JPL suit in high court’s hands

[UPDATED 5:55 p.m. Oct. 6]: A three-year legal battle over the vetting of low-risk employees at Jet Propulsion Laboratory culminated Tuesday as attorneys made oral arguments before the U.S. Supreme Court.

At issue is an injunction issued by the U.S. 9th Circuit Court of Appeals in 2008 prohibiting NASA from subjecting low-risk JPL employees — those who do not handle classified material — to unlimited background investigations.

Federal attorneys argue the injunction disrupts a review process that has been in place for 50 years. The plaintiffs, who include 28 JPL employees, maintain that the background checks would give the government unrestricted access to personal information, such as financial and health records, that have no bearing on their professional responsibilities.

“We strongly believe that the rule is unconstitutional,” said Virginia Keeny, an attorney representing the JPL scientists. “The Constitution clearly protects individual privacy rights from these types of government intrusions.”

It will likely be a few months before the high court issues a decision, Keeny said.

The case is rooted in a 2007 Homeland Security directive that established uniform review standards for people with access to federal facilities and networks. In conforming to the directive, JPL required its employees to sign a waiver giving investigators unrestricted access to academic, professional and personal data. Those who refused were told they would be fired.

In August 2007, 28 senior engineers and scientists filed a lawsuit challenging the constitutionality of the new policies. The plaintiffs are among the 97% of JPL’s 5,000 employees who are considered low security risks.

The friction generated by the dispute is poisoning the collegial atmosphere that defined JPL for decades, said plaintiff Dennis Byrnes.

His loyalty to his country has never been questioned before, he noted, his duties do not include classified work of any kind and all of his results are available to the public, sometimes on the Internet within minutes after being generated.

“This is an insult to our professional and personal integrity,” Byrnes said of the background check policies.

Engineer Robert Nelson, a 32-year employee of JPL and the lead plaintiff in the case, said the limitless background checks would give the government access to information that includes everything from the types of books an individual reads to past sexual partners.

The implications of the case reach far beyond JPL, Nelson said, and could affect employees at all federally funded facilities. The background checks could also hamper JPL’s ability to retain and attract top talent.

“If the decision does go against us, there will be a lot of employees who will be torn about what they are going to do,” Nelson said.