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NASA v Nelson

The U.S. Supreme Court has decided NASA v. Nelson, reversing the 9th Circuit 8-0.  My thoughts about the case are here and here [links no longer available], and as I predicted, the Court rejected the 9th Circuit holding that the government employment background check questionnaires violated the constitutional right to information privacy.  Fortunately, the Court kept its opinion narrow and didn’t use it as an opportunity to wipe out the constitutional right to information privacy, a right that the Court mentioned just a few times but that has taken on more of a life in the circuit courts.

According to the Court:

We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon. We hold, however, that the challenged portions of the Government’s background check do not violate this right in the present case. The Government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U. S. C. §552a, satisfy any “interest in avoiding disclosure” that may “arguably ha[ve] its roots in the Constitution.” Whalen, supra, at 599, 605.

Concurring in the judgment, Justice Scalia (joined by Justice Thomas) would have happily axed the right:

I would simply hold that there is no constitutional right to “informational privacy.” . . . . The Court’s sole justification for its decision to “assume, without deciding” is that the Court made the same mistake before—in two 33-year-old cases, Whalen v. Roe, 429 U. S. 589 (1977), and Nixon v. Administrator of General Services, 433 U. S. 425 (1977). . . . It is unfathomable why these cases’ passing, barely explained reference to a right separate from the Fourth Amendment—an unenumerated right that they held to be not applicable—should be afforded stare decisis weight.

I have little else to say about the case that I haven’t already said in my previous posts other than to reiterate my relief the Court kept its decision narrow.  I believed from the beginning that this case was doomed because the constitutional right to information privacy focuses on preventing unwarranted disclosures not on restricting the collection of information via questionnaires.


Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

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