Was the Court of Appeals for the Ninth Circuit too liberal in stopping NASA background checks? You decide.

A decision by the Ninth Circuit Court of Appeals to extend an injunction preventing NASA from requiring certain contractors to submit to a new background check process is being viewed by some as an overly liberal interpretation of the laws by the court.

Certainly on the surface it would seem to be that way considering that millions upon millions of federal employees are required to go through a similar background check. So does a closer look at some of the issues in the case change anything? I'll leave that up to you.

But first some background. The checks are part of a post-9/11 credentialing program called HSPD-12 under which federal agencies are required to issue so-called personal identity verification smart-card credentials that are designed to boost security at federal facilities and on federal networks.

A group of contractors working for the Jet Propulsion Laboratory (which is a NASA facility managed for it by the California Institute of Technology) last year filed suit against NASA over the checks. They claimed the checks were invasive of their privacy rights and far too broad, especially considering the fact that they were all involved in non-classified work for NASA.

The Ninth Circuit's ruling last week basically extends an injunction that was already in place that prevents NASA from requiring those checks until the U.S. District Court in Los Angeles, which is scheduled to hear the case, reaches a decision. The injunction merely means that the contractors can't be fired for non-compliance until the case is decided by the District Court. That court might yet decide that the checks are perfectly reasonable.

Here are some of the facets of the case culled from the original complaint and from the Ninth Circuit's opinion last week:

* Many of the scientists apparently agreed to work on NASA-related projects only with the explicit understanding that they would NOT be required to work with classified material or on any projects that required security clearances.

* They apparently wanted this because they wanted to be free to share their research findings with the broader research community and their peers. They claimed it was this policy of non-classified work and public distribution of research data which had contributed to NASA's success in attracting some of the best talent in the world.

* Because the plaintiffs only wanted to do non-classified work, they claimed that the background checks they were required to submit to were overly intrusive and included investigations of their residential and personal histories. The checks also included waivers that allowed the government to collect information from schools, employers, criminal justice agencies, retail business establishments and other sources of information.

* The plaintiffs claimed that the factors that the JPL used to determine employment suitability included items such as : "[i]nfrequent, irregular, but deliberate delinquency in meeting financial obligations," "carnal knowledge," "sodomy," "incest," "abusive language," "unlawful assembly," "attitude," "homosexuality . . . [and] when indications are present of possible susceptibility to coercion or blackmail," "physical health issues," "mental, emotional, psychological, or psychiatric issues," "issues . . . that relate to an associate of the person under investigation," and "issues . . . that relate to a relative of the person under investigation."

* According to the Ninth Circuit Court opinion, NASA has neither conceded nor denied that these factors are considered as part of its suitability analysis. The court also said that the plaintiffs have failed to show that these factors will play a role in determining employment suitability at NASA.

* The Court's decision to grant the injunction was not based on an analysis of NASA's suitability criteria.

* What the judges are saying is that the plaintiffs have raised reasonable questions relating to NASA's background checks. They ruled that the scientists deserve a chance for those questions to be discussed in court without being fired for their failure to submit to the NASA checks. Their concerns: The background checks seek highly personal information using an open-ended questioning technique; the questions seem to go beyond what is needed to securely identify an employee as required under HSPD-12; the government has failed to show how the personal data it collects will help determine employment suitability.

What do you think? Any of this make a difference in how the case needs to be viewed? Or was the Ninth Circuit really being just a tad too liberal?

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