Outside editorial: Not so fast, nosy government

Posted: Monday, January 31, 2011

The following editorial first appeared in the Los Angeles Times:

By a unanimous vote, the Supreme Court has ruled that contract employees at NASA’s Jet Propulsion Laboratory must undergo the same background checks — including questions about drug abuse and treatment — that are required of government employees. The decision is defensible on the grounds of consistency, and such checks are a long-established feature of both public and private employment.

But privacy advocates still have reason to cheer this decision. The court could have held that people have no right to withhold personal information from the government, but most of the justices declined to do so.

Instead, in his majority opinion, Justice Samuel A. Alito Jr. assumed for the purposes of argument that Americans have a constitutional right to “informational privacy” that limits what the government can require of them. That right was overridden in the case of the JPL contract employees, Alito wrote, because the government was acting in its role as employer. But in other cases, he suggested, the right may exist, and he even left open the possibility that background checks might not be permissible for employees with less important jobs.

Even though this was the third ruling in which the court spoke of a right to informational privacy, Justice Antonin Scalia would have none of it. In a concurring opinion joined by Justice Clarence Thomas, Scalia declared flatly that “there is no constitutional right to ‘informational privacy.’” If there are to be protections against intrusive information gathering by government, he wrote, they must be approved by Congress or state legislatures. Not for the first time, Scalia took a cramped view of constitutional protections.

Most discussions of a constitutional right to privacy have historically dealt with either the right to be free from unreasonable searches and seizures or the right to control one’s intimate activities (such as the right to abortion). Informational privacy is a natural extension of those sorts of rights. Especially in a computerized age, the gathering of personal information by government must be subject to some controls over and above a requirement that the information be kept confidential.

As Alito suggested, a right to informational privacy can’t be absolute. Sometimes, in hiring employees, granting licenses or making contracts, the government has a legitimate interest in obtaining some personal information. The decision in the JPL case suggests that the courts will be available if the government goes too far.



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