In 2011, the Supreme Court case NASA v. Nelson brought the issue of informational privacy to the forefront, particularly testing the limits of Justice Antonin Scalia’s devotion to judicial restraint. At its core was the question of whether government employees, including those at NASA’s Jet Propulsion Laboratory (JPL), possess any constitutional right to privacy regarding the government’s extensive background checks that include deeply personal information.
The context for this judicial scrutiny was set in 2004, when President George W. Bush issued Homeland Security Presidential Directive 12 (HSPD-12), mandating strict and uniform identification standards for accessing federal facilities, influencing contract employees such as those at JPL. Previously, these employees had not been subjected to in-depth personal background checks.
By 2007, a group of JPL employees, led by Robert “Half” Nelson, initiated a lawsuit against NASA and others, alleging that these checks violated their right to “informational privacy”—a constitutional concept neither fully embraced nor entirely dismissed by the Supreme Court in prior cases like Whalen v. Roe and Nixon v. Administrator of General Services.
During the 2011 hearings, Justice Scalia vehemently criticized the existence of a constitutional right to informational privacy, underscoring his belief that such issues were better addressed by established constitutional protections like those related to search and seizure under the Fourth Amendment. Despite this, the Supreme Court ultimately issued a unanimous ruling favoring the government, presupposing such a right while concluding that the background checks did not infringe upon it.
Scalia’s concurrence, supported by Justice Clarence Thomas, remained distinct in its criticism of the Court’s approach, labeling the decision as judicial overreach that skirted the fundamental question of whether such a right existed at all. He contended that invoking concepts like substantive due process only muddled constitutional interpretation.
The practical implications of the ruling lingers, as demonstrated by subsequent significant data breaches, including the 2012 NASA data breach and the notable 2015 Office of Personnel Management cyberattack. These events have underscored the urgent need to address informational privacy at a constitutional level, a dialogue that remains unsettled.
Justice Scalia’s dissent in concurrence highlights a broader debate in the legal community about the balance between national security and personal privacy. As digital surveillance and data collection become more embedded in governance, legal professionals and entities will inevitably be at the forefront of navigating these challenging intersections between privacy, technology, and the law.
For more in-depth coverage of the case, please visit the full article on SCOTUSblog.