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Constitutional Limits on Government Asking Noncoercive Questions About People?

Say you're a police officer, and you think someone might be up to no good. You don't have probable cause to search or arrest him, so instead you question people who know him. You ask people, for instance, whether he might have abused alcohol or drugs, was mentally or emotionally unstable, or might be short of cash. No-one is legally required to answer, and no-one thinks he's legally required to answer.

Or say you're a manager in some small government department, and you're thinking of hiring someone; but you've heard that he might have some problems, so you ask people who know him the same sorts of questions. Pretty clearly constitutional, I would have thought. There's no Fourth Amendment problem because there's no search for constitutional purposes. (Questioning isn't a search.) There's no Self-Incrimination Clause problem because you aren't compelling anyone to incriminate himself. There's no restraint on anyone's liberty because you aren't forcing anyone to say something.

Yet it looks like, according to the Ninth Circuit's decision today in Nelson v. NASA, your actions might violate the right to "informational privacy" that the Court has read into the Due Process Clause. Nelson involved various challenges to NASA's policy of doing background checks on a very wide range of prospective NASA employees and contractors. Part of the lawsuit involves federal statutory challenges, which I'll set aside for now. But part involved a constitutional challenge under the right to informational privacy — and the Ninth Circuit found that the plaintiffs were likely to succeed on this claim.

Now the right to informational privacy applies not just to federal employers bound by specific federal statutes. It applies to state and local governments as well. It applies to all facets of government, including the government as sovereign (e.g., police departments or intelligence agencies investigating crime or terrorism) as well as the government as employer. And it applies to ad hoc inquiries (such as the ones I described in the first two paragraphs) as well as to officially defined government programs such as background checks.

The right can indeed be trumped by "legitimate government interests," but only if the supposed invasion of privacy is "narrowly tailored" to those interests.

And here the court seemed to take a pretty demanding view of narrow tailoring, and a broad view of the right. As to the right,

Form 42 solicits "any adverse information" concerning "financial integrity," "abuse of alcohol and/or drugs," "mental or emotional stability," and "other matters." These open-ended questions are designed to elicit a wide range of adverse, private information that "is not generally disclosed by individuals to the public"; accordingly, they must be deemed to implicate the right to informational privacy.
As to the required government justification,
Considering the breadth of Form 42's questions, it is difficult to see how they could be narrowly tailored to meet any legitimate need, much less the specific interests that Federal Appellees have offered to justify the new requirement. Asking for "any adverse information about this person's employment, residence, or activities" may solicit some information relevant to "identity," "national security," or "protecting federal information systems," but there are absolutely no safeguards in place to limit the disclosures to information relevant to these interests. Instead, the form invites the recipient to reveal any negative information of which he or she is aware. There is nothing "narrowly tailored" about such a broad inquisition.

The trouble is that effective investigation of a crime suspect, or of a prospective employee, generally involves asking broad questions and seeing what comes out. The investigator might not have a carefully thought-through script, especially given that the questions might change as the person being asked responds. And even if the investigator has a script, it might start out being deliberately general. Asking generally, "have you ever noticed him showing any mental or emotional instability?," before moving on to more specific questions, might help bring out interesting information that the investigator wouldn't have thought of asking about specifically.

Now maybe the Constitution should indeed limit these inquiries, even if no search or seizure takes place, and even if the target isn't being coerced to answer; but I'm skeptical about that. I'm also pretty sure that any such limitation would dramatically change the way many government agencies operate. And it seems to me that the Ninth Circuit opinion didn't fully consider these implications of its decision, which go far beyond organized federal government background checks.

hey (mail):
It's the inevitably reversed Ninth! Who else would give such an inane opinion?

The problems cause are a feature, not a bug, since most of the Ninth, and the lawyers ideologically aligned to it, don't believe that the government has any legitimate interest in the security of the nation. That kind of thing is all an evil rethuglican plot.

How long till this gets much love from Scalia, Alito, et al?
1.11.2008 7:28pm
Norman Yarvin (www):
It's certainly awfully tempting to get this one wrong, from a constitutional point of view, given how ridiculous these particular security checks are. (See the protesting employees' site, at

http://hspd12jpl.org

for details.)
1.11.2008 7:38pm
gattsuru (mail) (www):
The Ninth Circuit, providing a ridiculously wide definition of the right to privacy, in a way likely to end up reversed? Wow, is it Friday already?

Your analysis is rather obviously correct, of course. This would prohibit many of the questions in nearly every job interview or background check. I know the Ninth Circuit (and for that matter, most of the courts) have a very low opinion of freedom of speech of governmental employees, but it's hard to see how due process manages to protect non-coercive questioning of potential employees to the point of shutting up current employees.
1.11.2008 7:40pm
gattsuru (mail) (www):
Yarvin, two quick things. Firstly, that website sucks a tremendous amount. The simple part where 'overview' doesn't actually get you to a quick explanation without scrolling to the bottom of a long list of legal news is a sure sign of a webmaster that needs a kick in the kiester.

Secondly, that's nothing more than was required for even the low-level security clearances. I've had much, much worse for private sector jobs that didn't stick me next to a billion dollars worth of anything, nevermind a billion dollars worth of rocket fuel.
1.11.2008 7:45pm
Norman Yarvin (www):
JPL, by the way, does things like design and run Mars probes. Their name ("Jet Propulsion Laboratory") dates from WW2; what they do has shifted. If the background check was aimed at determining things like whether they had a history of confusing inches with millimeters, it might have a point...
1.11.2008 7:47pm
therut:
Will this do away with the Brady Bill????? Sounds like they want to make gossiping illegal. Good Luck.
1.11.2008 7:52pm
AK (mail):
No-one is legally required to answer, and no-one thinks he's legally required to answer.

Only if by "no-one" you mean "no-one who's admitted to the bar of a state, U.S. territory, or the District of Columbia." The unbarred public generally does not share this perception.
1.11.2008 8:04pm
Kazinski:
Its too bad our system of government doesn't have some other sort of body to consider these issues and implement solutions. I'd envision some sort of bi-cameral body that could hold hearings, weigh opposing interests and then draft and pass legislation. Until then we'll just have to depend on the ninth circuit.
1.11.2008 8:05pm
whit:
it's the ninth circuit. the scotus will likely rule on what the constitution ACTUALLY says vs. what the 9th circuit WISHED (and may actually believe, but i have a hard time believing anybody can be this stupid) it said and reverse.

the result (if the decision was upheld) like many decisions of the 9th would grossly go against the search for truth.

information YEARNS to be free. the 9th will be overturned
1.11.2008 8:06pm
whit:
"Only if by "no-one" you mean "no-one who's admitted to the bar of a state, U.S. territory, or the District of Columbia." The unbarred public generally does not share this perception."

actually they do. contrary to the elitist views of many lawyers, most members of the public i encounter (from all walks of life) are very well aware of their and others rights. many believe that because people DO talk to the police, that that must be proof that they don't realize that they (often in many circumstances) are under no legal compulsion to cooperate.

cops, like reporters, know that people LIKE to talk. many people are actually interested in (lord forbid) helping the police gather information so that the justice system can work better (innocent exonerated, guilty convicted, all that happy stuff).
1.11.2008 8:09pm
William Spieler (mail) (www):
From their website, it looks like they're protesting having to fill out a SF-85P. Are they seriously suing over having to fill that out?
1.11.2008 8:22pm
KevinQ (mail) (www):
Your first sentence was:
Say you're a police officer, and you think someone might be up to no good.


And with that first sentence, your analogy veers sharply from the path of the case. This questioning isn't based on suspicion of wrongdoing. Your analysis should have started off:

"Say you're a police officer, and you're bored. So you start asking everybody around you if they have any dirt on anybody else in the city."

I think it would change the analysis slightly. Now, I haven't read the decision, and as other commenter have remarked, this is the Ninth Circuit, so the ruling might not last. But starting with a flawed analogy doesn't help your point any.

K
1.11.2008 8:25pm
REPEAL 16-17 (mail):
So how long will it take the Supremes to unanimously reverse this insane ruling, without the need for oral argument? I believe the sooner, the better.
1.11.2008 8:48pm
DWC (mail):
In case anyone's interested, the opinion was written by 9th Cir. Judge Kim Wardlaw, a Clinton appointee, joined by David R. Thompson, a Sr. 9th Cir. judge appointed by Reagan, and Edward Reed Jr., a Sr. Nevada district judge appointed by Carter &sitting by designation. From the plaintiffs' standpoint, a fairly decent though not a great panel. I'd say slightly to the left of center.
1.11.2008 8:48pm
arbitraryaardvark (mail) (www):
No-one is legally required to answer, and no-one thinks he's legally required to answer.
That's a condition contrary to fact in 99% of dealing with cops, so I don't have real world experience on which to base an answer. People know that the cops have ways of making you talk, implicit or explicit.
In this case, the 9th didn't say plaintiffs would win; they said plaintiffs had raised serious questions going to the merits, that the burden on plaintiffs was severe and the burden on defendants trivial, and therefore that an injunction to preserve the status quo is required. That's entirely proper, and is the correct test, and it is unlikely that the Supremes could take on interlocutory appeal on the issue. How the case ultimately gets decided on the merits, we don't know yet.
1.11.2008 8:59pm
PersonFromPorlock:

No-one is legally required to answer, and no-one thinks he's legally required to answer.

Is this true? If I know something that may be significant and fail to tell the police when asked, am I not inviting an obstruction of justice charge (at least with some police departments)?
1.11.2008 8:59pm
whit:
"That's a condition contrary to fact in 99% of dealing with cops, so I don't have real world experience on which to base an answer. People know that the cops have ways of making you talk, implicit or explicit. "

no, it's not. i've addressed this misconception (falsehood) several times in previous threads. just because people TALK to the police does not mean they do not understand that they don't HAVE to. this is lawyer-meme 101 here, this (somewhat elitist ) idea that somebody talking to police or cooperating with police (especially when its against their perceived best interests) = a person not knowing/understanding that they can refuse.
1.11.2008 9:08pm
gattsuru (mail) (www):
Obstruction of justice charges typically require activity, and are fairly rare even then. You might be hit with them if you actively lie to police officers or destroy evidence, but there's no chance in hell failure to speak on the matter would be seen under the right to remain silent, unless you've been subpeona'd as a witness.

That said, doing so is fairly unethical.

I mean, come on, people. The Miranda rights are so ingrained into political thought and television today that people in Australia think they need to be read their rights. Would any reasonable person believe that they're legally required to spout off information to anyone that called them and claimed to be from the government?
1.11.2008 9:14pm
whit:
"Is this true? If I know something that may be significant and fail to tell the police when asked, am I not inviting an obstruction of justice charge (at least with some police departments)?"

in every jurisdiction i've worked, you first have to advise the person that refusing to answer or lying will result in obstruction. iow, if i am just talkin' smack with a citizen, and ask them a question they don;'t want to answer that's obviously not obstruction, if they refuse. if i am conducting a criminal investigation and the person obstructs the investigation, the cop is going to give the warning to let the person know they are conducting a criminal investigation AND their obstruction will result in criminal charges, etc.
1.11.2008 9:21pm
Gary Anderson (mail):
What kind of penalties might the questioners face for taking negative action on inaccurate information gathering?

You see the potentials to be gleaned from accurately collecting such information; I see the potential harm in a non-perfect world where for whatever reason a person is denied based on false information.
1.11.2008 9:26pm
The Drill SGT:
a couple of observations.

1. the NACI check and an SF 85 are essentially the same standard used by DoD to issue SECRET clearances.

2. But they aren't doing SECRET work you say? well the Feds decided long ago that too many things were classified and too many people had clearances, so we try to restrict the numbers of both, but allow agencies to put policies in place to insure that the people that have access to "sensitive but unclassified" data or to networks, have investigations like NACI's.

3. and as far as what is done at JPL, lots of classified stuff, though perhaps not by these staff, and what isn't classified is certainly covered by all those technology control act laws, cause the French or the Chinese, or the Russians want every bit of that industrial data.
'
1.11.2008 9:28pm
whit:
"Obstruction of justice charges typically require activity, and are fairly rare even then."

generally speaking, true. the other similar charge is "providing a false material statement" which is basically the "words version" of obstruction vs. the action version.

there's also hindering prosecution, and accessory after the fact for doing stuff like hiding a suspect and lying about it, or refusing to tell the cops where he is IF you know where he is. those ARE crimes of "obstruction" so to speak, although the specific charges differ depending on a # of factors.
1.11.2008 9:28pm
Alfredo (mail):
Might I interject a mild and respectful stylistic critique? The two-word phrase "no one" should appear as such, without any hyphens.
1.11.2008 9:49pm
Norman Yarvin (www):
As regards not having to talk to government investigators, what about 18 USC 1001? "...whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch ... conceals, or covers up by any trick, scheme, or device a material fact... shall be fined under this title, imprisoned not more than 5 years..."

That's a hefty sentence just for "concealing" something; and the only limiting clause that seems to apply here is that the concealment has to be done by some "trick, scheme, or device", language that could be construed awfully broadly. (In the best of worlds, it might be construed to exclude someone simply refusing to answer a question -- who, it might be said, is not engaging in any trickery, scheming, or machination, but just making an honest refusal. But a judge might choose a different interpretation.)

I am not contending that the law has ever been applied in this way; but it is on the books.
1.11.2008 9:59pm
Mike G in Corvallis (mail):
And it seems to me that the Ninth Circuit opinion didn't fully consider the implications of its decision

Eugene, you might consider setting up a word processor macro for that phrase ...
1.11.2008 10:01pm
K Parker (mail):
whit,

I've never talked to any police investigators, but I did once have a lengthy interview about an acquaintance who was undergoing a security check before being hired by a federal contractor. It didn't occur to me that I was under the slightest compulsion to answer the questions, but I willingly did because it seemed to me like it was part of helping my acquaintance land this job. Rightly, as it turned out.
1.11.2008 10:06pm
Thomas_Holsinger:
I normally side against the 9th on most anything, and with the federal government on national security issues, but you guys really should take a look at the opinion here. The government's position is hilarious.
1.11.2008 10:06pm
Fub:
whit wrote at 1.11.2008 9:28pm:
there's also hindering prosecution, and accessory after the fact for doing stuff like hiding a suspect and lying about it, or refusing to tell the cops where he is IF you know where he is. those ARE crimes of "obstruction" so to speak, although the specific charges differ depending on a # of factors.
Isn't there a recognized legal defense to this? "I knew he was moving really fast, but I didn't have a clue where he was."

Just kidding.

I think Gary Anderson at 1.11.2008 9:26pm got to the crux of the matter:
What kind of penalties might the questioners face for taking negative action on inaccurate information gathering?

You see the potentials to be gleaned from accurately collecting such information; I see the potential harm in a non-perfect world where for whatever reason a person is denied based on false information.
In any investigation, police or other, the investigatee will be subject to the unchecked lies of his worst enemies, or the most bizarre tales of the most crazy or uninformed person interviewed.

The incentives for investigators are perverse. The investigator has every incentive to find the subject "unfit" or something similar, and no incentive to clear the subject.

No investigator ever got canned for erroneously telling his agency that somebody shouldn't be hired or permitted access, or should be prosecuted, raided, or whatever.

But an investigator who erroneously clears a subject who later is found to have been actually unfit, or criminal, will encounter a career problem.

So, any investigator will be reluctant to put his career on the line by saying "interviewee Bradshaw is probably lying in his allegations that subject was kingpin in the unsolved Anselmo Pederasty case".
1.11.2008 10:08pm
TonyH:
Is 'No one' properly spelled with hyphen?
1.11.2008 10:12pm
Eugene Volokh (www):
As to "no-one," see here. Both versions are standard, though different publishers may have house styles that prefer one over the other.
1.11.2008 10:36pm
Gary Anderson (mail):
I like noone myself.
Reminds me of "nooner" ...

(What, I'm just kidding! Free speech and all... Don't report on me, fellas!")
1.11.2008 10:42pm
Mikey:

No-one is legally required to answer, and no-one thinks he's legally required to answer.

Only if by "no-one" you mean "no-one who's admitted to the bar of a state, U.S. territory, or the District of Columbia." The unbarred public generally does not share this perception.


In the context of this particular case, the words "Disclosure is voluntary" appear prominently in the first paragraph on the first page of the form.
1.11.2008 11:06pm
Eugene Volokh (www):
My sense is that people who are being asked by a police officer about a third party generally know that they don't have to answer. But if you disagree, imagine an investigation being conducted with someone who isn't a police officer -- for instance, a prospective government employer who's asking people who know the prospective employee (the very sort of situation involved in this case), or a civilian investigator working for the police department, or an investigator working for some regulatory body that regulates the investigation target but not the people being asked. Should that be constitutionally prohibited by the investigation target's right to informational privacy?
1.11.2008 11:25pm
gattsuru (mail) (www):
You see the potentials to be gleaned from accurately collecting such information; I see the potential harm in a non-perfect world where for whatever reason a person is denied based on false information.


From a national security viewpoint, the level of harm from a false 'passes' on a background check is rather extreme. Allowing improper access to an individual vulnerable to blackmail, criminal connections, or other such issues could result in anything from the deaths of military or civilian individuals to the disclosure of dangerous or important information.

False 'failures' suck for the individual flunked, but there are few locations where other prospective employees can't be found.
1.11.2008 11:47pm
Elliot123 (mail):
Well, can the government run a credit check on a prospective employee? How about a Google search? FaceBook? Blog postings? Lexis-Nexis? How about on a current employee?
1.11.2008 11:54pm
David Schwartz (mail):
This case isn't about anyone doing anything voluntarily. It's about people being required to complete the NACI process or be deemed to have voluntarily resigned.

The NACI process, among other things, requires you to authorize the release of information to the government to which they would not otherwise have access.

Surely requiring someone to give you written permission to obtain information about them is not the same as questioning people on your own authority.
1.12.2008 4:39am
Gary Anderson (mail):
False 'failures' suck for the individual flunked, but there are few locations where other prospective employees can't be found.

Let's say it's a Jewish person who faces the "false failure" and "flunks". Or a black person.

Can't you hear the cries of anti-Semitism! and Racism! already? I sure can.

Face it, all injustices are not created equal, and we should try to reasons for failure as credible, transparent, and efficient as possible to give incentive to run a fair and clean system and truly get the best people in these jobs.

It's the American way, none of this Eastern European snooping in secret and "false failures" excuses to hire cronies and conspirators.
1.12.2008 8:56am
arbitraryaardvark (mail) (www):
Whit, re, People know that the cops have ways of making you talk, implicit or explicit.
Example 1. They read me my rights and asked me if I understood them. I said no. They said that was the wrong answer, and threw me in jail for three weeks without medicine or food or my one phone call.
Example 2. They asked my for my client's current address. I said that that was covered by attorney-client privilege and I couldn't tell them. They said I was in contempt at $100/day. I ratted out my client, who was by then safely outside their jurisdiction.
1.12.2008 9:08am
Aukahe:
Gary Anderson,

Investigations are conducted by centralized organizations not the hiring organization. The applicant fills out the standard form without input from the hiring organization. The applicant can request a transcript of the interviews. An applicant who has been denied can appeal the decision.
1.12.2008 9:18am
NI:
In theory, people don't have to talk to the police. In practice, the police have the power to make life pretty tough for people who don't, and if the stakes are high enough, they will. They can hold someone as a material witness. They can require the person to go to police headquarters for further questioning. They can find a pretext to arrest him for something else.

I think one of the few good things to be said about the Bush administration is that at long last people are becoming disabused of the idea that they actually have rights in practice, as opposed to on paper. This ceased being a free country a long time ago.
1.12.2008 9:39am
Mary Katherine Day-Petrano (mail):
"The problems cause are a feature, not a bug, since most of the Ninth, and the lawyers ideologically aligned to it, don't believe that the government has any legitimate interest in the security of the nation. That kind of thing is all an evil rethuglican plot"

Gee whiz, was it my years going to law school and litigating in the Ninth Circuit, or my head injury and autism, that made me, for a moment when I read your post, agree Barry Sabins-Harvard Law School's "Counterterrorism" experimental psychiatric research program was all "an evil rethuglian plot?" ROTFL.
1.12.2008 11:59am
Mary Katherine Day-Petrano (mail):
"This would prohibit many of the questions in nearly every job interview or background check"

I saw the possibilities immediately! Wait until some enterprising bar applicant uses that case against some overinclusive inquiring Bar Examiners ...

come to think of it, didn't the California Bar Examiners ask ME some of those prohibited type of questions?
1.12.2008 12:02pm
Ken Arromdee:
In theory, people don't have to talk to the police. In practice, the police have the power to make life pretty tough for people who don't, and if the stakes are high enough, they will. They can hold someone as a material witness. They can require the person to go to police headquarters for further questioning. They can find a pretext to arrest him for something else.

That, of course, is the problem. It's inherently coercive for the police to ask questions. Even someone who knows that answering the questions isn't a legal requirement also knows that the police can decide he wasn't being cooperative enough and make life miserable for him merely by exercising legal police power in ways that he could never prove is connected to his refusal to answer questions.

The difference between the government manager and the police doing this is that the government manager has much less power of this sort, unless he's something like an IRS agent.

The question asks the reader to assume that the questioning is noncoercive, but in practice, it won't be so.
1.12.2008 12:04pm
Mary Katherine Day-Petrano (mail):
"it's the ninth circuit. the scotus will likely rule on what the constitution ACTUALLY says vs. what the 9th circuit WISHED (and may actually believe, but i have a hard time believing anybody can be this stupid) it said and reverse.

the result (if the decision was upheld) like many decisions of the 9th would grossly go against the search for truth.

information YEARNS to be free" --->

Wow. Now I KNOW why I am having such a hard time *fitting in* socially in the Eleventh Circuit. I have to stop wearing my 49ers Sweatshirt to court. I hope no one doing any background chack has asked any of my friends or neighbors why I have worn a 49ers sweatshirt in Bucs country ...
1.12.2008 12:14pm
NI:

That, of course, is the problem. It's inherently coercive for the police to ask questions. Even someone who knows that answering the questions isn't a legal requirement also knows that the police can decide he wasn't being cooperative enough and make life miserable for him merely by exercising legal police power in ways that he could never prove is connected to his refusal to answer questions.


And the real problem with the let's-defer-to-the-executive crowd (no offense to present company) is that they're mostly ivory tower academics who are never going to be questioned by the police. The vetting system for appointing judges guarantees that nobody who has ever been on the wrong side of the police is going to be a judge; perhaps the rules should be changed so that people who have actually had police dealings in real life are the decision makers.

The Ninth Circuit may not always get it right, but they at least understand that defering to the executive is not the way to preserve liberty.
1.12.2008 12:24pm
Patrick Joy:
As someone involved in the Federal NACI and SF-85 process, I can tell you the way the system works is that you fill out a form (this form contains less information the the old DF-171 job application form) and give refrences. The refrences are not interviewed. They are sent a form letter that asks about the person and if they are of good character. The sf-85 information is compared to federal personael records and credit reports to see if their are any incongruates.

I think it is more invasive to swear that you are not a smoker and allow a private firm to deny you health benifits if you lead an unhealthy lifestyle.
1.12.2008 2:26pm
rjh:
Eugene's examples are misleading when compared with the actual request in question. This is not a voluntary conversation issue. The requirement is that the employees must authorize complete, full, irrevocable permission for access to any and all financial records, employment records, etc. The clear and stated intention is that their bank, tax, credit card, and other records will be disclosed to investigators, and having signed this form they have granted permission in perpetuity for ongoing disclosures. That is not a voluntary conversation. Failure to grant such permission will result in their termination.

There is no new or existing legal requirement for this disclosure. It is part of a contractual change between NASA and Caltech. This has nothing to do with any federal secrecy laws because these employees have no access to nor involvement with any classified activity. This is entirely non-secret (typically scientific) work.

This is a preliminary injunction, not a final ruling, so the decision is based on two questions:
- will an injunction reduce harm?
- is there a legal disputable issue?

No injunction clearly harms the employees who will lose their jobs. (Signing the agreement is equivalent to withdrawing from the dispute.) The injunction does minimal harm to Caltech and NASA. Caltech avoids the administrative costs. NASA is not motivated by legal requirements and made no case that continuing to operate the same way as they have for the past few decades will increase costs or interfere with NASA operations.

The legal burden for the preliminary injunction then becomes deciding whether there is a realistic potential for any judgement in favor of the employees. There easily could be. It is quite unusual to require that an employee grant unlimited access to the employees financial and other records in perpetuity. There is no revocation or termination clause in the agreement, and the court could easily decide that the agreement must terminate when the employee terminates. The court could easily decide that medical records should not be included. So there is a case to be argued.

Thus, they grant the preliminary injunction to postpone enforcement until after the case is decided.
1.12.2008 2:31pm
Charlie (Colorado) (mail):

My sense is that people who are being asked by a police officer about a third party generally know that they don't have to answer.


Eugene, I'm not unsophisticated, although by no means an attorney, and I am not confident that I would believe that.

In fact, given the fact that I have heard of several people recently who have been tried and convicted of failing to answer questions, and the number of my acquaintances in my younger days who had amazingly severe bruising to the face and body from slipping in the shower or falling while alone in their cells, I'm not sure I believe it now.
1.12.2008 2:44pm
DLM (mail):
Assuming a right to informational privacy exists and should be protected, how do questions about drug and alcohol abuse, for example, fit within it? If I buy a bottle of vodka every day from the corner liquor store, do I have a right to keep that tidbit "private" even though it occurs in full view of everyone involved? Does a stumbling drunk have the right to keep his public drunkeness "private" from the government?

I have not read the opinion, but from Eugene's hypothetical, these seem like pretty basic questions.
1.12.2008 3:21pm
Don de Drain:
I think the 9th Circuit got it right, based on the record described in the opinion. Several factors strongly influenced the Court's opinion. First, JPL had been doing business with the "low risk" employees without any problems for a long time before the government pressured JPL into requiring the "low risk" employees to allow the government to rummage through their personal lives if they wanted to keep their jobs. It appears that many of the "low risk" employees in question were long-time employees of JPL.

Second, there appears to be no statutory authorization to allow the type of rummaging through personal lives of the "low risk" JPL employees described in the opinion. The Court did not say that Congress could not authorize rummaging; rather the Court said it could not find stautory authorization for the broad based rummaging which the "low risk" JPL employees were being required to allow. Clearly broad based rummaging is allowed into the lives of those employees who hold more sensitive jobs.

Also, there was no effort to limit in any way the rummaging that was to take place or to limit the use of the information obtained. The following quote from the opinion summarizes the situation:

Considering the breadth of Form 42's questions, it is difficult to see how they could be narrowly tailored to meet any legitimate need, much less the specific interests that Federal Appellees have offered to justify the new requirement. Asking for "any adverse information about this person's employment, residence, or activities" may solicit some information relevant to "identity," "national security," or "protecting federal information systems," but there are absolutely no safeguards in place to limit the disclosures to information relevant to these interests. [end of quote]

Seems to me that, if the plaintiffs really do hold "low risk" jobs, the government does not need to do this kind of broad based rummaging. If there is a need for broad based rummaging into the lives of the plaintiff JPL workers, then someone messed up by conceding that the JPL workers in question are "low risk."

Bottom line is that the Ninth Circuit decided the case properly based on the facts before it and the arguments made by the parties. (As noted above, this is just an appeal from a denial of a preliminary injunction, not a final ruling on the merits of the case.)
1.12.2008 3:32pm
David Schwartz (mail):
I think it is more invasive to swear that you are not a smoker and allow a private firm to deny you health benifits if you lead an unhealthy lifestyle.


Right, because in this case you are free to work for the other Federal government.
1.14.2008 9:54pm