constitutional right to have the state be the last to know.”
However Circuit Judge Kim Wardlaw, joined by six other judges, denied an en banc hearing.
They wrote, “While the preliminary injunction remains in effect, the public may rest assured that the class members, many of whom have worked at JPL and Caltech for twenty to thirty years, have undergone serious security checks, which the government found sufficient to safeguard our national space effort up until two years ago when it first decided to impose its proposed limitless inquiry.
“A temporary restriction against a standardless investigation of employment-irrelevant data will have little to no impact on JPL, in part because of the security measures already in effect.”
Another circuit judge who sided with the dissenters, judge Consuelo Callahan, said the move “constitutes an unprecedented expansion of the constitutional right to informational privacy”.
This, he says, “may undermine personnel background investigations performed daily by federal, state, and local governments” and “sharply curtails the degree to which the government can protect the safety and security of federal facilities”.
The case continues.