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Data Breach Raises Questions 老澳门开奖结果 NASA Policy At Issue in Recent Supreme Court Case

photo of file cabinet
photo of file cabinet
Jay Stanley,
Senior Policy Analyst,
老澳门开奖结果 Speech, Privacy, and Technology Project
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November 15, 2012

We hate to say 鈥淚 told you so.鈥

In 2010, the Supreme Court heard a case called , which involved the government鈥檚 right to carry out highly intrusive background checks. NASA decided to require its employees鈥攎any of whom had already been working for the agency for many years in what the government conceded were 鈥渓ow-risk鈥 and 鈥渘on-sensitive鈥 positions鈥攖o fill out a form in which they were required to disclose any illegal drug use or possession within the previous year, along with details on any treatment or counseling received for such use. These employees were also required to sign an authorization permitting NASA鈥檚 security people to obtain

any information relating to [the employee鈥檚] activities from schools, residential management agents, employers, criminal justice agencies, retail business establishments, or other sources of information.

NASA would then decide if the employee was suitable for employment, based on unclear criteria but including (according to a document posted on the agency鈥檚 site) factors such as:

  • 鈥渃ohabitation,鈥 鈥渟odomy,鈥 鈥渋ndecent proposals,鈥 or 鈥渁dultery鈥
  • 鈥渁busive language鈥 or 鈥渦nlawful assembly鈥
  • 鈥渁迟迟颈迟耻诲别鈥
  • 鈥渉omosexuality ... when indications are present of possible susceptibility to coercion or blackmail鈥
  • 鈥減hysical health issues鈥
  • 鈥渕ental, emotional, psychological, or psychiatric issues鈥
  • 鈥渋ssues鈥hat relate to鈥 an associate or relative 鈥渙f the person under investigation鈥

A group of NASA employees challenged the constitutionality of this unnecessary, stupid, and shamefully intrusive and disrespectful security procedure as a violation of their right to privacy.

The government argued that the privacy issues would be minimized since under the Privacy Act, NASA would be required to keep what it learned confidential. In an amicus the 老澳门开奖结果 filed with the Supreme Court, we argued that 鈥渟ome information is so private and so personal that individuals should not be compelled to disclose it to anyone, including the government, absent an overriding governmental interest.鈥 We argued that the right to privacy is not waived once information is shared with third parties (such as the institutions listed above). We argued that the government had not justified its need to obtain details such as the medical and psychological treatment of employees. And we pointed out that the Privacy Act, which the government claimed would ensure confidentiality, is riddled with exceptions.

We also made another key point: that the government鈥檚 terrible record at keeping private information secure and confidential made the Privacy Act irrelevant. We wrote:

Notwithstanding the Privacy Act, moreover, there have recently been numerous high-profile incidents in which, despite government鈥檚 best efforts and best intentions, highly personal and sensitive information collected by the government has been disclosed.

We then pointed out to the court numerous examples in which the government had failed to keep private information private鈥攆or example by Peter Swire on employee 鈥減eeping鈥 at government records, this by Privacy Rights Clearinghouse, and years鈥 worth of GAO reports on continuing privacy and security problems at the IRS. We concluded,

At a minimum, this troubling history of unauthorized disclosures highlights the importance of requiring the government to demonstrate its need for the sort of highly personal and intimate information it is requesting from Respondents in this case.

Unfortunately, the Supreme Court in January 2011 that the Constitution does not make the NASA background checks impermissible.

Lo and behold, yesterday it was that NASA had suffered a large data breach in which a laptop belonging to the space agency was stolen. According to a from the agency to all employees, it contained 鈥渞ecords of sensitive personally identifiable information (PII) for a large number of NASA employees, contractors, and others.鈥

The agency said affected workers would receive a letter informing them that their sensitive personally identifiable information was on the stolen laptop. We don鈥檛 know how many details were on that laptop concerning workers鈥 substance abuse or psychological problems, or gossip from landlords and anyone else and about their sexuality, physical health, or emotional issues鈥攐r that of their friends and relatives. Hopefully none. But such data should never have been collected in the first place.

Events could not have demonstrated the validity of our argument more clearly. We would take credit for our incredible prescience and insight, if the things we warned against were not so utterly predictable as to make any such insight unnecessary.

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