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9th Circuit Says Feds' Security Checks At JPL Go Too Far
coondoggie writes with an excerpt from Network World which explains that the Ninth Circuit Court of Appeals "this week ruled against the federal government and in favor of employees at NASA's Jet Propulsion Laboratory in their case which centers around background investigations known as Homeland Security Presidential Directive #12 (Nelson et al. vs NASA). The finding reaffirms the JPL employees claims' that
the checks threaten their constitutional rights. The stink stems from HSPD #12 which is in part aimed at gathering information to develop a common identification standard that ensures that people are who they say they are, so government facilities and sensitive information stored in networks remains protected."
At issue in particular: an employee's not agreeing to "an open ended background investigation, conducted by unknown investigators, in order to receive an identification badge that was compliant with HSPD#12" was grounds for dismissal.
I understand many components of rocket engines are manufactures by private companies. Are they subject to these security standards?
Yeah. Would you choose a neurosurgeon who pokes around people's brains in his spare time? I wouldn't.
There was a briefing where I work about the plan. If you failed the background check, you had no way of learning the reasons. Though you could technically appeal, what would have been the good of that had you not known why. What if it had been simply that you donated money to a certain person, or that your spouse was from a certain country, or a mistaken identity? The other problem was that it took so long to do the checks. Since the program had not started they had no idea, but it was thought that the new process would likely add 6 months to the already tedious process in place. To give you an idea I have had two background checks here. Once it took 4 months the other time 2 since I had already passed an earlier one. Soon we learned about the likely challenge from NASA employees and we waited it out. It has taken years to get this far and thankfully it looks like this overstepping is going to end. The other thing is that the dept I work for and the job I do has me doing absolutely nothing secret or anything of the sort that might need this level of background check. Every employee was going to need it.
The final point I want to add is that during the briefing it became clear that not only was this a terrible new big brother style of infringement but that there were companies that were going to make a fortune doing this. As an example we were going to have to get a new set of IDs and all the doors and computers would have readers in order to use them.
At one of hte protests I went to, one guy stood up to speak and basically said he was glad he had a top secret clearance because it meant he didn't have to have his privacy invaded like this. That's saying something.
Disclaimer: I was an intern at JPL two summers ago when this was starting to be a problem.
93rd rule of Slashdot: No matter how obvious my sarcasm is, my comment will be taken seriously by someone.
Funny, I don't see any cited numbers there. Meanwhile, here are some real numbers from the Harvard Law Review (see the couple pages, which contain total number of cases seen by the Supreme Court from each of the circuits, along with number of cases reversed, vacated, etc) (alas, the document itself doesn't cite its sources, but I'll fall back on argument by authority and assume they've done their homework properly):
http://www.harvardlawreview.org/issues/118/Nov04/Nine_Justices_Ten_YearsFTX.pdf
Now, I took those numbers and I made a couple CSV files, then did a little crunching (yes, I'm bored... what can I say, I'm waiting for the oven to preheat :). So, let's compare the percentages of reversed cases for each of the courts. A little Perl magic, and we get this:
1st - 0.00, 25.00, 100.00, 40.00, 0.00, 0.00, 100.00, 0.00, 0.00, 0.00
2nd - 66.67, 50.00, 100.00, 33.33, 50.00, 100.00, 37.50, 100.00, 100.00, 100.00
3rd - 60.00, 0.00, 33.33, 25.00, 50.00, 0.00, 60.00, 0.00, 0.00, 50.00
4th - 66.67, 50.00, 33.33, 50.00, 0.00, 55.56, 40.00, 54.55, 100.00, 0.00
5th - 62.50, 100.00, 60.00, 33.33, 60.00, 66.67, 33.33, 100.00, 100.00, 83.33
6th - 42.86, 50.00, 33.33, 33.33, 50.00, 75.00, 71.43, 0.00, 71.43, 75.00
7th - 28.57, 42.86, 100.00, 14.29, 50.00, 75.00, 50.00, 0.00, 66.67, 50.00
8th - 80.00, 50.00, 37.50, 46.15, 33.33, 20.00, 33.33, 60.00, 0.00, 75.00
9th - 70.59, 76.92, 71.43, 76.47, 55.56, 80.00, 64.71, 61.11, 56.52, 64.00
10th - 50.00, 20.00, 0.00, 0.00, 25.00, 50.00, 75.00, 75.00, 100.00, 100.00
11th - 33.33, 40.00, 33.33, 100.00, 75.00, 40.00, 100.00, 100.00, 50.00, 50.00
DC - 66.67, 40.00, 0.00, 22.22, 0.00, 0.00, 100.00, 66.67, 0.00, 33.33
Fed - 66.67, 0.00, 100.00, 50.00, 50.00, 100.00, 50.00, 20.00, 50.00, 100.00
Notice, there are plenty of years where the 9th's reversal rate is lower than other circuits, and the numbers certainly aren't wildly out of whack (I really don't see where the "95%" number comes from). But, why don't we look at the total percentage of reversals for each of the courts?
1st - 33.33
2nd - 69.23
3rd - 41.94
4th - 46.30
5th - 59.65
6th - 49.12
7th - 46.94
8th - 47.06
9th - 66.67
10th - 48.39
11th - 59.09
DC - 30.30
Fed - 46.15
As you can see, the 9th circuit, while up there, is beaten by the 2nd circuit, and it's really not that far off from the others.
Of course, it's possible there's something I don't understand in the data. Maybe I have to combine reversals with some of the other numbers... but certainly, at first glance, the 9th circuit doesn't look nearly as bad as its critics would have us believe.
15+ years ago I had a Top Secret/SSBI clearance. As part of the background investigation, I was required to give references that had known me for at least 15 years. Since my first security interview I had always told the truth: "yeah, I tried pot a few times in high school, but I never bought it or sold it and I never used it after that." I also told them that all of my family and friends knew about it and I didn't care who else knew. I told that same story at every interview, and I never had a problem getting any clearance. In the days before glasnost, when the KGB were the primary bad guys, we were always briefed that the biggest threat was an employee being compromised because of something that could be used against them - financial debts, drug use, criminal background, relatives in hostile foreign countries - anything that could be used as leverage to make you vulnerable to espionage. The idea with drug use wasn't that you were some drug crazed idiot - it was that you might be ashamed of the drug use, or might need money - and that made you vulnerable. I guess since I said everyone already knew about my minor BS, and I didn't care who else knew, it wasn't a problem. I think lying about it and then having it turn up during the investigation would have been much, much worse.
My investigation was in the 90's - before 9/11 and before Homeland Security. Officially, my employment was not dependent on my clearance - but everyone knew that the reality was that the position required a clearance, so without the clearance, there would not be an available job for me and I would be let go. It happened to a couple of guys who for whatever reason could not get cleared.
All ancient history now...
While I was in the Air Force, I had a security clearence and had to go through the same background checks. I told them from the beginning I had smoked pot before and had
And the point is that this has nothing whatsoever to do with security checks-- this is for all employees, not just ones with security clearance.
And, the other point is that they are lying about. They said it is required by HSPD-12. It is in fact, not required by HSPD-12.
http://www.geoffreylandis.com
On good days, yes. On bad days, we have a history of 100 years of legal slavery, Herbert Hoover's use of the FBI for political abuse, the imprisonment of Japanese-Americans during World War II for the simple act of having Japanese ancestors, the McCarthy era witch-hunt for communists, illegal tapping of the fiber-optic backbone of AT&T by the National Security Agency with the granting of retroactive immunity from prosecution for the criminals involved, and Guantanamo Bay. The Constition provides useful guidelines, but there are far too many cases where it has been ignored wholesale by individuals or entire departments of the federal government. Much of it has been discarded over the last decade in the name of the "war on terrorism", just as it was ignored by previous presidents for the "war on drugs" and other oddness. Vote, campaign, commit civil disobedience if necessary: we're fortunate that our system allows dissent, but should not be complacent.
I worked at JPL for a few years (pre 9/11). It was a congenial environment. I got my badge with no hassles; I certainly sympathize with the present plight of my former colleagues and wish them good luck, and may they win if the case goes to the US Supreme Court.
I certainly hope the Obama administration will scale back Bush-era excesses. They have harmed us much more than terrorism ever could.
Incidentally, back then I was tickled to find out that the code we were writing for NASA spacecrafts was in the public domain -- anybody could request a copy. May I assume it is no longer so?! :)