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Court reviews what is acceptable intrusiveness for background checks

Oct. 5, 2010 - 09:38AM   |  
By BART JANSEN   |   Comments
Depending on how the Supreme Court rules, the results could apply at Kennedy Space Center, where civil servants undergo background checks and contractors face them.
Depending on how the Supreme Court rules, the results could apply at Kennedy Space Center, where civil servants undergo background checks and contractors face them. (JEFF FRANKO / GANNETT NEWS SERVICE)

NASA's efforts to question workers about their finances, their drug use and even their sexual behavior is unconstitutionally intrusive, contractors say. Tuesday, they'll make their case in oral arguments before the Supreme Court.

The space agency created in-depth background checks on contractors in 2007 based on concerns related to the 2001 terrorist attacks.

Twenty-eight workers at the Jet Propulsion Lab in California engineers and scientists who don't handle secret information fought back with a lawsuit and won a ruling from an appeals court blocking the investigations.

"We think these are illegal and unjustified violations of our privacy," said Robert Nelson, the lead plaintiff in the case. "The prospect of the government creating dossiers packed with details about the private lives of employees is frightful."

Nelson has worked at the lab for 32 years on projects that include the Voyager program to explore the solar system and the Cassini spacecraft hurtling toward Saturn.

The government says national security requires detailed background checks, even on workers who don't have security clearances.

"These routine investigations allow the government to verify the identities and histories of the individuals it employs and ensure that they are trustworthy," Acting Solicitor General Neal Katyal said in court papers.

Groups that conduct background checks, including the National Association of Professional Background Screeners and the National Association of Screening Agencies, support the government's case, saying open-ended questions are key to prudent investigations.

The case is drawing attention throughout the government. Contractors at agencies such as the Forest Service, the National Institutes, the Health and Human Services Department and the Education Department have contacted litigants to support them during the case.

Depending on how the Supreme Court rules, the results could apply at Kennedy Space Center, where civil servants undergo background checks and contractors face them.

"In that way, it affects every single employee at NASA," said plaintiff Dennis Byrnes, chief engineer for flight mechanics at the Jet Propulsion Lab. "This is an insult to our personal and professional integrity."

Lab workers said in court papers that NASA refused to say, in previous court proceedings, if agency officials asked contractors about sodomy, voyeurism and adultery. The workers said those factors were included on a "suitability matrix" that related to NASA's requirements for holding a job.

Nelson compared the NASA officials conducting background checks to Torquemada of the Spanish Inquisition and the late Sen. Joseph McCarthy and said they asked what movies he watches and what books he's read.

"Yes, the inquisitors even want to ask about who we've slept with," Nelson said.

Groups such as the Union of Concerned Scientists and the American Civil Liberties Union have filed court briefs supporting the workers.

The process that led to the background checks began in 2005, with Homeland Security Presidential Directive 12. Workers in the Supreme Court case say the directive was designed only to require identification badges for workers, and the Commerce Department developed the background checks as a requirement for the badges.

The court dispute focuses on two questionnaires in the background checks.

One, SF-85, asks workers about any illegal drug use during the past year. The other, Form 42, asks people listed as references by NASA workers about the workers' honesty, financial integrity, alcohol and drug use, mental and emotional stability, and "other matters."

Engineers and scientists at the Jet Propulsion Lab, which is operated by the California Institute of Technology under contract to NASA, bristled at the questions.

"Like most humans, I'm neither a saint nor am I a very interesting sinner," Nelson said. "But my personal life is my own business and it's irrelevant to my job performance."

The 9th U.S. Circuit Court of Appeals blocked the investigations in 2008, calling the questions too "open-ended" and saying questions about drug treatment violate medical privacy.

Bart Jansen reports for the Gannett Washington Bureau.

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