In 2007, as part of HSPD 12, NASA extended background checks for federal employees to its contract workers. The presidential directive ordered government agencies to tighten security at facilities and computer systems by issuing new identification badges for millions of civil servants and contractors.
And that’s when the questions started from both sides about what can be asked about whom and if it was even necessary in the first place.
Now that the issue has been heard in oral arguments before the Supreme Court, Debra Roth, partner at Shaw Bransford and Roth, told Federal News Radio she expects the court will rule in favor of NASA.
“And,” she added, “it’s going to reaffirm that the government can ask some very private questions of people whether they be federal employees or contractors.”
Roth said it looks like, from reading the transcript, that “across the court there’s a basic belief that there’s certain kinds of information the government, when it acts as an employer, gets to ask.”
However, Roth said to expect there to be at least two rules applied.
The court’s probably going to articulate some standard that the government has to abide by to determine is the government collecting the kind of information that they actually need and are they using the right controls when they collect it not to disseminate it to the wrong people.
While NASA agreed the work done in the lab isn’t classified, it did determine that the work done there raises security concerns or interests.
The only questions the scientists disputed on the SF 85, said Roth, were about illegal drug use.
Neal Katyal, the acting solicitor general, told justices that the same questions the contractors were objecting to are also used to investigate full- and part-time government employees throughout the government.
“It’s a big government,” said Chief Justice John Roberts, who added that the government can’t be expected to individualize background checks to avoid asking questions one person might find intrusive while another might not.
The bottom line, said Roth, “for contractors, the Supreme Court is going to set the rules.”
Justice Elena Kagan recused herself from this case because she worked on it as solicitor general before joining the high court.