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High court hears scientists' challenge to background checks
WASHINGTON The Supreme Court confronted the range of personal questions a government employer may ask during a background check, in a case Tuesday raising individual privacy interests and national security concerns.

Several justices, including Chief Justice John Roberts, suggested by their questions that the federal government should be given wide latitude, particularly in the wake of the Sept. 11 terrorist attacks. A ruling in the dispute could have consequences for many public employees and medical or psychological information they may have to reveal.

Twenty-eight scientists, engineers and other employees at the California Institute of Technology under contract at NASA's Jet Propulsion Laboratory challenged a new questionnaire for background investigations. The form seeks, among other personal details, information about counseling or treatment for past illegal drug use.

A U.S. appeals court in San Francisco issued a preliminary order siding with the workers at the Pasadena, Calif., campus, saying they had raised "serious questions" about their claim of informational privacy.

Acting U.S. Solicitor General Neal Katyal told the justices, "Background checks are a standard way of doing business. The government has required them for all civil service employees since 1953 and for contractors since 2005."

Katyal stressed that the information the government collects is needed to assess how a person would perform on the job and is protected from disclosure under the 1974 Privacy Act. He highlighted security concerns, saying contract workers approved for the Jet Propulsion Lab have access to other NASA facilities and could get "within 6 to 10 feet of the space shuttle as it is being repaired and readied for launch."

Justice Sonia Sotomayor, among the most skeptical of the government's position, asked whether the government's questions can be limited.

"Could you ask somebody, what's your genetic makeup, because we don't want people with a gene that is predisposed to cancer?" she asked.

Katyal resisted the question, saying the government could ask a range of questions as long as it did not disclose the information.

Justice Ruth Bader Ginsburg sought to cast the case narrowly and avoid a broad declaration about worker privacy rights. "It's only the question about treatment and counseling that is at issue," she asked. "Right?"

Katyal said yes.

To a question from Roberts about why the government asked about drug counseling, Katyal said, "It is for the good of the employee." In his brief, he said the government asks the treatment question to find out whether the user has sought help and "to identify situations in which, despite counseling and rehabilitation programs, there is little chance for effective rehabilitation."

The court is in relatively new territory with the case of NASA v. Nelson. In a 1977 case, the court referred to an "individual interest in avoiding disclosure of personal matters" yet said government interests such as public safety could override that.

In the government's brief, Katyal stressed the post-Sept. 11 world. "The government's need to conduct background checks of contract employees is compelling," he said, noting that after the terrorist attacks revealed security vulnerabilities, the administration strengthened background checks for U.S. facilities. The disputed questionnaire began at the lab in 2007.

The scientists challenging the form say they are "low-risk" employees and the question about drug treatment or counseling is too intrusive. They say they don't work on projects related to national security. Their lawyer, Dan Stormer, defined the key question as: "How far may a government go ... to intrude into the private lives of its citizens ... in positions that do not involve sensitive issues?"

Justice Antonin Scalia said that should be up to Congress and other elected officials, not judges, because there's no constitutional privacy right at issue.

Stormer, under questioning from Justices Sotomayor and Stephen Breyer, said the government usually had sufficient grounds to ask for basic information from employees, such as a Social Security number, but needed stronger justification for questions that touch on more personal concerns such as medical counseling or sexual relations.

Stormer said people in low-risk jobs should not be scrutinized as much as employees in sensitive positions. Justices Samuel Alito and Roberts said it would be impractical for the government to have an array of forms.

"You know," Roberts said, "it's a big government, and they can't tailor every inquiry, every form, to the individual applicant."

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