The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

Supreme Court Rules Background Checks on Government Contractors are Reasonable

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Today, the Supreme Court issued its decision in NASA v. Nelson, a case relating to employee privacy.  The Court unaminously ruled (excluding Justice Kagan, who recused) that the federal government has broad latitude to ask questions about the background of independent contractors who work at government facilities.

The Ninth Circuit had previously ruled that the background checks at issue were too invasive of individual privacy because they asked about drug treatment and counseling within the previous year, and asked open-ended questions about the individual’s employment suitability.  The backgound check policy at issue was developed after the 2001 terrorist attacks.

Writing for the Court, Justice Alito stated that "the challenged portions of [the forms] consist of reasonable, employment-related inquiries that further the Government’s interest in managing its internal operations."  The Court rejected arguments that the Government’s inquiries violated a constitutional right to informational privacy.

The full opinion is available here.

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Author: Heather Enlow-Novitsky

VP, Assistant General Counsel, Bank of America Merchant Services

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