9th Circuit Says Feds' Security Checks At JPL Go Too Far 139
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.
Workers were not seeking security clerance even.. (Score:3, Informative)
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.
Re:They're smoking that wacky weed again. (Score:4, Informative)
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.
Re:Don't breakout the champagne yet (Score:2, Informative)
It's a large circuit that handles a lot of cases so this is true of the absolute number of cases but not percentage-wise.
Re:They're smoking that wacky weed again. (Score:5, Informative)
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 [hspd12jpl.org]
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.
Re:Don't breakout the champagne yet (Score:4, Informative)
"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 [senate.gov]
Linked article isn't accurate (Score:5, Informative)
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
Re:They're smoking that wacky weed again. (Score:3, Informative)
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.
A more accurate coverage (Score:2, Informative)
A sample of the background check (Score:5, Informative)
"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
Re:They're smoking that wacky weed again. (Score:2, Informative)
What will likely happen is JPL will be forced to follow the law ith regards to termination
Wow, a federally funded organization being FORCED TO FOLLOW THE LAW! Sure sounds like socialism to me! (I'm being sarcastic, for the folks to brain-dead to know it.)
I was once offered employment at JPL--it was my dream job, working in the Advanced Propulsion Group to design and build the next generation of unlaunchable engines (unlaunchable because NASA is on such a shoe-string budget for that they don't dare deviate from conventional tech for a wide range of things, particularly propulsion tech.)
There were strings attached: I'm not an American and would have had to become one, which I wasn't willing to do for a whole bunch of reasons. It was hands-down the single best choice I have ever made in my life. I had doubts and second thoughts for about five years after, but in the past decade or so have really come to realize what I nightmare I avoided. Stories like this about JPL's management and culture really help reinforce that belief.
Re:HSPD #12 (Score:3, Informative)
Re:Linked article isn't accurate (Score:5, Informative)
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.
Indeed, we are already seeing the results of over-investigation.
87 percent of the 3,500 initial top-secret security clearance cases Defense approved last year were missing at least one interview or important record.
Security clearances: Faked investigations mount as deadlines tighten [federaltimes.com]
9th Circuit (Score:1, Informative)
Is this the same 9th circuit that said the government can pass a resolution condemning a specific religious group by name and insult its members, without violating the 1st amendment? I think it is.
Not part of the presidential directive (Score:5, Informative)
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.
Re:They're smoking that wacky weed again. (Score:5, Informative)
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.
Re:Not part of the presidential directive (Score:1, Informative)
But there is more:
(3) "Secure and reliable forms of identification" for purposes of this directive means identification that (a) is issued based on sound criteria for verifying an individual employee's identity; (b) is strongly resistant to identity fraud, tampering, counterfeiting, and terrorist exploitation; (c) can be rapidly authenticated electronically; and (d) is issued only by providers whose reliability has been established by an official accreditation process."
OPM had little to do with the requirement. Simply walk the logic tree of the directive. In order to both verify the applicant's identity and resist fraud and exploitation, a background investigation is a virtual necessity. And since contractors would be given effectively the same access as federal employees, it follows that contractors will need to undergo the same background checks as applicants for federal employment have had to undergo since 1953:
http://www.archives.gov/federal-register/codification/executive-order/10450.html [archives.gov]
And nothing was done by "Stealth" There was a long and painful review and public comment period during NIST's development of the implementation standard:
http://csrc.nist.gov/groups/SNS/piv/comments.htm [nist.gov]
Re:There are Constitutional rights here (Score:4, Informative)
From USConstitution.net [usconstitution.net]:
Amendment 9 - Construction of Constitution.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment 10 - Powers of the States and People.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Or to translate:
Amendment 9: You still retain all your rights, even if we didn't mention them here.
Amendment 10: If we didn't talk about it here, the Feds can't do it.