DATE: April 28, 2004
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
JAMES A. YOUNG
APPEARANCES
FOR GOVERNMENT
Kathryn A. Trowbridge, Esq., Department Counsel
FOR APPLICANT
Steve Graves, Esq.
SYNOPSIS
Applicant's hobby was participating in organizations that promote bondage, discipline, sadism, and masochism. He also downloaded from the internet onto his company computer images of actual naked children and pornographic images of women. Applicant failed to mitigate security concerns raised by his misuse of information technology systems, his sexual behavior, and his personal conduct. Clearance is denied.
STATEMENT OF THE CASE
The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On 1 October 2003, DOHA issued a Statement of Reasons (SOR) (1) detailing the basis for its decision-security concerns raised under Guideline M (Misuse of Information Technology Systems), Guideline D (Sexual Behavior), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct) of the Directive. Applicant answered the SOR in writing on 11 November 2003 and elected to have a hearing before an administrative judge. The case was assigned to me on 5 March 2004. On 17 March 2004, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. DOHA received the hearing transcript (Tr.) on 25 March 2004.
RULINGS ON PROCEDURES
Without ojbection, I granted Department Counsel's motion to amend SOR ¶ 3.a. by changing "10 U.S.C. § 1001" to "18 U.S.C. § 2252A." With the agreement of both counsel, I kept the record open so Department Counsel could submit a portion of the investigator's handbook for conducting security investigations concerning sexual conduct. Department Counsel submitted the document on 25 March 2004 and it was admitted as Ex. 7.
FINDINGS OF FACT
Applicant is a 52-year-old staff electronics technician. Tr. 37. He is married and has two children. He was previously granted security clearances in 1979, 1990, and 1995. His supervisor rates Applicant's performance as from very good to excellent. Tr. 97.
Applicant's "hobby" is bondage, discipline, sadism, and masochism (BDSM). Ex. 6 at 1. He was a member of three groups, one he helped establish, that deal with BDSM. Id. at 2. Applicant advised the agent conducting his 1995 security clearance investigation of his interest in BDSM and his participation in BDSM organizations. Although the agent discussed the issue with Applicant's psychologist, he failed to note it in his report. Tr. 85. Applicant believes that, if his BDSM hobby is revealed, it might be embarrassing to his bosses and clients, and he could lose his job. Tr. 24; Ex. 6 at 1.
Applicant's employer has a policy, dating to at least December 1997, that employees have the responsibility to use company resources for their intended uses-research, education, and administration. Ex. 4 at 2, ¶ 9. Company policy listed a few inappropriate uses of company resources by way of illustration, not limitation. Downloading pornography was not specifically prohibited. Applicant accessed and downloaded pornography from the internet to his company computer. Answer. He also"looked at sites that have had pictures of naked children." Ex. 6 at 4. He downloaded, over a period of a couple of days, approximately 20 pictures of "actual naked children," some of whom he "guessed" were under 10 years old. Id. He found these pictures unacceptable and erased them from his computer. Id.
Applicant believed downloading pornography was "against company policy in the sense that they wanted us to be as unobjectionable as possible." Tr. 41. His lab partner had observed some of the inappropriate pictures on his computer and objected. Tr. 46. Applicant knew the company had a firewall that was trying to block his access to adult websites containing sexually explicit material. Although he never tried to get around the firewall, he still accessed adult sites the firewall was not blocking. Tr. 42-44.
POLICIES
"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information." Id. at 527. The President has restricted eligibility for access to classified information to United States citizens "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." Exec. Or. 12968, Access to Classified Information § 3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive.
Enclosure 2 of the Directive sets forth personal security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.
Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. The Directive presumes a nexus or rational connection between proven conduct under any of the disqualifying conditions listed in the guidelines and an applicant's security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).
Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002); see Directive ¶ E3.1.15. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3.
CONCLUSIONS
Guideline M-Misuse of Information Technology Systems
In the SOR, DOHA alleged Applicant used his computer at work to access pornographic websites and downloaded pornographic material (¶ 1.a.), used his work computer to download child pornography (¶ 1.b.), and continued to access pornographic websites on his work computer knowing it violated the company's network use policy (¶ 1.c.). Noncompliance with rules, procedures, guidelines, or regulations pertaining to information technology systems may raise security concerns about an applicant's trustworthiness, willingness, and ability to properly protect classified systems, networks, and information. Directive ¶E2.A13.1.1.
The Government established by substantial evidence and Applicant's admissions that he downloaded pictures of naked women and "actual naked children" from the internet to his computer at work, knowing it was against company policy to do so. While he admitted searching pornographic websites, it is unclear whether the images of children were pornographic-involving sexually explicit conduct.
After carefully reviewing all the evidence, I am unable to conclude any of the disqualifying conditions under Guideline M apply. Although not specifically meeting any of the disqualifying conditions under Guideline M, Applicant's conduct clearly evokes the security concern at which the guideline is directed-noncompliance with the rules, procedures, guideline, or regulations raise concerns about an applicant's trustworthiness and willingness to protect classified information. Applicant refused to follow the company's policy concerning the appropriate use of computer systems. Although company policy did not specifically prohibit downloading images of naked women and children, Applicant knew it was inappropriate to access such sites on the internet and download the images to his company computer. Nevertheless, he continued to do so until the issue surfaced during his security investigation. Tr. 41. "[A]s a matter of common sense, a reasonable employee knows or should know that his or her employer is not paying employees to use company resources and work time to satisfy their sexual desires through pornography." ISCR Case No. 98-0265 at 7 (App. Bd. Mar. 17, 1999).
Applicant testified at the hearing that he downloaded the images of naked children inadvertently. Tr. 50. The inadvertent or unintentional misuse of information technology systems is a mitigating condition. MC E2.A13.1.3.2. Applicant's denial of intent is not credible in light of the handwritten, signed, sworn statement he submitted to the Defense Security Service agent who conducted the security investigation. In that statement , Applicant admitted being curious about sites containing pictures of naked children and downloading such images on a couple of occasions. Even if the first download was unintentional, the evidence established that he returned to the same website knowing it contained such images. Furthermore, the mitigating condition is directed to inadvertent misuse of the computer system. Even if he viewed and downloaded the images of children inadvertently, he was still using the computer system for an improper purpose by searching for sites with naked women. I find against Applicant.
Guideline D-Sexual Behavior
In the SOR, DOHA alleged Applicant accessed, downloaded, and possessed child pornography on a company-owned computer (¶ 2.a.) and his hobby is bondage, discipline, sadism, and masochism (¶ 2.b.). Sexual behavior is a security concern if it involves a criminal offense, indicates a personality or emotional disorder, may subject the individual to coercion, exploitation, or duress, or reflects lack of judgment or discretion. Directive ¶ E2.A4.1.1.
The Government established by substantial evidence and Applicant's admissions that Applicant's hobby is BDSM. Sexual behavior that causes an applicant to be vulnerable to coercion, exploitation, or duress raises a security concern. DC E2.A4.1.3. Applicant admitted that, if he were "outed," it could be embarrassing for his company and he could lose his job. I have no doubt he could also lose his job for downloading images of naked children to his computer. (2) Applicant was vulnerable to coercion because of his BDSM and downloading activities. None of the mitigating conditions listed under the guideline apply. I find against Applicant.
Guideline J-Criminal Conduct
In the SOR, DOHA alleged Applicant violated 18 U.S.C. § 2252A by downloading and possessing child pornography (¶ 3.a.). A history or pattern of criminal activity creates doubt about an applicant's judgment, reliability, and trustworthiness. Directive ¶ E2.A10.1.1.
It is a federal criminal offense to knowingly receive or possess child pornography that was transported in interstate commerce. 18 U.S.C. § 2252A. Although the evidence shows Applicant downloaded from the internet images of actual naked children on his work computer, there is no evidence that the images were pornographic-involving sexually explicit conduct. Applicant mentioned pornographic sites, but never admitted the images of children were pornographic. I find for Applicant.
Guideline E-Personal Conduct
In the SOR, DOHA alleged Applicant violated his employers rules by using his computer at work to download pornography and child pornography, even after he knew such conduct violated the network's use policy (¶ 4.a.). Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the applicant may not properly safeguard classified information. Directive ¶ E2.A5.l.l.
The Government established by substantial evidence that Applicant violated his employer's computer use policy by downloading images of naked women and children to his computer at work. Such personal conduct increases Applicant's vulnerability to coercion or exploitation. DC E2.A5.1.2.4. It also indicates a patter of rule violations. DC E2.A5.1.2.5. Applicant has taken positive steps to significantly reduce his vulnerability (MC E2.A5.1.3.5.)-he has resigned from the BDSM organizations and he no longer uses his computer at work for inappropriate purposes. Nevertheless, Applicant is still concerned about being "outed." His supervisor, who testified as a character witness, was not even informed of the allegations that were the subject of the hearing. I find against Applicant.
FORMAL FINDINGS
The following are my conclusions as to each allegation in the SOR:
Paragraph 1. Guideline M: AGAINST APPLICANT
Subparagraph 1.a.: Against Applicant
Subparagraph 1.b.: Against Applicant
Subparagraph 1.c.: Against Applicant
Paragraph 2. Guideline D: AGAINST APPLICANT
Subparagraph 2.a.: Against Applicant
Subparagraph 2.b.: Against Applicant
Paragraph 3. Guideline J: FOR APPLICANT
Subparagraph 3.a.: For Applicant
Paragraph 4. Guideline E: AGAINST APPLICANT
Subparagraph 4.a.: Against Applicant
DECISION
In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is denied.
James A. Young
Administrative Judge
1. Pursuant to Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified.
2. I find the evidence insufficient to conclude Applicant downloaded or possessed "child pornography" as that term is used in 18 U.S.C. § 2252A. Therefore, DC E2.A4.1.2.1. does not apply.