Just weeks before the Supreme Court is due to hear a case that has dominated his life for the past three years—and may affect the lives of thousands of fellow government contractors—Robert Nelson’s thoughts are a billion miles away. “Right now I’m sitting at my desk looking at a spectral image of the surface of Titan,” he says by phone from his office at the Jet Propulsion Laboratory in Pasadena, California, where he’s a planetary astronomer.
Nelson’s role in NASA’s Cassini mission is to pore over data coming back from the probe, which is now in orbit around Saturn. He and his colleagues are investigating evidence that the planet’s largest moon is volcanically active. One of their theories is that ice volcanoes spew a slurry of frozen water and liquid methane onto Titan’s frigid surface.
That’s a normal day for a research scientist at JPL, which is run by the California Institute of Technology. But Nelson is also the lead plaintiff in a case going before the Supreme Court next month. He and 27 of his JPL colleagues are suing NASA, which funds the lab. The question facing the court: whether the federal government has a right to investigate the personal lives of employees who have access to federal facilities, even if they never go near sensitive or classified material.
Nelson’s fellow plaintiffs, who are mostly scientists and engineers, do everything from studying the evolution of galaxies to driving the Mars rovers. For the last three years they and many other JPL employees have split their time between exploring the cosmos and fighting for their constitutional right to privacy.
After a 2004 presidential directive required standardized ID badges for all federal employees and contractors, NASA informed Caltech that it was instituting background checks in order to comply with the new federal requirement. Caltech told its JPL employees that if they didn’t submit to the checks, the university would consider them to have voluntarily resigned from their positions.
The plaintiffs in the Supreme Court case have two problems with the background checks. First, that they have to submit to them at all. Many JPL researchers have been working at the lab for decades. Security has never been an issue, and personal background checks—beyond supplying routine application information and employment verification when they first took their jobs—have never been required before.
“We have no secrets,” says Nelson. “Come out here and I’ll show you my lab notebook, anytime you’d like to see it.”
The second, larger concern is that the background checks are essentially limitless. Third parties like former landlords and employers are encouraged by investigators to provide any information, “derogatory as well as positive,” that they feel might affect the employee’s suitability to work for the government.
Concerned that people they once knew might suddenly have direct influence on their job security, the JPL employees asked NASA how exactly the information would be used. In response, NASA released a “suitability matrix,” which lists “sodomy,” “cohabitation,” “attitude” and “loitering” among the potential factors in considering whether JPL researchers should keep their jobs. NASA refuses to rule out that it might use any part of the matrix to evaluate JPL employees.
When Caltech told its employees to comply with the background checks, Nelson says many of his colleagues were at first indifferent to the additional red tape. “People did not believe that NASA investigators were going to conduct an investigation into their past sexual activity. But when we showed them that that’s exactly what they were signing away, people became more sympathetic.”
Nelson says he and his fellow plaintiffs were initially uncomfortable with the prospect of having to sue their own employers. Previous conflicts between the scientists and management at JPL had never amounted to more than disputes over parking tickets. “Before we filed for a court injunction there was a year of activity where we were discussing and arguing amongst ourselves, and also with the management, to try to figure out a way to bring this problem to a soft landing.”
But the requirement for the background checks remained, and in 2007 the scientists sued NASA, the Department of Commerce and Caltech, citing their right to privacy and their right to keep their jobs while fighting for it. Now, after a volley of appeals from both sides, the case has reached the Supreme Court, which will hear arguments in the case on October 5.
“My greatest concern is the implications that it will have for American science,” says Nelson. “Think of a scientist doing research on climate change who suddenly gets implicated by an investigator who’s got a connection to the carbon industry.”
Several organizations, including the Union of Concerned Scientists and the American Civil Liberties Union, have weighed in on the JPL employees’ side. In a friend of the court brief, the American Astronomical Society said, “A significant number of U.S. astronomers would be or are unwilling to work in an environment where they are subject to the intrusive, open-ended background investigations at issue here.” A decision against the JPL scientists “would diminish the likelihood that uniquely talented individuals would work on specific projects, to the detriment of our nation.”
Nelson claims the lawsuit isn’t just about scientists protecting their rights. “We’re now at a stage of technical evolution where it’s possible for Big Brother to have everybody’s information all the time. And there are very few protections that Big Brother won’t misuse it.”
When push came to shove, Nelson didn’t hesitate to choose which side he would be on. “I recognized that I was going to have to step up and put all of my energy into it, just as in the past I’ve put all my energy into the scientific problems I was working on.”
So have the other 27 plaintiffs. “Many of the engineers went off and started doing legal research for the first time in their lives,” says Nelson. People who normally spend their time monitoring spacecraft halfway across the solar system filled the courtroom for a Ninth Circuit Court of Appeals hearing in October 2007, while some watched on closed-circuit TV from an overflow courtroom.
Like many planetary missions, the lawsuit has had its tense moments. Caltech set a deadline of 5 p.m. on Friday, October 5th, 2007 for JPL employees to comply with the background check requirement. If they didn’t, their jobs would be posted on Monday. The appellate court granted an emergency injunction, prompting Caltech to suspend the requirement just 20 minutes before the Friday deadline.
“I felt like it was a scene straight out of the movies,” says Nelson. “Like I was Spencer Tracy running down the corridor with a stay of execution for the condemned prisoners.”
He and his colleagues have taken their battle beyond the courtroom. They’ve distributed fliers to motorists outside JPL, written letters to their representatives in Congress and put together an extensive website explaining the case, complete with a detailed timeline of events. Several hundred employees signed a petition after the lawsuit was filed saying that they were coerced into agreeing to the background checks, fearing for their jobs. Many more have simply refused to comply with the requirement, according to Nelson.
He also has received calls from federal contractors around the country who work for other agencies—from the Bureau of Indian Affairs to the Centers for Disease Control—expressing their support and asking for information.
“Many are not complying [with the background checks],” says Nelson. “They’re all waiting to see what’s happening in our case.”
Mark Betancourt is a writer and filmmaker in New York city.