national aeronautics space administration et al nelson et argued october decided january national aeronautics space administration nasa workforce federal civil servants government contract employees respondents contract employees nasa jet propulsion laboratory jpl operated california institute technology cal tech respondents subject government background checks time hired changed president ordered adoption uniform identification standards federal civil servants contractor employees department commerce mandated contract employees access federal facilities complete standard background check typically national agency check inquiries naci october nasa modified contract cal tech reflect new requirement jpl announced employees complete naci process time denied access jpl face termination cal tech naci process long used prospective civil servants begins employee filling standard form standard form questionnaire positions asks whether employee used possessed supplied manufactured illegal drugs last year employee must provide details including information treatment counseling received employee must also sign release authorizing government obtain personal information schools employers others investigation completed government sends employee references questionnaire form asks questions whether reason question employee honesty trustworthiness adverse information concerning variety matters form responses subject protections privacy act deadline completing naci process drawing near respondents brought suit claiming relevant process violates constitutional right informational privacy district declined issue preliminary injunction ninth circuit reversed held inquiries recent drug involvement furthered government interest combating use drug treatment counseling question furthered legitimate interest thus likely held unconstitutional also held form questions narrowly tailored meet government interests verifying contractors identities ensuring jpl security thus also likely violated respondents rights held two cases decided years ago referred broadly constitutional privacy interest avoiding disclosure personal matters whalen roe nixon administrator general services whalen upheld new york law permitting collection names addresses persons prescribed dangerous drugs finding statute security provisions protected public disclosure patient information sufficient protect privacy interest arguably root ed constitution nixon upheld law requiring former president turn presidential papers tape recordings archival review screening concluding federal act issue like statute whalen protections undue dissemination private materials since nixon said little else subject constitutional right informational privacy pp assuming without deciding government challenged inquiries implicate privacy interest constitutional significance interest whatever scope prevent government asking reasonable questions sort included form employment background investigation subject privacy act safeguards public disclosure pp forms reasonable light government interests stake pp judicial review forms must take account context government challenged inquiries arise government acts capacity proprietor manager internal operation cafeteria restaurant workers mcelroy much freer hand regulates citizens generally questions respondents challenge part standard background check sort used millions private employers government conducting employment investigations since republic earliest days president statutory authority assess applicant fitness civil service since standard background investigations similar issue became mandatory federal candidates investigations challenged arose decision extend requirement federal contract employees history shows government interest conducting basic background checks order ensure security facilities employ competent reliable workforce carry people business interest diminished fact respondents contract employees meaningful distinctions duties nasa contractor employees especially jpl contract employees work critical nasa mission funded multibillion dollar taxpayer investment pp challenged questions form reasonable inquiries government interests managing internal operations treatment counseling question followup question reasonable inquiry use context inquiry also reasonable inquiry government recognizing use criminal medical issue seeks separate drug users taking steps address overcome problems thus uses responses question mitigating factor contractor credentialing decisions rejects argument government constitutional burden demonstrate employment background questions necessary least restrictive means furthering interests exacting standard runs directly contrary whalen see pp like question form questions reasonably aimed identifying capable employees faithfully conduct government business asking applicant designated references broad questions job suitability appropriate tool separating strong candidates weak ones reasonableness questions illustrated pervasiveness public private sectors pp addition reasonable light government interests stake form also subject substantial protections disclosure public whalen nixon recognized statutory regulatory duty avoid unwarranted disclosures generally allays privacy concerns created government accumulation personal information public purposes whalen supra respondents attack government collection information whalen nixon information collected shielded statute unwarranted disclosure privacy act allows government maintain records relevant necessary accomplish purpose authorized law requires written consent government may disclose individual records imposes criminal liability willful violations nondisclosure obligations evidence proper concern individual privacy whalen supra nixon supra respondents claim statutory exceptions privacy act disclosure bar see leave protections porous supply meaningful check unwarranted disclosures argument rests incorrect reading whalen nixon privacy act pp reversed remanded alito delivered opinion roberts kennedy ginsburg breyer sotomayor joined scalia filed opinion concurring judgment thomas joined thomas filed opinion concurring judgment kagan took part consideration decision case national aeronautics space istration et petitioners robert nelson et al writ certiorari appeals ninth circuit january justice alito delivered opinion two cases decided years ago referred broadly constitutional privacy interest avoiding disclosure personal matters whalen roe nixon administrator general services respondents case federal contract employees government laboratory claim two parts standard employment background investigation violate rights whalen nixon respondents challenge section form questionnaire asks employees treatment counseling recent use also object certain questions form sent employees designated references assume without deciding constitution protects privacy right sort mentioned whalen nixon hold however challenged portions government background check violate right present case government interests employer proprietor managing internal operations combined protections public dissemination provided privacy act satisfy interest avoiding disclosure may arguably ha roots constitution whalen supra national aeronautics space administration nasa independent federal agency charged planning conducting government space activities pub stat nasa workforce numbers tens thousands employees many workers federal civil servants substantial majority employed directly government contractors contract employees play important role nasa mission duties functionally equivalent performed civil servants one nasa facility jet propulsion laboratory jpl pasadena california staffed exclusively contract employees nasa owns jpl california institute technology cal tech operates facility government contract jpl lead nasa center robotics communications country unmanned space missions explorer satellite mars rovers today developed run jpl jpl scientists contribute nasa projects many jpl employees also engage pure scientific research topics like star formation history universe fundamental properties quantum fluids app jpl employees respondents many worked lab decades none ever subject government background investigation time respondents hired background checks standard federal civil servants see exec order cfr instances individual contracts required background checks employees federal contractors blanket policy place government recently taken steps eliminate approach background investigations recommendation commission prompted president order new uniform identification standards ederal employees including contractor employees homeland security presidential policy common identification standard federal employees contractors public papers president george bush vol hereinafter app department commerce implemented directive mandating contract employees access federal facilities complete standard background check typically national agency check inquiries naci national inst standards technology personal identity verification federal employees contractors pp fips pub mar hereinafter fips pub app october deadline set completion investigations memorandum joshua bolten director omb heads departments agencies app january nasa modified contract cal tech reflect new requirement jpl management informed employees anyone failing complete naci process october denied access jpl face termination cal tech naci process long standard background investigation prospective civil servants process begins applicant employee fills form questionnaire employees work positions respondents complete standard form office personnel management opm standard form questionnaire positions app questions seek basic biographical information name address prior residences education employment history personal professional references form also asks citizenship registration military service last question asks whether employee used possessed supplied manufactured illegal drugs last year answer yes employee must provide details including information treatment counseling received ibid truthful response form notes used evidence employee criminal proceeding ibid employee must certify responses form true must sign release authorizing government obtain personal information schools employers others investigation completed file agency check inquiries begin fed reg government runs information provided employee fbi databases also sends form questionnaires former employers schools landlords references listed particular form issue case investigative request personal information form goes employee former landlords references form document takes five minutes complete see ibid explains reference name provided particular employee applicant help government determine person suitability employment security clearance app several preliminary questions extent reference associations employee form asks reference reason question employee honesty trustworthiness also asks reference knows adverse information concerning employee violations law financial integrity abuse alcohol drugs mental emotional stability general behavior conduct matters ibid yes checked categories form calls explanation space space also available providing additional information derogatory favorable may bear suitability government employment security clearance ibid responses form subject protections privacy act act authorizes government keep records pertaining individual relevant necessary end required accomplished law individuals permitted access records request amendments subject certain exceptions government may disclose records pertaining individual without individual written consent two months october deadline completing naci respondents brought suit claiming relevant process violates constitutional right informational privacy app complaint injunctive declaratory relief district denied respondents motion preliminary injunction ninth circuit granted injunction pending appeal later reversed district order held portions form likely unconstitutional preliminarily enjoined vacated superseded turning first appeals noted respondents concession questions form unproblematic implicate constitutional right informational privacy determined group questions concerning illegal drugs required closer scrutiny ibid applying circuit precedent upheld inquiries recent involvement drugs necessary government legitimate interest combating use went hold however portion form requiring disclosure drug treatment counseling furthered legitimate interest thus likely held unconstitutional ibid form appeals estimation even problematic ibid form highly private questions concluded narrowly tailored meet government interests verifying contractors identities ensuring security jpl result held questions like question likely violate respondents dissents five judges ninth circuit denied rehearing en banc granted certiorari ii noted respondents contend portions form violate right informational privacy brief respondents considered similar claim whalen concerned new york practice collecting names addresses persons prescribed dangerous drugs legitimate illegitimate uses discussing claim said cases sometimes characterized protecting actually involved least two different kinds interests one interest avoiding disclosure personal matters interest making certain kinds important decisions free government patients brought suit whalen argued new york statute threaten ed impair nondisclosure interests interests making healthcare decisions independently however upheld statute reasonable exercise new york broad police powers whalen acknowledged disclosure private information state unpleasant invasion privacy pointed new york statute contained security provisions protected public disclosure patients information sort statutory regulatory duty avoid unwarranted disclosures accumulated private data sufficient view protect privacy interest arguably ha roots constitution thus concluded statute violate right liberty protected fourteenth amendment four months later referred constitutional interest avoiding disclosure nixon internal quotation marks omitted former president nixon brought challenge presidential recordings materials preservation act stat note following statute required turn presidential papers tape recordings archival review screening section opinion entitled privacy addressed combination claims review required act violated former president fourth fifth amendmen rights rejected challenges concluding act issue like statute whalen contained protections undue dissemination private materials indeed observed former president claim weaker one found wanting whalen government required return immediately purely private papers recordings identified archivists citing fourth amendment precedent also stated public interest preserving presidential papers outweighed legitimate expectation privacy former president may enjoyed citing katz camara municipal city county san francisco terry ohio announced decision nixon waning days october term since said little else subject individual interest avoiding disclosure personal matters whalen supra nixon supra opinions mentioned concept passing contexts see department justice reporters comm freedom press new york ferber decision squarely addressed constitutional right informational iii approach whalen assume present purposes government challenged inquiries implicate privacy interest constitutional significance hold however whatever scope interest prevent government asking reasonable questions sort included form employment background investigation subject privacy act safeguards public disclosure initial matter judicial review government challenged inquiries must take account context arise government asks respondents references fill form exercise sovereign power regulate license cafeteria restaurant workers mcelroy rather government conducts challenged background checks capacity proprietor manager internal operation ibid time cases recognized government much freer hand dealing citizen employees brings sovereign power bear citizens large engquist oregon dept agriculture waters churchill plurality opinion distinction grounded realization every employment decision became constitutional matter government function see connick myers see also bishop wood due process clause guarantee incorrect personnel decisions assessment constitutionality challenged portions form must account distinction questions challenged respondents part standard employment background check sort used millions private employers see brief consumer data indus assn et al amici curiae hereinafter cdia brief ore companies perform background checks employees government conducting employment investigations since earliest days republic white federalists study administrative history see opm biography ideal history federal civil service noting president washington set high standard federal office finalized appointments investigating candidates capabilities reputations since president enjoyed statutory authority ascertain fitness applicants civil service age health character knowledge ability employment sought act mar rev stat amended act appears regarded codification established standard background investigations similar issue became mandatory candidates federal civil service exec order cfr particular investigations challenged case arose decision extend requirement federal contract employees requiring access federal facilities see app fips pub app long history suggests government interest conducting basic employment background checks reasonable investigations applicants employees aid government ensuring security facilities employing competent reliable workforce see engquist supra courts must keep interests mind asked go government employment forms scrutinize choice wording questions contain respondents argue contract employees civil servants government broad authority managing affairs apply diminished force government interest proprietor managing operations cafeteria restaurant workers supra turn formalities see board wabaunsee cty umbehr formal distinctions whether service provider contract employment contract services government poor proxy constitutional interests stake fact respondents direct employment relationship cal tech operates jpl government contract says little interests stake case record shows practical matter elevant distinctions duties performed nasa workforce contractor workforce app two classes employees perform functionally equivalent duties extent employees access nasa facilities turns formal status nature jobs perform ibid jpl particular work contract employees perform critical nasa mission respondents case include lead th million kepler space observatory record leader program tests new technology nasa use space app one lead trajectory designers galileo project apollo moon landings important work funded multibillion dollar investment american taxpayer see nasa jet propulsion laboratory annual report online http government strong interest conducting basic background checks contract employees minding store interests view conclude challenged portions form consist reasonable inquiries government interests managing internal operations see engquist whalen part form challenged request information treatment counseling received use within previous year treatment counseling question however must considered context followup inquiry whether employee used possessed supplied manufactured illegal drugs past year government good reason ask employees recent use like employer government entitled projects staffed reliable persons discharge duties see engquist supra questions use useful way figuring persons characteristics see breen matusitz updated examination effects illegal drug use workplace human behavior social environment illicit drug use negatively correlated workplace productivity context question treatment counseling recent use also reasonable inquiry government recognizing use criminal medical issue seeks separate users taking steps address overcome problems government thus uses responses treatment counseling question mitigating factor determining whether grant contract employees access federal reasonable indeed humane approach respondents dispute legitimacy government decision use drug treatment mitigating factor contractor credentialing decisions respondents argument drug treatment used mitigate government change mandatory phrasing include answer treatment counseling received make response optional app stands mandatory treatment counseling question unconstitutional respondents view intrusive necessary satisfy government objective brief respondents holding treatment counseling question enjoined form appears compel disclosure reject argument government requests personal information employment background check constitutional burden demonstrate questions necessary least restrictive means furthering interests exacting standard runs directly contrary whalen patients whalen much like respondents argued new york statute unconstitutional state demonstrate necessity program quickly rejected argument concluding new york collection patients prescription information held unconstitutional simply viewed unnecessary whole part analysis applies even greater force government acts regulator manager internal affairs see engquist supra treatment counseling question reasonably seeks identify subset acknowledged drug users attempting overcome problems government considered position phrasing question permissive terms result lower response rate question effectiveness identifying users suitable employment materially reduced reply brief petitioners reasonable position falling within granted government dealings employees see engquist supra appeals also held broad questions form likely violate respondents rights form asks applicants designated references landlords information bearing suitability government employment security clearance app series questions government asks reference adverse information applicant honesty trustworthiness violations law financial integrity abuse alcohol drugs mental emotional stability general behavior conduct matters ibid inquiries like question reasonably aimed identifying capable employees faithfully conduct government business see engquist supra asking applicant designated references broad questions job suitability appropriate tool separating strong candidates weak ones truly daunting task catalog reasons person might suitable particular job references day answer laundry list specific questions see cdia brief references typically limited time answer questions potential employers questions yield relevant information narrow inquiries form contrast takes five minutes complete fed reg reasonableness questions illustrated pervasiveness public private sectors form alone sent government million times annually ibid addition use questions employment background checks appears equally commonplace private sector see bock et mandated benefits compliance guide exh sample policy reference checks job applicants following guidelines conducting telephone reference check ask questions wait respondent answer zweig human resources management also ask anything else need know candidate name kind question may turn kinds information gotten way use similar questions government reasonable furthers interests managing operations form reasonable light government interests stake also subject substantial protections disclosure public whalen nixon recognized government accumulation personal information public purposes may pose threat privacy whalen see nixon decisions also stated statutory regulatory duty avoid unwarranted disclosures generally allays privacy concerns whalen supra nixon supra whalen relying new york security provisions prohibiting public disclosure turned aside challenge collection patients prescription information nixon rejected regarded even weaker claim former president presidential recordings materials preservation act ot mandate regulations undue dissemination also required immediate return purely private materials flagged government archivists respondents case like patients whalen former president nixon attack government collection information form less whalen nixon information collected shielded statute unwarranted disclosur see whalen supra privacy act covers information collected process allows government maintain records individual extent records relevant necessary accomplish purpose authorized law act requires written consent government may disclose records pertaining individual act imposes criminal liability willful violations nondisclosure obligations requirements noted give forceful recognition government employee interest maintaining confidentiality sensitive information personnel files detroit edison nlrb like protections disclosure whalen nixon evidence proper concern individual privacy whalen supra nixon supra notwithstanding safeguards respondents argue statutory exceptions privacy act disclosure bar see leave protections porous supply meaningful check unwarranted disclosures whalen supra respondents point particular describe broad exception routine use defined uses compatible purpose record collected respondents reliance exceptions rests incorrect reading precedents terms privacy act cases whalen nixon referred approvingly statutory regulatory protections unwarranted disclosures undue dissemination personal information collected government whalen supra nixon supra neither case suggested ironclad disclosure bar needed satisfy privacy interests may root ed constitution whalen supra whalen new york statute prohibiting ublic disclosure identity patients subject several exceptions nixon protections undue dissemination mentioned opinion even included forthcoming regulations mandate challenged act see explaining limiting review act facial validity considering administrator forthcoming regulations thus mere fact privacy act nondisclosure requirement subject exceptions show statute provides insufficient protection public disclosure substance routine use exception relied respondents create undue risk public dissemination none authorized routine use respondents information allows release public fed reg fed reg amended fed reg rather established routine use consist limited reasonable steps designed complete process efficient orderly manner see whalen supra approving disclosures authorized new york department health employees meaningfully distinguishable routine disclosures associated many facets health care one routine use example involves limited disclosure persons filling form designated references identify individual issue understand nature purpose investigation app authorized jpl employees also review completed verify requested information provided designated jpl employees may disclose information contained form anyone else cal tech given access adverse information uncovered government background check remote possibility public disclosure created narrow routine use undermine privacy act substantial protections see whalen remote possibility statutory security provisions provide inadequate protection unwarranted disclosures sufficient basis striking statute citing past violations privacy respondents note possible personal information disclosed result similar breach data breaches possibility time government stores information recognized whalen mere possibility security measures fail provides proper ground attack government practices ibid respondents also cite portion warns possible disclosure news media general public app terms exception allows public disclosure release public interest result unwarranted invasion personal privacy ibid respondents cited example disclosure identified plausible scenario information might unduly disclosed light protection provided privacy act nondisclosure requirement challenged portions forms consist reasonable inquiries employment background check conclude government inquiries violate constitutional right informational privacy whalen supra reasons judgment appeals reversed case remanded proceedings consistent opinion ordered justice kagan took part consideration decision case national aeronautics space administration et petitioners robert nelson et al writ certiorari appeals ninth circuit january justice scalia justice thomas joins concurring judgment agree course background checks employees government contractors offend constitution rather reach conclusion basis assumption constitution requires courts balance government interests data collection contractor employees interest privacy reach simpler grounds like many desirable things included constitution informational privacy seems like good idea wherefore people enacted laws federal level restricting government collection use information people enact laws shape think appropriate repeal federal constitutional right informational privacy exist addressing constitutional issues however must observe remarkable telling fact case unique tenure respondents brief arguing federal government violated constitution identify provision constitution might table authorities contains citations cases federal state courts federal state statutes rules evidence four two executive orders house report even exotic sources law two reports government accountability office eeoc document concerning enforcement guidance yet contains single citation sole document called upon construe constitution body brief includes single fleeting reference due process clause buried citation assuredly inapposite lawrence texas brief respondents attempt made argue nasa actions deprived respondents liberty without due process law legal strategy limited respondents filing ninth circuit respondents asserted courts grounded right informational privacy various provisions constitution brief appellants declined identify ones applied tell truth found approach refreshingly honest one asks us invent constitutional right whole cloth spare us pretense tying words constitution regrettably lincolnesque honesty evaporated oral argument counsel asserted apparently first time litigation right informational privacy emerged due process clause fifth amendment tr oral arg counsel invoked infinitely plastic concept substantive due process make constitutional theory less invented case easily resolved simple ground due process clause guarante certain unspecified liberties rather merely guarantees certain procedures prerequisite deprivation liberty albright oliver scalia concurring respondents make claim state deprived liberty without requisite procedures due process claim therefore must fail even formula adopted identifying liberties entitled protection faux substantive component due process clause due process clause specially protects fundamental rights liberties objectively deeply rooted nation history tradition washington glucksberg internal quotation marks omitted respondents claim fail respondents even attempt argue claim issue case passes test perhaps recognizing farcical nature contention right deeply rooted history tradition bars government ensuring hubble telescope used recovering drug addicts absurdity respondents position case however obscure broader point due process precedents even substantive due process precedents support right informational privacy first held government act defamation deprive person protected procedural guarantees fourteenth amendment paul davis reasoned stigma standing alone significantly alte person legal status justif invocation procedural safeguards outright defamation qualify unimaginable mere disclosure private information second respondents challenge government collection private information government collection private information regulated fourth amendment particular amendment provides explicit textual source constitutional protection particular sort government behavior amendment generalized notion substantive due process must guide analyzing claims county sacramento lewis internal quotation marks omitted alteration original ninth circuit rejected respondents fourth amendment argument correctly holding form inquiries third parties fourth amendment searches miller fourth amendment prohibit government asking questions private information end matter courts use due process clause putty fill gaps deem unsightly protections provided constitutional provisions sum simply hold constitutional right informational privacy besides consistent constitutional text tradition view attractive benefit resolving case without resort exegesis government legitimate interest identifying contractor drug abusers comfortingly narrow scope nasa routine use regulations shall fill reports explanation incoherence substantive due process doctrine many manifestations since play card instead assume without deciding exists right informational privacy ante sole justification decision assume without deciding made mistake two cases whalen roe nixon administrator general services ante stare decisis simply irrelevant pertinent precedent assumed without deciding existence constitutional right stare decisis reflects policy judgment matters important applicable rule law settled settled right state oil khan internal quotation marks omitted preferred course promotes evenhanded predictable consistent development legal principles ibid internal quotation marks omitted however applicable rule law settled contrary whalen nixon created uncertainty text constitution contain today opinion perpetuates reason whalen nixon entitled stare decisis effect neither opinion supplied coherent reason constitutional right informational privacy might exist supporting authority whalen cited stanley georgia first amendment case protecting private possession obscenity deservedly infamous dictum griswold connecticut concerning penumbra first amendment three concurring dissenting opinions none remotely intimated might thing substantive due process right informational privacy nixon provided even less support citing observation whalen ne element privacy characterized individual interest avoiding disclosure personal matters nixon supra quoting whalen supra internal quotation marks omitted proceeded conduct straightforward fourth amendment analysis assume legitimate expectation privacy materials rejected appellant argument statute issue precisely kind abuse fourth amendment intended prevent nixon supra unfathomable cases passing barely explained reference right separate fourth amendment unenumerated right held applicable afforded stare decisis weight point reader may wondering harm simply refusing say violation constitutional right informational privacy never exist outcome case long holds hypothetical right violated well harm disposition damage several reasons important sense actually minimalist substituting one real constitutional question whether exists constitutional right informational privacy different constitutional question whether nasa background checks contravene right informational privacy right existed gets pontificate upon matter none business appropriate balance security privacy correct exists right privacy discussion exercise judicial maximalism better simply state apply law forthrightly hold view law pectore inquire matters beyond charter probably beyond ken hand believes constitutional right informational privacy fail see minimalist virtues delivering lengthy opinion analyzing right coyly noting right assumed rather decided years passed since first suggested right may may exist past time abandon alfred hitchcock line jurisprudence harms image makes sense decides government violate right informational privacy without deciding whether right informational privacy without even describing hypothetical standard used assess whether hypothetical right violated explained last term objecting another dispositions decide respondents claim fails without first deciding valid claim consist greeing crafting hypothetical standard hypothetical constitutional right sufficiently unappealing might well acknowledge right well avoid need agree craft hypothetical standard denying right embracing standard coy right well odd deciding case addressing neither standard right quite impossible stop beach renourishment florida dept environmental protection plurality opinion joined alito slip whatever virtues judicial minimalism justify judicial incoherence defends approach observing guideposts substantive due process show us way ante thought doctrinal obscurity lead us provide clarity lower courts surely one vague opinion provide excuse another observes joined opinions assumed existence constitutional rights ibid course acceptable reserve difficult constitutional questions long answering questions unnecessary coherent resolution issue presented case cruzan director mo dept health declined decide whether competent person constitutional right refuse lifesaving hydration constitutional standard laid detail right exist incompetent person herrera collins declined decide whether unconstitutional execute innocent person herrera shown innocent new york state club city new york declined decide whether constitutional right private association certain clubs plaintiff brought facial challenge fail statute valid many applications making unnecessary decide whether challenge clubs succeed however actually applies constitutional informational privacy standard without giving clue rule law applying provides guidance whatsoever lower courts consider sheer multiplicity unweighted relevant factors alluded today opinion relevant government acting capacity proprietor manager operation ante course given told neither appropriate standard government acting regulator appropriate standard acting proprietor clear effect fact analysis least know something history tradition role play ante much uncertain points federal government conducting investigations candidates employment since earliest days hand acknowledges extension investigations employees contractors recent vintage contract employees important work mere janitors maintenance men working million observatory ante possibly outcome today case different background checks employees spirit minimalism never told questions drug treatment hypothetically constitutional reasonable useful humane ante internal quotation marks omitted questions third parties constitutional appropriate pervasiv ante adjectives may hypothetical standard violation hypothetical constitutional right informational privacy evaluated notes regulatory duty avoid unwarranted disclosures generally allays privacy concerns ante emphasis added gives indication exceptions general rule might discusses provisions privacy act detail placing considerable emphasis limitations imposed nasa regulations ante length discussion bet privacy act necessary today holding much necessary mystery dramatically increase number lawsuits claiming violations right informational privacy rare claim supported none factors deemed relevant today opinion moreover utter silliness respondents position case leaves plenty room possible success future claims meritless slightly less absurd respondents claim even though government contractor employees even though working highly expensive scientific equipment even though government seeking information drug treatment information third parties standard background checks even though government liable damages information ever revealed even though nasa privacy act regulations protective private information nasa background checks unconstitutional ridiculous carefully citing factors basis decision makes distinguishing case simple pie future cases filed circuits recognize rather merely hypothesize constitutional right informational privacy lawyers always mean always find way around today opinion perhaps plaintiff receptionist janitor protections disclosure less robust oh yes fact losing defendant liable damages also attorney fees greatly encourage lawyers sue defendants safe harbor found many words today opinion settle plaintiff claim failed today makes generous gift plaintiff bar deem duty judicial department say law marbury madison cranch concur judgment national aeronautics space administration et petitioners robert nelson et al writ certiorari appeals ninth circuit january justice thomas concurring judgment agree justice scalia constitution protect right informational privacy ante opinion concurring judgment provision constitution mentions right cf lawrence texas thomas dissenting find neither bill rights part constitution general right privacy internal quotation marks brackets omitted notion due process clause fifth amendment wellspring unenumerated rights federal government strains credulity even casual user words mcdonald chicago thomas concurring part concurring judgment slip footnotes alternatives naci process department commerce also authorized federal agencies use another office personnel management national security community investigation required federal employment app none alternative background checks issue positions detailed forms required see opm standard form questionnaire public trust positions online http internet materials visited available clerk case file opm standard form questionnaire national security positions online http government sends separate forms employers form educational institutions form record repositories form law enforcement agencies form fed reg none forms issue respondents sought represent class jpl employees positions app class certified ninth circuit respondents also challenged criteria believe government use determine suitability employment jpl respondents relied document temporarily posted jpl intranet listed factors purportedly bearing suitability federal employment app among listed factors failure mee financial obligations health issues mental emotional psychological psychiatric issues factors listed heading criminal immoral conduct included indecent exposure voyeurism indecent proposal carnal knowledge document also stated homosexuality adultery illegitimate children suitability issues might pose security issue circumstances indicated susceptibility coercion blackmail appeals rejected respondents challenges suitability determination unripe although respondents file portion ninth circuit judgment nonetheless discuss suitability criteria length brief respondents challenge criteria us note however acting solicitor general statement oral argument nasa use document respondents object make contractor credentialing decisions tr oral arg citing olmstead brandeis dissenting describing right let alone right valued civilized men griswold connecticut first amendment penumbra privacy protected governmental intrusion stanley georgia california bankers assn shultz douglas dissenting powell concurring citing roe wade doe bolton loving virginia griswold connecticut supra pierce society sisters meyer nebraska allgeyer louisiana continued discussion fourth amendment principles throughout privacy section opinion see citing miller dionisio katz addressing former president claim act tantamount general warrant stanford texas concluding challenged law analogous wiretapping provisions title iii omnibus crime control safe streets act notwithstanding lack warrant requirement state lower federal courts offered number different interpretations whalen nixon years many courts hold disclosure least kinds personal information subject test balances government interests individual interest avoiding disclosure barry new york fraternal order police philadelphia woodland houston per curiam crawford state russo sixth circuit held right informational privacy protects intrusions upon interests deemed fundamental implicit concept ordered liberty desanti internal quotation marks omitted circuit expressed grave doubts existence constitutional right informational privacy american federation govt employees hud opinions concurring judgment disagree approach instead provide definitive answer question whether constitutional right informational privacy post opinion scalia post opinion thomas one opinions expresses concern failure har image post scalia cause practical problems post sound reasons eschewing concurring opinions recommended course premise adversarial system appellate courts sit boards legal inquiry research essentially arbiters legal questions presented argued parties carducci regan cadc opinion scalia case petitioners ask us hold constitutional right informational privacy respondents amici thus understandably refrained addressing issue detail undesirable us decide matter importance case benefit briefing parties potential amici little notice matter might decided see pet cert need case broad decision scope right privacy certain information particularly cases like one scarce guideposts substantive due process show us way see collins harker heights repeatedly recognized benefits proceeding caution herrera collins joined scalia assuming sake argument capital case truly persuasive demonstration made conviction render execution unconstitutional cruzan director mo dept health joined scalia assume constitution grant competent person constitutionally protected right refuse lifesaving hydration nutrition regents univ ewing assum ing without deciding federal courts review academic decision public educational institution substantive due process standard board curators univ mo horowitz see also new york state club city new york scalia concurring part concurring judgment joining opinion understanding assumes purposes analysis hold existence constitutional right private association expressive religious purposes justice scalia provides support claim approach case dramatically increase number lawsuits claiming violations right informational privacy post leave lower courts sea take approach took three decades ago whalen nixon evidence decisions caused sky fall therefore decide case us leave broader issues another day debate act house representatives contained exchange presidential authority conduct background checks peters power conduct proposed investigations candidates civil service dawes power go war department department interior see pretty much nailed doors form rules regulations cong globe brief respondents also rely fact many working jpl years cal tech previously vetted standard employment reference checks brief respondents record indicates may wrong factual matter record required undergo type background investigation maintain position jpl never required undergo type background investigation maintain position jpl one required provide name social security number current address facilitate check outstanding warrants arrests convictions similar even correct fact cal tech conducted background check respondents diminish government interests conducting standard background check satisfy contract employees granted continued access government facility event counsel abandoned position oral argument tr oral arg asking treatment counseling also help government identify chronic drug abusers despite counseling rehabilitation programs little chance effective rehabilitation fed reg oral argument however acting solicitor general explained nasa views treatment counseling solely mitigat ing factor ameliorates concerns recent illegal drug use tr oral arg gao personal information data breaches frequent evidence resulting identity theft limited however full extent unknown gao period data breaches occurred federal agencies respondents contend privacy act ability deter unauthorized release private information significantly hampered fact statute provides ex post action injunctive relief brief respondents citing doe chao ginsburg dissenting nothing whalen nixon suggests private right action money damages injunctive relief needed order provide sufficient protection public disclosure footnotes contrary protestation ante failure address whether right informational privacy blamed upon government concession right exists indeed government startling assertion whalen nixon decided nothing constitutional point much cited later opinions seminal seminal decisions reply brief petitioner bound litigant concession issue law see grove city college bell thought concession entirely act sure subjects executive branch constitutional limitations collection use information privacy act ed supp iii already contains extensive limitations likely surpassed constitutional improvisation congress power fourteenth amendment extends full scope due process clause see city boerne flores incentive give clause broad reading thus expanding scope federal legislation justifies federal laws state disregard informational privacy may twinkle solicitor general eye