In today’s digital age, pornography has become an integral part of our society. With the porn industry generating billions of dollars annually, it’s no surprise that many individuals, including those with security clearances, have consumed pornography at some point in their lives. While viewing pornography in itself may not be a cause for concern, certain behaviors associated with it can raise red flags regarding national security. In this article, we will explore the potential implications of pornography consumption on your security clearance and the steps you can take to protect your career and maintain your eligibility.

In general, the act of watching pornography does not typically raise concerns related to national security. However, it can become problematic when it involves certain disqualifying behaviors. For example:

  • When it includes participants who are underage (child pornography);
  • When it is viewed in violation of workplace policies (such as watching it at work, during work hours, or on work computers);
  • When it must be kept hidden from disapproving spouses or partners; or
  • When it harms work or personal relationships.

In other words, pornography becomes relevant when compulsive behavior, self-destructiveness, high-risk activities, criminal involvement, susceptibility to coercion, public display, or poor judgment characterize it. In cases where none of these factors are present, pornography does not serve as a disqualifying condition for obtaining a security clearance.

It is important to remember that the potential disqualification due to pornography usage is typically a multifaceted matter that often intersects with other adjudicative criteria such as Criminal Conduct; Personal Conduct; Use of Information Technology Systems; Emotional, Mental, and Personality Disorders; and occasionally Foreign Influence. For instance, accessing or downloading pornography on an employer’s computer falls under Guideline M: Use of Information Technology Systems since it generally involves unauthorized use. It may also be considered a violation of Guideline E as it constitutes a misuse of employer-provided time and a breach of work regulations.

Understanding the Adjudicative Guidelines

To comprehend the impact of sexual behavior on security clearances, it’s essential to familiarize yourself with the government’s Adjudicative Guidelines. These guidelines serve as the criteria for determining an individual’s eligibility for a security clearance. Sexual behavior falls under Guideline D, which is one of the 13 guidelines used to evaluate an applicant’s suitability for access to classified information.

The statute setting forth Guideline D, Sexual Behavior, is located at 32 CFR § 147.6 and states as follows:

(a) The concern. 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. Sexual orientation or preference may not be used as a basis for or a disqualifying factor in determining a person’s eligibility for a security clearance.

(b) Conditions that could raise a security concern and may be disqualifying include:

  1. Sexual behavior of a criminal nature, whether or not the individual has been prosecuted;
  2. Compulsive or addictive sexual behavior when the person is unable to stop a pattern or self-destructive or high-risk behavior or that which is symptomatic of a personality disorder;
  3. Sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress;
  4. Sexual behavior of a public nature and/or that which reflects lack of discretion or judgment.

Why Does It Matter?

Besides engaging in illegal activities, the significance of your sexual behavior lies in the government’s worry that you could become vulnerable to blackmail or manipulation and reveal confidential information if you are at risk of being exposed due to your sexual behaviors. Additionally, your sexual behavior may raise concerns about your judgment and discretion, indicating that these qualities may also be lacking in other areas of your life, including protecting classified information. Lastly, if you have previously participated in or are currently involved in any of these behaviors, there is a concern that you may struggle to discontinue them. Addictive behaviors pose a challenge, regardless of the specific addiction.

How Can the Government Find Out About My Sexual Behaviors?

There are no specific inquiries on an SF86 form regarding sexual conduct, but these actions may be addressed in certain sections of your SF86 if you have:

  1. Been charged or convicted of felonies such as sexual assault, possession of child pornography, engaging in sexual acts in public places, or indecent exposure.
  2. Misused information technology by accessing pornography while at work.
  3. Experienced previous divorces where the reason for the divorce was infidelity on your part.

Moreover, during a polygraph examination, for example, the following may be brought up if applicable:

  1. Accessing dating websites to engage in frequent sexual activity.
  2. Using webcams to engage in frequent sexual activity.
  3. Uploading sexually explicit material to the internet.

Although none of the latter actions are considered criminal behavior, they may be interpreted as a pattern of compulsive or high-risk sexual behavior that you cannot control.

Can the Government Monitor My Internet History?

If you are applying for a security clearance with the federal government, you may have numerous inquiries regarding the process of background checks. Like most individuals, you might be particularly curious about the extent to which the government will delve into your online activities and how this could impact your security clearance application.

People are especially concerned about the government scrutinizing their email accounts, internet browsing histories, and other virtual assets. Given that the majority of us would prefer to keep this information private, it is understandable why so many would express this concern. Worries may arise regarding the viewing or leaking of sensitive or embarrassing information. There may also be fears that certain information, when taken out of context, could impact the security clearance process.

While security clearance background checks can be extremely thorough, the government cannot access your emails, internet browsing history, hard drive data, or any other virtual assets without a subpoena or warrant. This implies that as long as your conduct remains lawful and within the boundaries of privacy laws, your online activities should not be subject to unwarranted scrutiny during the security clearance process.

There is one important caveat, however: while the government does not have the authority to invade your privacy by accessing your internet history, emails, or text messages, it does have the ability to gather publicly available information about you. This includes any content you have shared on social media platforms, online forums, or other websites that can be linked to you. If the information can be viewed by the general public or individuals with accounts on the respective platform, it can be included in your background check.

Furthermore, although the government cannot force you to disclose private information or communications without legal action, this does not prevent individuals from willingly sharing such information. For instance, if you have previously made threats or discussed engaging in illegal activities with someone through text messages, the individual providing a reference can provide investigators with a copy of the conversation.

Moreover, if you are required to undergo a comprehensive polygraph examination and you disclose a questionable search history, it may cause stress, an increase in blood pressure, an elevated heart rate, and other factors the polygraph examiner can further scrutinize and ask for more detailed questions regarding.

For more information regarding your browser history in this context, please read our blog on Online Porn, Browser History, and Security Clearances.

Key Sexual Behaviors That Can Impact Your Security Clearance

Let’s delve deeper into the specific sexual behaviors that can affect your security clearance status. It is important to note that this is not an exhaustive list but rather a selection of behaviors that are commonly considered during the clearance process.

  1. Adultery: While adultery is no longer illegal in many states, it can still raise concerns regarding security clearances. Engaging in extramarital affairs can be seen as a breach of trust and a potential vulnerability to exploitation. It indicates a lack of discretion and judgment, which can undermine an individual’s reliability.
  2. Pornography Consumption on Government or Employer-Owned Devices: Using government-issued technology to access pornography can be seen as reckless and irresponsible behavior, eroding trust and compromising an individual’s suitability for handling classified information. Misuse of IT Systems is one of the adjudicative criteria used to grant or deny security clearances, and it certainly can be used to revoke a security clearance for an individual who misuses a government device by viewing porn – even if it’s done outside of work hours.
  3. Promiscuity: Engaging in multiple sexual partners, public sexual activity, or using technology to facilitate sexual encounters can raise concerns about an individual’s judgment and discretion, indicating a lack of self-control and an increased vulnerability to coercion or exploitation.
  4. Criminal Sexual Behavior: Engaging in criminal sexual behavior, such as rape, sexual assault, or sexual harassment, can have severe consequences for your security clearance. These behaviors not only violate the law but also demonstrate a lack of integrity, trustworthiness, and respect for others.
  5. Child Pornography: Viewing pornography involving participants under the age of 18 is strictly illegal under federal and state laws. Any involvement with child pornography poses a serious impediment to clearance eligibility.
  6. Hen Tai, Furry Porn, Cub Art, or Other Animated Porn: The government may also attempt to revoke your security clearance due to the presence of explicit animated content, such as Hen Tai/Hentai (Japanese animated porn) or furry porn/cub art (which involves anthropomorphic animals or animals with human characteristics), especially if the content depicts young individuals. The legality surrounding this issue is somewhat grey. Animations like cub art, furry porn, or Hen Tai/Hentai will not receive protection under the First Amendment in the United States solely because they are drawings rather than photographs. If a drawing accurately portrays a real child engaged in explicit sexual activity, it could potentially lead to prosecution under various sections of the United States Code, including 18 U.S.C. §2251, §2251a, §2252, §2252a, or §2260 and would thus be considered criminal. Even if the child in question was not actually harmed, utilizing a recognizable image of a real child can still be considered child pornography and, therefore, a criminal offense, as stated in United States v. Hotaling, 599 F. Supp. 2d 306, 310 (N.D.N.Y. 2008), affirmed by 09-3935 WL 677398 (2011). If the artwork does not depict an actual child but is deemed obscene according to the standards outlined in Miller v. California, 413 U.S. 15 (1973), then prosecution may be pursued under 18 U.S.C. §1466A. It is important to note that determining whether an image is obscene or not is a matter of fact and ultimately up to a jury to decide.
  7. Involvement in Prostitution: Participating in any form of prostitution, whether as a client or provider, raises significant concerns for security clearance holders. It indicates a willingness to engage in illegal activities and compromises personal integrity.
  8. Frequent and Excessive Pornography Use: Frequent and excessive consumption of pornography, even if legal, can raise questions about an individual’s self-control and judgment. Addiction and the inability to curb such behaviors can be seen as a lack of reliability and trustworthiness.
  9. Pornography Use that Suggests Susceptibility to Blackmail/Coercion: If an individual’s pornography consumption can potentially be used against them for blackmail or coercion, it becomes a concern for security clearances.

Mitigating Factors and Defense Strategies

When pornography is a potential disqualifying condition, adjudicators must consider the following factors in addition to the specific disqualifying and mitigating conditions listed in Guideline D:

  • The behavior occurred before or during adolescence, and there is no evidence of subsequent conduct of a similar nature;
  • The sexual behavior happened so long ago, so infrequently, or under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;
  • The behavior no longer serves as a basis for coercion, exploitation, or duress;
  • The sexual behavior is strictly private, consensual, and discreet; or
  • The individual has successfully completed an appropriate treatment program or is currently enrolled in one.

If you face potential security clearance issues due to sexual behaviors, there are steps you can take to mitigate the concerns and improve your chances of retaining your clearance.

1. Self-reflection and Rehabilitation

Engaging in self-reflection and recognizing the potential impact of your behaviors is an essential first step. If you struggle with addiction or compulsive behaviors, seeking professional help and completing a treatment program can demonstrate your commitment to change and mitigate concerns.

2. Transparency and Cooperation

When facing clearance reviews or investigations, it is crucial to be transparent and cooperative with the authorities. Providing honest and forthright explanations of past behaviors, along with evidence of rehabilitative efforts, can help build a case for retaining your clearance.

3. Professional Guidance and Legal Support

Navigating the intricacies of the security clearance process can be challenging. Seeking guidance from experienced military lawyers or security clearance representation attorneys can provide valuable insights and assistance in presenting your case effectively.

Application of Guideline D: A Case Study

As a case study on how Guideline D concerns might be adjudicated, we will analyze a security clearance case that took place in 2012 within the Department of Defense. The case involved a defense contractor employee who was 53 years old at the time. This individual had previously obtained security clearance in 1986, but in 2008, they were denied a top-secret security clearance from another agency due to their involvement in criminal sexual behavior.

The applicant admitted to viewing and downloading photos of partially nude underage females around the year 2001. The incident was described as the applicant wanting to gauge “the extent and accessibility” of child pornography online. It should be noted that while the applicant acknowledged the possibility of adolescent females being present in other adult pornographic content they viewed, there was no definitive way to confirm that the subjects were under the age of 18. Furthermore, the 2001 incident was the only one the applicant admitted as being intentional.

The applicant also confessed to viewing Japanese anime/cartoon animation characters and viewing Hen Tai/Hentai images depicting pre-pubescent individuals, although he maintained that this was inadvertent. Additional instances of concerning sexual behavior included purposefully misusing the company’s IT system by downloading adult pornographic content onto an office computer in 1991 and again in 1995. However, there is no evidence to suggest that the applicant was involved in any other incidents of misusing the company’s IT system since then. The applicant also acknowledged watching adult pornographic material occasionally within the privacy of his own home.

When granting the applicant’s security clearance, the Department of Defense (DoD) acknowledged that the applicant’s past actions of downloading and viewing explicit images of what he believed to be underage girls in provocative poses, whether it occurred once or multiple times, seemed to be criminal in nature. These actions demonstrated a lack of judgment and discretion, making him susceptible to coercion, exploitation, or pressure. However, the DoD further noted that the guidelines provide examples of circumstances that could alleviate security concerns related to sexual behavior. For instance, according to AG ¶ 14(b), if the sexual behavior happened a long time ago, infrequently, or under unusual circumstances, it is unlikely to recur and does not raise doubts about the individual’s current reliability, trustworthiness or judgment. If the behavior no longer poses a risk of coercion, exploitation, or pressure, it can potentially be considered mitigating under AG ¶ 14(c). Likewise, if the sexual behavior was strictly private, consensual, and discreet, AG ¶ 14(d) may be applicable.

Drawing on the applicant’s denial of intentionally downloading images depicting underage girls on multiple occasions, as well as the fact that this incident took place several years ago, the Department of Defense (DoD) approved the applicant’s security clearance for classified documents. The DoD emphasized that the 2001 incident was only brought to their attention because of the applicant’s admission, and it no longer serves as a basis for coercion, exploitation, or duress. The DoD also stated that this activity does not indicate any personality or emotional disorder, nor does it reflect a lack of judgment or discretion.

Pornography Use and the Polygraph Examination

As mentioned earlier, it is against both federal and state laws to engage in the viewing of pornography involving individuals under the age of 18. It is important to note that actively searching for, downloading, or even simply viewing child pornography can have severe consequences on one’s eligibility for clearance. Those who intentionally seek out such explicit material are considered to be a significant risk to national security. However, in recent years, there has been a growing number of individuals who strongly oppose child pornography and have sought assistance in challenging a denial or revocation of their clearance based on allegations related to child pornography. How does this process unfold?

If you’re not careful, it can occur in various subtle manners. For example, when an individual searches for explicit material using peer-to-peer (P2P) file-sharing services, which is the preferred method for distributing child pornography, investigators and lie detector examiners will assume that you have viewed pornography involving minors. Research indicates that most child pornography is distributed clandestinely through file sharing because authorities face challenges in monitoring the exchange of files between users. If you view a significant amount of pornography through file sharing, you will likely come across content involving minors, even if you did not intend to do so. Child pornographers are notorious for concealing illegal material in files with seemingly harmless names.

Confessing to an investigator or polygrapher that you have obtained pornography through file sharing is akin to exposing a vulnerable spot in dangerous territory. You will face intense pressure to acknowledge instances where the individuals appeared to be underage. Once you do so, you have essentially admitted to viewing explicit material involving minors, which will probably result in a denial letter for security clearance.

When an individual chooses to search for pornography online, the inadvertent viewing of child pornography can also occur. Although there is a possibility that commercial porn sites found online may include underage females, it is unlikely. These commercial internet porn sites are closely monitored by federal, state, and private organizations, greatly reducing the chances of females being minors. However, porn websites still use legal actors who may look younger than 18, and skilled investigators or polygraphers can exploit this to elicit damaging admissions. It is important to note that you don’t have to admit to being a pedophile to face consequences. Simply admitting to occasionally viewing pornography involving participants who “appeared to have been,” “could have been,” “might have been,” or “possibly was” under 18 is enough to get into trouble.

Moreover, many investigators and polygraphers refuse to accept responses like “I don’t know” in this field. Given the challenge of determining the actual age of individuals featured on a pornographic website, you will be prompted to estimate a potential age range. If you are uncertain, the experienced investigator or polygrapher will likely offer a suggested age range. It is common to see denial letters referencing the age range of 13-17.

When the subject of pornography arises during an inquiry conducted by an investigator or polygrapher, it is crucial to pay close attention. Take heed of the questions asked and exercise caution when choosing your words. It is unnecessary to agree with investigators or polygraphers if they attempt to lead you astray or manipulate your answers. Remember: you are not obligated to explicitly state that you knowingly searched for and viewed pornography involving minors to deny it. Simply acknowledging that it is “possible” or that you “may have” come across pornography involving someone under the age of 18 is sufficient.

Here are some valuable suggestions for those who are new to this:

  1. Avoid using file-sharing platforms to search for or download any explicit adult content. It’s not worth taking the risk.
  2. Unless you have concrete evidence that a participant was under the age of 18, refrain from acknowledging or confessing to such information.
  3. When questioned about whether you suspect a participant might have been underage, it is important to answer truthfully and provide the appropriate context. If your answer is yes, clarify that it is based on speculation due to a lack of knowledge about the person’s age. Mention that you did not actively seek out their age, that the website represented them as being 18, that you did not spend much time on such images or download them, that you strongly condemn underage pornography, or that you have since stopped visiting that website or similar ones.
  4. Take discussions with investigators and polygraphers regarding pornography seriously. It is crucial to ensure that they fully comprehend your statements and intentions to prevent any misunderstandings. The implications of such discussions extend beyond simply being denied a security clearance. While the Privacy Act protects admissions made during a security clearance investigation, if you admit to seeking out or viewing individuals who are or appear to be under the age of 18, it is possible that this information will be passed on to local law enforcement for further investigation.

The Impact of Pornography on Security Clearances

As can be seen, when it comes to the impact of pornography on security clearances, it’s important to note that not all instances of pornography consumption will automatically disqualify an individual. The severity of the behavior and its potential to compromise national security are crucial factors in the evaluation process. Adjudicators consider various factors, including the nature, extent, and seriousness of the conduct, as well as the potential for pressure, coercion, exploitation, or duress.

The government’s primary concern is the susceptibility of individuals to blackmail or coercion due to their private behaviors. If an individual’s pornography consumption is not widely known, they could be vulnerable to threats and manipulation, potentially compromising classified information. Additionally, repeated engagement in high-risk or destructive sexual behaviors may indicate a lack of judgment and discretion, raising doubts about an individual’s ability to protect sensitive information.

Nationwide Security Clearance Lawyers

Guideline D can be a minefield for the unwary. Thus, it is vital that you seek counsel from an experienced security clearance attorney if you have any reason to believe that your sexual behaviors have any chance of posing a security clearance issue. The nationwide security clearance lawyers at The National Security Law Firm are available to counsel you at any step in the security clearance process – whether you need help answering questions on your SF-86, preparing for a polygraph examination, or appealing a security clearance denial – we can assist.

Moreover, it’s far better to involve counsel before any of these considerations become an issue. Thus, we urge you to ask for assistance if you have any questions at any step of the process. This is your career, after all, so that investment and advice are worth it.

It is also important to note that adjudicators lack consistency in applying the guidelines for making determinations on security clearances, especially regarding cases involving sexual behavior. Furthermore, there are instances where adjudicators evaluate an applicant’s actions based on their own personal moral standards. On occasion, the decisions made by adjudicators can be arbitrary or capricious. Fortunately, any individual seeking a security clearance can appeal an unfavorable decision to a Personnel Security Appeal Board (PSAB). If the evidence does not support the decision or the applicant’s mitigating evidence is not considered sufficiently, the applicant may successfully reverse the decision through the PSAB.

Engaging in certain sexual behaviors, such as adultery, pornography consumption, and promiscuity, can significantly affect your security clearance. It is crucial to understand the government’s Adjudicative Guidelines and take steps to mitigate concerns and demonstrate your commitment to maintaining the integrity of classified information. By seeking professional guidance and taking proactive measures, you can increase your chances of retaining your security clearance and safeguarding your career.

Remember, your private sexual behavior does not solely determine your security clearance status. It is a holistic evaluation of various factors, including your judgment, reliability, and trustworthiness. By demonstrating personal growth, adherence to professional standards, and a commitment to protecting national security, you can navigate the complexities of the clearance process and continue to contribute to the defense of our nation. You can reach us at (202) 600-4996.

Conclusion

Safeguarding national security is a top priority, and evaluating an individual’s suitability for a security clearance is a comprehensive process. While viewing pornography may not automatically disqualify an individual, certain behaviors associated with it can raise concerns. Understanding the Adjudicative Guidelines, addressing potential issues through self-reflection and rehabilitation, and seeking professional guidance can help improve your chances of retaining your security clearance. By demonstrating personal growth, adherence to professional standards, and a commitment to protecting classified information, you can navigate the complexities of the clearance process and continue to contribute to the defense of our nation.