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.