On January 11, 2008, the Ninth Circuit Court of Appeals in Nelson v. NASA ruled that a group of contract employees in low risk jobs (i.e. not involving classified materials) at NASA’s Jet Propulsion Laboratory did not have to undergo intrusive background checks or face losing their jobs while their case went forward in district court. The issue in question principally concerns the Homeland Security Presidential Directive 12 (HSPB-12) issued August 27, 2004 which established “a mandatory, Government-wide standard for secure and reliable forms of identification issued by the Federal Government to its employees and contractors” for the purposes of “gaining physical access to Federally controlled facilities and logical access to Federally controlled information systems.”
The problem is that the questionnaire used (Form 42) goes far beyond any information needed for identification. It requires employees sign an Authorization for the Release of Information that “authorizes the government to collect ‘any information relating to [his or her] activities from schools, residential management agents, employers, criminal justice agencies, retail business establishments, or other sources of information.’” Any and all of these could expect to receive open-ended questions about the employee’s criminal history, financial matters, mental and emotional stability, general conduct, and drug and alcohol abuse. The court agreed that under the circumstances this kind of background check was overly broad and likely violated the employees’ right to informational privacy.
The other grounds that the government put forward, protection of information systems under FISMA (the Federal Information Security Management Act) and security screening under the Space Act, the court found not to be relevant since these were by definition low risk jobs without access to secure information. What this comes down to is the government wants the right to conduct security screening even when security is not an issue, but I suppose that is to be expected from a government that believes in secrecy but not privacy and that demands information but doesn’t know how to use it.