Right of Privacy Does Not Trump Government’s Right to Know its Contract Employees

Right of Privacy Does Not Trump Government’s Right to Know its Contract Employees

While many of us willingly give up the most private of information on facebook to our hundreds of “friends,” we value our ability to choose what we disclose, and perhaps naively think we control who has access to it.  Employment background checks deprive us of the sense that we control what is revealed.  They involve digging around for facts that we might NOT readily disclose.  Perhaps worse, they might involve questioning of our acquaintances or prior bosses.

The Supreme Court unanimously decided an interesting case involving employees’ right to privacy, earlier discussed here.  The case before the Court involved employees of a federal contractor working at a NASA lab who were for the first time required to submit to background checks.  Many of these employees had worked at the California Institute of Technology for years on astronomical research. They had never applied for government jobs.  Under a new rule suggested after 9/11. All employees given access to government facilities were required to go through the same background checks that government employees do.  Twenty-eight employees sued.

The biggest objections arose with the questions about use of and treatment for illegal drugs, and the questions to references seeking any adverse information about the employee’s honesty, emotional stability, general behavior, financial integrity, and similar open-ended questions.   The Court held that the government had an interest in assuring a capable and efficient workforce in its own facilities, and the questions were reasonably related to that goal.   In somewhat circular reasoning, however, the court stated that the “reasonableness of such open-ended questions is illustrated by their pervasiveness in the public and private sectors.”  That pervasiveness might also underscore the reasonableness of these scientists’ concern about being the subject of similar questions.

The Court swept aside issues of leaks: “the mere possibility that security measures will fail provides no ‘proper ground’ for a broad-based attack on government information-collection practices.”

The decision may turn out to be interesting not merely for its acceptance of the ubiquity of disclosure of private matters, and the value of opinions of others’ financial integrity.  The opinion begins with a disclaimer, that the Supreme Court assumes, without deciding, that there is a constitutional righ to privacy in the form of an “interest in avoiding disclosure of personal matters.”

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