Earlier today I posted an analysis of yesterday's oral argument in NASA v. Nelson, which focused on the approach that Justice Scalia is likely to take: holding that the Constitution does not protect a right to informational privacy. As I explained in that post, it does not appear that Justice Scalia has more than two or three votes for his view. This post will focus on some of the issues likely to arise as the other Justices try to write up an opinion.
The justices who seem open to the idea of a constitutional right to information privacy struggled with the question of what the contours of such a right would look like. (Indeed, it is conceivable that they found the answers of Nelson's counsel to these questions so exasperating that they will come around to Justice Scalia's view of the case.) The circuit courts that have recognized a constitutional right under Whalen and Nixon have done a generally poor job of developing sensible tests to determine when the right is violated. I would argue that if the Court wants to develop such a test, it should simply track the test arising under privacy tort law. Namely, for the reasons explained here, the courts should apply a three-prong test: (1) How private is the information being sought or disseminated by the government? (using tort, Privacy Act, and FOIA privacy caselaw as guideposts); (2) Is the government's conduct a clear violation of existing social norms?; and (3) Does the gravity of the harm to privacy interests outweigh the government's interest in obtaining or disclosing the information at issue? Cases arising under the constitutional right to information privacy need not reinvent the wheel - the issues arising when the government invades privacy are quite similar to those arising when a private actor does so. The tort test has worked reasonably well for decades, so if the Court wants to recognize such a right, tort cases present a sensible model for developing the contours of the constitutional inquiry.
There was some indication in oral argument that the Court was thinking along these lines.
The justices seemed very interested in comparing the sorts of questions that the government was asking of NASA/JPL employees to those that might be faced by employees seeking sensitive positions in private firms. There may be good reasons to look to the private sector in figuring out what sorts of questions the government can ask. After all, private firms will be constrained by the profit motive when they decide what sorts of questions to ask job applicants or existing employees. Questions that are unduly intrusive might prompt talented employees to seek jobs at competitor firms. The government is in something of a monopoly position, at least with respect to many of the functions that require security clearances. Longtime government employees - such as Nelson and the other plaintiffs in the case - may face severe constraints their ability to substitute to other jobs if they resent the intrusiveness of a government background search. Looking to the norms governing private sector jobs in which competition among employers is more robust therefore makes sense.
One other important issue that came up in oral argument concerned the extent to which the constitutional right to information privacy might constrain only the dissemination of private information, as opposed to its collection by the government. Acting SG Katyal suggested that the government would not urge the Court to draw a bright line rule between information gathering and dissemination for the purposes of determining whether the Constitution is implicated. This seems right to me. Information privacy law generally, going back to Warren and Brandeis, has long viewed both intrusions and disclosures as potentially grave privacy harms. The damages associated with disclosures are often greater, but the difference is only a matter of degree. The case law has sometimes differentiated between intrusions and disclosures for constitutional purposes - the clearest example of this approach would be a case like Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975), which involves governmental surveillance of group activities. But cases embracing such an approach are woefully undertheorized and stick out like sore thumbs in the body of information privacy law. Particularly where the Privacy Act already constrains government disclosures of information, holding that disclosures but not information gathering might implicate the constitutional right to information privacy would be a wrong turn for information privacy law.
As a final matter, I was intrigued when counsel for Nelson, Dan Stormer, repeatedly tried to invoke a FOIA privacy case, Reporter's Committee, in explaining how the Court should think about the constitutional right to information privacy. Reporter's Committee, along with Favish, another FOIA privacy case, are the two non-Fourth Amendment information privacy opinions that are most protective of privacy rights. To date, the Court has been selectively receptive to efforts to reunify privacy law, such that privacy-related constitutional, tort, FOIA, and Privacy Act cases are read in a manner that minimizes conflicts among them via a sort of "coherence canon." None of the justices seemed interested in picking up Stormer's thread or thinking through its application to Nelson.
Cross posted at Prawfsblawg.