National Aeronautics & Space Administration v. Nelson , 131 S. Ct. 746 ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NATIONAL AERONAUTICS AND SPACE ADMINI-
STRATION ET AL. v. NELSON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 09–530. Argued October 5, 2010—Decided January 19, 2011
The National Aeronautics and Space Administration (NASA) has a
workforce of both federal civil servants and Government contract em
ployees. Respondents are contract employees at NASA’s Jet Propul
sion Laboratory (JPL), which is operated by the California Institute
of Technology (Cal Tech). Respondents were not subject to Govern
ment background checks at the time they were hired, but that
changed when the President ordered the adoption of uniform identifi
cation standards for both federal civil servants and contractor em
ployees. The Department of Commerce mandated that contract em
ployees with long-term access to federal facilities complete a standard
background check, typically the National Agency Check with Inquir
ies (NACI), by October 2007. NASA modified its contract with Cal
Tech to reflect the new requirement, and JPL announced that em
ployees who did not complete the NACI process in time would be de
nied access to JPL and face termination by Cal Tech.
The NACI process, long used for prospective civil servants, begins
with the employee filling out a standard form (here, Standard Form
85, the Questionnaire for Non-Sensitive Positions (SF–85)). SF–85
asks whether an employee has “used, possessed, supplied, or manu
factured illegal drugs” in the last year. If so, the employee must pro
vide details, including information about “treatment or counseling re
ceived.” The employee must also sign a release authorizing the
Government to obtain personal information from schools, employers,
and others during its investigation. Once SF–85 is completed, the
Government sends the employee’s references a questionnaire (Form
42) that asks open-ended questions about whether they have “any
reason to question” the employee’s “honesty or trustworthiness,” or
2 NASA v. NELSON
Syllabus
have “adverse information” concerning a variety of other matters. All
SF–85 and Form 42 responses are subject to the protections of the
Privacy Act.
With the deadline for completing the NACI process drawing near,
respondents brought suit, claiming, as relevant here, that the back
ground-check process violates a constitutional right to informational
privacy. The District Court declined to issue a preliminary injunc
tion, but the Ninth Circuit reversed. It held that SF–85’s inquiries
into recent drug involvement furthered the Government’s interest in
combating illegal-drug use, but that the drug “treatment or counsel
ing” question furthered no legitimate interest and was thus likely to
be held unconstitutional. It also held that Form 42’s open-ended
questions were not narrowly tailored to meet the Government’s inter
ests in verifying contractors’ identities and ensuring JPL’s security,
and thus also likely violated respondents’ informational-privacy
rights.
Held:
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; Nixon 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 disclo
sure” 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. In Nixon, the Court upheld a law requiring the former
President to turn over his presidential papers and tape recordings for
archival review and screening, concluding that the federal Act at is
sue, like the statute in Whalen, had protections against “undue dis
semination of private materials.” 433 U. S, at 458. Since Nixon, the
Court has said little else on the subject of a constitutional right to in
formational privacy. Pp. 8–10.
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. Pp. 10–24.
(a) The forms are reasonable in light of the Government interests
at stake. Pp. 11–19.
(1) Judicial review of the forms must take into account the con
text in which the Government’s challenged inquiries arise. When the
Government acts in its capacity “as proprietor” and manager of its
Cite as: 562 U. S. ____ (2011) 3
Syllabus
“internal operation,” Cafeteria & Restaurant Workers v. McElroy, 367
U. S. 886, 896, it has a much freer hand than when it regulates as to
citizens generally. The questions respondents challenge are part of a
standard background check of the sort used by millions of private
employers. The Government has been conducting employment inves
tigations since the Republic’s earliest days, and the President has
had statutory authority to assess an applicant’s fitness for the civil
service since 1871. Standard background investigations similar to
those at issue became mandatory for federal civil-service candidates
in 1953, and the investigations challenged here arose from a decision
to extend that requirement to federal contract employees. This his
tory shows that the Government has an interest in conducting basic
background checks in order to ensure the security of its facilities and
to employ a competent, reliable workforce to carry out the people’s
business. The interest is not diminished by the fact that respondents
are contract employees. There are no meaningful distinctions in the
duties of NASA’s civil-service and contractor employees, especially at
JPL, where contract employees do work that is critical to NASA’s
mission and that is funded with a multibillion dollar taxpayer in
vestment. Pp. 12–15.
(2) The challenged questions on SF–85 and Form 42 are rea
sonable, employment-related inquiries that further the Government’s
interests in managing its internal operations. SF–85’s “treatment or
counseling” question is a followup question to a reasonable inquiry
about illegal-drug use. In context, the drug-treatment inquiry is also
a reasonable, employment-related inquiry. The Government, recog
nizing that illegal-drug use is both a criminal and medical issue,
seeks to separate out those drug users who are taking steps to ad
dress and overcome their problems. Thus, it uses responses to the
drug-treatment question as a mitigating factor in its contractor cre
dentialing decisions. The Court rejects the argument that the Gov
ernment has a constitutional burden to demonstrate that its em
ployment background questions are “necessary” or the least
restrictive means of furthering its interests. So exacting a standard
runs directly contrary to Whalen. See 429 U. S., at 596–597. Pp. 16–
18.
(3) Like SF–85’s drug-treatment question, Form 42’s open
ended questions are reasonably aimed at identifying capable employ
ees who will faithfully conduct the Government’s business. Asking
an applicant’s designated references broad questions about job suit
ability is an appropriate tool for separating strong candidates from
weak ones. The reasonableness of such questions is illustrated by
their pervasiveness in the public and private sectors. Pp. 18–19.
(b) In addition to being reasonable in light of the Government in
4 NASA v. NELSON
Syllabus
terests at stake, SF–85 and Form 42 are also subject to substantial
protections against disclosure to the public. Whalen and Nixon rec
ognized that a “statutory or regulatory duty to avoid unwarranted
disclosures” generally allays privacy concerns created by government
“accumulation” of “personal information” for “public purposes.”
Whalen, supra, at 605. Respondents attack only the Government’s
collection of information, and here, as in Whalen and Nixon, the in
formation collected is shielded by statute from unwarranted disclo
sure. The Privacy Act—which allows the Government to maintain
only those records “relevant and necessary to accomplish” a purpose
authorized by law, 5 U. S. C. §552a(e)(1); requires written consent be
fore the Government may disclose an individual’s records, §552a(b);
and imposes criminal liability for willful violations of its nondisclo
sure obligations, §552a(i)(1)—“evidence[s] a proper concern” for indi
vidual privacy. Whalen, supra, at 605; Nixon, supra, at 458–459.
Respondents’ claim that the statutory exceptions to the Privacy Act’s
disclosure bar, see §§552a(b)(1)–(12), leave its protections too porous
to supply a meaningful check against unwarranted disclosures. But
that argument rests on an incorrect reading of Whalen, Nixon, and
the Privacy Act. Pp. 19–23.
530 F. 3d 865, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. SCALIA,
J., filed an opinion concurring in the judgment, in which THOMAS, J.,
joined. THOMAS, J., filed an opinion concurring in the judgment. KA-
GAN, J., took no part in the consideration or decision of the case.
Cite as: 562 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–530
_________________
NATIONAL AERONAUTICS AND SPACE ADMIN-
ISTRATION, ET AL., PETITIONERS v.
ROBERT M. NELSON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 19, 2011]
JUSTICE ALITO delivered the opinion of the Court.
In two cases decided more than 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 (1977); Nixon v. Administrator of
General Services, 433 U. S. 425, 457 (1977). Respondents
in this case, federal contract employees at a Government
laboratory, claim that two parts of a standard employment
background investigation violate their rights under
Whalen and Nixon. Respondents challenge a section of a
form questionnaire that asks employees about treatment
or counseling for recent illegal-drug use. They also object
to certain open-ended questions on a form sent to employ
ees’ designated references.
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 por
tions 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 op
2 NASA v. NELSON
Opinion of the Court
erations, 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.
I
A
The National Aeronautics and Space Administration
(NASA) is an independent federal agency charged with
planning and conducting the Government’s “space activi
ties.” Pub. L. 111–314, §3, 124 Stat. 3333, 51 U. S. C.
§20112(a)(1). NASA’s workforce numbers in the tens of
thousands of employees. While many of these workers are
federal civil servants, a substantial majority are employed
directly by Government contractors. Contract employees
play an important role in NASA’s mission, and their du
ties are functionally equivalent to those performed by civil
servants.
One NASA facility, the Jet Propulsion Laboratory (JPL)
in Pasadena, California, is staffed exclusively by contract
employees. NASA owns JPL, but the California Institute
of Technology (Cal Tech) operates the facility under a
Government contract. JPL is the lead NASA center for
deep-space robotics and communications. Most of this
country’s unmanned space missions—from the Explorer 1
satellite in 1958 to the Mars Rovers of today—have been
developed and run by JPL. JPL scientists contribute to
NASA earth-observation and technology-development
projects. Many JPL employees also engage in pure scien
tific research on topics like “the star formation history of
the universe” and “the fundamental properties of quantum
fluids.” App. 64–65, 68.
Twenty-eight JPL employees are respondents here.
Many of them have worked at the lab for decades, and
none has ever been the subject of a Government back
Cite as: 562 U. S. ____ (2011) 3
Opinion of the Court
ground investigation. At the time when respondents were
hired, background checks were standard only for federal
civil servants. See Exec. Order No. 10450, 3 CFR 936
(1949–1953 Comp.). In some instances, individual con
tracts required background checks for the employees of
federal contractors, but no blanket policy was in place.
The Government has recently taken steps to eliminate
this two-track approach to background investigations.
In 2004, a recommendation by the 9/11 Commission
prompted the President to order new, uniform identifica
tion standards for “[f]ederal employees,” including “con
tractor employees.” Homeland Security Presidential
Directive/HSPD–12—Policy for a Common Identification
Standard for Federal Employees and Contractors, Public
Papers of the President, George W. Bush, Vol. 2, Aug. 27,
p. 1765 (2007) (hereinafter HSPD–12), App. 127. The
Department of Commerce implemented this directive by
mandating that contract employees with long-term access
to federal facilities complete a standard background check,
typically the National Agency Check with Inquiries
(NACI). National Inst. of Standards and Technology,
Personal Identity Verification of Federal Employees &
Contractors, pp. iii–vi, 1–8, 6 (FIPS PUB 201–1, Mar.
2006) (hereinafter FIPS PUB 201–1), App. 131–150,
144–145.1
An October 2007 deadline was set for completion of
these investigations. Memorandum from Joshua B. Bol
ten, Director, OMB, to the Heads of all Departments and
Agencies (Aug. 5, 2005), App. 112. In January 2007,
NASA modified its contract with Cal Tech to reflect the
new background-check requirement. JPL management
——————
1 As alternatives to the NACI process, the Department of Commerce
also authorized federal agencies to use another “Office of Personnel
Management . . . or National Security community investigation re
quired for Federal employment.” App. 145. None of these alternative
background checks are at issue here.
4 NASA v. NELSON
Opinion of the Court
informed employees that anyone failing to complete the
NACI process by October 2007 would be denied access to
JPL and would face termination by Cal Tech.
B
The NACI process has long been the standard back
ground investigation for prospective civil servants. The
process begins when the applicant or employee fills out a
form questionnaire. Employees who work in “non
sensitive” positions (as all respondents here do) complete
Standard Form 85 (SF–85). Office of Personnel Manage
ment (OPM), Standard Form 85, Questionnaire for Non-
Sensitive Positions, App. 88–95.2
Most of the questions on SF–85 seek basic biographical
information: name, address, prior residences, education,
employment history, and personal and professional refer
ences. The form also asks about citizenship, selective
service registration, and military service. The last ques
tion asks whether the employee has “used, possessed,
supplied, or manufactured illegal drugs” in the last year.
Id., at 94. If the answer is yes, the employee must provide
details, including information about “any treatment or
counseling received.” Ibid. A “truthful response,” the
form notes, cannot be used as evidence against the em
ployee in a criminal proceeding. Ibid. The employee must
certify that all responses on the form are true and must
sign a release authorizing the Government to obtain per
sonal information from schools, employers, and others
during its investigation.
——————
2 For public-trust and national-security positions, more detailed forms
are required. See OPM, Standard Form 85P, Questionnaire for Public
Trust Positions, online at http://www.opm.gov/Forms/pdf_fill/sf85p.pdf;
(all Internet materials as visited Jan. 13, 2011, and available in Clerk
of Court’s case file); OPM, Standard Form 86, Questionnaire for
National Security Positions, online at http://www.opm.gov/Forms/
pdf_fill/sf86.pdf.
Cite as: 562 U. S. ____ (2011) 5
Opinion of the Court
Once a completed SF–85 is on file, the “agency check”
and “inquiries” begin. 75 Fed. Reg. 5359 (2010). The
Government runs the information provided by the em
ployee through FBI and other federal-agency databases.
It also sends out form questionnaires to the former em
ployers, schools, landlords, and references listed on SF–85.
The particular form at issue in this case—the Investiga
tive Request for Personal Information, Form 42—goes to
the employee’s former landlords and references. Ibid.3
Form 42 is a two-page document that takes about five
minutes to complete. See ibid. It explains to the reference
that “[y]our name has been provided by” a particular
employee or applicant to help the Government determine
that person’s “suitability for employment or a security
clearance.” App. 96–97. After several preliminary ques
tions about the extent of the reference’s associations with
the employee, the form asks if the reference has “any
reason to question” the employee’s “honesty or trustwor
thiness.” Id., at 97. It also asks if the reference knows of
any “adverse information” concerning the employee’s
“violations of the law,” “financial integrity,” “abuse of
alcohol and/or drugs,” “mental or emotional stability,”
“general behavior or conduct,” or “other matters.” Ibid. If
“yes” is checked for any of these categories, the form calls
for an explanation in the space below. That space is also
available for providing “additional information” (“deroga
tory” or “favorable”) that may bear on “suitability for
government employment or a security clearance.” Ibid.
All responses to SF–85 and Form 42 are subject to the
protections of the Privacy Act. The Act authorizes the
Government to keep records pertaining to an individual
——————
3 The Government sends separate forms to employers (Form 41), edu
cational institutions (Form 43), record repositories (Form 40), and law
enforcement agencies (Form 44). 75 Fed. Reg. 5359. None of these
forms are at issue here.
6 NASA v. NELSON
Opinion of the Court
only when they are “relevant and necessary” to an end
“required to be accomplished” by law. 5 U. S. C.
§552a(e)(1). Individuals are permitted to access their
records and request amendments to them.
§§552a(d)(1),(2). Subject to certain exceptions, the Gov
ernment may not disclose records pertaining to an indi
vidual without that individual’s written consent. §552a(b).
C
About two months before the October 2007 deadline for
completing the NACI, respondents brought this suit,
claiming, as relevant here, that the background-check
process violates a constitutional right to informational
privacy. App. 82 (Complaint for Injunctive and Declara
tory Relief).4 The District Court denied respondents’
motion for a preliminary injunction, but the Ninth Circuit
granted an injunction pending appeal, 506 F. 3d 713(2007), and later reversed the District Court’s order. The
court held that portions of both SF–85 and Form 42 are
likely unconstitutional and should be preliminarily en
joined. 512 F. 3d 1134, vacated and superseded, 530 F. 3d
865 (2008).
Turning first to SF–85, the Court of Appeals noted
respondents’ concession “that most of the questions” on the
form are “unproblematic” and do not “implicate the consti
tutional right to informational privacy.” 530 F. 3d, at 878.
But the court determined that the “group of questions
concerning illegal drugs” required closer scrutiny. Ibid.Applying Circuit precedent, the court upheld SF–85’s
inquiries into recent involvement with drugs as “necessary
to further the government’s legitimate interest” in combat
ing illegal-drug use. Id., at 879. The court went on to
hold, however, that the portion of the form requiring
——————
4 Respondents sought to represent a class of “JPL employees in non
sensitive positions.” App. 79. No class has been certified.
Cite as: 562 U. S. ____ (2011) 7
Opinion of the Court
disclosure of drug “treatment or counseling” furthered no
legitimate interest and was thus likely to be held uncon
stitutional. Ibid.Form 42, in the Court of Appeals’ estimation, was even
“more problematic.” Ibid. The form’s “open-ended and
highly private” questions, the court concluded, were not
“narrowly tailored” to meet the Government’s interests in
verifying contractors’ identities and “ensuring the security
of the JPL.” Id., at 881, 880. As a result, the court held,
these “open-ended” questions, like the drug-treatment
question on SF–85, likely violate respondents’ informa
tional-privacy rights.5
Over the dissents of five judges, the Ninth Circuit
denied rehearing en banc. 568 F. 3d 1028 (2009). We
granted certiorari. 559 U. S. ___ (2010).
——————
5 In the Ninth Circuit, respondents also challenged the criteria that
they believe the Government will use to determine their “suitability”
for employment at JPL. Respondents relied on a document, which had
been temporarily posted on the JPL intranet, that listed factors pur
portedly bearing on suitability for federal employment. App. 98–104.
Among the listed factors were a failure to “mee[t] financial obligations,”
“health issues,” and “mental, emotional, psychological, or psychiatric
issues.” Id., at 98, 102. Other factors, which were listed under the
heading “Criminal or Immoral Conduct,” included “indecent exposure,”
“voyeurism,” “indecent proposal[s],” and “carnal knowledge.” Id., at 98.
The document also stated that while “homosexuality,” “adultery,” and
“illegitimate children” were not “suitability” issues in and of them
selves, they might pose “security issue[s]” if circumstances indicated a
“susceptibility to coercion or blackmail.” Id., at 102. The Court of
Appeals rejected respondents’ “challenges to . . . suitability determina
tion[s]” as unripe. 530 F. 3d, at 873. Although respondents did not file
a cross-petition from that portion of the Ninth Circuit’s judgment, they
nonetheless discuss these suitability criteria at some length in their
brief before this Court. Respondents’ challenge to these criteria is not
before us. We note, however, the Acting Solicitor General’s statement
at oral argument that “NASA will not and does not use” the document
to which respondents object “to make contractor credentialing deci
sions.” Tr. of Oral Arg. 22.
8 NASA v. NELSON
Opinion of the Court
II
As noted, respondents contend that portions of SF–85
and Form 42 violate their “right to informational privacy.”
Brief for Respondents 15. This Court considered a similar
claim in Whalen, 429 U. S. 589, which concerned New
York’s practice of collecting “the names and addresses of
all persons” prescribed dangerous drugs with both “legiti
mate and illegitimate uses.” Id., at 591. In discussing
that claim, the Court said that “[t]he cases sometimes
characterized as protecting ‘privacy’ ” actually involved “at
least two different kinds of interests”: one, an “interest in
avoiding disclosure of personal matters”;6 the other, an
interest in “making certain kinds of important decisions”
free from government interference.7 The patients who
brought suit in Whalen argued that New York’s statute
“threaten[ed] to impair” both their “nondisclosure” inter
ests and their interests in making healthcare decisions
independently. Id., at 600. The Court, however, upheld
the statute as a “reasonable exercise of New York’s broad
police powers.” Id., at 598.
Whalen acknowledged that the disclosure of “private
information” to the State was an “unpleasant invasion of
privacy,” id., at 602, but the Court pointed out that the
New York statute contained “security provisions” that
——————
6 429 U. S., at 598–599, and n. 25 (citing Olmstead v. United States,
277 U. S. 438, 478 (1928) (Brandeis, J., dissenting) (describing “the
right to be let alone” as “the right most valued by civilized men”);
Griswold v. Connecticut, 381 U. S. 479, 483 (1965) (“[T]he First
Amendment has a penumbra where privacy is protected from govern
mental intrusion”); Stanley v. Georgia, 394 U. S. 557, 559, 568 (1969);
California Bankers Assn. v. Shultz, 416 U. S. 21, 79 (1974) (Douglas, J.,
dissenting); and id., at 78 (Powell, J., concurring)).
7 429 U. S., at 599–600, and n. 26 (citing Roe v. Wade, 410 U. S. 113(1973); Doe v. Bolton, 410 U. S. 179 (1973); Loving v. Virginia, 388 U. S.
1 (1967); Griswold v. Connecticut, supra; Pierce v. Society of Sisters, 268
U. S. 510 (1925); Meyer v. Nebraska, 262 U. S. 390 (1923); and Allgeyer
v. Louisiana, 165 U. S. 587 (1897)).
Cite as: 562 U. S. ____ (2011) 9
Opinion of the Court
protected against “public disclosure” of patients’ informa
tion, id., at 600–601. This sort of “statutory or regulatory
duty to avoid unwarranted disclosures” of “accumulated
private data” was sufficient, in the Court’s view, to protect
a privacy interest that “arguably ha[d] its roots in the
Constitution.” Id., at 605–606. The Court thus concluded
that the statute did not violate “any right or liberty pro
tected by the Fourteenth Amendment.” Id., at 606.
Four months later, the Court referred again to a consti
tutional “interest in avoiding disclosure.” Nixon, 433
U. S., at 457 (internal quotation marks omitted). Former
President Nixon brought a challenge to the Presidential
Recordings and Materials Preservation Act, 88 Stat. 1695,
note following 44 U. S. C. §2111, a statute that required
him to turn over his presidential papers and tape re
cordings for archival review and screening. 433 U. S., at455–465. In a section of the opinion entitled “Privacy,” the
Court addressed a combination of claims that the review
required by this Act violated the former President’s
“Fourth and Fifth Amendmen[t]” rights. Id., at 455, and
n. 18, 458–459. The Court rejected those challenges after
concluding that the Act at issue, like the statute in
Whalen, contained protections against “undue dissemina
tion of private materials.” 433 U. S., at 458. Indeed, the
Court observed that the former President’s claim was
“weaker” than the one “found wanting . . . in Whalen,” as
the Government was required to return immediately all
“purely private papers and recordings” identified by the
archivists. Id., at 458–459. Citing Fourth Amendment
precedent, the Court also stated that the public interest in
preserving presidential papers outweighed any “legitimate
expectation of privacy” that the former President may
have enjoyed. Id., at 458 (citing Katz v. United States, 389
U. S. 347 (1967); Camara v. Municipal Court of City and
County of San Francisco, 387 U. S. 523 (1967); and Terry
10 NASA v. NELSON
Opinion of the Court
v. Ohio, 392 U. S. 1 (1968)).8
The Court announced the decision in Nixon in the wan
ing days of October Term 1976. Since then, the Court has
said little else on the subject of an “individual interest in
avoiding disclosure of personal matters.” Whalen, supra,
at 599; Nixon, supra, at 457. A few opinions have men
tioned the concept in passing and in other contexts. See
Department of Justice v. Reporters Comm. for Freedom of
Press, 489 U. S. 749, 762–763 (1989); New York v. Ferber,
458 U. S. 747, 759, n. 10 (1982). But no other decision has
squarely addressed a constitutional right to informational
privacy.9
——————
8 The Court continued its discussion of Fourth Amendment principles
throughout the “Privacy” section of the opinion. See 433 U. S., at 459
(citing United States v. Miller, 425 U. S. 435 (1976), United States v.
Dionisio, 410 U. S. 1 (1973), and Katz, 389 U. S. 347)); 433 U. S., at460–462 (addressing the former President’s claim that the Act was
“tantamount to a general warrant” under Stanford v. Texas, 379 U. S.
476 (1965)); 433 U. S., at 463–465, and n. 26 (concluding that the
challenged law was analogous to the wiretapping provisions of Title III
of the Omnibus Crime Control and Safe Streets Act of 1968, notwith
standing the lack of a “warrant requirement”).
9 State and lower federal courts have offered a number of different
interpretations of Whalen and Nixon over the years. Many courts hold
that disclosure of at least some kinds of personal information should be
subject to a test that balances the government’s interests against the
individual’s interest in avoiding disclosure. E.g., Barry v. New York,
712 F. 2d 1554, 1559 (CA2 1983); Fraternal Order of Police v. Philadel
phia, 812 F. 2d 105, 110 (CA3 1987); Woodland v. Houston, 940 F. 2d
134, 138 (CA5 1991) (per curiam); In re Crawford, 194 F. 3d 954, 959
(CA9 1999); State v. Russo, 259 Conn. 436, 459–464, 790 A. 2d 1132,
1147–1150 (2002). The Sixth Circuit has held that the right to infor
mational privacy protects only intrusions upon interests “that can be
deemed fundamental or implicit in the concept of ordered liberty.” J. P.
v. DeSanti, 653 F. 2d 1080, 1090 (1981) (internal quotation marks
omitted). The D. C. Circuit has expressed “grave doubts” about the
existence of a constitutional right to informational privacy. American
Federation of Govt. Employees v. HUD, 118 F. 3d 786, 791 (1997).
Cite as: 562 U. S. ____ (2011) 11
Opinion of the Court
III
As was our approach in Whalen, we will assume for
present purposes that the Government’s challenged in
quiries implicate a privacy interest of constitutional sig
nificance. 429 U. S., at 599, 605.10 We hold, however,
——————
10 The opinions concurring in the judgment disagree with this ap
proach and would instead provide a definitive answer to the question
whether there is a constitutional right to informational privacy. Post,
at 6–7 (opinion of SCALIA, J.); post, at 1 (opinion of THOMAS, J.). One of
these opinions expresses concern that our failure to do so will “har[m]
our image, if not our self-respect,” post, at 7 (SCALIA, J.), and will cause
practical problems, post, at 8–9. There are sound reasons for eschewing
the concurring opinions’ recommended course.
“The premise of our adversarial system is that appellate courts do not
sit as self-directed boards of legal inquiry and research, but essentially
as arbiters of legal questions presented and argued by the parties
before them.” Carducci v. Regan, 714 F. 2d 171, 177 (CADC 1983)
(opinion for the court by Scalia, J.). In this case, petitioners did not ask
us to hold that there is no constitutional right to informational privacy,
and respondents and their amici thus understandably refrained from
addressing that issue in detail. It is undesirable for us to decide a
matter of this importance in a case in which we do not have the benefit
of briefing by the parties and in which potential amici had little notice
that the matter might be decided. See Pet. for Cert. 15 (“no need in
this case” for broad decision on “the scope of a constitutionally-based
right to privacy for certain information”). Particularly in cases like this
one, where we have only the “scarce and open-ended” guideposts of
substantive due process to show us the way, see Collins v. Harker
Heights, 503 U. S. 115, 125 (1992), the Court has repeatedly recognized
the benefits of proceeding with caution. E.g., Herrera v. Collins, 506
U. S. 390, 417 (1993) (joined by SCALIA, J.) (assuming “for the sake of
argument . . . that in a capital case a truly persuasive demonstration of
‘actual innocence’ ” made after conviction would render execution
unconstitutional); Cruzan v. Director, Mo. Dept. of Health, 497 U. S.
261, 279 (1990) (joined by SCALIA, J.) (“[W]e assume that the United
States Constitution would grant a competent person a constitutionally
protected right to refuse lifesaving hydration and nutrition”); Regents of
Univ. of Mich. v. Ewing, 474 U. S. 214, 222–223 (1985) (“assum[ing],
without deciding, that federal courts can review an academic decision of
a public educational institution under a substantive due process stan
dard”); Board of Curators of Univ. of Mo. v. Horowitz, 435 U. S. 78, 91–
12 NASA v. NELSON
Opinion of the Court
that, whatever the scope of this interest, it does not pre
vent the Government from asking reasonable questions of
the sort included on SF–85 and Form 42 in an employ
ment background investigation that is subject to the Pri
vacy Act’s safeguards against public disclosure.
A
1
As an initial matter, judicial review of the Government’s
challenged inquiries must take into account the context in
which they arise. When the Government asks respon
dents and their references to fill out SF–85 and Form 42,
it does not exercise its sovereign power “to regulate or
license.” Cafeteria & Restaurant Workers v. McElroy, 367
U. S. 886, 896 (1961). Rather, the Government conducts
the challenged background checks in its capacity “as pro
prietor” and manager of its “internal operation.” Ibid.Time and again our cases have recognized that the Gov
ernment has a much freer hand in dealing “with citizen
employees than it does when it brings its sovereign power
to bear on citizens at large.” Engquist v. Oregon Dept. of
Agriculture, 553 U. S. 591, 598 (2008); Waters v. Churchill,
511 U. S. 661, 674 (1994) (plurality opinion). This distinc
tion is grounded on the “common-sense realization” that if
——————
92 (1978) (same); see also New York State Club Assn., Inc. v. City of
New York, 487 U. S. 1, 20 (1988) (SCALIA, J., concurring in part and
concurring in judgment) (joining the Court’s opinion on the understand
ing that it “assumes for purposes of its analysis, but does not hold, the
existence of a constitutional right of private association for other than
expressive or religious purposes”).
Justice SCALIA provides no support for his claim that our approach in
this case will “dramatically increase the number of lawsuits claiming
violations of the right to informational privacy,” post, at 9, and will
leave the lower courts at sea. We take the same approach here that the
Court took more than three decades ago in Whalen and Nixon, and
there is no evidence that those decisions have caused the sky to fall.
We therefore decide the case before us and leave broader issues for
another day.
Cite as: 562 U. S. ____ (2011) 13
Opinion of the Court
every “employment decision became a constitutional mat
ter,” the Government could not function. See Connick v.
Myers, 461 U. S. 138, 143 (1983); see also Bishop v. Wood,
426 U. S. 341, 350 (1976) (“The Due Process Clause . . . is
not a guarantee against incorrect or ill-advised personnel
decisions”).
An assessment of the constitutionality of the challenged
portions of SF–85 and Form 42 must account for this
distinction. The questions challenged by respondents are
part of a standard employment background check of the
sort used by millions of private employers. See Brief for
Consumer Data Indus. Assn. et al. as Amici Curiae 2
(hereinafter CDIA Brief) (“[M]ore than 88% of U. S.
companies . . . perform background checks on their em
ployees”). The Government itself has been conducting
employment investigations since the earliest days of the
Republic. L. White, The Federalists: A Study in Adminis
trative History 262–263 (1948); see OPM, Biography of An
Ideal: History of the Federal Civil Service 8 (2002) (noting
that President Washington “set a high standard” for fed
eral office and finalized appointments only after “investi
gating [candidates’] capabilities and reputations”). Since
1871, the President has enjoyed statutory authority to
“ascertain the fitness of applicants” for the civil service “as
to age, health, character, knowledge and ability for the
employment sought,” Act of Mar. 3, 1871, Rev. Stat. §1753,
as amended, 5 U. S. C. §3301(2), and that Act appears to
have been regarded as a codification of established prac
tice.11 Standard background investigations similar to those
——————
11 The debate on the 1871 Act in the House of Representatives con
tained this exchange on presidential authority to conduct background
checks:
“Mr. PETERS: Has he not that power [to conduct the proposed investi
gations of candidates for the civil service] now?
“Mr. DAWES: He has all that power. If you will go up to the War
Department or the Department of the Interior you will see pretty much
14 NASA v. NELSON
Opinion of the Court
at issue here became mandatory for all candidates for the
federal civil service in 1953. Exec. Order No. 10450, 3
CFR 936. And the particular investigations challenged in
this case arose from a decision to extend that requirement
to federal contract employees requiring long-term access to
federal facilities. See HSPD–12, at 1765, App. 127; FIPS
PUB 201–1, at iii–vi, 1–8, App. 131–150.
As this long history suggests, the Government has an
interest in conducting basic employment background
checks. Reasonable investigations of applicants and em
ployees aid the Government in ensuring the security of its
facilities and in employing a competent, reliable work
force. See Engquist, supra, at 598–599. Courts must keep
those interests in mind when asked to go line-by-line
through the Government’s employment forms and to
scrutinize the choice and wording of the questions they
contain.
Respondents argue that, because they are contract
employees and not civil servants, the Government’s broad
authority in managing its affairs should apply with dimin
ished force. But the Government’s interest as “proprietor”
in managing its operations, Cafeteria & Restaurant Work
ers, supra, at 896, does not turn on such formalities. See
Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S.
668, 678, 679 (1996) (formal distinctions such as whether
a “service provider” has a “contract of employment or a
contract for services” with the government is a “very poor
proxy” for constitutional interests at stake). The fact that
respondents’ direct employment relationship is with Cal
Tech—which operates JPL under a Government con
tract—says very little about the interests at stake in this
case. The record shows that, as a “practical matter,” there
are no “[r]elevant distinctions” between the duties per
——————
all of this nailed up on the doors, in the form of rules and regulations.”
Cong. Globe, 41st Cong., 3d Sess., 1935 (1871).
Cite as: 562 U. S. ____ (2011) 15
Opinion of the Court
formed by NASA’s civil-service workforce and its contrac
tor workforce. App. 221. The two classes of employees
perform “functionally equivalent duties,” and the extent of
employees’ “access to NASA . . . facilities” turns not on
formal status but on the nature of “the jobs they perform.”
Ibid.At JPL, in particular, the work that contract employees
perform is critical to NASA’s mission. Respondents in this
case include “the lead trouble-shooter for . . . th[e] $568
[million]” Kepler space observatory, 7 Record 396; the
leader of the program that “tests . . . all new technology
that NASA will use in space,” App. 60; and one of the lead
“trajectory designers for . . . the Galileo Project and the
Apollo Moon landings,” id., at 62. This is important work,
and all of it is funded with a multibillion dollar investment
from the American taxpayer. See NASA, Jet Propulsion
Laboratory Annual Report 09, p. 35 (2010), online at
http://www.jpl.nasa.gov/annualreport/2009-report.pdf. The
Government has a strong interest in conducting basic
background checks into the contract employees minding
the store at JPL.12
——————
12 In their brief, respondents also rely on the fact that many of them
have been working at JPL for years and that Cal Tech previously
vetted them through standard “employment reference checks.” Brief
for Respondents 52–53. The record indicates that this may be wrong as
a factual matter. E.g., 7 Record 391 (“I have not been required to
undergo any type of background investigation to maintain my position
with JPL”); id., at 397 (“I have never been required to undergo any type
of background investigation to maintain my position with JPL other
than . . . [one] which required that I provide my name, social security
number, and current address” to facilitate a “check for outstanding
warrants, arrests, or convictions”); id., at 356, 367, 386–387 (similar).
Even if it were correct, the fact that Cal Tech once conducted a back
ground check on respondents does not diminish the Government’s
interests in conducting its own standard background check to satisfy
itself that contract employees should be granted continued access to the
Government’s facility. In any event, counsel abandoned this position at
oral argument. Tr. of Oral Arg. 38.
16 NASA v. NELSON
Opinion of the Court
2
With these interests in view, we conclude that the chal
lenged portions of both SF–85 and Form 42 consist of
reasonable, employment-related inquiries that further the
Government’s interests in managing its internal opera
tions. See Engquist, 553 U. S., at 598–599; Whalen, 429
U. S., at 597–598. As to SF–85, the only part of the form
challenged here is its request for information about “any
treatment or counseling received” for illegal-drug use
within the previous year. The “treatment or counseling”
question, however, must be considered in context. It is a
followup to SF–85’s inquiry into whether the employee has
“used, possessed, supplied, or manufactured illegal drugs”
during the past year. The Government has good reason to
ask employees about their recent illegal-drug use. Like
any employer, the Government is entitled to have its
projects staffed by reliable, law-abiding persons who will
“ ‘efficiently and effectively’ ” discharge their duties. See
Engquist, supra, at 598–599. Questions about illegal-drug
use are a useful way of figuring out which persons have
these characteristics. See, e.g., Breen & Matusitz, An
Updated Examination of the Effects of Illegal Drug Use in
the Workplace, 19 J. Human Behavior in the Social Envi
ronment, 434 (2009) (illicit drug use negatively correlated
with workplace productivity).
In context, the follow-up question on “treatment or
counseling” for recent illegal-drug use is also a reasonable,
employment-related inquiry. The Government, recogniz
ing that illegal-drug use is both a criminal and a medical
issue, seeks to separate out those illegal-drug users who
are taking steps to address and overcome their problems.
The Government thus uses responses to the “treatment or
counseling” question as a mitigating factor in determining
whether to grant contract employees long-term access to
Cite as: 562 U. S. ____ (2011) 17
Opinion of the Court
federal facilities.13
This is a reasonable, and indeed a humane, approach,
and respondents do not dispute the legitimacy of the
Government’s decision to use drug treatment as a mitigat
ing factor in its contractor credentialing decisions. Re
spondents’ argument is that, if drug treatment is only
used to mitigate, then the Government should change the
mandatory phrasing of SF–85—“Include [in your answer]
any treatment or counseling received”—so as to make a
response optional. App. 94. As it stands, the mandatory
“treatment or counseling” question is unconstitutional, in
respondents’ view, because it is “more intrusive than
necessary to satisfy the government’s objective.” Brief for
Respondents 26; 530 F. 3d, at 879 (holding that “treat
ment or counseling” question should be enjoined because
the form “appears to compel disclosure”).
We reject the argument that the Government, when it
requests job-related personal information in an employ
ment background check, has a constitutional burden to
demonstrate that its questions are “necessary” or the least
restrictive means of furthering its interests. So exacting a
standard runs directly contrary to Whalen. The patients
in Whalen, much like respondents here, argued that New
York’s statute was unconstitutional because the State
could not “demonstrate the necessity” of its program. 429
U. S., at 596. The Court quickly rejected that argument,
concluding that New York’s collection of patients’ prescrip
tion information could “not be held unconstitutional sim
ply because” a court viewed it as “unnecessary, in whole or
——————
13 Asking about treatment or counseling could also help the Govern
ment identify chronic drug abusers for whom, “despite counseling and
rehabilitation programs, there is little chance for effective rehabilita
tion.” 38 Fed. Reg. 33315 (1973). At oral argument, however, the
Acting Solicitor General explained that NASA views treatment or
counseling solely as a “mitigat[ing]” factor that ameliorates concerns
about recent illegal drug use. Tr. of Oral Arg. 19.
18 NASA v. NELSON
Opinion of the Court
in part.” Id., at 596–597.
That analysis applies with even greater force where the
Government acts, not as a regulator, but as the manager
of its internal affairs. See Engquist, supra, at 598–599.
SF–85’s “treatment or counseling” question reasonably
seeks to identify a subset of acknowledged drug users who
are attempting to overcome their problems. The Govern
ment’s considered position is that phrasing the question in
more permissive terms would result in a lower response
rate, and the question’s effectiveness in identifying illegal
drug users who are suitable for employment would be
“materially reduced.” Reply Brief for Petitioners 19. That
is a reasonable position, falling within the “ ‘wide lati
tude’ ” granted the Government in its dealings with em
ployees. See Engquist, supra, at 600.
3
The Court of Appeals also held that the broad, “open
ended questions” on Form 42 likely violate respondents’
informational-privacy rights. Form 42 asks applicants’
designated references and landlords for “information”
bearing on “suitability for government employment or a
security clearance.” App. 97. In a series of questions, the
Government asks if the reference has any “adverse infor
mation” about the applicant’s “honesty or trustworthi
ness,” “violations of the law,” “financial integrity,” “abuse
of alcohol and/or drugs,” “mental or emotional stability,”
“general behavior or conduct,” or “other matters.” Ibid.These open-ended inquiries, like the drug-treatment
question on SF–85, are reasonably aimed at identifying
capable employees who will faithfully conduct the Gov
ernment’s business. See Engquist, supra, at 598–599.
Asking an applicant’s designated references broad, open
ended questions about job suitability is an appropriate tool
for separating strong candidates from weak ones. It would
be a truly daunting task to catalog all the reasons why a
Cite as: 562 U. S. ____ (2011) 19
Opinion of the Court
person might not be suitable for a particular job, and
references do not have all day to answer a laundry list of
specific questions. See CDIA Brief 6–7 (references “typi
cally have limited time to answer questions from potential
employers,” and “open-ended questions” yield more rele
vant information than narrow inquiries). Form 42, by
contrast, takes just five minutes to complete. 75 Fed. Reg.
5359.
The reasonableness of such open-ended questions is
illustrated by their pervasiveness in the public and private
sectors. Form 42 alone is sent out by the Government over
1.8 million times annually. Ibid. In addition, the use of
open-ended questions in employment background checks
appears to be equally commonplace in the private sector.
See, e.g., S. Bock et al., Mandated Benefits 2008 Compli
ance Guide, Exh. 20.1, A Sample Policy on Reference
Checks on Job Applicants (“Following are the guidelines
for conducting a telephone reference check: . . . Ask open
ended questions, then wait for the respondent to answer”);
M. Zweig, Human Resources Management 87 (1991) (“Also
ask, ‘Is there anything else I need to know about [candi
date’s name]?’ This kind of open-ended question may turn
up all kinds of information you wouldn’t have gotten any
other way”). The use of similar open-ended questions by
the Government is reasonable and furthers its interests in
managing its operations.
B
1
Not only are SF–85 and Form 42 reasonable in light of
the Government interests at stake, they are also subject to
substantial protections against disclosure to the public.
Both Whalen and Nixon recognized that government
“accumulation” of “personal information” for “public pur
poses” may pose a threat to privacy. Whalen, 429 U. S., at
605; see Nixon 433 U. S., at 457–458, 462. But both deci
20 NASA v. NELSON
Opinion of the Court
sions also stated that a “statutory or regulatory duty to
avoid unwarranted disclosures” generally allays these
privacy concerns. Whalen, supra, at 605; Nixon, supra, at
458–459. The Court in Whalen, relying on New York’s
“security provisions” prohibiting public disclosure, turned
aside a challenge to the collection of patients’ prescription
information. 429 U. S., at 594, and n. 12, 600–601, 605.
In Nixon, the Court rejected what it regarded as an even
“weaker” claim by the former President because the Presi
dential Recordings and Materials Preservation Act “[n]ot
only . . . mandate[d] regulations” against “undue dissemi
nation,” but also required immediate return of any “purely
private” materials flagged by the Government’s archivists.
433 U. S., at 458–459.
Respondents in this case, like the patients in Whalen
and former President Nixon, attack only the Government’s
collection of information on SF–85 and Form 42. And
here, no less than in Whalen and Nixon, the information
collected is shielded by statute from “unwarranted disclo
sur[e].” See Whalen, supra, at 605. The Privacy Act,
which covers all information collected during the back
ground-check process, allows the Government to maintain
records “about an individual” only to the extent the re
cords are “relevant and necessary to accomplish” a pur
pose authorized by law. 5 U. S. C. §552a(e)(1). The Act
requires written consent before the Government may
disclose records pertaining to any individual. §552a(b).
And the Act imposes criminal liability for willful violations
of its nondisclosure obligations. §552a(i)(1). These re
quirements, as we have noted, give “forceful recognition”
to a Government employee’s interest in maintaining the
“confidentiality of sensitive information . . . in his person
nel files.” Detroit Edison Co. v. NLRB, 440 U. S. 301, 318,
n. 16 (1979). Like the protections against disclosure in
Whalen and Nixon, they “evidence a proper concern” for
individual privacy. Whalen, supra, at 605; Nixon, supra,Cite as: 562 U. S. ____ (2011) 21
Opinion of the Court
at 458–459.
2
Notwithstanding these safeguards, respondents argue
that statutory exceptions to the Privacy Act’s disclosure
bar, see §§552a(b)(1)–(12), leave its protections too porous
to supply a meaningful check against “unwarranted dis
closures,” Whalen, supra, at 605. Respondents point in
particular to what they describe as a “broad” exception
for “routine use[s],” defined as uses that are “compatible
with the purpose for which the record was collected.”
§§552a(b)(3), (a)(7).
Respondents’ reliance on these exceptions rests on an
incorrect reading of both our precedents and the terms of
the Privacy Act. As to our cases, the Court in Whalen and
Nixon referred approvingly to statutory or regulatory
protections against “unwarranted disclosures” and “undue
dissemination” of personal information collected by the
Government. Whalen, supra, at 605; Nixon, supra, at 458.
Neither case suggested that an ironclad disclosure bar is
needed to satisfy privacy interests that may be “root[ed] in
the Constitution.” Whalen, supra, at 605. In Whalen, the
New York statute prohibiting “[p]ublic disclosure of the
identity of patients” was itself subject to several excep
tions. 429 U. S., at 594–595, and n. 12. In Nixon, the
protections against “undue dissemination” mentioned in
the opinion were not even before the Court, but were to be
included in forthcoming regulations “mandate[d]” by the
challenged Act. 433 U. S., at 458; see id., at 437–439
(explaining that the Court was limiting its review to the
Act’s “facial validity” and was not considering the Admin
istrator’s forthcoming regulations). Thus, the mere fact
that the Privacy Act’s nondisclosure requirement is sub
ject to exceptions does not show that the statute provides
insufficient protection against public disclosure.
Nor does the substance of the “routine use” exception
22 NASA v. NELSON
Opinion of the Court
relied on by respondents create any undue risk of public
dissemination. None of the authorized “routine use[s]” of
respondents’ background-check information allows for
release to the public. 71 Fed. Reg. 45859–45860, 45862
(2006); 60 Fed. Reg. 63084 (1995), as amended, 75 Fed.
Reg. 28307 (2010). Rather, the established “routine
use[s]” consist of limited, reasonable steps designed to
complete the background-check process in an efficient and
orderly manner. See Whalen, supra, at 602 (approving
disclosures to authorized New York Department of Health
employees that were not “meaningfully distinguishable”
from routine disclosures “associated with many facets of
health care”). One routine use, for example, involves a
limited disclosure to persons filling out Form 42 so that
designated references can “identify the individual” at issue
and can understand the “nature and purpose of the inves
tigation.” App. 89. Authorized JPL employees also review
each completed SF–85 to verify that all requested infor
mation has been provided. Id., at 211. These designated
JPL employees may not “disclose any information con
tained in the form to anyone else,” ibid., and Cal Tech is
not given access to adverse information uncovered during
the Government’s background check, id., at 207–208. The
“remote possibility” of public disclosure created by these
narrow “routine use[s]” does not undermine the Privacy
Act’s substantial protections. See Whalen, 429 U. S., at601–602 (“remote possibility” that statutory security
provisions will “provide inadequate protection against
unwarranted disclosures” not a sufficient basis for striking
down statute).
Citing past violations of the Privacy Act,14 respondents
——————
14 E.g.,
GAO, Personal Information: Data Breaches are Frequent, but
Evidence of Resulting Identity Theft is Limited; However, the Full
Extent Is Unknown 5, 20 (GAO 07–737, 2007) (over 3-year period, 788
data breaches occurred at 17 federal agencies).
Cite as: 562 U. S. ____ (2011) 23
Opinion of the Court
note that it is possible that their personal information
could be disclosed as a result of a similar breach. But data
breaches are a possibility any time the Government stores
information. As the Court recognized in Whalen, the mere
possibility that security measures will fail provides no
“proper ground” for a broad-based attack on government
information-collection practices. Ibid. Respondents also
cite a portion of SF–85 that warns of possible disclosure
“[t]o the news media or the general public.” App. 89. By
its terms, this exception allows public disclosure only
where release is “in the public interest” and would not
result in “an unwarranted invasion of personal privacy.”
Ibid. Respondents have not cited any example of such a
disclosure, nor have they identified any plausible scenario
in which their information might be unduly disclosed
under this exception.15
In light of the protection provided by the Privacy Act’s
nondisclosure requirement, and because the challenged
portions of the forms consist of reasonable inquiries in an
employment background check, we conclude that the
Government’s inquiries do not violate a constitutional
right to informational privacy. Whalen, supra, at 605.
* * *
For these reasons, the judgment of the Court of Appeals
is reversed, and the case is remanded for further proceed
ings consistent with this opinion.
It is so ordered.
——————
15 Respondents further contend that the Privacy Act’s ability to deter
unauthorized release of private information is significantly hampered
by the fact that the statute provides only “an ex post money-damages
action,” not injunctive relief. Brief for Respondents 44 (citing Doe v.
Chao, 540 U. S. 614, 635 (2004) (GINSBURG, J., dissenting)). Nothing in
Whalen or Nixon suggests that any private right of action—for money
damages or injunctive relief—is needed in order to provide sufficient
protection against public disclosure.
24 NASA v. NELSON
Opinion of the Court
JUSTICE KAGAN took no part in the consideration or
decision of this case.
Cite as: 562 U. S. ____ (2011) 1
SCALIA, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–530
_________________
NATIONAL AERONAUTICS AND SPACE ADMIN-
ISTRATION, ET AL., PETITIONERS v.
ROBERT M. NELSON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 19, 2011]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring in the judgment.
I agree with the Court, of course, that background
checks of employees of government contractors do not
offend the Constitution. But rather than reach this con
clusion on the basis of the never-explained assumption
that the Constitution requires courts to “balance” the
Government’s interests in data collection against its con
tractor employees’ interest in privacy, I reach it on simpler
grounds. Like many other desirable things not included
in the Constitution, “informational privacy” seems like a
good idea—wherefore the People have enacted laws at the
federal level and in the states restricting the government’s
collection and use of information. But it is up to the Peo
ple to enact those laws, to shape them, and, when they
think it appropriate, to repeal them. A federal constitu
tional right to “informational privacy” does not exist.
Before addressing the constitutional issues, however, I
must observe a remarkable and telling fact about this
case, unique in my tenure on this Court: Respondents’
brief, in arguing that the Federal Government violated the
Constitution, does not once identify which provision of
the Constitution that might be. The Table of Authorities
contains citations of cases from federal and state courts,
2 NASA v. NELSON
SCALIA, J., concurring in judgment
federal and state statutes, Rules of Evidence from four
states, two Executive Orders, a House Report, and even
more exotic sources of law, such as two reports of the
Government Accountability Office and an EEOC document
concerning “Enforcement Guidance.” And yet it contains
not a single citation of the sole document we are called
upon to construe: the Constitution of the United States.
The body of the brief includes a single, fleeting reference
to the Due Process Clause, buried in a citation of the
assuredly inapposite Lawrence v. Texas, 539 U. S. 558(2003), Brief for Respondents 42; but no further attempt is
made to argue that NASA’s actions deprived respondents
of liberty without due process of law. And this legal strat
egy was not limited to respondents’ filing in this Court; in
the Ninth Circuit respondents asserted in a footnote that
“courts have grounded the right to informational privacy
in various provisions of the Constitution,” Brief for Appel
lants in No. 07–56424, p. 25, n. 18, but declined to identify
which ones applied here.
To tell the truth, I found this approach refreshingly
honest. One who asks us to invent a constitutional right
out of whole cloth should spare himself and us the pre
tense of tying it to some words of the Constitution. Re
grettably, this Lincolnesque honesty evaporated at oral
argument, when counsel asserted, apparently for the first
time in this litigation, that the right to informational
privacy emerged from the Due Process Clause of the Fifth
Amendment. Tr. of Oral Arg. 28–29. That counsel in
voked the infinitely plastic concept of “substantive” due
process does not make this constitutional theory any less
invented.
This case is easily resolved on the simple ground that
the Due Process Clause does not “guarante[e] certain
(unspecified) liberties”; rather, it “merely guarantees
certain procedures as a prerequisite to deprivation of
liberty.” Albright v. Oliver, 510 U. S. 266, 275 (1994)
Cite as: 562 U. S. ____ (2011) 3
SCALIA, J., concurring in judgment
(SCALIA, J., concurring). Respondents make no claim that
the State has deprived them of liberty without the requi
site procedures, and their due process claim therefore
must fail. Even under the formula we have adopted for
identifying liberties entitled to protection under the faux
“substantive” component of the Due Process Clause—that
“the Due Process Clause specially protects those funda
mental rights and liberties which are, objectively, deeply
rooted in this Nation’s history and tradition,” Washington
v. Glucksberg, 521 U. S. 702, 720–721 (1997) (internal
quotation marks omitted)—respondents’ claim would fail.
Respondents do not even attempt to argue that the claim
at issue in this case passes that test, perhaps recognizing
the farcical nature of a contention that a right deeply
rooted in our history and tradition bars the Government
from ensuring that the Hubble Telescope is not used by
recovering drug addicts.
The absurdity of respondents’ position in this case
should not, however, obscure the broader point: Our due
process precedents, even our “substantive due process”
precedents, do not support any right to informational
privacy. First, we have held that the government’s act of
defamation does not deprive a person “of any ‘liberty’
protected by the procedural guarantees of the Fourteenth
Amendment.” Paul v. Davis, 424 U. S. 693, 709 (1976).
We reasoned that stigma, standing alone, does not “sig
nificantly alte[r]” a person’s legal status so as to “justif[y]
the invocation of procedural safeguards.” Id., at 708–709.
If outright defamation does not qualify, it is unimaginable
that the mere disclosure of private information does.
Second, respondents challenge the Government’s collec
tion of their private information. But the Government’s
collection of private information is regulated by the Fourth
Amendment, and “[w]here a particular Amendment pro
vides an explicit textual source of constitutional protection
against a particular sort of government behavior, that
4 NASA v. NELSON
SCALIA, J., concurring in judgment
Amendment, not the more generalized notion of substan
tive due process, must be the guide for analyzing these
claims.” County of Sacramento v. Lewis, 523 U. S. 833,
842 (1998) (internal quotation marks omitted; alteration
in original). Here, the Ninth Circuit rejected respondents’
Fourth Amendment argument, correctly holding that the
Form 42 inquiries to third parties were not Fourth
Amendment “searches” under United States v. Miller, 425
U. S. 435 (1976), and that the Fourth Amendment does
not prohibit the Government from asking questions about
private information. 530 F. 3d 865, 876–877 (2008). That
should have been the end of the matter. Courts should not
use the Due Process Clause as putty to fill up gaps they
deem unsightly in the protections provided by other con
stitutional provisions.
In sum, I would simply hold that there is no constitu
tional right to “informational privacy.” Besides being
consistent with constitutional text and tradition, this view
has the attractive benefit of resolving this case without
resort to the Court’s exegesis on the Government’s legiti
mate interest in identifying contractor drug abusers and
the comfortingly narrow scope of NASA’s “routine use”
regulations. I shall not fill the U. S. Reports with further
explanation of the incoherence of the Court’s “substantive
due process” doctrine in its many manifestations, since the
Court does not play the substantive-due-process card.
Instead, it states that it will “assume, without deciding”
that there exists a right to informational privacy, ante,
at 1.
The Court’s sole justification for its decision to “assume,
without deciding” is that the Court made the same mis
take 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).* Ante, at 11. But stare
——————
* Contrary to the Court’s protestation, ante, at 11, n. 10, the Court’s
Cite as: 562 U. S. ____ (2011) 5
SCALIA, J., concurring in judgment
decisis is simply irrelevant when the pertinent precedent
assumed, without deciding, the existence of a constitu
tional right. “Stare decisis reflects a policy judgment that
in most matters it is more important that the applicable
rule of law be settled than that it be settled right.” State
Oil Co. v. Khan, 522 U. S. 3, 20 (1997) (internal quotation
marks omitted). “It is the preferred course because it
promotes the evenhanded, predictable, and consistent
development of legal principles.” Ibid. (internal quotation
marks omitted). Here, however, there is no applicable rule
of law that is settled. To the contrary, Whalen and Nixon
created an uncertainty that the text of the Constitution
did not contain and that today’s opinion perpetuates.
A further reason Whalen and Nixon are not entitled to
stare decisis effect is that neither opinion supplied any
coherent reason why a constitutional right to informa
tional privacy might exist. As supporting authority,
Whalen cited Stanley v. Georgia, 394 U. S. 557 (1969), a
——————
failure to address whether there is a right to informational privacy
cannot be blamed upon the Government’s concession that such a right
exists, and indeed the Government’s startling assertion that Whalen
and Nixon (which decided nothing on the constitutional point, and have
not been so much as cited in our later opinions) were “seminal”—
seminal!—decisions. Reply Brief for Petitioner 22. We are not bound
by a litigant’s concession on an issue of law. See, e.g., Grove City
College v. Bell, 465 U. S. 555, 562, n. 10 (1984). And it should not be
thought that the concession by the United States is an entirely self
denying act. To be sure, it subjects the Executive Branch to constitu
tional limitations on the collection and use of information; but the
Privacy Act, 5 U. S. C. §552a (2006 ed. and Supp. III), already contains
extensive limitations not likely to be surpassed by constitutional
improvisation. And because Congress’s power under §5 of the Four
teenth Amendment extends to the full scope of the Due Process Clause,
see City of Boerne v. Flores, 521 U. S. 507 (1997), the United States
has an incentive to give that Clause a broad reading, thus expanding
the scope of federal legislation that it justifies. Federal laws prevent
ing state disregard of “informational privacy” may be a twinkle in the
Solicitor General’s eye.
6 NASA v. NELSON
SCALIA, J., concurring in judgment
First Amendment case protecting private possession of
obscenity; the deservedly infamous dictum in Griswold v.
Connecticut, 381 U. S. 479 (1965), concerning the “penum
bra” of the First Amendment; and three concurring or
dissenting opinions, none of which remotely intimated
that there might be such a thing as a substantive due
process right to informational privacy. 429 U. S., at 599,
n. 25. Nixon provided even less support. After citing the
observation in Whalen that “[o]ne element of privacy has
been characterized as the individual interest in avoiding
disclosure of personal matters,” Nixon, supra, at 457(quoting Whalen, supra, at 599; internal quotation marks
omitted), it proceeded to conduct a straightforward Fourth
Amendment analysis. It “assume[d]” that there was a
“legitimate expectation of privacy” in the materials, and
rejected the appellant’s argument that the statute at issue
was “precisely the kind of abuse that the Fourth Amend
ment was intended to prevent.” Nixon, supra, at 457–458,
460. 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.
At this point the reader may be wondering: “What, after
all, is the harm in being ‘minimalist’ and simply refusing
to say that violation of a constitutional right of informa
tional privacy can never exist? The outcome in this case is
the same, so long as the Court holds that any such hypo
thetical right was not violated.” Well, there is harm. The
Court’s never-say-never disposition does damage for sev
eral reasons.
1. It is in an important sense not actually minimalist.
By substituting for one real constitutional question
(whether there exists a constitutional right to informa
tional privacy) a different constitutional question (whether
NASA’s background checks would contravene a right to
informational privacy if such a right existed), the Court
Cite as: 562 U. S. ____ (2011) 7
SCALIA, J., concurring in judgment
gets to pontificate upon a matter that is none of its
business: the appropriate balance between security and
privacy. If I am correct that there exists no right to in
formational privacy, all that discussion is an exercise in
judicial maximalism. Better simply to state and apply
the law forthrightly than to hold our view of the law in
pectore, so that we can inquire into matters beyond our
charter, and probably beyond our ken.
If, on the other hand, the Court believes that there is a
constitutional right to informational privacy, then I fail to
see the minimalist virtues in delivering a lengthy opinion
analyzing that right while coyly noting that the right is
“assumed” rather than “decided.” Thirty-three years have
passed since the Court first suggested that the right may,
or may not, exist. It is past time for the Court to abandon
this Alfred Hitchcock line of our jurisprudence.
2. It harms our image, if not our self-respect, because it
makes no sense. The Court decides that the Government
did not violate the right to informational privacy without
deciding whether there is a right to informational privacy,
and without even describing what hypothetical standard
should be used to assess whether the hypothetical right
has been violated. As I explained last Term in objecting to
another of the Court’s never-say-never dispositions:
“[The Court] cannot decide that [respondents’] claim
fails without first deciding what a valid claim would
consist of. . . . [A]greeing to or crafting a hypothetical
standard for a hypothetical constitutional right is suf
ficiently unappealing . . . that [the Court] might as
well acknowledge the right as well. Or [it] could avoid
the need to agree with or craft a hypothetical stan
dard by denying the right. But embracing a standard
while being coy about the right is, well, odd; and de
ciding this case while addressing neither the standard
nor the right is quite impossible.” Stop the Beach Re
8 NASA v. NELSON
SCALIA, J., concurring in judgment
nourishment, Inc. v. Florida Dept. of Environmental
Protection, 560 U. S. ___, ___ (2010) (plurality opinion)
(joined by ALITO, J.) (slip op., at 12–13).
Whatever the virtues of judicial minimalism, it cannot
justify judicial incoherence.
The Court defends its approach by observing that
“we have only the ‘scarce and open-ended’ ” guideposts of
substantive due process to show us the way.” Ante, at 11,
n. 10. I would have thought that this doctrinal obscurity
should lead us to provide more clarity for lower courts;
surely one vague opinion should not provide an excuse for
another.
The Court observes that I have joined other opinions
that have assumed the existence of constitutional rights.
Ibid. It is of course acceptable to reserve difficult constitu
tional questions, so long as answering those questions is
unnecessary to coherent resolution of the issue presented
in the case. So in Cruzan v. Director, Mo. Dept. of Health,
497 U. S. 261, 279–280 (1990), we declined to decide
whether a competent person had a constitutional right to
refuse lifesaving hydration, because—under a constitu
tional standard we laid out in detail—such a right did not
exist for an incompetent person. In Herrera v. Collins, 506
U. S. 390, 417–418 (1993), we declined to decide whether
it would be unconstitutional to execute an innocent per
son, because Herrera had not shown that he was innocent.
In New York State Club Assn., Inc. v. City of New York,
487 U. S. 1, 10–15 (1988), we declined to decide whether
there was a constitutional right of private association for
certain clubs, because the plaintiff had brought a facial
challenge, which would fail if the statute was valid in
many of its applications, making it unnecessary to decide
whether an as-applied challenge as to some clubs could
succeed. Here, however, the Court actually applies a
constitutional informational privacy standard without
Cite as: 562 U. S. ____ (2011) 9
SCALIA, J., concurring in judgment
giving a clue as to the rule of law it is applying.
3. It provides no guidance whatsoever for lower courts.
Consider the sheer multiplicity of unweighted, relevant
factors alluded to in today’s opinion:
• It is relevant that the Government is acting “in its
capacity ‘as proprietor’ and manager of its ‘internal op
eration.’ ” Ante, at 12. Of course, given that we are
told neither what the appropriate standard should be
when the Government is acting as regulator nor what
the appropriate standard should be when it is acting as
proprietor, it is not clear what effect this fact has on
the analysis; but at least we know that it is something.
• History and tradition have some role to play, ante, at
13–14, but how much is uncertain. The Court points
out that the Federal Government has been conducting
investigations of candidates for employment since the
earliest days; but on the other hand it acknowledges
that extension of those investigations to employees of
contractors is of very recent vintage.
• The contract employees are doing important work.
They are not mere janitors and maintenance men; they
are working on a $568 million observatory. Ante, at
15. Can it possibly be that the outcome of today’s case
would be different for background checks of lower-level
employees? In the spirit of minimalism we are never
told.
• Questions about drug treatment are (hypothetically)
constitutional because they are “reasonable,” “useful,”
and “humane.” Ante, at 16–17 (internal quotation
marks omitted). And questions to third parties are
constitutional because they are “appropriate” and “per
vasiv[e].” Ante, at 18–19. Any or all of these adjectives
may be the hypothetical standard by which violation of
the hypothetical constitutional right to “informational
privacy” is evaluated.
10 NASA v. NELSON
SCALIA, J., concurring in judgment
• The Court notes that a “ ‘statutory or regulatory duty
to avoid unwarranted disclosures’ generally allays
these privacy concerns,” ante, at 20 (emphasis added),
but it gives no indication of what the exceptions to this
general rule might be. It then discusses the provisions
of the Privacy Act in detail, placing considerable em
phasis on the limitations imposed by NASA’s routine
use regulations. Ante, at 21–23. From the length of
the discussion, I would bet that the Privacy Act is nec
essary to today’s holding, but how much of it is neces
sary is a mystery.
4. It will dramatically increase the number of lawsuits
claiming violations of the right to informational privacy.
Rare will be the claim that is supported by none of the
factors deemed relevant in today’s opinion. Moreover, the
utter silliness of respondents’ position in this case leaves
plenty of room for the possible success of future claims
that are meritless, but slightly less absurd. Respondents
claim that even though they are Government contractor
employees, and even though they are working with highly
expensive scientific equipment, and even though the Gov
ernment is seeking only information about drug treatment
and information from third parties that is standard in
background checks, and even though the Government is
liable for damages if that information is ever revealed, and
even though NASA’s Privacy Act regulations are very
protective of private information, NASA’s background
checks are unconstitutional. Ridiculous. In carefully
citing all of these factors as the basis for its decision, the
Court makes the distinguishing of this case simple as pie.
In future cases filed under 42 U. S. C. §1983 in those
circuits that recognize (rather than merely hypothesize) a
constitutional right to “informational privacy,” lawyers
will always (and I mean always) find some way around
today’s opinion: perhaps the plaintiff will be a receptionist
Cite as: 562 U. S. ____ (2011) 11
SCALIA, J., concurring in judgment
or a janitor, or the protections against disclosure will be
less robust. And oh yes, the fact that a losing defendant
will be liable not only for damages but also for attorney’s
fees under §1988 will greatly encourage lawyers to sue,
and defendants—for whom no safe harbor can be found in
the many words of today’s opinion—to settle. This plain
tiff’s claim has failed today, but the Court makes a gener
ous gift to the plaintiff’s bar.
* * *
Because I deem it the “duty of the judicial department to
say what the law is,” Marbury v. Madison, 1 Cranch 137,
177 (1803), I concur only in the judgment.
Cite as: 562 U. S. ____ (2011) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–530
_________________
NATIONAL AERONAUTICS AND SPACE ADMIN-
ISTRATION, ET AL., PETITIONERS v.
ROBERT M. NELSON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 19, 2011]
JUSTICE THOMAS, concurring in the judgment.
I agree with JUSTICE SCALIA that the Constitution does
not protect a right to informational privacy. Ante, at 1
(opinion concurring in judgment). No provision in the
Constitution mentions such a right. Cf. Lawrence v.
Texas, 539 U. S. 558, 605–606 (2003) (THOMAS, J., dissent
ing) (“I can find neither in the Bill of Rights nor any other
part of the Constitution a general right of privacy . . . ”
(internal quotation marks and brackets omitted)). And
the notion that the Due Process Clause of the Fifth
Amendment is a wellspring of unenumerated rights
against the Federal Government “strains credulity for
even the most casual user of words.” McDonald v. Chi
cago, 561 U. S. ___, ___ (2010) (THOMAS, J., concurring in
part and concurring in judgment) (slip op., at 7).