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The Turducken Approach to Privacy Law

Published: December 7, 2009

WASHINGTON

In June, the metaphor of the turducken made its first appearance in American jurisprudence.

“It’s a bit like building a dinosaur from a jawbone or skull fragment,” a dissenting federal appeals court judge wrote of his colleagues’ expansive reasoning, “and the result looks more like a turducken.”

A turducken is a chicken stuffed into a duck that is then stuffed into a turkey. Amanda Hesser, writing in The New York Times Magazine in 2002, said that “a well-prepared turducken is a marvelous treat, a free-form poultry terrine layered with flavorful stuffing and moistened with duck fat.” But a good terrine is probably not the ideal model for a legal doctrine.

The dissenter was Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, in San Francisco. He is a master of the dissent that might as well be a petition for Supreme Court review of the majority’s decision. This one, protesting his court’s refusal to rehear a case about the privacy rights of employees, said the law in that area had become a tangled thicket.

“It’s time to clear the brush,” Judge Kozinski wrote. “We didn’t undertake that chore today, but we’ll have to sooner or later, unless” — nudge, nudge — “the Supreme Court should intervene.”

Last month, the federal government took the hint and asked the Supreme Court to hear the case. Between the dissent and the government’s excellent track record in persuading the court to hear its appeals, it is a very good bet that the court will soon be dining on turducken.

The case was brought by 28 scientists and engineers at the Jet Propulsion Laboratory, a research facility operated by the California Institute of Technology under a contract with NASA.

“We run the telescopes,” said Robert M. Nelson, the lead plaintiff in the case. “We send out the space probes.”

In 2004, a Bush administration domestic security initiative expanded the background checks required for many government jobs to include contract employees like those at the laboratory.

The plaintiffs say the government investigations are needlessly intrusive and violate their privacy rights. They suggested that the federal government should have learned something from how it treated an earlier generation of scientists, including J. Robert Oppenheimer, who led the effort to develop the atomic bomb during World War II and was later stripped of his security clearance in the McCarthy era.

“We see history repeating itself,” Dr. Nelson said. “These guys went to leftist meetings in the ’30s, did heroic science in the ’40s and were persecuted in the ’50s.”

Dr. Nelson, who has been with the laboratory for 30 years, works on the Cassini mission, which involves a spacecraft orbiting Saturn. He and other plaintiffs do not have security clearances and are not involved in classified or military activities.

Zareh Gorjian, another plaintiff, told my colleague Andrew C. Revkin that he could not understand what the government was after. “I was at J.P.L. during the cold war when we were fighting the Soviet Union, which had the power not only to end all life in the U.S. but the entire planet,” Mr. Gorjian said. “We were able to defeat them without resorting to such intrusive tactics.”

The Ninth Circuit provisionally agreed with the plaintiffs, saying they had raised serious questions about their privacy rights. A three-judge panel of the court ordered the background checks halted while their case goes forward.

When the full court was asked to hear the case, its judges were sharply divided over whether the investigations were routine or troublesome.

Judge Andrew J. Kleinfeld, in a second dissent, said the court’s decision “is likely to impair national security” by forbidding the government “from doing what any sensible private employer would do.” He mentioned espresso stands and clothing stores, adding, “Most of us do not hire law clerks and secretaries without talking to professors and past employers.”

“No revival of McCarthyism is threatened,” Judge Kleinfeld said, “by allowing as much inquiry for hiring a Jet Propulsion Lab engineer as a barista.”

Much of what the laboratory’s employees were asked to disclose was indeed perfectly ordinary. But they were also asked about drug use and counseling, and they were required to sign a form authorizing the government to collect information from schools, landlords, employers and others.

That additional information was to be sought through another form, this one soliciting “adverse information,” including “violations of the law,” “financial integrity,” “abuse of alcohol and/or drugs” and “mental or emotional stability.” There was also a space on the form for a little essay that invited “derogatory as well as positive information.”

It is not clear how the government was to use the information it gathered. But a document briefly posted on an internal Web site at the laboratory said employees might be deemed unsuitable for, among many other things, loitering, homosexuality, illegal gambling, mutilation of public records, “indecent proposal,” “black market activities (nonprofit),” “carnal knowledge” and “sodomy.” The document is available on a Web site about the suit created by the plaintiffs.

The government has neither confirmed nor disavowed that last document, and there is no indication that the criteria it listed were ever used. In the trial court, Vesper Mei, a government lawyer, said anything to do with the topic was “premature and speculative.” In its Supreme Court brief, the government said it had made no “determinations based on improper factors.”

As the turducken metaphor suggests, the law in this area is unclear. Privacy law mostly regulates disclosure of information, not gathering it. And the law gives less protection to people who are free to refuse to cooperate, even at the risk of losing their jobs, than to people compelled to cooperate regardless.

Dr. Nelson said he found the legal system to be an alien landscape.

“Usually we’re going to scientific conferences,” he said. “Courts are not our usual area of functioning.”

He added that he was not familiar with turducken. “Does one smoke it,” he asked, “or cook it in brownies?”

 

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