NASA v. Nelson, 562 U.S. 134 (2011)
OCTOBER TERM, 2010
NASA V. NELSON
SUPREME COURT OF THE UNITED STATES
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION et al. v. NELSON et al.
certiorari to the united states court of appeals for the ninth circuit
No. 09–530. Argued October 5, 2010—Decided January 19, 2011
The National Aeronautics and Space Administration (NASA) has a workforce of both federal civil servants and Government contract employees. Respondents are contract employees at NASA’s Jet Propulsion Laboratory (JPL), which is operated by the California Institute of Technology (Cal Tech). Respondents were not subject to Government background checks at the time they were hired, but that changed when the President ordered the adoption of uniform identification standards for both federal civil servants and contractor employees. The Department of Commerce mandated that contract employees with long-term access to federal facilities complete a standard background check, typically the National Agency Check with Inquiries (NACI), by October 2007. NASA modified its contract with Cal Tech to reflect the new requirement, and JPL announced that employees who did not complete the NACI process in time would be denied access to JPL and face termination by Cal Tech.
The NACI process, long used for prospective civil servants, begins with the employee filling out a standard form (here, Standard Form 85, the Questionnaire for Non-Sensitive Positions (SF–85)). SF–85 asks whether an employee has “used, possessed, supplied, or manufactured illegal drugs” in the last year. If so, the employee must provide details, including information about “treatment or counseling received.” The employee must also sign a release authorizing the Government to obtain personal information from schools, employers, and others during its investigation. Once SF–85 is completed, the Government sends the employee’s references a questionnaire (Form 42) that asks open-ended questions about whether they have “any reason to question” the employee’s “honesty or trustworthiness,” or have “adverse information” concerning a variety of other matters. All SF–85 and Form 42 responses are subject to the protections of the Privacy Act.
With the deadline for completing the NACI process drawing near, respondents brought suit, claiming, as relevant here, that the background-check process violates a constitutional right to informational privacy. The District Court declined to issue a preliminary injunction, but the Ninth Circuit reversed. It held that SF–85’s inquiries into recent drug involvement furthered the Government’s interest in combating illegal-drug use, but that the drug “treatment or counseling” question furthered no legitimate interest and was thus likely to be held unconstitutional. It also held that Form 42’s open-ended questions were not narrowly tailored to meet the Government’s interests in verifying contractors’ identities and ensuring JPL’s security, and thus also likely violated respondents’ informational-privacy rights.
1. In two cases decided over 30 years ago, this Court referred broadly to a constitutional privacy “interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U. S. 589, 599–600; Nixon v. Administrator of General Services, 433 U. S. 425, 457. In Whalen, the Court upheld a New York law permitting the collection of names and addresses of persons prescribed dangerous drugs, finding that the statute’s “security provisions,” which protected against “public disclosure” of patient information, 462 U. S., at 600–601, were sufficient to protect a privacy interest “arguably . . . root[ed] in the Constitution,” id., at 605. In Nixon, the Court upheld a law requiring the former President to turn over his presidential papers and tape recordings for archival review and screening, concluding that the federal Act at issue, like the statute in Whalen, had protections against “undue dissemination of private materials.” 433 U. S. at 458. Since Nixon, the Court has said little else on the subject of a constitutional right to informational privacy. Pp. 8–10.
2. Assuming, without deciding, that the Government’s challenged inquiries implicate a privacy interest of constitutional significance, that interest, whatever its scope, does not prevent the Government from asking reasonable questions of the sort included on SF–85 and Form 42 in an employment background investigation that is subject to the Privacy Act’s safeguards against public disclosure. Pp. 10–24.
(a) The forms are reasonable in light of the Government interests at stake. Pp. 11–19.
(1) Judicial review of the forms must take into account the context in which the Government’s challenged inquiries arise. When the Government acts in its capacity “as proprietor” and manager of its “internal operation,” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896, it has a much freer hand than when it regulates as to citizens generally. The questions respondents challenge are part of a standard background check of the sort used by millions of private employers. The Government has been conducting employment investigations since the Republic’s earliest days, and the President has had statutory authority to assess an applicant’s fitness for the civil service since 1871. Standard background investigations similar to those at issue became mandatory for federal civil-service candidates in 1953, and the investigations challenged here arose from a decision to extend that requirement to federal contract employees. This history shows that the Government has an interest in conducting basic background checks in order to ensure the security of its facilities and to employ a competent, reliable workforce to carry out the people’s business. The interest is not diminished by the fact that respondents are contract employees. There are no meaningful distinctions in the duties of NASA’s civil-service and contractor employees, especially at JPL, where contract employees do work that is critical to NASA’s mission and that is funded with a multibillion dollar taxpayer investment. Pp. 12–15.
(2) The challenged questions on SF–85 and Form 42 are reasonable, employment-related inquiries that further the Government’s interests in managing its internal operations. SF–85’s “treatment or counseling” question is a followup question to a reasonable inquiry about illegal-drug use. In context, the drug-treatment inquiry is also a reasonable, employment-related inquiry. The Government, recognizing that illegal-drug use is both a criminal and medical issue, seeks to separate out those drug users who are taking steps to address and overcome their problems. Thus, it uses responses to the drug-treatment question as a mitigating factor in its contractor credentialing decisions. The Court rejects the argument that the Government has a constitutional burden to demonstrate that its employment background questions are “necessary” or the least restrictive means of furthering its interests. So exacting a standard runs directly contrary to Whalen. See 429 U. S., at 596–597. Pp. 16–18.
(3) Like SF–85’s drug-treatment question, Form 42’s open-ended questions are reasonably aimed at identifying capable employees who will faithfully conduct the Government’s business. Asking an applicant’s designated references broad questions about job suitability is an appropriate tool for separating strong candidates from weak ones. The reasonableness of such questions is illustrated by their pervasiveness in the public and private sectors. Pp. 18–19.
(b) In addition to being reasonable in light of the Government interests at stake, SF–85 and Form 42 are also subject to substantial protections against disclosure to the public. Whalen and Nixon recognized that a “statutory or regulatory duty to avoid unwarranted disclosures” generally allays privacy concerns created by government “accumulation” of “personal information” for “public purposes.” Whalen, supra, at 605. Respondents attack only the Government’s collection of information, and here, as in Whalen and Nixon, the information collected is shielded by statute from unwarranted disclosure. The Privacy Act—which allows the Government to maintain only those records “relevant and necessary to accomplish” a purpose authorized by law, 5 U. S. C. §552a(e)(1); requires written consent before the Government may disclose an individual’s records, §552a(b); and imposes criminal liability for willful violations of its nondisclosure obligations, §552a(i)(1)—“evidence[s] a proper concern” for individual privacy. Whalen, supra, at 605; Nixon, supra, at 458–459. Respondents’ claim that the statutory exceptions to the Privacy Act’s disclosure bar, see §§552a(b)(1)–(12), leave its protections too porous to supply a meaningful check against unwarranted disclosures. But that argument rests on an incorrect reading of Whalen, Nixon, and the Privacy Act. Pp. 19–23.
530 F. 3d 865, reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. Thomas, J., filed an opinion concurring in the judgment. Kagan, J., took no part in the consideration or decision of the case.
OPINION OF THE COURT
NASA V. NELSON
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NATIONAL AERONAUTICS AND SPACE ADMIN- ISTRATION, et al., PETITIONERS v. ROBERT M. NELSON et al. on writ of certiorari to the united states court of appeals for the ninth circuit [January 19, 2011] Justice Alito delivered the opinion of the Court. In two cases decided more than 30 years ago, this Court referred broadly to a constitutional privacy “interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U. S. 589, 599–600 (1977); Nixon v. Administrator of General Services, 433 U. S. 425, 457 (1977). Respondents in this case, federal contract employees at a Government laboratory, claim that two parts of a standard employment background investigation violate their rights under Whalen and Nixon. Respondents challenge a section of a form questionnaire that asks employees about treatment or counseling for recent illegal-drug use. They also object to certain open-ended questions on a form sent to employees’ designated references. We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon. We hold, however, that the challenged portions of the Government’s background check do not violate this right in the present case. The Government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U. S. C. §552a, satisfy any “interest in avoiding disclosure” that may “arguably ha[ve] its roots in the Constitution.” Whalen, supra, at 599, 605. I A The National Aeronautics and Space Administration (NASA) is an independent federal agency charged with planning and conducting the Government’s “space activities.” Pub. L. 111–314, §3, 124 Stat. 3333, 51 U. S. C. §20112(a)(1). NASA’s workforce numbers in the tens of thousands of employees. While many of these workers are federal civil servants, a substantial majority are employed directly by Government contractors. Contract employees play an important role in NASA’s mission, and their duties are functionally equivalent to those performed by civil servants. One NASA facility, the Jet Propulsion Laboratory (JPL) in Pasadena, California, is staffed exclusively by contract employees. NASA owns JPL, but the California Institute of Technology (Cal Tech) operates the facility under a Government contract. JPL is the lead NASA center for deep-space robotics and communications. Most of this country’s unmanned space missions—from the Explorer 1 satellite in 1958 to the Mars Rovers of today—have been developed and run by JPL. JPL scientists contribute to NASA earth-observation and technology-development projects. Many JPL employees also engage in pure scientific research on topics like “the star formation history of the universe” and “the fundamental properties of quantum fluids.” App. 64–65, 68. Twenty-eight JPL employees are respondents here. Many of them have worked at the lab for decades, and none has ever been the subject of a Government background investigation. At the time when respondents were hired, background checks were standard only for federal civil servants. See Exec. Order No. 10450, 3 CFR 936 (1949–1953 Comp.). In some instances, individual contracts required background checks for the employees of federal contractors, but no blanket policy was in place. The Government has recently taken steps to eliminate this two-track approach to background investigations. In 2004, a recommendation by the 9/11 Commission prompted the President to order new, uniform identification standards for “[f]ederal employees,” including “contractor employees.” Homeland Security Presidential Directive/HSPD–12—Policy for a Common Identification Standard for Federal Employees and Contractors, Public Papers of the President, George W. Bush, Vol. 2, Aug. 27, p. 1765 (2007) (hereinafter HSPD–12), App. 127. The Department of Commerce implemented this directive by mandating that contract employees with long-term access to federal facilities complete a standard background check, typically the National Agency Check with Inquiries (NACI). National Inst. of Standards and Technology, Personal Identity Verification of Federal Employees & Contractors, pp. iii–vi, 1–8, 6 (FIPS PUB 201–1, Mar. 2006) (hereinafter FIPS PUB 201–1), App. 131–150, 144–145.[Footnote 1] An October 2007 deadline was set for completion of these investigations. Memorandum from Joshua B. Bolten, Director, OMB, to the Heads of all Departments and Agencies (Aug. 5, 2005), App. 112. In January 2007, NASA modified its contract with Cal Tech to reflect the new background-check requirement. JPL management informed employees that anyone failing to complete the NACI process by October 2007 would be denied access to JPL and would face termination by Cal Tech. B The NACI process has long been the standard background investigation for prospective civil servants. The process begins when the applicant or employee fills out a form questionnaire. Employees who work in “non-sensitive” positions (as all respondents here do) complete Standard Form 85 (SF–85). Office of Personnel Management (OPM), Standard Form 85, Questionnaire for Non-Sensitive Positions, App. 88–95.[Footnote 2] Most of the questions on SF–85 seek basic biographical information: name, address, prior residences, education, employment history, and personal and professional references. The form also asks about citizenship, selective-service registration, and military service. The last question asks whether the employee has “used, possessed, supplied, or manufactured illegal drugs” in the last year. Id., at 94. If the answer is yes, the employee must provide details, including information about “any treatment or counseling received.” Ibid. A “truthful response,” the form notes, cannot be used as evidence against the employee in a criminal proceeding. Ibid. The employee must certify that all responses on the form are true and must sign a release authorizing the Government to obtain personal information from schools, employers, and others during its investigation. Once a completed SF–85 is on file, the “agency check” and “inquiries” begin. 75 Fed. Reg. 5359 (2010). The Government runs the information provided by the employee through FBI and other federal-agency databases. It also sends out form questionnaires to the former employers, schools, landlords, and references listed on SF–85. The particular form at issue in this case—the Investigative Request for Personal Information, Form 42—goes to the employee’s former landlords and references. Ibid.[Footnote 3] Form 42 is a two-page document that takes about five minutes to complete. See ibid. It explains to the reference that “[y]our name has been provided by” a particular employee or applicant to help the Government determine that person’s “suitability for employment or a security clearance.” App. 96–97. After several preliminary questions about the extent of the reference’s associations with the employee, the form asks if the reference has “any reason to question” the employee’s “honesty or trustworthiness.” Id., at 97. It also asks if the reference knows of any “adverse information” concerning the employee’s “violations of the law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.” Ibid. If “yes” is checked for any of these categories, the form calls for an explanation in the space below. That space is also available for providing “additional information” (“derogatory” or “favorable”) that may bear on “suitability for government employment or a security clearance.” Ibid. All responses to SF–85 and Form 42 are subject to the protections of the Privacy Act. The Act authorizes the Government to keep records pertaining to an individual only when they are “relevant and necessary” to an end “required to be accomplished” by law. 5 U. S. C. §552a(e)(1). Individuals are permitted to access their records and request amendments to them. §§552a(d)(1),(2). Subject to certain exceptions, the Government may not disclose records pertaining to an individual without that individual’s written consent. §552a(b). C About two months before the October 2007 deadline for completing the NACI, respondents brought this suit, claiming, as relevant here, that the background-check process violates a constitutional right to informational privacy. App. 82 (Complaint for Injunctive and Declaratory Relief).[Footnote 4] The District Court denied respondents’ motion for a preliminary injunction, but the Ninth Circuit granted an injunction pending appeal, 506 F. 3d 713 (2007), and later reversed the District Court’s order. The court held that portions of both SF–85 and Form 42 are likely unconstitutional and should be preliminarily enjoined. 512 F. 3d 1134, vacated and superseded, 530 F. 3d 865 (2008). Turning first to SF–85, the Court of Appeals noted respondents’ concession “that most of the questions” on the form are “unproblematic” and do not “implicate the constitutional right to informational privacy.” 530 F. 3d, at 878. But the court determined that the “group of questions concerning illegal drugs” required closer scrutiny. Ibid. Applying Circuit precedent, the court upheld SF–85’s inquiries into recent involvement with drugs as “necessary to further the government’s legitimate interest” in combating illegal-drug use. Id., at 879. The court went on to hold, however, that the portion of the form requiring disclosure of drug “treatment or counseling” furthered no legitimate interest and was thus likely to be held unconstitutional. Ibid. Form 42, in the Court of Appeals’ estimation, was even “more problematic.” Ibid. The form’s “open-ended and highly private” questions, the court concluded, were not “narrowly tailored” to meet the Government’s interests in verifying contractors’ identities and “ensuring the security of the JPL.” Id., at 881, 880. As a result, the court held, these “open-ended” questions, like the drug-treatment question on SF–85, likely violate respondents’ informational-privacy rights.[Footnote 5] Over the dissents of five judges, the Ninth Circuit denied rehearing en banc. 568 F. 3d 1028 (2009). We granted certiorari. 559 U. S. ___ (2010). II As noted, respondents contend that portions of SF–85 and Form 42 violate their “right to informational privacy.” Brief for Respondents 15. This Court considered a similar claim in Whalen, 429 U. S. 589, which concerned New York’s practice of collecting “the names and addresses of all persons” prescribed dangerous drugs with both “legitimate and illegitimate uses.” Id., at 591. In discussing that claim, the Court said that “[t]he cases sometimes characterized as protecting ‘privacy’ ” actually involved “at least two different kinds of interests”: one, an “interest in avoiding disclosure of personal matters”;[Footnote 6] the other, an interest in “making certain kinds of important decisions” free from government interference.[Footnote 7] The patients who brought suit in Whalen argued that New York’s statute “threaten[ed] to impair” both their “nondisclosure” interests and their interests in making healthcare decisions independently. Id., at 600. The Court, however, upheld the statute as a “reasonable exercise of New York’s broad police powers.” Id., at 598. Whalen acknowledged that the disclosure of “private information” to the State was an “unpleasant invasion of privacy,” id., at 602, but the Court pointed out that the New York statute contained “security provisions” that protected against “public disclosure” of patients’ information, id., at 600–601. This sort of “statutory or regulatory duty to avoid unwarranted disclosures” of “accumulated private data” was sufficient, in the Court’s view, to protect a privacy interest that “arguably ha[d] its roots in the Constitution.” Id., at 605–606. The Court thus concluded that the statute did not violate “any right or liberty protected by the Fourteenth Amendment.” Id., at 606. Four months later, the Court referred again to a constitutional “interest in avoiding disclosure.” Nixon, 433 U. S., at 457 (internal quotation marks omitted). Former President Nixon brought a challenge to the Presidential Recordings and Materials Preservation Act, 88 Stat. 1695, note following 44 U. S. C. §2111, a statute that required him to turn over his presidential papers and tape recordings for archival review and screening. 433 U. S., at 455–465. In a section of the opinion entitled “Privacy,” the Court addressed a combination of claims that the review required by this Act violated the former President’s “Fourth and Fifth Amendmen[t]” rights. Id., at 455, and n. 18, 458–459. The Court rejected those challenges after concluding that the Act at issue, like the statute in Whalen, contained protections against “undue dissemination of private materials.” 433 U. S., at 458. Indeed, the Court observed that the former President’s claim was “weaker” than the one “found wanting . . . in Whalen,” as the Government was required to return immediately all “purely private papers and recordings” identified by the archivists. Id., at 458–459. Citing Fourth Amendment precedent, the Court also stated that the public interest in preserving presidential papers outweighed any “legitimate expectation of privacy” that the former President may have enjoyed. Id., at 458 (citing Katz v. United States, 389 U. S. 347 (1967); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523 (1967); and Terry v. Ohio, 392 U. S. 1 (1968)).[Footnote 8] The Court announced the decision in Nixon in the waning days of October Term 1976. Since then, the Court has said little else on the subject of an “individual interest in avoiding disclosure of personal matters.” Whalen, supra, at 599; Nixon, supra, at 457. A few opinions have mentioned the concept in passing and in other contexts. See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 762–763 (1989); New York v. Ferber, 458 U. S. 747, 759, n. 10 (1982). But no other decision has squarely addressed a constitutional right to informational privacy.[Footnote 9] III As was our approach in Whalen, we will assume for present purposes that the Government’s challenged inquiries implicate a privacy interest of constitutional significance. 429 U. S., at 599, 605.[Footnote 10] We hold, however, that, whatever the scope of this interest, it does not prevent the Government from asking reasonable questions of the sort included on SF–85 and Form 42 in an employment background investigation that is subject to the Privacy Act’s safeguards against public disclosure. A 1 As an initial matter, judicial review of the Government’s challenged inquiries must take into account the context in which they arise. When the Government asks respondents and their references to fill out SF–85 and Form 42, it does not exercise its sovereign power “to regulate or license.” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896 (1961). Rather, the Government conducts the challenged background checks in its capacity “as proprietor” and manager of its “internal operation.” Ibid. Time and again our cases have recognized that the Government has a much freer hand in dealing “with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Oregon Dept. of Agriculture, 553 U. S. 591, 598 (2008); Waters v. Churchill, 511 U. S. 661, 674 (1994) (plurality opinion). This distinction is grounded on the “common-sense realization” that if every “employment decision became a constitutional matter,” the Government could not function. See Connick v. Myers, 461 U. S. 138, 143 (1983); see also Bishop v. Wood, 426 U. S. 341, 350 (1976) (“The Due Process Clause . . . is not a guarantee against incorrect or ill-advised personnel decisions”). An assessment of the constitutionality of the challenged portions of SF–85 and Form 42 must account for this distinction. The questions challenged by respondents are part of a standard employment background check of the sort used by millions of private employers. See Brief for Consumer Data Indus. Assn. et al. as Amici Curiae 2 (hereinafter CDIA Brief) (“[M]ore than 88% of U. S. companies … perform background checks on their employees”). The Government itself has been conducting employment investigations since the earliest days of the Republic. L. White, The Federalists: A Study in Administrative History 262–263 (1948); see OPM, Biography of An Ideal: History of the Federal Civil Service 8 (2002) (noting that President Washington “set a high standard” for federal office and finalized appointments only after “investigating [candidates’] capabilities and reputations”). Since 1871, the President has enjoyed statutory authority to “ascertain the fitness of applicants” for the civil service “as to age, health, character, knowledge and ability for the employment sought,” Act of Mar. 3, 1871, Rev. Stat. §1753, as amended, 5 U. S. C. §3301(2), and that Act appears to have been regarded as a codification of established practice.[Footnote 11] Standard background investigations similar to those at issue here became mandatory for all candidates for the federal civil service in 1953. Exec. Order No. 10450, 3 CFR 936. And the particular investigations challenged in this case arose from a decision to extend that requirement to federal contract employees requiring long-term access to federal facilities. See HSPD–12, at 1765, App. 127; FIPS PUB 201–1, at iii–vi, 1–8, App. 131–150. As this long history suggests, the Government has an interest in conducting basic employment background checks. Reasonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent, reliable workforce. See Engquist, supra, at 598–599. Courts must keep those interests in mind when asked to go line-by-line through the Government’s employment forms and to scrutinize the choice and wording of the questions they contain. Respondents argue that, because they are contract employees and not civil servants, the Government’s broad authority in managing its affairs should apply with diminished force. But the Government’s interest as “proprietor” in managing its operations, Cafeteria & Restaurant Workers, supra, at 896, does not turn on such formalities. See Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 678, 679 (1996) (formal distinctions such as whether a “service provider” has a “contract of employment or a contract for services” with the government is a “very poor proxy” for constitutional interests at stake). The fact that respondents’ direct employment relationship is with Cal Tech—which operates JPL under a Government contract—says very little about the interests at stake in this case. The record shows that, as a “practical matter,” there are no “[r]elevant distinctions” between the duties performed by NASA’s civil-service workforce and its contractor workforce. App. 221. The two classes of employees perform “functionally equivalent duties,” and the extent of employees’ “access to NASA … facilities” turns not on formal status but on the nature of “the jobs they perform.” Ibid. At JPL, in particular, the work that contract employees perform is critical to NASA’s mission. Respondents in this case include “the lead trouble-shooter for … th[e] $568 [million]” Kepler space observatory, 7 Record 396; the leader of the program that “tests … all new technology that NASA will use in space,” App. 60; and one of the lead “trajectory designers for … the Galileo Project and the Apollo Moon landings,” id., at 62. This is important work, and all of it is funded with a multibillion dollar investment from the American taxpayer. See NASA, Jet Propulsion Laboratory Annual Report 09, p. 35 (2010), online at http://www.jpl.nasa.gov/annualreport/2009-report.pdf. The Government has a strong interest in conducting basic background checks into the contract employees minding the store at JPL.[Footnote 12] 2 With these interests in view, we conclude that the challenged portions of both SF–85 and Form 42 consist of reasonable, employment-related inquiries that further the Government’s interests in managing its internal operations. See Engquist, 553 U. S., at 598–599; Whalen, 429 U. S., at 597–598. As to SF–85, the only part of the form challenged here is its request for information about “any treatment or counseling received” for illegal-drug use within the previous year. The “treatment or counseling” question, however, must be considered in context. It is a followup to SF–85’s inquiry into whether the employee has “used, possessed, supplied, or manufactured illegal drugs” during the past year. The Government has good reason to ask employees about their recent illegal-drug use. Like any employer, the Government is entitled to have its projects staffed by reliable, law-abiding persons who will “ ‘efficiently and effectively’ ” discharge their duties. See Engquist, supra, at 598–599. Questions about illegal-drug use are a useful way of figuring out which persons have these characteristics. See, e.g., Breen & Matusitz, An Updated Examination of the Effects of Illegal Drug Use in the Workplace, 19 J. Human Behavior in the Social Environment, 434 (2009) (illicit drug use negatively correlated with workplace productivity). In context, the follow-up question on “treatment or counseling” for recent illegal-drug use is also a reasonable, employment-related inquiry. The Government, recognizing that illegal-drug use is both a criminal and a medical issue, seeks to separate out those illegal-drug users who are taking steps to address and overcome their problems. The Government thus uses responses to the “treatment or counseling” question as a mitigating factor in determining whether to grant contract employees long-term access to federal facilities.[Footnote 13] This is a reasonable, and indeed a humane, approach, and respondents do not dispute the legitimacy of the Government’s decision to use drug treatment as a mitigating factor in its contractor credentialing decisions. Respondents’ argument is that, if drug treatment is only used to mitigate, then the Government should change the mandatory phrasing of SF–85—“Include [in your answer] any treatment or counseling received”—so as to make a response optional. App. 94. As it stands, the mandatory “treatment or counseling” question is unconstitutional, in respondents’ view, because it is “more intrusive than necessary to satisfy the government’s objective.” Brief for Respondents 26; 530 F. 3d, at 879 (holding that “treatment or counseling” question should be enjoined because the form “appears to compel disclosure”). We reject the argument that the Government, when it requests job-related personal information in an employment background check, has a constitutional burden to demonstrate that its questions are “necessary” or the least restrictive means of furthering its interests. So exacting a standard runs directly contrary to Whalen. The patients in Whalen, much like respondents here, argued that New York’s statute was unconstitutional because the State could not “demonstrate the necessity” of its program. 429 U. S., at 596. The Court quickly rejected that argument, concluding that New York’s collection of patients’ prescription information could “not be held unconstitutional simply because” a court viewed it as “unnecessary, in whole or in part.” Id., at 596–597. That analysis applies with even greater force where the Government acts, not as a regulator, but as the manager of its internal affairs. See Engquist, supra, at 598–599. SF–85’s “treatment or counseling” question reasonably seeks to identify a subset of acknowledged drug users who are attempting to overcome their problems. The Government’s considered position is that phrasing the question in more permissive terms would result in a lower response rate, and the question’s effectiveness in identifying illegal-drug users who are suitable for employment would be “materially reduced.” Reply Brief for Petitioners 19. That is a reasonable position, falling within the “ ‘wide latitude’ ” granted the Government in its dealings with employees. See Engquist, supra, at 600. 3 The Court of Appeals also held that the broad, “open-ended questions” on Form 42 likely violate respondents’ informational-privacy rights. Form 42 asks applicants’ designated references and landlords for “information” bearing on “suitability for government employment or a security clearance.” App. 97. In a series of questions, the Government asks if the reference has any “adverse information” about the applicant’s “honesty or trustworthiness,” “violations of the law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.” Ibid. These open-ended inquiries, like the drug-treatment question on SF–85, are reasonably aimed at identifying capable employees who will faithfully conduct the Government’s business. See Engquist, supra, at 598–599. Asking an applicant’s designated references broad, open-ended questions about job suitability is an appropriate tool for separating strong candidates from weak ones. It would be a truly daunting task to catalog all the reasons why a person might not be suitable for a particular job, and references do not have all day to answer a laundry list of specific questions. See CDIA Brief 6–7 (references “typically have limited time to answer questions from potential employers,” and “open-ended questions” yield more relevant information than narrow inquiries). Form 42, by contrast, takes just five minutes to complete. 75 Fed. Reg. 5359. The reasonableness of such open-ended questions is illustrated by their pervasiveness in the public and private sectors. Form 42 alone is sent out by the Government over 1.8 million times annually. Ibid. In addition, the use of open-ended questions in employment background checks appears to be equally commonplace in the private sector. See, e.g., S. Bock et al., Mandated Benefits 2008 Compliance Guide, Exh. 20.1, A Sample Policy on Reference Checks on Job Applicants (“Following are the guidelines for conducting a telephone reference check: … Ask open-ended questions, then wait for the respondent to answer”); M. Zweig, Human Resources Management 87 (1991) (“Also ask, ‘Is there anything else I need to know about [candidate’s name]?’ This kind of open-ended question may turn up all kinds of information you wouldn’t have gotten any other way”). The use of similar open-ended questions by the Government is reasonable and furthers its interests in managing its operations. B 1 Not only are SF–85 and Form 42 reasonable in light of the Government interests at stake, they are also subject to substantial protections against disclosure to the public. Both Whalen and Nixon recognized that government “accumulation” of “personal information” for “public purposes” may pose a threat to privacy. Whalen, 429 U. S., at 605; see Nixon 433 U. S., at 457–458, 462. But both decisions also stated that a “statutory or regulatory duty to avoid unwarranted disclosures” generally allays these privacy concerns. Whalen, supra, at 605; Nixon, supra, at 458–459. The Court in Whalen, relying on New York’s “security provisions” prohibiting public disclosure, turned aside a challenge to the collection of patients’ prescription information. 429 U. S., at 594, and n. 12, 600–601, 605. In Nixon, the Court rejected what it regarded as an even “weaker” claim by the former President because the Presidential Recordings and Materials Preservation Act “[n]ot only . . . mandate[d] regulations” against “undue dissemination,” but also required immediate return of any “purely private” materials flagged by the Government’s archivists. 433 U. S., at 458–459. Respondents in this case, like the patients in Whalen and former President Nixon, attack only the Government’s collection of information on SF–85 and Form 42. And here, no less than in Whalen and Nixon, the information collected is shielded by statute from “unwarranted disclosur[e].” See Whalen, supra, at 605. The Privacy Act, which covers all information collected during the background-check process, allows the Government to maintain records “about an individual” only to the extent the records are “relevant and necessary to accomplish” a purpose authorized by law. 5 U. S. C. §552a(e)(1). The Act requires written consent before the Government may disclose records pertaining to any individual. §552a(b). And the Act imposes criminal liability for willful violations of its nondisclosure obligations. §552a(i)(1). These requirements, as we have noted, give “forceful recognition” to a Government employee’s interest in maintaining the “confidentiality of sensitive information . . . in his personnel files.” Detroit Edison Co. v. NLRB, 440 U. S. 301, 318, n. 16 (1979). Like the protections against disclosure in Whalen and Nixon, they “evidence a proper concern” for individual privacy. Whalen, supra, at 605; Nixon, supra, at 458–459. 2 Notwithstanding these safeguards, respondents argue that statutory exceptions to the Privacy Act’s disclosure bar, see §§552a(b)(1)–(12), leave its protections too porous to supply a meaningful check against “unwarranted disclosures,” Whalen, supra, at 605. Respondents point in particular to what they describe as a “broad” exception for “routine use[s],” defined as uses that are “compatible with the purpose for which the record was collected.” §§552a(b)(3), (a)(7). Respondents’ reliance on these exceptions rests on an incorrect reading of both our precedents and the terms of the Privacy Act. As to our cases, the Court in Whalen and Nixon referred approvingly to statutory or regulatory protections against “unwarranted disclosures” and “undue dissemination” of personal information collected by the Government. Whalen, supra, at 605; Nixon, supra, at 458. Neither case suggested that an ironclad disclosure bar is needed to satisfy privacy interests that may be “root[ed] in the Constitution.” Whalen, supra, at 605. In Whalen, the New York statute prohibiting “[p]ublic disclosure of the identity of patients” was itself subject to several exceptions. 429 U. S., at 594–595, and n. 12. In Nixon, the protections against “undue dissemination” mentioned in the opinion were not even before the Court, but were to be included in forthcoming regulations “mandate[d]” by the challenged Act. 433 U. S., at 458; see id., at 437–439 (explaining that the Court was limiting its review to the Act’s “facial validity” and was not considering the Administrator’s forthcoming regulations). Thus, the mere fact that the Privacy Act’s nondisclosure requirement is subject to exceptions does not show that the statute provides insufficient protection against public disclosure. Nor does the substance of the “routine use” exception relied on by respondents create any undue risk of public dissemination. None of the authorized “routine use[s]” of respondents’ background-check information allows for release to the public. 71 Fed. Reg. 45859–45860, 45862 (2006); 60 Fed. Reg. 63084 (1995), as amended, 75 Fed. Reg. 28307 (2010). Rather, the established “routine use[s]” consist of limited, reasonable steps designed to complete the background-check process in an efficient and orderly manner. See Whalen, supra, at 602 (approving disclosures to authorized New York Department of Health employees that were not “meaningfully distinguishable” from routine disclosures “associated with many facets of health care”). One routine use, for example, involves a limited disclosure to persons filling out Form 42 so that designated references can “identify the individual” at issue and can understand the “nature and purpose of the investigation.” App. 89. Authorized JPL employees also review each completed SF–85 to verify that all requested information has been provided. Id., at 211. These designated JPL employees may not “disclose any information contained in the form to anyone else,” ibid., and Cal Tech is not given access to adverse information uncovered during the Government’s background check, id., at 207–208. The “remote possibility” of public disclosure created by these narrow “routine use[s]” does not undermine the Privacy Act’s substantial protections. See Whalen, 429 U. S., at 601–602 (“remote possibility” that statutory security provisions will “provide inadequate protection against unwarranted disclosures” not a sufficient basis for striking down statute). Citing past violations of the Privacy Act,[Footnote 14] respondents note that it is possible that their personal information could be disclosed as a result of a similar breach. But data breaches are a possibility any time the Government stores information. As the Court recognized in Whalen, the mere possibility that security measures will fail provides no “proper ground” for a broad-based attack on government information-collection practices. Ibid. Respondents also cite a portion of SF–85 that warns of possible disclosure “[t]o the news media or the general public.” App. 89. By its terms, this exception allows public disclosure only where release is “in the public interest” and would not result in “an unwarranted invasion of personal privacy.” Ibid. Respondents have not cited any example of such a disclosure, nor have they identified any plausible scenario in which their information might be unduly disclosed under this exception.[Footnote 15] In light of the protection provided by the Privacy Act’s nondisclosure requirement, and because the challenged portions of the forms consist of reasonable inquiries in an employment background check, we conclude that the Government’s inquiries do not violate a constitutional right to informational privacy. Whalen, supra, at 605. * * * For these reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Kagan took no part in the consideration or decision of this case.
SCALIA, J., CONCURRING IN JUDGMENT
NASA V. NELSON
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NATIONAL AERONAUTICS AND SPACE ADMIN- ISTRATION, et al., PETITIONERS v. ROBERT M. NELSON et al. on writ of certiorari to the united states court of appeals for the ninth circuit [January 19, 2011] Justice Scalia, with whom Justice Thomas joins, concurring in the judgment. I agree with the Court, of course, that background checks of employees of government contractors do not offend the Constitution. But rather than reach this conclusion on the basis of the never-explained assumption that the Constitution requires courts to “balance” the Government’s interests in data collection against its contractor employees’ interest in privacy, I reach it on simpler grounds. Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information. But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to “informational privacy” does not exist. Before addressing the constitutional issues, however, I must observe a remarkable and telling fact about this case, unique in my tenure on this Court: Respondents’ brief, in arguing that the Federal Government violated the Constitution, does not once identify which provision of the Constitution that might be. The Table of Authorities contains citations of cases from federal and state courts, federal and state statutes, Rules of Evidence from four states, two Executive Orders, a House Report, and even more exotic sources of law, such as two reports of the Government Accountability Office and an EEOC document concerning “Enforcement Guidance.” And yet it contains not a single citation of the sole document we are called upon to construe: the Constitution of the United States. The body of the brief includes a single, fleeting reference to the Due Process Clause, buried in a citation of the assuredly inapposite Lawrence v. Texas, 539 U. S. 558 (2003), Brief for Respondents 42; but no further attempt is made to argue that NASA’s actions deprived respondents of liberty without due process of law. And this legal strategy was not limited to respondents’ filing in this Court; in the Ninth Circuit respondents asserted in a footnote that “courts have grounded the right to informational privacy in various provisions of the Constitution,” Brief for Appellants in No. 07–56424, p. 25, n. 18, but declined to identify which ones applied here. To tell the truth, I found this approach refreshingly honest. One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution. Regrettably, this Lincolnesque honesty evaporated at oral argument, when counsel asserted, apparently for the first time in this litigation, that the right to informational privacy emerged from the Due Process Clause of the Fifth Amendment. Tr. of Oral Arg. 28–29. That counsel invoked the infinitely plastic concept of “substantive” due process does not make this constitutional theory any less invented. This case is easily resolved on the simple ground that the Due Process Clause does not “guarante[e] certain (unspecified) liberties”; rather, it “merely guarantees certain procedures as a prerequisite to deprivation of liberty.” Albright v. Oliver, 510 U. S. 266, 275 (1994) (Scalia, J., concurring). Respondents make no claim that the State has deprived them of liberty without the requisite procedures, and their due process claim therefore must fail. Even under the formula we have adopted for identifying liberties entitled to protection under the faux “substantive” component of the Due Process Clause—that “the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 720–721 (1997) (internal quotation marks omitted)—respondents’ claim would fail. Respondents do not even attempt to argue that the claim at issue in this case passes that test, perhaps recognizing the farcical nature of a contention that a right deeply rooted in our history and tradition bars the Government from ensuring that the Hubble Telescope is not used by recovering drug addicts. The absurdity of respondents’ position in this case should not, however, obscure the broader point: Our due process precedents, even our “substantive due process” precedents, do not support any right to informational privacy. First, we have held that the government’s act of defamation does not deprive a person “of any ‘liberty’ protected by the procedural guarantees of the Fourteenth Amendment.” Paul v. Davis, 424 U. S. 693, 709 (1976). We reasoned that stigma, standing alone, does not “significantly alte[r]” a person’s legal status so as to “justif[y] the invocation of procedural safeguards.” Id., at 708–709. If outright defamation does not qualify, it is unimaginable that the mere disclosure of private information does. Second, respondents challenge the Government’s collection of their private information. But the Government’s collection of private information is regulated by the Fourth Amendment, and “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” County of Sacramento v. Lewis, 523 U. S. 833, 842 (1998) (internal quotation marks omitted; alteration in original). Here, the Ninth Circuit rejected respondents’ Fourth Amendment argument, correctly holding that the Form 42 inquiries to third parties were not Fourth Amendment “searches” under United States v. Miller, 425 U. S. 435 (1976), and that the Fourth Amendment does not prohibit the Government from asking questions about private information. 530 F. 3d 865, 876–877 (2008). That should have been the end of the matter. Courts should not use the Due Process Clause as putty to fill up gaps they deem unsightly in the protections provided by other constitutional provisions. In sum, I would simply hold that there is no constitutional right to “informational privacy.” Besides being consistent with constitutional text and tradition, this view has the attractive benefit of resolving this case without resort to the Court’s exegesis on the Government’s legitimate interest in identifying contractor drug abusers and the comfortingly narrow scope of NASA’s “routine use” regulations. I shall not fill the U. S. Reports with further explanation of the incoherence of the Court’s “substantive due process” doctrine in its many manifestations, since the Court does not play the substantive-due-process card. Instead, it states that it will “assume, without deciding” that there exists a right to informational privacy, ante, at 1. The Court’s sole justification for its decision to “assume, without deciding” is that the Court made the same mistake before—in two 33-year-old cases, Whalen v. Roe, 429 U. S. 589 (1977), and Nixon v. Administrator of General Services, 433 U. S. 425 (1977).*
562 U. S. ____ (2011)
562 U. S. ____ (2011)
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NATIONAL AERONAUTICS AND SPACE ADMIN- ISTRATION, et al., PETITIONERS v. ROBERT M. NELSON et al. on writ of certiorari to the united states court of appeals for the ninth circuit [January 19, 2011] Justice Thomas, concurring in the judgment. I agree with Justice Scalia that the Constitution does not protect a right to informational privacy. Ante, at 1 (opinion concurring in judgment). No provision in the Constitution mentions such a right. Cf. Lawrence v. Texas, 539 U. S. 558, 605–606 (2003) (Thomas, J., dissenting) (“I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy … ” (internal quotation marks and brackets omitted)). And the notion that the Due Process Clause of the Fifth Amendment is a wellspring of unenumerated rights against the Federal Government “strains credulity for even the most casual user of words.” McDonald v. Chicago, 561 U. S. ___, ___ (2010) (Thomas, J., concurring in part and concurring in judgment) (slip op., at 7).