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.