Court says government background security checks go too far

Homeland Security Presidential Directive #12

Can background checks go too far? The Ninth Circuit Court of Appeals apparently thinks so. 

That court this week ruled against the federal government and in favor of employees at NASA's Jet Propulsion Laboratory in their case which centers around background investigations known as Homeland Security Presidential Directive #12 (Nelson et al. vs NASA).  The finding reaffirms the JPL employees claims' that the checks threaten their constitutional rights.

The stink stems from HSPD #12 which is in part aimed at gathering information to develop a common identification standard that ensures that people are who they say they are, so government facilities and sensitive information stored in networks remains protected.  HSPD#12 requires agencies to issue smart cards to federal employees and contractors. The card is outfitted with a microchip that can be loaded with personal data. And therein lies the rub.

A quick synopsis of the case from hspd12jpl.org/

Injunction: For Caltech employees in non-sensitive positions at JPL, the injunction in place means that NASA cannot require new HSPD-12 background investigations or proceed with the investigations initiated before the injunction was ordered; can issue new HSPD-12 badges to those adjudicated favorably prior to the injunction.

Court Case against NASA:

A three-judge panel of Federal Appeals Court for the Ninth circuit has found that HSPD-12 investigations unconstitutionally violate employees' privacy. DOJ on belhalf of NASA has requested that the panel re-hear the case, and suggested rehearing en banc.  On June 4, 2009, the court denied the petitions.

Caltech involvement:

The Appeals Court directed that any temporary injunction be extended to Caltech as it appeared to be "...a willful and joint participant in NASA's investigation program".

The District Court has dismissed all claims against Caltech. Employees-Plaintiffs appealed the dismissal as inappropriate. The Appeals Court ruled that it lacks jurisdiction to hear the appeal until after a final judgment in the NASA case is entered, and reserved the right to hear the appeal at the appropriate time.

In this case, 28 scientists and engineers at JPL filed suit against the US government and California Institute of Technology (Caltech) in 2007 saying that NASA's invasive background investigations as required by HSPD #12 were unconstitutional. CalTech jointly manages the JPL with NASA.

In a release this week from the Ninth Circuit Court of Appeals the court stated one of the matters of considerable interest pertained to the demand by Caltech that every JPL employee 'voluntarily' agree to submit to an open ended background investigation, conducted by unknown investigators, in order to receive an identification badge that was compliant with HSPD#12. The government argued that there were no limits to the extent of the investigation. If an employee refused to 'volunteer', Caltech would terminate the employee, the release stated. Caltech manages JPL for NASA.

Ninth Circuit Court of Appeals ruled favor of the JPL employees denying a motion from the Department of Justice for a hearing before a large panel of the Ninth Circuit on the question of overturning an injunction issued last year against NASA and CalTech by a three judge panel of the Ninth Circuit. The earlier ruling was unanimous in favor of the JPL employees.

The government has sixty days to appeal the ruling to the United States Supreme Court. This decision to appeal will be made by the US Attorney General, Eric Holder.

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