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SCOTUS Takes On Privacy Rights

SCOTUS Takes On Privacy Rights

Just how far can an employer, the federal government in this case, go in collecting personal information as part of employment background checks before violating a person’s privacy rights?  It’s a question the Supreme Court tackled in its first day of the new term and one that has the potential to reach broadly into our understanding of personal privacy rights.

The case, National Aeronautics and Space Administration v. Nelson, was originally brought by 28 long-term, low-risk contract employees at a NASA research facility in California.  They challenged certain questions as so intrusive that they violated their rights to informational privacy.  The 9th Circuit Court of Appeals agreed, issuing a temporary injunction, barring the government from asking certain kinds of questions and seeking certain kinds of information.

Among the questions challenged was one that involved illegal drug use in the past year.  The employees did not object to being asked whether they used, possessed, supplied or manufactured illegal drugs, but the did object to providing information about any treatment or counseling received.  Another objectionable question was one that asked for any information that had any bearing on the person’s suitability for employment.  These kinds of questions, the employees argued, had no connection to any legitimate governmental interest nor any connection to their job.

Given the fact that most employers conduct some sort of employment screening, the decision in this case could have far-reaching implications.  For example, many employers routinely perform credit checks on potential employees.  Would this practice remain acceptable?  Many states have already found it to be objectionable and so have banned the practice.  Just how relevant is a criminal history and what about potential medical issues?  At what point is protecting personal information more important than allowing employers the ability to adequately screen out potentially bad employees?

Furthermore, the case assumes that a right to informational privacy exists.  Does it?  A constitutional right to privacy is among one of the most controversial areas of the law and one, given the makeup of the Court, that I don’t know is as secure as some would home. 

And if the Court decides that there is in fact no constitutional right to informational privacy what, if any, impact does that finding have on our current understanding of privacy rights? 

Lawyers for the parties argued their case on Tuesday but it will be some time before an order is issued.  In the meantime, week one of the Supreme Court term and we are already looking at significant issues of constitutional jurisprudence.  Looks like it will be quite a term this year.

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photo courtesy of dbking via Flickr

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9 comments

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10:43AM PDT on Oct 10, 2010

I can understand the need of criminal background checks for certain occupations.
I do not believe credit checks are needed.
Even if you are to handle the finances of an employer that has no bearing on how you handled your own.

6:40PM PDT on Oct 7, 2010

I really see no reason why they are allowed to go this far, where are our rights. Big Business & Goverment are going way to far. Are we there yet with Big Brother.

3:35PM PDT on Oct 7, 2010

I think employers who have the money to do so, go to far, not just the government. As long as they have your Social Security Number they can find out all they want. It is very intrusive. I hope the group wins.

There are certain times more information is needed like security clearances, but to obtain all this information, just because you can is insulting to everyone who lives in a country that prides itself on privacy.

2:01PM PDT on Oct 7, 2010

Usually, it's unseen forces in positions of power, enjoying the Constitutional protections of privacy, while denying them to others.

There is no absolute right to privacy spelled out clearly in the Constitution. Packing the courts with conservatives would only prove disastrous in the long run.

If you value your privacy and civil liberties, vote Democratic.

12:17PM PDT on Oct 7, 2010

Personally, I don't see any reason to run a credit check on the average employee. If you are looking for work, and have been out of the workforce for long enough, you probably will have bad credit with someone that you owe. If they rely on the credit check for potential employees, how will one ever get hired. For the majority of employers, it is not necessary.

11:03AM PDT on Oct 7, 2010

Corporations want to own us anyway..

10:49AM PDT on Oct 7, 2010

If the gov keeps going the way it is we wont have any privacy rights left.

10:19AM PDT on Oct 7, 2010

Christopher, I coulndt agree more

10:04AM PDT on Oct 7, 2010

There are many things that an employer should know about a person's life, simply to insure that the person being hired is both qualified and honest.

I would not hire a person convicted of theft to work with money, nor would I want a convicted child abuser to work with children.

Credit checks, for the vast majority of jobs, have no bearing on whether or not a person should or should not be hired.

But the reality is that most employers do both of these things, for even the most superficial and unimportant jobs; over 80% of employers, plus more every day, as a matter of fact.

At this rate, anyone that cannot pass a criminal background check, AND a credit check, will soon not be able to work any job that is not menial labor.

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