Posted by Eugene Volokh:
Government Investigations:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244158514
I wanted to blog a bit more about the [1]Ninth Circuit's Nelson v.
NASA case, on which the Ninth Circuit has just [2]denied rehearing en
banc. In Nelson, various contract employees working indirectly for
NASA, challenged NASA's new background check policy, among other
things under a federal constitutional right to informational privacy.
The Ninth Circuit found that the plaintiffs were likely to succeed on
this claim, and thus held that they were entitled to a preliminary
injunction against enforcement of the policy. In particular, the
Circuit concluded that it was unlikely unconstitutional for the
government to ask various people who knew the employees -- at least
"references, employers, and landlords" and perhaps others -- broad
questions. Such question presumptively violated a constitutional right
to privacy discussed by the Supreme Court in Whalen v. Roe, and the
presumption couldn't be overcome on the grounds that the questioning
was "narrowly tailored" to the government's interests
Form 42 [which was sent to people who had dealt with the employees]
solicits �any adverse information� concerning �financial
integrity,� �abuse of alcohol and/or drugs,� �mental or emotional
stability,� and �other matters.� These open-ended questions are
designed to elicit a wide range of adverse, private information
that �is not generally disclosed by individuals to the public�;
accordingly, they must be deemed to implicate the right to
informational privacy....
Considering the breadth of Form 42�s questions, it is difficult to
see how they could be narrowly tailored to meet any legitimate
need, much less the specific interests that Federal Appellees have
offered to justify the new requirement. Asking for �any adverse
information about this person�s employment, residence, or
activities� may solicit some information relevant to �identity,�
�national security,� or �protecting federal information systems,�
but there are absolutely no safeguards in place to limit the
disclosures to information relevant to these interests. Instead,
the form invites the recipient to reveal any negative information
of which he or she is aware. There is nothing �narrowly tailored�
about such a broad inquisition.
But despite the [3]insistence that the opinion is quite narrow, its
implications seem stunningly broad; and in particular, it seems to me
they would dramatically affect the course of ordinary government
investigations.
Say a police officer -- or SEC investigator or FBI agent or a wide
range of other government investigator -- is trying to investigate a
crime. Naturally, to get a search warrant for someone's property, the
officer would need probable cause to believe that the warrant would
uncover evidence of a crime. But the officer often doesn't start out
with such probable cause.
Instead, I take it that the officer would often ask around about each
person who might be involved in the crime, even if chances are that
the person isn't involved. He might go to landlords, employers, hotel
clerks, acquaintances, and others, and ask questions, including
open-ended questions. And the questions might deal with private
matters, such as the suspect's romantic entanglements, sexual
orientation, political ideology, financial pressures, medical
problems, and the like. It would be wrong and possibly
unconstitutional for the government to misuse this information, for
instance by arresting and prosecuting the suspect because of his
political views, even when he wouldn't have been arrested and
prosecuted for the same offense if his views were different. But
getting this information might well be helpful, depending on the
circumstances, since it might reveal possible motives, associates, and
other important information.
What's more, the police officer would generally be able (with a
prosecutor's help) to order someone to answer such questions, by
subpoenaing them to testify. The officer and prosecutor can get even
highly confidential information, such as bank records, records of the
telephone numbers the person has called, and the like, without
probable cause: All it would take is a subpoena to the bank, and such
subpoenas to third parties don't violate the Fourth Amendment, even
when there is no probable cause for them. I realize that many disagree
with this position, as to subpoenas (though I haven't heard much
disagreement as to the asking around mentioned in the preceding
paragraphs). But it is pretty clear that this is indeed the Court's
view of the Fourth Amendment.
There are some limits on this; for instance, the officer can't
subpoena privileged lawyer-client communications, and there are likely
limits on the officer's power to subpoena abortion records and the
like. But generally speaking a great many records, including bank and
telephone records, are available without the need for probable cause
or any showing of "narrow tailoring." In fact, the way that officers
are supposed to develop the probable cause needed to get search
warrants is precisely by gathering information without search warrants
-- including asking questions of people who might know the
information.
The Ninth Circuit's decision, however, suggests that all such
investigations are potentially subject not just to the Fourth
Amendment (and the Fifth Amendment privilege against
self-incrimination, when it comes to coercive questioning of the
suspect himself), but also to the right of privacy. After all, the
police officer or other government investigator is as much a
government actor as is NASA. (The right to privacy, if it applies
here, applies equally to the federal government and state and local
governments.) If anything, the constitutional constraints might apply
even more to the government acting as sovereign to investigate private
individuals, as opposed to the government acting as employer to
investigate its own employees or contractors. They certainly wouldn't
apply any less.
So say an officer is investigating an alleged theft, and there a bunch
of people who had the opportunity to commit the theft, though the
great majority of them are likely be innocent. The officer will no
longer be free to ask people broad questions about what they know
about a potential suspect, and in particular whether they have any
information about their "financial integrity," "abuse of alcohol
and/or drugs," "mental or emotional stability," or "other matter."
After all, while asking such questions "may solicit some information
relevant to [the investigation], there are absolutely no safeguards in
place to limit the disclosures to information relevant to these
interests." How could there be? The officer doesn't know yet exactly
what's going to be relevant, and might not know until much later, when
a casual revelation that Joe was sleeping with Mary, coupled with the
revelation that Mary had an expensive cocaine habit, might explain why
Joe might have had a special motive to commit the crime.
And presumably asking around about a person's sexual partners,
political beliefs, medical condition, financial obligations, and the
like would be even more likely unconstitutional, since that would be
direct questioning about matters that are most likely to be seen as
private. And yet, as I mentioned above, that sort of picture of
people's lives is often vital to figuring out who might have the
motive to do something, or who his likely accomplices might be, or
even who else might be worth asking about the matter.
Now maybe this is the way things should be. Maybe even when there's no
search or seizure for Fourth Amendment purposes, and when there's no
compelled self-incrimination for Fifth Amendment purposes, there
should be an extra constitutional requirement that asking around about
a suspect be "narrowly tailored" if the questioning may reveal private
information. Maybe the police shouldn't ask broad questions, but be
limited to focused questions that are directly supportable at that
point by what the police already know.
But I'm pretty skeptical that this would indeed be a good
constitutional law rule -- and I see no basis in Whalen or in the
Court's other precedents for suggesting that there's a constitutional
right to information privacy that so constrains the government's
asking questions about people. And one way or the other, it seems to
me that the Nelson decision has implications far beyond the
government's background checks of its own employees.
References
1. http://volokh.com/posts/1200096531.shtml
2. http://volokh.com/posts/1244153749.shtml
3. http://www.ca9.uscourts.gov/datastore/opinions/2009/06/04/0756424c.pdf
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