CA9: NASA background check is not likely a “search” so preliminary injunction denied

A background check is not likely going to be found a Fourth Amendment search, so plaintiffs will not likely prevail on the merits. Therefore, a preliminary injunction is denied. Nelson v. NASA, 530 F.3d 865 (9th Cir. 2008):

C. Fourth Amendment Claim

We also agree with the district court’s conclusion that Appellants are unlikely to succeed on their Fourth Amendment claims, because the government’s actions are not likely to be deemed “searches” within the meaning of the Amendment. An action to uncover information is generally considered a “search” if the target of the search has a “reasonable expectation of privacy” in the information being sought, a term of art meaning a “subjective expectation of privacy … that society is prepared to recognize as reasonable.” United States v. Diaz-Castaneda, 494 F.3d 1146, 1151 (9th Cir. 2007) (citing Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring)). One does not have a “reasonable expectation of privacy” in one’s information for Fourth Amendment purposes merely because that information is of a “private” nature; instead, Fourth Amendment protection can evaporate in any of several ways. See, e.g., United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976) (holding that there is no reasonable expectation of privacy in bank records in part because the information was voluntarily disclosed to the bank). To succeed on their Fourth Amendment claim, therefore, Appellants must demonstrate that either the Form 42 inquiries sent to third parties or the SF 85 questionnaire itself violates a “reasonable expectation of privacy” so as to be considered a “search” within the meaning of the Amendment.

1. Form 42 Inquiries

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In the challenged background investigations, the government will send written Form 42 inquiries to the applicant’s acquaintances. Through these inquiries, the third parties may disclose highly personal information about the applicant. As in White and Miller, the applicant presumably revealed this information to the third party with the understandable expectation that this information would be kept confidential. Nonetheless, these written inquiries appear to fit squarely under Miller‘s bright-line rule and therefore cannot be considered “searches” under the Fourth Amendment.

2. SF 85 Questionnaire

The SF 85 questionnaire required of the applicant is also unlikely to be considered a Fourth Amendment “search.” Requiring an individual to answer questions may lead to the forced disclosure of information that he or she reasonably expects to keep private. Historically, however, when “the objective is to obtain testimonial rather than physical evidence, the relevant constitutional amendment is not the Fourth but the Fifth.” Greenawalt v. Ind. Dep’t of Corr., 397 F.3d 587, 591 (7th Cir. 2005) (holding that a psychological examination required for continued government employment was not a search under the Fourth Amendment).

As Judge Posner notes in Greenawalt, direct questioning can potentially lead to a far greater invasion of privacy than many of the physical examinations that have in the past been considered Fourth Amendment “searches.” Id. at 589-90. Nonetheless, applying the Fourth Amendment to such questioning would force the courts to analyze a wide range of novel contexts (e.g., courtroom testimony, police witness interviews, credit checks, and, as here, background checks) under a complex doctrine, with its cumbersome warrant and probable cause requirements and their myriad exceptions, that was designed with completely different circumstances in mind. Id. at 590-91. Moreover, declining to extend the Fourth Amendment to direct questioning will by no means leave individuals unprotected, as such contexts will remain governed by traditional Fifth and Sixth Amendment interrogation rights, and the right to informational privacy described below. See id. at 591-92.

Because neither the written inquiries directed at third parties nor the SF 85 questionnaire directed at the applicants will likely be deemed “searches,” Appellants are unlikely to succeed on their Fourth Amendment claims.