Slashdot Mirror
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.
Whistle-blowers get protection from retaliation, but you know anyone who complained about this policy probably doesn't have friends in high places. Anyone who complains can expect their career to stagnate or progress slower than it would have if they had said nothing.
Such is the way with large employers.
Homeland Security Presidential Directive #12:
You do not talk about Homeland Security Presidential Directives.
...or something like that.
My other car is a 1984 Nark Avenger.
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.
Sorry, but no. Federal employees do have rights, as the court has ruled. If the matter were settled, it wouldn't have ruled that way, would it?
From TFA, these in-depth background investigations were being conducted for personnel in non-sensitive jobs. I'd understand the checks for jobs which require clearance, but in this case they are wasting resources background checking everyone who works there, for the sake of uniformity. It's a bit over the top.
$_ = "wftedskaebjgdpjgidbsmnjgcdwatb"; tr/a-z/oh, turtleneck Phrase Jar!/; print
The plaintiffs are scientists, engineers and administrative workers at JPL, which is operated jointly by the California Institute of Technology and the National Aeronautics and Space Administration. Like the vast majority of JPL employees, they do not have or need security clearances, and have been identified by the government as holding âoenon-sensitiveâ positions.
I had to read further and deeper through the links to find this comment. So these people not needing security clearance were subjected to the expansive and open ended review permitted by the HSPD #12.
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.
I'm not clear from the link, but it appears that the situation may only apply to to existing employees.
You are happily working at your established job and some presidential directive comes down that establishes that you need a background check to get your smart card needed to access the network and do your job.
Current employees are now offered the "choice" of submitting to a background check or lose their jobs. The court ruled rightly that this is a no go, but I suspect new employees have to agree to a background check before accepting employment.
That means that it's not really about the people being harassed and forced to undergo invasive searches (See 4th Amendment) finding another job. No. It's about their job being just fine, and the Federal government having to be reasonable with its searches and seizures. (Again, 4th Am.)
That's how it is in our country. If you don't like it, watch the door doesn't hit you in the ass on your way out, and remember to wipe your feet on the "good riddance to those who don't respect civil liberties" doormat.
E
The real crap was that JPL was going to "resign" employees who did not submit to or pass the new background checks, attempting to circumvent California law with regard to unemployment etc. There was never any question that would be struck down.
Can someone please tell me what things like that damn suitability matrix have to do with suitability to work? Such as sexual orientation, traffic tickets, bad checks, eviction, incest, and bestiality have to do with ability to Science?
http://hspd12jpl.org/files/Suitability_Matrix.pdf
What will likely happen is JPL will be forced to follow the law ith regards to termination, and NASA will enact reasonable guidelines to keep our nation safe (most of the research at JPL isn't even that secret. It's not like we built WMDs or bioweapons. We build science satellites and probes.) that do not go above and beyond the President's directive.
Disclaimer: I was an intern at JPL when this shit started to hit the fan two summers ago.
93rd rule of Slashdot: No matter how obvious my sarcasm is, my comment will be taken seriously by someone.
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.
"From 1992 to 2003, the lowest percentage of overturned appeals was 68 percent. The highest was a telling 95 percent. The average percentage of Ninth Circuit Court decisions overturned by the Supreme Court during this time was 73.5 percent as compared to an average of 61 percent by the all the other circuit courts of appeal combined."
http://crapo.senate.gov/issues/crime_law_judiciary/ninth_circuit.cfm
"The average reporter we talk to is 27 years old......They literally know nothing." - Ben Rhodes
The report in the linked article from networkworld is not accurate. Quote from the article "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."
/. but no wonder that the government always screws up!!
A close friend is one of the Caltech (technically, he is a contractor at JPL) employees who sued the Federal government. Caltech manages the JPL labs for the federal government. After 9/11, the Bush administration passed this directive to subject federal employees and contractors, working on sensitive and non-sensitive matters to the same invasive background checks. These background checks do not have a set standard or criteria for evaluation, are not disclosed and can affect your employment (read termination). This means that if someone who knows you, when interviewed, says he/she thinks you did pot, that's it, you can be terminated.
To subject federal employees and contractors who are working on confidential/sensitive projects is one thing although still not fair but it is completely unfair to subject employees or contractors working on non-sensitive projects to such arbitrary background checks.
As they say, devil lies in the details. The presidential directive itself does not require background checks. What is requires is that all employees and contracts, irrespective of the nature of work, have to be issued a standard identification card for entering federal facilities. Sounds fair, right? The rub is that to be issued this card, you must pass the background check. So by mandating a standard identification card, the government has mandated all employees and contractors be subjected to background checks. And this is what this group of 30 or so JPL/Caltech scientists are protesting.
On top of all this, these background checks are labour intensive because they require federal agents to interview people who know you and collect personal information about you. Another friend who worked for PG&E waited 3 months to enter the facility he was supposed to work at because the feds could not finish his background check soon enough. Imagine if thousands of other employees or contractors are subjected to this new directive? The quality of these checks is directly proportional to the number of federal agents who do this work and we all know that the number of experienced federal agents is not going to quadruple overnight. So the end result is going to be dilution in the quality of these checks which then defeats the intent and purpose of these checks.
Phew!! My longest post on
Just in case someone missed calmofthestorm's sarcasm, the suitability matrix he refers to (and the whole idea of background checks) has nothing to do with Science, and everything to do with trustworthiness.
I cried real tears when Li Mu Bai died.
http://www.latimes.com/news/printedition/opinion/la-oe-rutten6-2009jun06,0,7067783.column
http://www.latimes.com/news/printedition/opinion/la-oe-rutten6-2009jun06,0,7067783.column
... sodomy ... incest ... abusive language ... unlawful assembly." It also said homosexuality could be a security issue under some circumstances."
"As The Times noted in January of last year, the government demanded that the scientists fill out questionnaires on their personal lives and waive the privacy of their financial, medical and psychiatric records. The government also wanted permission to gather information about them by interviewing third parties. At one point, JPL's internal website posted an "issue characterization chart" -- since taken down -- that indicated the snoops would be looking for a "pattern of irresponsibility as reflected in credit history
That sure is carefully worded. The absolute difference between the averages is only 13%, and is only 20% of the smaller number. It also quietly ignores all the decisions that are not considered for appeals (meaning when a case from the 9th is appealed, it is somewhat more likely to be overturned than other courts, but saying nothing about what percentage of all the cases heard in the 9th are overturned upon appeal).
Nerd rage is the funniest rage.
You are happily working at your established job and some presidential directive comes down that establishes that you need a background check to get your smart card needed to access the network and do your job. Current employees are now offered the "choice" of submitting to a background check or lose their jobs.
As I pointed out when this was posted on the NASAwatch website, the actual presidential directive, HSPD-12, is a directive that says government identification cards (including NASA IDs) should have pictures and be difficult to forge. Nothing more. The presidential directive does not say anything about requiring an invasive background check including checking medical, financial, and other personal background information along with a blank authorization to check any records at all. Nothing.
The whole thing about background checks was a stealth policy change that was slid into the new ID regulations by the OPM. It has nothing to do with HSPD-12, and most particularly it was not authorized by presidential directive.
http://www.geoffreylandis.com
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.
Can someone please tell me what things like that damn suitability matrix have to do with suitability to work? Such as sexual orientation, traffic tickets, bad checks, eviction, incest, and bestiality have to do with ability to Science?
Well, when the Science is super-ultra-secret, all of those things indicate possible ways that a foreign power could exert influence over a scientist to cause them to fork over the super-ultra-secret scientific information (i.e., through blackmail or bribery).
It's fairly likely that new incoming employees still have to submit to the background checks. At this point, many many federal employees do, and the level of probulation depends on the level of access to information given (e.g., confidential, secret, or top secret).
(On a side note, it's interesting that they treat marijuana with kid gloves compared to other drugs.)
Most of what JPL does is completely completely non-sensitive. Keep in mind this crap only applies to employees /not/ working on sensitive material, there is a different system in place for those on sensitive stuff.
93rd rule of Slashdot: No matter how obvious my sarcasm is, my comment will be taken seriously by someone.
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...
I read that PDF - when was it written, 1955? Carnal knowledge? Sodomy? What?
I work on Naval vessels, and that requires a NATO security clearance. That's because - surprise - they don't want just anybody looking at the weapons systems. Some of that stuff is of vital importance to the military. THey want to keep it there and not give the bad guys leverage on me. The idea is that if I participate in one of those activities and Someone From Asia finds out, they might pop over to my house for a visit.
"Hey, Beardo. It sure would be a shame if your boss found out about your DUI... or that carnal knowledge. Can you copy document 1992FITH-559G for me? It's not even Classified. Anyway, see you tomorrow."
It seems antiquated at best, but there's SOME logic to what they're going for. I'm not saying it's current, but it's the Federal Government. They move S.L.O.
(The W. is in processing and will be sent after approval from the joint committee on W approval.)
---
ECHELON is a government program to find words like bomb, jihad, plutonium, assassinate, and anarchy.
Yeah! If only they had this policy back in the 70s - Carl Sagan wouldn't have been allowed to work there. Fuckin' good-for-nothin' dope-smoking hippie.
And the entire point of my post is that they aren't as "wacky" as you'd like to believe. Hell, look at the 5th circuit. If it weren't for a couple low years, its turnover rate is surprisingly high. Same goes with the 6th and 10th circuits in the later years of the data.
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?! :)
Umm...couldn't the President (Obama) just overturn this directive? After all, It's not called the "Homeland Security Presidential Directive" for nothing.
During the cold war, closet homosexuals and married but cheating husbands who stood a lot to loose have turned state secrets over to the Russians surrounding the threat of exposure of those acts. Basically, anything that could publicly humiliate someone or present financial strain is a security risk. We had subs that would attach leaders to Russian telecommunications cables and was listening in on conversations for years, it was exposed to the Russians for 35K when a worker who was dissatisfied with his position and in economic trouble turned over information on it.
Perhaps an ask and tell policy is worth implementing. The issues you raised are only a security problem if they somehow apply pressure to the person. Suppose you don't want your wife to know you were by and tried sex with a sheep once, that could be my leverage to get you to do things you would never otherwise do (even if it's something as simple as dropping infected USB sticks around the facility in hopes that someone will plug it into a computer to see who's it is). Now suppose you fears loosing you job over that information, would you then be willing to do even more? But if you declare the information, that can never happen (assuming they aren't anal about the truth). And if they keep the information private, then instead of fearing the loss of your job, or your wife finding out, then you report it to a JPL liaison officer who gives you fake information while tracking the spy down and taking the entire ring out with hopes of never exposing you. And if you are exposed, the liaison officer simply claims it was part of a cover operation you participated in when we knew someone was poking around looking to steal secrets.
Personally, I would prefer this over just disqualifying someone. Knowing who and why someone is seeking unauthorized information is more powerful then preventing the possibility in the first place. However, discretion needs to be made.