In 2007 I came home from a long day at work followed by the Friday Happy Hour at my place of work. I was very tired and a tad tipsy. My wife greets me with a huge stack of printouts and tells me "You have to blog about this."

She never asks me to blog anything, so I knew it was big, but I was not ready to face anything that would take so much brain power. I said I'd look at it later, but my wife wouldn't let me brush it aside. I started reading...and knew if I could get permission to quote what I was holding I'd have an extremely important story. My wife handed me printouts of extensive email discussions among NASA scientists who were facing violations to their Constitutional Rights by Homeland Security, specifically Homeland Security Presidential Directive #12 (HSPD12). The discussion was mainly at the Jet Propulsion Lab in California but the Civil Rights violations were starting to be implemented at my wife's place of work, the Goddard Insitute of Space Sciences (GISS) in NYC.

Reading up on HSPD12 I realized that the violation of Civil Liberties (directly ordered by the Bush Administration) actually affected all Federal employees. NASA just happened to be one of the first place to implement the procedure.

I quickly contacted the senior scientist at JPL who was leading the fight against HSPD12 and got enthusiastic permission to quote as much as I liked from the email discussions and from a resignation letter one JPL scientist had written. With some help from my wife, who could fill in what they were being told at GISS (which is Jim Hansen's institute) and be a good sounding board for some of my interpretations of the legal implications. The result was a three part series on the issue which was widely read and which the JPL scientists told me was the most extensive coverage of the issue they had seen. The very quick overview is that HSPD12 simply requires the Federal Government to create a more uniform system for giving ID badges for people, including contractors and students, who have access to Federal facilities. In itself not a problem. The problem is that the procedure uses extremely intrusive methods to investigate people who want access to a Federal facility, basically treating everyone as if they are working on sensitive projects. All Federal employees face this process. Already lawsuits have been filed by NASA and Bureau of Land Management employees. I also had heard that some parts of the Department of Education have been hit with it. Details (LOTS of details) in the links below.

Here are the links to that series:

My Wife Faces Homeland Security Part I: Homeland Security Presidential Directive #12 Where I discuss the basic directive (not so bad in itself) and the way it is being implemented (with many civil rights violations) using extensive quotes from the NASA emails. This part was picked up by Huffington Post.

Wife Faces Homeland Security Part II: The Suitability Matrix Where I explore the method of implementation (called, I kid you not, "The Suitability Matrix") and some of the legal interpretations I could make regarding it, including part that implies that, if they wanted to, the Federal Government could bar all gays from Federal employment.

My Wife Faces Homeland Security Part III: The Resignation Letter Where I quote verbatum a brilliant letter written by a scientist who would rather resign than face illegal violations to her civil liberties.

The JPL scientists filed suit to block implementation of HSPD12, and I have covered the ups and downs of the case. First a judge denied their case but on appeal the Ninth Circuit Court gave them an injunction blocking implementation. Unfortunately, the Federal Government appealed. And now the Supreme Court will hear the case. Here is the press release from JPL senior scientist Robert Nelson:

The Supreme Court of the United States has scheduled October 5, 2010 to hear argument on the matter of open-ended background investigations of federal contractors arising from Homeland Security Presidential Directive #12 (Nelson et al. vs NASA, No. 09-530). The High Court will review an injunction issued by the Ninth Circuit Court of Appeals that blocked unconstrained investigations into the intimate details of the personal lives of employees at NASA’s Jet Propulsion Laboratory in Pasadena CA. The employees do not have security clearances and do not access classified material. The Ninth Circuit Injunction, issued unanimously by a three Judge panel in January 2008, found that the investigations were not narrowly tailored to meet specific needs. The injunction was upheld by the entire set of judges of the Ninth Circuit upon en banc review in June 2009.

A matter of considerable interest to the judges in this case pertained to the demand by Caltech, which manages the JPL employees under contract with NASA, that every JPL employee “voluntarily” agree to submit to an open ended background investigation, conducted by unknown investigators, in order to receive an identification badge that was compliant with HSPD#12. The government argued that there were no limits to the extent of the investigation. Furthermore, any adverse finding of the investigators could not be appealed to the courts. If an employee refused to “volunteer”, Caltech would terminate the employee.

In addition to briefs filed by the Justice Department and the attorneys for the JPL employees, eight amicus curiae (friend of the Court briefs) have been filed with the Supreme Court by numerous groups with various interests in the case.

Briefs Supporting the JPL Employee’s Privacy Rights
Seven separate amicus curiae briefs have been submitted in support of the JPL employees. The American Astronomical Society and the Union of Concerned Scientistsdiscussed in separate briefs the limiting effect these investigations would have on free, unfettered, open scientific research. The American Civil Liberties Union emphasizedthe more general impact on civil rights of all citizens. The Electronic Privacy Information Center and the Electronic Frontier Foundation discussed the nature of uncontrolledbackground investigations in an age of widespread government surveillance of all communications between individual citizens. The Drug Policy Alliance noted the deterringeffect these investigations would have on those who have received or might need to receive drug therapy. The California Employment Lawyers Association raised questionspertaining to employment law and developed the legal argument that the investigation must be narrowly tailored to meet the specific needs of the employer, particularly for thosewho are already employed. Many of these groups noted that the existing privacy laws offer limited protection and that these protections are further limited in the case of thosewho “volunteer” to be investigated. For two of these groups, the AAS and the UCS, submitting an amicus curiae brief was unprecedented.

Brief Supporting the Background Investigations
A single amicus curiae brief in support of the government position was submitted by a consortium of four groups: the Consumer Data Industry Association, the Associationof Professional Background Screeners, the Netherlands based publisher, Reed Elsevier , and the National Association of Screening Agencies. All these organizations mightpossibly suffer economic consequences in the event that extensive background screening be limited. Two of these groups represent organizations who conduct backgroundinvestigations, one represents the consumer market research industry, and one publishes a journal on background screening. These groups argued that there were sufficientprivacy protections in place and that restricting these investigations would hamper government.

Robert M. Nelson, a Senior Research Scientist at JPL and the lead plaintiff in the case said, “We are very inspired and deeply grateful for the outstanding support we have received from such a diverse constituency. This case is not about 28 JPL employees; it is about the fundamental values of a civilized society. A free society cannot permit the government to have unfettered access to every intimate detail of one’s personal life.”

All documents relevant to this case are posted at HSPD12JPL.org

All briefs submitted to the Supreme Court in this matter can be found at the websites of the Supreme Court or the American Bar Association

At the HSPD12JPL website they have briefs in support of the JPL employees from: (all PDFs)

American Astronomical Society,
Union of Concerned Scientists,
Electronic Frontier Foundation,
The American Civil Liberties Union,
Drug Policy Alliance,
The Electronic Privacy Information Center and Legal Scholars and Technical Experts, and
California Employment Lawyers Assocaition.

More supporting documents can be found here.

Where my wife works they have begun implementation and, unlike at JPL, chose to begin with a less intrusive technique. My wife, who was unwilling to sign away all her rights as they were originally asking, has so far agreed to go through the process. I am unconvinced that the process she has agreed to isn't the intrusive one used at JPL just softened up a bit. But she feels they toned it down enough, at least given the fact that she needs the job. It seems as if at least she is not being put through the top level of investigation (again...she is doing NOTHING that would be considered sensitive research) where you have to agree to allow the government to investigate EVERYTHING about your life at will. I believe that the media coverage (including my own) and the court cases convinced the GISS folks that they needed to be a bit more respectful of the Constitution.

I fear that if the JPL employees lose their case, GISS will again want to put in the most intrusive implementation. Then my wife will be faced with surrendering all her rights to privacy or losing her job (technically just losing her access to the place where her job is located).

The HSPD12JPL website also has a page explaining how you can get involved. Please help some rocket scientists (and climate scientists like my wife) defend their Civil Liberties.