Contractors Seek Limits on Background Checks The Supreme Court will decide how far federal agencies can go in gathering personal information about contractors. Twenty-eight contractor employees at NASA’s Jet Propulsion Laboratory, who don’t work with classified information, objected to some of the questions asked on background checks before issuing security badges—specifically, whether it is permissible to ask about drug treatment and to ask “fishing” questions to people listed as references. The employees work for the California Institute of Technology, which operates the lab in Pasadena, CA. In oral arguments before the Court on Oct. 5, the attorney for the contractors said JPL’s campus is relatively open to visitors, with no high-security areas. He said intrusive questions are asked about everyone who works there, including “the snack bar worker, the bus driver, the gift shop operator.” But the government’s lawyer said the ID badge would allow JPL employees access to other NASA facilities and even to get “within 6 to 10 feet of the space shuttle.” (The contractors said that was not true, but the Justice Department stood by the statement.) The background checks are part of the government’s post-9/11 effort to issue high-tech ID cards to all employees and contractors under Homeland Security Presidential Directive 12. One question on the government’s Form 42 asks third parties—such as people listed as references—open-ended questions about the employee’s mental health, financial affairs and personal behavior. Dan Stormer, the employees’ attorney, said such questions are unrelated to job performance. A question on Standard Form 85 asks the employee whether he or she has received counseling for drug abuse. The Ninth Circuit Court of Appeals in San Francisco barred NASA from using those questions and the government appealed to the Supreme Court. Acting Solicitor General Neal Katyal, arguing for the government, said the Ninth Circuit decision created “a how-to manual” for other lawsuits challenging any and all questions on the background checks. He said private employers routinely ask such questions and the 1975 Privacy Act imposes strong protections against the disclosure of information gathered during an investigation. “These checks have been going on for millions of employees for dozens of years,” he told the Court. “They are part of the employment process. They are manifestly not roving checks on random individuals.” Justice Sonia Sotomayor asked, “Could you ask somebody, what’s your genetic make-up, because we don’t want people with a gene that’s predisposed to cancer.” Katyal said there are no limits on the questions that could be asked as long as there are controls on how the information is disseminated. Several justices wanted to know whether the government recognized a right to personal privacy, but Katyal told them they did not have to consider that broad issue in deciding this particular case. But Stormer argued that the case does involve the question of “how far may a government go…to intrude into the private lives of its citizens?” Justice Samuel Alito asked, “Well, suppose the person who works at the gift shop or the snack bar…has a big sign on his front lawn that says, ‘I hope the space shuttle blows up.’ Is that information the government has a legitimate reason to get?” The case is NASA v. Nelson. The Court’s decision is expected before the end of its term next June.