NATIONAL AERONAUTICS AND SPACE ADMINISTRATION ET AL. v. NELSON ET AL.
No. 09-530
Supreme Court of the United States
January 19, 2011
Argued October 5, 2010
562 U.S. 134
Dan Stormer argued the cause for respondents. With him on the brief were Virginia Keeny, Paul R. Q. Wolfson, and Shirley Cassin Woodward.*
Briefs of amici curiae urging affirmance were filed for the American Astronomical Society by Jeffrey F. Pryce and Alice E. Loughran; for the American Civil Liberties Union et al. by Aden J. Fine, Steven R. Shapiro, Jameel Jaffer, David Blair-Loy, Peter J. Eliasberg, and Alan L. Schlosser; for the California Employment Lawyers Association by Marc A. Coleman; for the Drug Policy Alliance by David T. Goldberg, Sean H. Donahue, and Daniel N. Abrahamson; for the Electronic Frontier Foundation by Jennifer Stisa Granick; and for the Electronic Privacy Information Center et al. by Marc Rotenberg.
Diane J. Curran filed a brief for the Union of Concerned Scientists as amicus curiae.
In two cases decided more than 30 years ago, this Court referred broadly to a constitutional privacy “interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U. S. 589, 599-600 (1977); Nixon v. Administrator of General Services, 433 U. S. 425, 457 (1977). Respondents in this case, federal contract employees at a Government laboratory, claim that two parts of a standard employment background investigation violate their rights under Whalen and Nixon. Respondents challenge a section of a form questionnaire that asks employees about treatment or counseling for recent illegal-drug use. They also object to certain open-ended questions on a form sent to employees’ designated references.
We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon. We hold, however, that the challenged portions of the Government‘s background check do not violate this right in the present case. The Government‘s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974,
I
A
The National Aeronautics and Space Administration (NASA) is an independent federal agency charged with planning and conducting the Government‘s “space activities.”
One NASA facility, the Jet Propulsion Laboratory (JPL) in Pasadena, California, is staffed exclusively by contract employees. NASA owns JPL, but the California Institute of Technology (Cal Tech) operates the facility under a Government contract. JPL is the lead NASA center for deep-space robotics and communications. Most of this country‘s unmanned space missions—from the Explorer 1 satellite in 1958 to the Mars Rovers of today—have been developed and run by JPL. JPL scientists contribute to NASA earth-observation and technology-development projects. Many JPL employees also engage in pure scientific research on topics like “the star formation history of the universe” and “the fundamental properties of quantum fluids.” App. 64-65, 68.
Twenty-eight JPL employees are respondents here. Many of them have worked at the lab for decades, and none has ever been the subject of a Government background investigation. At the time when respondents were hired, background checks were standard only for federal civil servants. See Exec. Order No. 10450, 3 CFR 936 (1949-1953 Comp.). In some instances, individual contracts required background checks for the employees of federal contractors, but no blanket policy was in place.
The Government has recently taken steps to eliminate this two-track approach to background investigations. In 2004, a recommendation by the 9/11 Commission prompted the President to order new, uniform identification standards for “[f]ederal employees,” including “contractor employees.” Homeland Security Presidential Directive/HSPD-12—Policy for a Common Identification Standard for Federal Employees and Contractors, Public Papers of the President, George W. Bush, Vol. 2, Aug. 27, p. 1765 (2007) (hereinafter HSPD-12), App. 127. The Department of Commerce implemented this
An October 2007 deadline was set for completion of these investigations. Memorandum from Joshua B. Bolten, Director, OMB, to the Heads of all Departments and Agencies (Aug. 5, 2005), App. 112. In January 2007, NASA modified its contract with Cal Tech to reflect the new background-check requirement. JPL management informed employees that anyone failing to complete the NACI process by October 2007 would be denied access to JPL and would face termination by Cal Tech.
B
The NACI process has long been the standard background investigation for prospective civil servants. The process begins when the applicant or employee fills out a form questionnaire. Employees who work in “non-sensitive” positions (as all respondents here do) complete Standard Form 85 (SF-85). Office of Personnel Management (OPM), Standard Form 85, Questionnaire for Non-Sensitive Positions, App. 88-95.2
Once a completed SF-85 is on file, the “agency check” and “inquiries” begin. 75 Fed. Reg. 5359 (2010). The Government runs the information provided by the employee through FBI and other federal-agency databases. It also sends out form questionnaires to the former employers, schools, landlords, and references listed on SF-85. The particular form at issue in this case—the Investigative Request for Personal Information, Form 42—goes to the employee‘s former landlords and references. Ibid.3
Form 42 is a two-page document that takes about five minutes to complete. See ibid. It explains to the reference that “[y]our name has been provided by” a particular employee or applicant to help the Government determine that person‘s “suitability for employment or a security clearance.” App. 96-97. After several preliminary questions about the extent of the reference‘s associations with the employee, the form asks if the reference has “any reason to question” the
All responses to SF-85 and Form 42 are subject to the protections of the Privacy Act. The Act authorizes the Government to keep records pertaining to an individual only when they are “relevant and necessary” to an end “required to be accomplished” by law.
C
About two months before the October 2007 deadline for completing the NACI, respondents brought this suit, claiming, as relevant here, that the background-check process violates a constitutional right to informational privacy. App. 82 (Complaint for Injunctive and Declaratory Relief).4 The District Court denied respondents’ motion for a preliminary injunction, but the Ninth Circuit granted an injunction pending appeal, 506 F. 3d 713 (2007), and later reversed the District Court‘s order. The court held that portions of both SF-85 and Form 42 are likely unconstitutional and should be preliminarily enjoined. 512 F. 3d 1134, vacated and superseded, 530 F. 3d 865 (2008).
Form 42, in the Court of Appeals’ estimation, was even “more problematic.” Ibid. The form‘s “open-ended and highly private” questions, the court concluded, were not “narrowly tailored” to meet the Government‘s interests in verifying contractors’ identities and “ensuring the security of the JPL.” Id., at 881, 880. As a result, the court held, these “open-ended” questions, like the drug-treatment question on SF-85, likely violate respondents’ informational-privacy rights.5
II
As noted, respondents contend that portions of SF-85 and Form 42 violate their “right to informational privacy.” Brief for Respondents 15. This Court considered a similar claim in Whalen, 429 U. S. 589, which concerned New York‘s practice of collecting “the names and addresses of all persons” prescribed dangerous drugs with both “legitimate and illegitimate uses.” Id., at 591. In discussing that claim, the Court said that “[t]he cases sometimes characterized as protecting ‘privacy’ actually involved “at least two different kinds of interests“: one, an “interest in avoiding disclosure of personal matters“;6 the other, an interest in “making certain kinds of important decisions” free from government interference.7 Id., at 598-600. The patients who brought suit in
Whalen acknowledged that the disclosure of “private information” to the State was an “unpleasant invasio[n] of privacy,” id., at 602, but the Court pointed out that the New York statute contained “security provisions” that protected against “[p]ublic disclosure” of patients’ information, id., at 600-601. This sort of “statutory or regulatory duty to avoid unwarranted disclosures” of “accumulated private data” was sufficient, in the Court‘s view, to protect a privacy interest that “arguably ha[d] its roots in the Constitution.” Id., at 605-606. The Court thus concluded that the statute did not violate “any right or liberty protected by the Fourteenth Amendment.” Id., at 606.
Four months later, the Court referred again to a constitutional “interest in avoiding disclosure.” Nixon, 433 U. S., at 457 (internal quotation marks omitted). Former President Nixon brought a challenge to the Presidential Recordings and Materials Preservation Act, 88 Stat. 1695, note following
The Court announced the decision in Nixon in the waning days of October Term 1976. Since then, the Court has said little else on the subject of an “individual interest in avoiding disclosure of personal matters.” Whalen, supra, at 599; Nixon, supra, at 457. A few opinions have mentioned the concept in passing and in other contexts. See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 762-763 (1989); New York v. Ferber, 458 U. S. 747, 759, n. 10 (1982). But no other decision has squarely addressed a constitutional right to informational privacy.9
As was our approach in Whalen, we will assume for present purposes that the Government‘s challenged inquiries implicate a privacy interest of constitutional significance. 429 U. S., at 599, 605.10 We hold, however, that, whatever the
A
1
As an initial matter, judicial review of the Government‘s challenged inquiries must take into account the context in which they arise. When the Government asks respondents and their references to fill out SF-85 and Form 42, it does not exercise its sovereign power “to regulate or license.” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896 (1961). Rather, the Government conducts the challenged background checks in its capacity “as proprietor” and manager of its “internal operation.” Ibid. Time and again our cases have recognized that the Government has a much freer hand in dealing “with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Oregon Dept. of Agriculture, 553 U. S. 591, 598 (2008); Waters v. Churchill, 511 U. S. 661, 674 (1994) (plurality opinion). This distinction is grounded on the
An assessment of the constitutionality of the challenged portions of SF-85 and Form 42 must account for this distinction. The questions challenged by respondents are part of a standard employment background check of the sort used by millions of private employers. See Brief for Consumer Data Industry Association et al. as Amici Curiae 2 (hereinafter CDIA Brief) (“[M]ore than 88% of U. S. companies ... perform background checks on their employees“). The Government itself has been conducting employment investigations since the earliest days of the Republic. L. White, The Federalists: A Study in Administrative History 262-263 (1948); see OPM, Biography of An Ideal: History of the Fed-eral Civil Service 8 (2002) (noting that President Washington “set a high standard” for federal office and finalized appointments only after “investigating [candidates‘] capabilities and reputations“). Since 1871, the President has enjoyed statutory authority to “ascertain the fitness of applicants” for the civil service “as to age, health, character, knowledge and ability for the employment sought,” Act of Mar. 3, 1871, Rev. Stat. § 1753, as amended,
As this long history suggests, the Government has an interest in conducting basic employment background checks. Reasonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent, reliable work force. See Engquist, supra, at 598-599. Courts must keep those interests in mind when asked to go line by line through the Government‘s employment forms and to scrutinize the choice and wording of the questions they contain.
Respondents argue that, because they are contract employees and not civil servants, the Government‘s broad authority in managing its affairs should apply with diminished force. But the Government‘s interest as “proprietor” in managing its operations, Cafeteria & Restaurant Workers, supra, at 896, does not turn on such formalities. See Board of Comm‘rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 678, 679 (1996) (formal distinctions such as whether a “service provider” has a “contract of employment or a contract for services” with the government is a “very poor proxy” for constitutional interests at stake). The fact that respondents’ direct employment relationship is with Cal Tech—which operates JPL under a Government contract—says very little about the interests at stake in this case. The record shows that, as a “practical matter,” there are no “[r]elevant distinctions” between the duties performed by NASA‘s civil-service work force and its contractor work force. App. 221. The two classes of employees perform “functionally equivalent duties,” and the extent of employees’ “access to NASA ... facilities” turns not on formal status but on the nature of “the jobs they perform.” Ibid.
2
With these interests in view, we conclude that the challenged portions of both SF-85 and Form 42 consist of reasonable, employment-related inquiries that further the Government‘s interests in managing its internal operations. See Engquist, 553 U. S., at 598-599; Whalen, 429 U. S., at 597-598.
In context, the followup question on “treatment or counseling” for recent illegal-drug use is also a reasonable, employment-related inquiry. The Government, recognizing that illegal-drug use is both a criminal and a medical issue, seeks to separate out those illegal-drug users who are taking steps to address and overcome their problems. The Government thus uses responses to the “treatment or counseling” question as a mitigating factor in determining whether to grant contract employees long-term access to federal facilities.13
We reject the argument that the Government, when it requests job-related personal information in an employment background check, has a constitutional burden to demonstrate that its questions are “necessary” or the least restrictive means of furthering its interests. So exacting a standard runs directly contrary to WhalenWhalen, much like respondents here, argued that New York‘s statute was unconstitutional because the State could not “demonstrate the necessity” of its program. 429 U. S., at 596. The Court quickly rejected that argument, concluding that New York‘s collection of patients’ prescription information could “not be held unconstitutional simply because” a court viewed it as “unnecessary, in whole or in part.” Id., at 596-597.
That analysis applies with even greater force where the Government acts, not as a regulator, but as the manager of its internal affairs. See Engquist, supra, at 598-599. SF-85‘s “treatment or counseling” question reasonably seeks to identify a subset of acknowledged drug users who are attempting to overcome their problems. The Government‘s considered position is that phrasing the question in more permissive terms would result in a lower response rate, and
3
The Court of Appeals also held that the broad, “open-ended questions” on Form 42 likely violate respondents’ informational-privacy rights. Form 42 asks applicants’ designated references and landlords for “information” bearing on “suitability for government employment or a security clearance.” App. 97. In a series of questions, the Government asks if the reference has any “adverse information” about the applicant‘s “honesty or trustworthiness,” “violations of the law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.” Ibid.
These open-ended inquiries, like the drug-treatment question on SF-85, are reasonably aimed at identifying capable employees who will faithfully conduct the Government‘s business. See Engquist, supra, at 598-599. Asking an applicant‘s designated references broad, open-ended questions about job suitability is an appropriate tool for separating strong candidates from weak ones. It would be a truly daunting task to catalog all the reasons why a person might not be suitable for a particular job, and references do not have all day to answer a laundry list of specific questions. See CDIA Brief 6-7 (references “typically have limited time to answer questions from potential employers,” and “open-ended questions” yield more relevant information than narrow inquiries). Form 42, by contrast, takes just five minutes to complete. 75 Fed. Reg. 5359.
The reasonableness of such open-ended questions is illustrated by their pervasiveness in the public and private sectors. Form 42 alone is sent out by the Government over 1.8
B
1
Not only are SF-85 and Form 42 reasonable in light of the Government interests at stake, they are also subject to substantial protections against disclosure to the public. Both Whalen and Nixon recognized that government “accumulation” of “personal information” for “public purposes” may pose a threat to privacy. Whalen, supra, at 605; see Nixon, 433 U. S., at 457-458, 462. But both decisions also stated that a “statutory or regulatory duty to avoid unwarranted disclosures” generally allays these privacy concerns. Whalen, supra, at 605; Nixon, supra, at 458-459. The Court in Whalen, relying on New York‘s “security provisions” prohibiting public disclosure, turned aside a challenge to the collection of patients’ prescription information. 429 U. S., at 594, and n. 12, 600-601, 605. In Nixon, the Court rejected what it regarded as an even “weaker” claim by the former President because the Presidential Recordings and Materials Preservation Act “[n]ot only . . . mandate[d] regulations” against “undue dissemination,” but also required im-
Respondents in this case, like the patients in Whalen and former President Nixon, attack only the Government‘s collection of information on SF-85 and Form 42. And here, no less than in Whalen and Nixon, the information collected is shielded by statute from “unwarranted disclosur[e].” See Whalen, supra, at 605. The Privacy Act, which covers all information collected during the background-check process, allows the Government to maintain records “about an individual” only to the extent the records are “relevant and necessary to accomplish” a purpose authorized by law.
2
Notwithstanding these safeguards, respondents argue that statutory exceptions to the Privacy Act‘s disclosure bar, see
Respondents’ reliance on these exceptions rests on an incorrect reading of both our precedents and the terms of the
Nor does the substance of the “routine use” exception relied on by respondents create any undue risk of public dissemination. None of the authorized “routine use[s]” of respondents’ background-check information allows for release to the public. 71 Fed. Reg. 45859-45860, 45862 (2006); 60 Fed. Reg. 63084 (1995), as amended, 75 Fed. Reg. 28307 (2010). Rather, the established “routine use[s]” consist of limited, reasonable steps designed to complete the background-check process in an efficient and orderly manner. See Whalen, supra, at 602 (approving disclosures to authorized New York Department of Health employees that were not “meaningfully distinguishable” from routine disclosures “associated with many facets of health care“). One routine use, for example, involves a limited disclosure to persons fill-
Citing past violations of the Privacy Act,14 respondents note that it is possible that their personal information could be disclosed as a result of a similar breach. But data breaches are a possibility any time the Government stores information. As the Court recognized in Whalen, the mere possibility that security measures will fail provides no “proper ground” for a broad-based attack on government information-collection practices. Ibid. Respondents also cite a portion of SF-85 that warns of possible disclosure “[t]o the news media or the general public.” App. 89. By its terms, this exception allows public disclosure only where release is “in the public interest” and would not result in “an unwarranted invasion of personal privacy.” Ibid. Respondents have not cited any example of such a disclosure, nor have they identified any plausible scenario in which
In light of the protection provided by the Privacy Act‘s nondisclosure requirement, and because the challenged portions of the forms consist of reasonable inquiries in an employment background check, we conclude that the Government‘s inquiries do not violate a constitutional right to informational privacy. Whalen, supra, at 605.
*
*
*
For these reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE KAGAN took no part in the consideration or decision of this case.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment.
I agree with the Court, of course, that background checks of employees of Government contractors do not offend the Constitution. But rather than reach this conclusion on the basis of the never-explained assumption that the Constitution requires courts to “balance” the Government‘s interests in data collection against its contractor employees’ interest in privacy, I reach it on simpler grounds. Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People
Before addressing the constitutional issues, however, 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. The “Table of Authorities” contains citations of cases from federal and state courts, federal and state statutes, Rules of Evidence from four States, two Executive Orders, a House Report, and even more exotic sources of law, such as two reports of the Government Accountability Office and an Equal Employment Opportunity Commission document concerning “Enforcement Guidance.” And yet it contains not a single citation of the sole document we are called upon to construe: the Constitution of the United States. The body of the brief includes a single, fleeting reference to the Due Process Clause, buried in a citation of the assuredly inapposite Lawrence v. Texas, 539 U. S. 558 (2003), Brief for Respondents 42; but no further attempt is made to argue that NASA‘s actions deprived respondents of liberty without due process of law. And this legal strategy was not limited to respondents’ filing in this Court; in the Ninth Circuit respondents asserted in a footnote that “courts have grounded the right to informational privacy in various provisions of the Constitution,” Brief for Appellants in No. 07-56424, p. 25, n. 18, but declined to identify which ones applied here.
To tell the truth, I found this approach refreshingly honest. 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. Regrettably, this Lincolnesque honesty evaporated at oral argument, when counsel asserted, apparently for the first time in this litigation,
This case is easily resolved on the simple ground that the Due Process Clause does not “guarante[e] certain (unspecified) liberties“; rather, it “merely guarantees certain procedures as a prerequisite to deprivation of liberty.” Albright v. Oliver, 510 U. S. 266, 275 (1994) (SCALIA, J., concurring). Respondents make no claim that the Government has deprived them of liberty without the requisite procedures, and their due process claim therefore must fail. Even under the formula we have adopted for identifying liberties entitled to protection under the faux “substantive” component of the Due Process Clause—that “the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation‘s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 720-721 (1997) (internal quotation marks omitted)—respondents’ claim would fail. Respondents do not even attempt to argue that the claim at issue in this case passes that test, perhaps recognizing the farcical nature of a contention that a right deeply rooted in our history and tradition bars the Government from ensuring that the Hubble Telescope is not used by recovering drug addicts.
The absurdity of respondents’ position in this case should not, however, obscure the broader point: Our due process precedents, even our “substantive due process” precedents, do not support any right to informational privacy. First, we have held that a government act of defamation does not deprive a person “of any ‘liberty’ protected by the procedural guarantees of the Fourteenth Amendment.” Paul v. Davis, 424 U. S. 693, 709 (1976). We reasoned that stigma, standing alone, does not “significantly alte[r]” a person‘s legal status so as to “justif[y] the invocation of procedural safe-
Second, respondents challenge the Government‘s collection of their private information. But the Government‘s collection of private information is regulated by the Fourth Amendment, and “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” County of Sacramento v. Lewis, 523 U. S. 833, 842 (1998) (internal quotation marks omitted; alteration in original). Here, the Ninth Circuit rejected respondents’ Fourth Amendment argument, correctly holding that the Form 42 inquiries to third parties were not Fourth Amendment “searches” under United States v. Miller, 425 U. S. 435 (1976), and that the Fourth Amendment does not prohibit the Government from asking questions about private information. 530 F. 3d 865, 876-877 (2008). That should have been the end of the matter. Courts should not use the Due Process Clause as putty to fill up gaps they deem unsightly in the protections provided by other constitutional provisions.
In sum, I would simply hold that there is no constitutional right to “informational privacy.” Besides being consistent with constitutional text and tradition, this view has the attractive benefit of resolving this case without resort to the Court‘s exegesis on the Government‘s legitimate interest in identifying contractor drug abusers and the comfortingly narrow scope of NASA‘s “routine use” regulations. I shall not fill the U. S. Reports with further explanation of the incoherence of the Court‘s “substantive due process” doctrine in its many manifestations, since the Court does not play the substantive due process card. Instead, it states that it will “assume, without deciding” that there exists a right to informational privacy, ante, at 138.
At this point the reader may be wondering: “What, after all, is the harm in being ‘minimalist’ and simply refusing to say that violation of a constitutional right of informational privacy can never exist? The outcome in this case is the same, so long as the Court holds that any such hypothetical right was not violated.” Well, there is harm. The Court‘s never-say-never disposition does damage for several reasons.
1. It is in an important sense not actually minimalist. By substituting for one real constitutional question (whether there exists a constitutional right to informational privacy)
If, on the other hand, the Court believes that there is a constitutional right to informational privacy, then I fail to see the minimalist virtues in delivering a lengthy opinion analyzing that right while coyly noting that the right is “assumed” rather than “decided.” Thirty-three years have passed since the Court first suggested that the right may, or may not, exist. It is past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence.
2. It harms our image, if not our self-respect, because it makes no sense. The Court decides that the Government did not violate the right to informational privacy without deciding whether there is a right to informational privacy, and without even describing what hypothetical standard should be used to assess whether the hypothetical right has been violated. As I explained last Term in objecting to another of the Court‘s never-say-never dispositions:
“[The Court] cannot decide that [respondents‘] claim fails without first deciding what a valid claim would consist of. . . . [A]greeing to or crafting a hypothetical standard for a hypothetical constitutional right is sufficiently unappealing . . . that [the Court] might as well acknowledge the right as well. Or [it] could avoid the need to agree with or craft a hypothetical standard by denying the right. But embracing a standard while being coy about the right is, well, odd; and deciding this case while addressing neither the standard nor the right is quite
impossible.” Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U. S. 702, 717-718 (2010) (plurality opinion) (joined by ALITO, J.).
Whatever the virtues of judicial minimalism, it cannot justify judicial incoherence.
The Court defends its approach by observing that “we have only the ‘scarce and open-ended’ guideposts of substantive due process to show us the way.” Ante, at 147, n. 10. I would have thought that this doctrinal obscurity should lead us to provide more clarity for lower courts; surely one vague opinion should not provide an excuse for another.
The Court observes that I have joined other opinions that have assumed the existence of constitutional rights. Ibid. It is of course acceptable to reserve difficult constitutional questions, so long as answering those questions is unnecessary to coherent resolution of the issue presented in the case. So in Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 279-280 (1990), we declined to decide whether a competent person had a constitutional right to refuse lifesaving hydration, because—under a constitutional standard we laid out in detail—such a right did not exist for an incompetent person. In Herrera v. Collins, 506 U. S. 390, 417-418 (1993), we declined to decide whether it would be unconstitutional to execute an innocent person, because Herrera had not shown that he was innocent. In New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 10-15 (1988), we declined to decide whether there was a constitutional right of private association for certain clubs, because the plaintiff had brought a facial challenge, which would fail if the statute was valid in many of its applications, making it unnecessary to decide whether an as-applied challenge as to some clubs could succeed. Here, however, the Court actually applies a constitutional informational privacy standard without giving a clue as to the rule of law it is applying.
- It is relevant that the Government is acting “in its capacity ‘as proprietor’ and manager of its ‘internal operation.‘” Ante, at 148. Of course, given that we are told neither what the appropriate standard should be when the Government is acting as regulator nor what the appropriate standard should be when it is acting as proprietor, it is not clear what effect this fact has on the analysis; but at least we know that it is something.
- History and tradition have some role to play, ante, at 149-150, but how much is uncertain. The Court points out that the Federal Government has been conducting investigations of candidates for employment since the earliest days; but on the other hand it acknowledges that extension of those investigations to employees of contractors is of very recent vintage.
- The contract employees are doing important work. They are not mere janitors and maintenance men; they are working on a $568 million observatory. Ante, at 151. Can it possibly be that the outcome of today‘s case would be different for background checks of lower-level employees? In the spirit of minimalism we are never told.
- Questions about drug treatment are (hypothetically) constitutional because they are “reasonable,” “useful,” and “humane.” Ante, at 151-153. And questions to third parties are constitutional because they are “appropriate” and “pervasiv[e].” Ante, at 154-155. Any or all of these adjectives may be the hypothetical standard by which violation of the hypothetical constitutional right to “informational privacy” is evaluated. Ante, at 159.
- The Court notes that a “‘statutory or regulatory duty to avoid unwarranted disclosures’ generally allays these privacy concerns,” ante, at 155 (emphasis added), but it
4. It will dramatically increase the number of lawsuits claiming violations of the right to informational privacy. Rare will be the claim that is supported by none of the factors deemed relevant in today‘s opinion. Moreover, the utter silliness of respondents’ position in this case leaves plenty of room for the possible success of future claims that are meritless, but slightly less absurd. Respondents claim that even though they are Government contractor employees, and even though they are working with highly expensive scientific equipment, and even though the Government is seeking only information about drug treatment and information from third parties that is standard in background checks, and even though the Government is liable for damages if that information is ever revealed, and even though NASA‘s Privacy Act regulations are very protective of private information, NASA‘s background checks are unconstitutional. Ridiculous. In carefully citing all of these factors as the basis for its decision, the Court makes the distinguishing of this case simple as pie.
In future cases filed under
*
*
*
Because I deem it the “duty of the judicial department to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), I concur only in the judgment.
JUSTICE THOMAS, concurring in the judgment.
I agree with JUSTICE SCALIA that the Constitution does not protect a right to informational privacy. Ante, at 160 (opinion concurring in judgment). No provision in the Constitution mentions such a right. Cf. Lawrence v. Texas, 539 U. S. 558, 605-606 (2003) (THOMAS, J., dissenting) (“I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy . . . ” (internal quotation marks and brackets omitted)). And the notion that the Due Process Clause of the Fifth Amendment is a wellspring of unenumerated rights against the Federal Government “strains credulity for even the most casual user of words.” McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment).
Notes
“The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F. 2d 171, 177 (CADC 1983) (opinion for the court by Scalia, J.). In this case, petitioners did not ask us to hold that there is no constitutional right to informational privacy, and respondents and their amici thus understandably refrained from addressing that issue in detail. It is undesirable for us to decide a matter of this importance in a case in which we do not have the benefit of briefing by the parties and in which potential amici had little notice that the matter might be decided. See Pet. for Cert. 15 (“no need in this case” for broad decision on “the scope of a constitutionally-based right to privacy for certain information“). Particularly in cases like this one, where we have only the “scarce and open-ended” guideposts of substantive due process to show us the way, see Collins v. Harker Heights, 503 U. S. 115, 125 (1992), the Court has repeatedly recognized the benefits of proceeding with caution. E. g., Herrera v. Collins, 506 U. S. 390, 417 (1993) (joined by SCALIA, J.) (assuming “for the sake of argument ... that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after conviction would render execution unconstitutional); Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 279 (1990) (joined by SCALIA, J.) (“[W]e assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition“); Regents of Univ. of Mich. v. Ewing, 474 U. S. 214, 222-223 (1985) (“assum[ing], without deciding, that federal courts can review an academic decision of a pub-
“Mr. PETERS: Has he not that power [to conduct the proposed investigations of candidates for the civil service] now?
“Mr. DAWES: He has all that power. If you will go up to the War Department or the Department of the Interior you will see pretty much all of this nailed up on the doors, in the form of rules and regulations.” Cong. Globe, 41st Cong., 3d Sess., 1935 (1871).