Security Clearance Jobs Blog

On January 19, 2011 the Supreme Court of the United States (SCOTUS) published its 8-0 decision regarding “NASA v. Nelson.” It reversed and remanded the decision of the 9^th U.S. Circuit Court of Appeals to grant a preliminary injunction against NASA enforcement of Personal Identity Verification (PIV) credentialing required under Homeland Security Presidential Directive 12 for contractor personnel who occupy non-sensitive, low-risk positions.

28 contractors working at the Jet Propulsion Laboratory a filed suit against the U.S. Government claiming that the National Agency Check with Inquiries (NACI) investigation used to determine eligibility for PIV credentialing violated their right to “informational privacy.”  A U.S. District Court initially denied their request for a preliminary injunction, but the injunction was later granted by the 9^th Circuit Court. The SCOTUS majority opinion skirted the main issue by stating:

“Assuming, without deciding, that the Government’s challenged inquiries implicate a privacy interest of constitutional significance, that interest, whatever its scope, does not prevent the Government from asking reasonable questions of the sort included on SF–85 and Form 42 in an employment background investigation that is subject to the Privacy Act’s safeguards against public disclosure. . . . The forms are reasonable in light of the Government interests at stake.” (emphasis added)

In a separate concurring opinion, Justice Scalia made the simple assertion that a “federal constitutional right to ‘informational privacy’ does not exist.” He objected to the SCOTUS majority opinion because “The Court decides that the Government did not violate the right to informational privacy without deciding whether there is a right to informational privacy, and without even describing what hypothetical standard should be used to assess whether the hypothetical right has been violated.”

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On December 22, 2010 the Office of Personnel Management announced that in February they will begin a phased implementation of the Electronic Questionnaires for Investigations Processing (e-QIP) version of the new March 2010 Questionnaire for National Security Positions (Standard Form 86—SF86). A copy of the new SF86 has not yet been posted to the OPM forms site, but was to be distributed to other investigations service providers before the end of December.

The last version (July 2008) of the SF86 was phased in over a period of about 5 months from September 2008 to January 2009.  DOD contractor personnel were among the last to begin using the form.

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