Robert Nelson  Photo by: Kevin Uhrich Robert Nelson 

Barack, don't do it

JPL employees who won privacy rights court battle ask the White House to let that ruling stand

By Joe Piasecki 06/11/2009

Jet Propulsion Laboratory scientists will not be forced to choose between losing their jobs and consenting to secret government investigations of their medical, financial and sexual histories, the federal 9th Circuit Court of Appeals ruled last week.

The decision upholds the court’s October 2007 injunction against implementation of Homeland Security Presidential Directive 12, a 2004 executive order by the Bush administration that required all workers in government-owned facilities — including JPL scientists employed by Caltech at the NASA facility — to consent to sweeping background checks.

Led by Senior Research Scientist Robert Nelson, 28 JPL employees had filed a lawsuit objecting to the wide net cast by the mandatory search program, which according to government documents evaluated employability by everything from medical and financial records to adultery and homosexual activity, which were listed as potential security issues.

“Our great fear was the information revealed in these background checks could be used to shape or misrepresent scientific findings to suit the views of those in authority,” said Nelson.

The ruling upholding the injunction will stand unless appealed to the Supreme Court by Attorney General Eric Holder, an option that dissenting 9th Circuit Chief Judge Alex Kozinski seemed to be calling for in his opinion, which questioned how much legal precedent affirms broad rights to informational privacy.

“The real issue here is not a legal issue, but a policy issue,” said Dan Stormer, a Pasadena attorney representing the JPL employees. “The Bush administration adopted policies that were the most atrocious and overreaching policies concerning privacy of any presidency ever. The issue now is will the Obama administration [try to] do something that has never been done before and would defeat worker privacy? … It would be a slap in the face of voters who supported Obama.”

But, “Is there a constitutional right to informational privacy?” asked Kozinski, who somewhat ironically made headlines last year while handling an obscenity case after sexually explicit images were discovered on his personal Web site, which he said he did not know the public could access. 

With little Supreme Court guidance, Kozinski continued, “The courts of appeals have been left to develop the contours of this free-floating privacy guarantee on their own. It’s a bit like building a dinosaur from a jawbone or skull fragment, and the result looks more like a turducken,” a turkey stuffed with a duck and a chicken.

In concurrence with the majority opinion, Judge Kim Wardlaw wrote that “The record suggests that the government will seek private information unrelated to employment and use such information to determine suitability for employment,” adding that sharing such information with Caltech could violate existing federal privacy laws.

Constitutional law expert Erwin Chemerinsky, dean of the UC Irvine School of Law, praised the majority’s findings. The decision “is a very important one in terms of recognizing both informational privacy and the need to limit the government’s right to gather information about people unnecessarily,” he said. “The government can’t be asking for information from people unrelated to its legitimate interest.”
Attorney Stephen Rohde, the newly elected chair of the ACLU Foundation of Southern California, said the decision upholds privacy as one of the “unenumerated rights” protected by the 9th Amendment.

“Let’s not forget that our history is littered with examples of government seriously intruding on the private lives of individuals with catastrophic results. Once government collects information there’s no telling in whose hands that information will land and for what purposes — intended or unintended — the information will be used,” said Rohde.

“We’re certainly counting on Obama to stand with us on this,” said JPL Senior Software Engineer Susan Paradise, “and not pursue the Bush administration’s goal of reducing our constitutional rights to privacy.” 

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