Privacy in background checks
National Aeronautics and Space Administration v. Nelson
In brief
NASA won at the Supreme Court: the government may ask reasonable questions like these in protected background checks, though the Court left open whether the questions affect a constitutional privacy interest.
- Where it stands
- Decided
Decided 8-0 · January 19, 2011 · Opinion by Justice Alito
- What it’s about
- The Supreme Court overturned the Ninth Circuit’s ruling (reversed) and sent the case back to it (remanded), deciding that—even assuming the questions implicated a constitutional privacy interest—that interest did not bar reasonable questions in background checks protected by the Privacy Act’s safeguards against public disclosure.
- Who it affects
- The decision permits the government to ask reasonable questions of this kind about federal contractor employees when Privacy Act safeguards limit public disclosure of background-check information.
Summary: written with AI from the case record.
What it's about
NASA’s checks asked contractor employees about recent illegal drug use and related counseling or treatment, and asked their references whether they had reason to believe the employees were unsuited for work in a federal facility.
The Court cited an earlier decision upholding a New York system for collecting prescription-drug records because safeguards protected them from public disclosure.
Question presented
Does the government violate a federal contract employee's constitutional right to privacy by asking her whether she has received counseling or treatment for recent illegal drug use in the past year, or by asking her references if they have any reason to believe she is unsuited to work in a federal facility?
What the Court decided
Holding
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; Nixo n 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. 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. 530 F. 3d 865, reversed and remanded.
- Result
- Reversed
The Court's reasoning
The Court left open whether these questions affect a constitutional privacy interest. It said that, even if they do, the interest does not block reasonable questions in checks protected by the Privacy Act’s limits on public disclosure.
The vote
- Joined the judgment
- Concurred in a separate opinion
- Wrote an opinion
- Concurring · 2agreed with the result, wrote separately
- Thomaswrote separately
- Scaliawrote separately
What's next
The Ninth Circuit will reconsider the case under the Supreme Court’s ruling.
Documents
Opinions
Audio
Docket activity
New analysis added
AI analysis generated: Impact Analysis
AI analysis generated: Opinion Summary
New analysis added
AI analysis generated: Case Briefing
Show 5 moreShow fewer
AI analysis generated: Decision Record
Case data updated: question_presented, extraction_metadata
Case data updated: summary, question_presented, generation_metadata
Audio Recording added: Oral Arguments - NASA
Opinion added: NASA
More questions
- Why did Scalia and Thomas agree only with the result?
- They said the Constitution does not protect a right to informational privacy and that privacy protections should be set by laws, not courts.
Sources
Primary materials plus reporting. Best-effort analysis: this explainer relies on a mix of primary materials and trusted secondary sources. Official filings and opinions remain authoritative.