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September 23, 2010

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JPLer

The entire record of the case is at http://hspd12jpl.org

Professor, could you please explain how a "tortious intrusions upon seclusion" case would proceed if the first step in the investigation process is an employee's signature under a waiver (this is from Standard Form 85, http://www.opm.gov/forms/pdf_fill/sf85.pdf). Please note "not limited to" and "other sources":

"I Authorize any investigator, special agent, or other duly accredited representative of the authorized Federal agency conducting my background investigation, to obtain any information relating to my activities from schools, residential management agents, employers, criminal justice agencies, retailbusiness establishments, or other sources of information. This information may include, but is not limited to, my academic, residential, achievement, performance, attendance, disciplinary, employment history, and criminal history record information.

I Authorize custodians of records and sources of information pertaining to me to release such information upon request of the investigator, special agent, or other duly accredited representative ofany Federal agency authorized above regardless of any previous agreement to the contrary."

Also please note NASA's argument in the District Court (http://hspd12jpl.org/files/11-21.Fed.MTD.pdf) that "The California Constitution cannot supersede federal law" (JPL is a federal facility operated by a contractor, Caltech).

Thank you,

LS

Consent by the employee would usually defeat an intrusion claim. But as long as an employee (or job applicant) challenges an investigation before consenting, the cause of action could proceed. My understanding is that this is what happened in the Nelson suit, with respect to the longtime JPL employees.

As my initial post noted a suit would proceed under the Federal Tort Claims Act, not under the California Constitution. The law of torts and state constitutional invasions of privacy under California law seems to have developed on parallel tracks. It happens that the cases I cited were brought under the state constitution, but my claim is that they could have been brought under tort law with the same results. The district court's statement that you cite is merely a correct invocation of the Supremacy Clause, but the Supremacy Clause does not prohibit a suit against the federal government under the Federal Tort Claims Act.

JPLer

Professor,

Thank you for your response. I would like to address the tortious intrusion question once more. Your answer suggests that any tort remedy is precluded by the employee's signature on the waiver, and therefore the challenge must come before the consent.

What follows (and please correct me if I am wrong) is that, since the particular instance of intrusion has not occurred yet, what would be challenged is the agency's regulation (the waiver text, the investigation scope, etc.) Would it not have to be a constitutional challenge?

Thank you. This is obviously a fascinating argument of more than academic interest.

LS response:
This is a great question; the law gets complicated quickly, and obviously anyone whose privacy is implicated should seek the advice of legal counsel. (This response to your question does not constitute such advice.) The issue that you raised is discussed intelligently in Mares v. Con-Agra Poultry Co., 971 F.2d 492 (10th Cir. 1992), especially Judge Tacha's dissent, which examines the conflicting precedents. Two other relevant precedents from California are Kraslawsky v. Upper Deck Co., 56 Cal.App. 4th 179 (Cal. Ct. App. 1997) and Wilkinson v. Times Mirror Corp., 215 Cal. App. 3d 1034 (Cal. Ct. App. 1989). Kraslawsky would be helpful to the JPL plaintiffs (though it arises under the state constitution, and for the reasons I have stated, state constitutional law may have largely displaced state tort law). In my view, Wilkinson is much more hostile to the types of claims JPL employees would be pursuing.

Lior Strahilevitz

This is a great question; the law gets complicated quickly, and obviously anyone whose privacy is implicated should seek the advice of legal counsel. (My response to your question does not constitute such advice.) The issue that you raised is discussed intelligently in Mares v. Con-Agra Poultry Co., 971 F.2d 492 (10th Cir. 1992), especially Judge Tacha's dissent, which examines the conflicting precedents. Two other relevant precedents from California are Kraslawsky v. Upper Deck Co., 56 Cal.App. 4th 179 (Cal. Ct. App. 1997) and Wilkinson v. Times Mirror Corp., 215 Cal. App. 3d 1034 (Cal. Ct. App. 1989). Kraslawsky would be helpful to the JPL plaintiffs (though it arises under the state constitution, and for the reasons I have stated, state constitutional law may have largely displaced state tort law). As I read it, Wilkinson is much more hostile to the types of claims JPL employees would be pursuing.

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