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U.S. Supreme Court

Is There a Right of Informational Privacy? Supreme Court Avoids the Issue in NASA Opinion

Posted Jan 19, 2011 11:48 AM CDT
By Debra Cassens Weiss

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The U.S. Supreme Court has upheld background checks for NASA employees, but its opinion didn’t decide whether the Constitution protects a “right of informational privacy.”

The background checks are reasonable, employment-related inquiries, Justice Samuel A. Alito Jr. wrote in his opinion (PDF) for the court.

The 28 NASA workers challenging the background checks said the government had sought information about subjects ranging from their finances to their sex lives. Reuters has coverage of today's opinion.

“We assume, without deciding, that the Constitution protects a privacy right of the sort” mentioned in two 1977 Supreme Court decisions, Alito wrote. “We hold, however, that the challenged portions of the government’s background check do not violate this right in the present case.”

The decision was 8-0, with a concurrence written by Justice Antonin Scalia and joined by Justice Clarence Thomas, SCOTUSblog reports. The concurrence argued there is no informational right to privacy.

“Like many other desirable things not included in the Constitution, ‘informational privacy’ seems like a good idea.” Scalia wrote. “But it is up to the people to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to ‘informational privacy’ does not exist.”

Scalia reinforces his point with a reference to the brief (PDF) for the government workers. “I must observe a remarkable and telling fact about this case, unique in my tenure on this court: Respondents’ brief, in arguing that the federal government violated the Constitution, does not once identify which provision of the Constitution that might be,” he said. There was a “single, fleeting reference” to the due process clause, Scalia says. And there was a footnote in a prior appellate brief noting that other courts have found a right to informational privacy in various provisions of the Constitution. It didn’t elaborate.

“To tell the truth, I found this approach refreshingly honest,” Scalia says. “One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution.”

Justice Elena Kagan had supported the background checks as solicitor general and did not participate in the opinion.

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