The plaintiffs were government contractors who worked at the Jet Propulsion Laboratory in Pasadena. ?NASA owns JPL but Cal. Tech staffs it. Many of the plaintiffs had worked at JPL for years without being the subject of a government background check.??? ?The 9/11 Commission recommended that contractors be subject to the same background checks as federal employees and the? government ?implemented? that recommendation.???? NASA ?modified ?its ?contract with Cal Tech. to reflect the background check requirement. ?JPL management told its employees that individuals who did not complete the background check would be terminated.

The? standard ?federal ?civil ?service ?background check contains applicant questions about use of illegal ?drugs ?within ?the ?past ?year? and ?any drug treatment ?or ?counselling ?received ?for? such ?use. The information on the form cannot be used as evidence in a criminal proceeding. ?The employee also must sign a release for the government to obtain personal information from schools, employers, etc.

As part of the background process, the government sends? ?questionnaires? ?about? ?the?? applicant? ?to schools, employers, landlords and references. ?One of the questions on the form is whether the person completing the form has any reason to question the ?honesty or trustworthiness? of the applicant, or has any adverse information about the applicant?s ?violations??? ?of??? ?law,???? ??financial??? ?integrity,???substance ?abuse,?? ?mental ?or ?emotional stability? or ?general conduct.?? ?All responses are subject to the Privacy Act.

The JPL employees now subject to these requirements filed a lawsuit claiming the background checks violated their right to informational privacy and moved for a preliminary injunction.?? The district denied the motion but the Ninth Circuit reversed.?? It held that the applicant questions regarding treatment or counselling were unconstitutional.?? It further held that the open-ended questions on the form sent to third parties were not narrowly tailored to further the government?s interests.

The Supreme Court unanimously reversed. Writing for a seven-member majority, Justice Alito assumed without deciding that there is Constitutional ?right ?to ?informational? privacy. The Court had made that same assumption in the cases of Whalen v. Roe, 429 U.S. 589 (1977), and Nixon v. Administrator of General Services,?433 U.S. 425 (1977), without making a definitive decision. ?The majority concluded that whatever the scope of that constitutional interest, there was no violation here. Justice Alito reaffirmed that the government has a much freer hand managing its own operations than when it deals with ordinary citizens.?? The Court noted that federal employees have had to undergo similar background checks since 1953. The Justices found the fact that plaintiffs were independent contractors to be inconsequential. The Court? found the ?question? about? substance abuse counselling was both reasonable and employment-related.?????? The? ?purpose? ?of? ?the question was to identify those who were in treatment for illegal drug use, which the government ?used ?as ?a ?mitigating ?factor.?? ?The?Court? rejected? the ?plaintiffs? argument? that? the treatment ?question ?should ?be? optional.?? ?Justice Alito reasoned that the government does not have to show that each question is ?necessary? or the least restrictive means of furthering its interests. The Court also disagreed with the Ninth Circuit that the open-ended questions on the questionnaire sent to the applicant?s references and other third parties were constitutionally infirm. ?The questions at issue were ?reasonably aimed at identifying capable employees.? ?The Court noted the form at issue is sent out 1.8 million times annually. The Court found it significant that the Privacy Act prohibited disclosure of both forms at issue. ?The issue before the Court was only the collection of information, not its disclosure.? ?The majority rejected the plaintiffs? argument that the Privacy Act?s ?routine? use? ?exception? rendered ?it inadequate because it did not permit public disclosure. Justice Scalia authored a concurrence that Justice Thomas joined. ?Much of it was an ill-tempered ad hominem attack on the plaintiffs? counsel. ?Justice Scalia mocked the very notion of a constitutional right to informational privacy. ?He further took the majority to task for refusing to decide one way or the other whether the right to informational privacy exists.? ?He argued it makes no sense to hold that the government did not violate the right to informational ?privacy? without ?deciding ?whether the right exists. ?The Court had a duty to litigants and the lower courts to answer the antecedent constitutional question.?NASA v. Nelson, 130 S. Ct. 1755 (1/19/11).