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9th Circuit Says Feds' Security Checks At JPL Go Too Far 139

Posted by timothy
from the and-you-thought-that-documents-were-sensitive dept.
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.
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9th Circuit Says Feds' Security Checks At JPL Go Too Far

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  • Expect retaliation (Score:2, Insightful)

    by Anonymous Coward

    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.

  • HSPD #12 (Score:4, Funny)

    by HiggsBison (678319) on Saturday June 06, 2009 @05:06PM (#28236875)

    Homeland Security Presidential Directive #12:
    You do not talk about Homeland Security Presidential Directives.

    ...or something like that.

  • by Eternauta3k (680157) on Saturday June 06, 2009 @05:07PM (#28236881) Homepage Journal
    I understand many components of rocket engines are manufactures by private companies. Are they subject to these security standards?
    • Generally, contractors are subject to the same security standards. This is true for highly sensitive orgs like NASA as well as less sensitive orgs like departments of public welfare.

      • Agreed. I work for a nuclear propulsion research lab operated for the government by Bechtel, and we had to go through the big, long, complicated security clearance process, 'secret' background check included.
      • Exactly right. I work for a contractor to JPL and I was up for these same security checks to get my NASA badge (which is, I think, on hold). I've been following this case fairly closely, needless to say.

    • by teridon (139550)

      If they need a NASA badge, then they are subject to the same security check.

      Whether they need a NASA badge depends on a bunch of factors, among them:
      1) Frequency of center access -- if they work off-site 99% of the time then they probably don't need a badge). Conversely, if they work on site frequently, then they need a badge
      2) Need for network access to NASA resources -- Some of the more secure ones require a NASA identity (in the NASA directory), but not necessarily a badge. At some point the badge

    • JPL actually isn't a NASA (federal government owned) installation. It's CalTech operating for-profit as a contractor to NASA. The only actual government jobs at "JPL" are the contract administrators and some management types.

      • Er, yes and no. JPL is NASA when it wants to be and Caltech at other times. For example, the new badges are general NASA badges. (I've technically got a contractor badge application pending with them and I'm told that the same badge would get me into other centers as well.)

        It's an odd relationship and that leads to some... quirky?... interactions.

      • I'll bet that JPL is handled the same way as DOE's Nat'l Labs. ORNL, Livermore, Los Alamos, etc. are physically owned by DOE which hires a contractor to manage them (Univ of TN && Batelle for ORNL, Univ of CA for Los Alamos). So JPL is probably physically owned by NASA and the employees are paid by CalTech acting as contractor. If CalTech actually owned JPL, they could probably tell NASA and DHS where to put their security checks for employees whose jobs don't require security clearances.
  • Of interest (Score:4, Insightful)

    by ShadowRangerRIT (1301549) on Saturday June 06, 2009 @05:09PM (#28236903)
    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.
  • by ctmurray (1475885) on Saturday June 06, 2009 @05:14PM (#28236919) Journal

    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.

    • by calmofthestorm (1344385) on Saturday June 06, 2009 @05:36PM (#28237043)

      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.

      • Maybe he was an old timer who was grandfathered in before the government got serious about screening people in sensitive positions but rest assured the procedures for vetting someone for secret or top secret clearance are pretty invasive and this was the case before HomeSec existed.

        • Re: (Score:1, Interesting)

          by Anonymous Coward

          When I got my clearance back in the dark ages (1985 or so) they were extremely interested in the organizations I belonged to. They weren't happy when all I had to tell them about was the Auto Club and, decades previous, the Book of the Month Club. It was only after I confessed to being a Campfire Girl that they removed the thumbscrews and granted my clearance. At one point the current JPL Overseer (not Bruce Murray) let it be known that those who required clearances for their jobs would be seriously lim

      • At one of the 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.

        It seems strange, but as you get to the higher level clearances, like TS and SCI, as done for the 3-letter agencies, the process becomes quite intrusive, but is reasonably rational and run by competent people. Also, at the higher levels, the security clearance process is entirely independe

  • by Anonymous Coward on Saturday June 06, 2009 @05:22PM (#28236959)

    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.

    • Re: (Score:3, Insightful)

      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.

      Kafkaesque. [wikipedia.org]

  • As I recall, the 9th Circuit has more of its decisions overturned than any other court.

    • Re: (Score:2, Informative)

      by belmolis (702863)

      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.

      • by Vinegar Joe (998110) on Saturday June 06, 2009 @05:38PM (#28237055)

        "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]

        • Re: (Score:2, Insightful)

          by maxume (22995)

          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).

        • by Abcd1234 (188840) on Saturday June 06, 2009 @07:26PM (#28237735) Homepage

          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 [harvardlawreview.org]

          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.

          • by afabbro (33948)

            And where is the latest SCOTUS nominee from? The 2nd Circuit. Gee, great.

            The 2nd and the 9th are the wackiest circuits. Not surprisingly, they represent California and New York, respectively.

            • Re: (Score:3, Insightful)

              by Abcd1234 (188840)

              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.

              • Additionally, one thing that people tend to forget: There is not requirement for the higher courts to actually hear the cases. They will generally only hear the cases that they feel will result in overturning. As such it's hardly surprising that the numbers are "high".

        • by hedwards (940851)
          That's not an apples to apples comparison. The Ninth circuit court is located in states with different laws than the other circuits are. An appeals court is only able to deal with the cases which are appealed, meaning that there are any number of ways that decisions can get passed to them, and beyond accepting them, there isn't anything that they can do about the types of cases they want.

          Additionally, each case tends to be different, just because you have two very similar death penalty cases, doesn't mea
    • by AuMatar (183847)

      That's because it hears more cases than any other circuit, having the largest population (the entire west coast). It has almost 20% of the caseload of the US. By percentage of cases overturned it ranks slightly better than average.

  • by losttoy (558557) on Saturday June 06, 2009 @05:45PM (#28237097)
    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."

    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 /. but no wonder that the government always screws up!!
    • by Thing 1 (178996)

      This means that if someone who knows you, when interviewed, says he/she thinks you did pot, that's it, you can be terminated.

      So, based on these rules, the last 3 presidents can be terminated?

      • by hedwards (940851)
        No, the only way that a President can be removed from office is via impeachment proceedings or I suppose assassination.. Which while they can be high jacked like with Clinton for political reasons, they are strictly limited in scope, and not every crime qualifies under the constitution.

        "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." --US Constitution. A
    • by Jah-Wren Ryel (80510) on Saturday June 06, 2009 @06:22PM (#28237321)

      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]

    • 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 no trouble. That's not the issue. The issue is if you lie about it. If you lie about anything and they find out about it, that's when you fail the check. There are other things as well. If you have people you talk to from certain countries. One person I worked with failed his check because his ex wife was from one of those countries.
      • Re: (Score:3, Interesting)

        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.

  • by losttoy (558557) on Saturday June 06, 2009 @05:53PM (#28237157)
    http://www.latimes.com/news/printedition/opinion/la-oe-rutten6-2009jun06,0,7067783.column [latimes.com]

    "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 ... sodomy ... incest ... abusive language ... unlawful assembly." It also said homosexuality could be a security issue under some circumstances."
    • It also said homosexuality could be a security issue under some circumstances."

      It also mentioned marital impropriety. The idea behind it, of course, is that closet homosexuals and unfaulthful partners could be blackmailed into giving up sensitive information.

      It's also convenient that the folks who fit the acceptable standards also fit in with the conservative "family values" type, lacking important life experience, and are more likely to do what they're told without question.

    • Re: (Score:2, Insightful)

      by billcopc (196330)

      It blows my mind that they could use language like "homosexuality could be a security issue" in this day and age. And since when is sodomy "irresponsible" ? Is Fred Phelps a federal consultant on security matters now ?

      As the almighty MC Frontalot often says, "You shouldn't ought to be intolerant about who queers like to fuck"

      • by afabbro (33948)

        It blows my mind that they could use language like "homosexuality could be a security issue" in this day and age.

        Here's the rationale: Let's say you're gay but in the closet. Now I blackmail you for national security secrets...

        And yes, same thing if you're an adulterous hetero or a problem gambler or a drug user. The issue isn't being gay per se, it's the societal environment around you. "Could be" probably means that a closeted homosexual is a potential problem, while an openly gay one isn't. In other words, if you have something about yourself that you would want to hide, you're giving others leverage that coul

        • by billcopc (196330)

          That's not a problem with homosexuality, that's a problem with American social tension.

          Hint: Pretending the problem doesn't exist is not going to make it go away.

          • by afabbro (33948)

            That's not a problem with homosexuality, that's a problem with American social tension

            Yes. But so what? Security agencies have to operate in the "way things are" world, not the "way we would like things to be" world.

    • by DragonTHC (208439)

      I'm all for requiring security clearance with working at JPL, but I firmly believe credit history is no indicator for security.

      I have been disqualified from being hired at several jobs due to my credit history. It has no bearing on me as a person or how I conduct myself professionally.

      I am not an irresponsible person, nor to I lie, cheat, or steal. That being said, my credit history has a single default with a credit card I got when I was 19.

      I find it morally objectionable for HR to have the capability of

  • 9th Circuit (Score:1, Informative)

    by Anonymous Coward

    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.

  • I know an IT worker who had to fill out a questionnaire for a law-enforcement agency ("cops" basically). One of the questions asked if they'd ever had sex with animals. I swear it's true. Personnel administrators sometimes go too far.

    • by Leebert (1694) *

      One of the questions asked if they'd ever had sex with animals.

      A friend told of a coworker who, when asked that question (during a poly, no less) replied: "Do bears count?"

      Apparently the investigator couldn't not laugh at that one.

    • I hope he answered "only with a pig."

  • Good. Now can we return back to having site-specific badges that are appropriate for the level of work being done at different federal facilities? Or we can use this new common ID that creates a single point of failure in the creation of badges, makes it easier to wander unescorted in facilities that you don't have access to, and adds significant cost and delay in getting people badged. Either way.

    • Or we can use this new common ID that creates a single point of failure in the creation of badges, makes it easier to wander unescorted in facilities that you don't have access to, and adds significant cost and delay in getting people badged. Either way.

      ding ding ding

      we have a winner!

      That's one of the big holes. Another good one is that if you're going to be in the federal facility for 180 days or less, they do a quick criminal background check (check all the public databases) and hand you a badge and let you run wild.

      And the process with foreign nationals makes it even more absurd-- foreign nationals are subjected to far less investigation than US citizens/permanent residents. Federal agencies that do science and research (e.g NASA, DOE) use large numbe

  • by billybob_jcv (967047) on Saturday June 06, 2009 @08:05PM (#28237999)
    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...
    • That's still true. They don't much care what you've done, it what you'd do to keep it secret.

      "Porn? Yeah, it's not just me keeping a $9billion a year industry afloat." doesn't give Them anything against you.

      "OH MY GOD DON'T TELL MY WIFE!" will preclude your clearance PDQ.

  • For the Homeland! (Score:2, Interesting)

    > Homeland Security Presidential Directive

    Homeland, much like Fatherland, gives me proud images of charging in Panzer Tanks across the Ukrainian plains to stick it to the undermenschen. Long live Das Homelanden! Mein Liebe!
  • JPL then... and now (Score:3, Interesting)

    by UnixUnix (1149659) on Sunday June 07, 2009 @05:45AM (#28240263) Homepage

    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?! :)

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