Case No. VSO-0122 (H.O. MacPherson May 2, 1997)

Case No. VSO-0122, 26 DOE ¶ 82,777 (H.O. MacPherson May 2, 1997)

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* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXXX's.

May 2, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:November 4, 1996

Case Number:VSO-0122

This Opinion concerns the eligibility of XXXXXXXXXX (hereinafter referred to as the respondent) to obtain an access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."(1) As discussed below, after carefully considering the evidence in light of the relevant regulations, it is my opinion that the respondent should be granted an access authorization.

I. Background

This administrative review proceeding was commenced by the issuance on September 25, 1996, of a Notification Letter to the respondent.(2) See 10 C.F.R. § 710.21. In that letter,

the respondent was informed that information in the possession of the DOE created a substantial doubt concerning his eligibility for an access authorization.

The respondent is employed with a contractor at a DOE facility. The derogatory information concerns his conduct several years ago while employed by another DOE contractor. The derogatory information detailed in the Notification Letter concerns the respondent's use of his work computer to view and download adult material from the internet. 10 C.F.R. § 710.8(l).(3) As a result of this conduct, the respondent's former employer asked him to resign in 1994.

The respondent requested a hearing to resolve the issue of his eligibility for an access authorization, and the request was forwarded to the Office of Hearings and Appeals on November 4, 1996. I was appointed the Hearing Officer in this case. Six witnesses testified at the hearing on behalf of the respondent: the respondent, the respondent's wife, a psychiatrist engaged by the respondent,(4) the respondent's current supervisor, a current coworker, and a coworker from his prior job.

II. Preliminary Rulings

A. Relevance of Testimony of Respondent's Psychiatrist

At the prehearing conference held in this case, the DOE Counsel objected to the respondent's intention to call a psychiatrist to testify. DOE Counsel argued that since no allegation had been made that the respondent abused alcohol (Criterion J) or had a mental condition which would disqualify him from having a security clearance (Criterion H), the testimony of a psychiatrist would be irrelevant. See 10 C.F.R. § 710.8(h), (j). During the prehearing conference, I ruled that I could not determine the relevance of the proposed testimony without first hearing it. I therefore reserved my ruling on its admissibility.

The testimony of the psychiatrist concerned the motivations of the respondent for the conduct detailed in the Notification Letter, whether that conduct indicates that the respondent is unreliable, and whether the respondent is likely to repeat this conduct. These are issues that I must resolve in this proceeding. Expert testimony on such issues is nearly always relevant to security clearance determinations irrespective of the particular type of derogatory information alleged in a Notification Letter. Moreover, even though DOE does not claim that the respondent's interest in adult material constituted a mental condition or illness, it would be difficult for me to find that such an interest standing alone indicated unreliability absent some expert testimony on the matter. I therefore find that the psychiatric testimony is admissible.

B. Admissibility of Documentary Evidence

DOE Counsel objected at the prehearing conference to the admission of statements and letters from the respondent's current and former coworkers and a report from a consultant psychiatrist DOE had engaged to evaluate the respondent. DOE Counsel argued that would not be possible to cross examine written statements of individuals who were not called to testify, and for employees that do testify, their testimony would be the best evidence of their views. Although hearsay evidence may be admitted where good cause is shown, it is important that parties be permitted to cross examine witnesses where possible. 10 C.F.R. § 710.26(d), (h). In view of these considerations and the slight evidentiary value of these documents, I sustained the objection by the DOE Counsel to the admission of these materials to the record of this proceeding.

C. The First Amendment Issue

During the hearing, counsel for the respondent strongly objected to the DOE Counsel delving into the respondent's involvement with adult material on his own time outside the workplace. She argued that his viewing of adult material was protected by the 1st Amendment. Hearing Transcript at 44-45.

Counsel for the respondent is certainly correct that the respondent has a constitutional right to view on his own time the type of adult material at issue in this case. However, there is no merit to her contention that because this activity is constitutionally protected it is irrelevant and may not be considered in making a security clearance determination. The respondent is in no way being denied the right to view adult material. There is no right to a security clearance, and the manner in which an individual exercises his constitutional rights may be relevant to determining his eligibility for a clearance. Thus, the Constitution does not prohibit me from considering the respondent's interest in adult material. Nonetheless, where the derogatory information concerns the exercise of constitutional rights, it is particularly important to ensure that any determination to deny a clearance is based upon actual security concerns, and not on whether the particular decisionmaker personally disapproves of the conduct.

III. The Relevant Evidence

Most of the relevant facts are not in dispute. For two to three years before being asked in 1994 by his previous employer to resign his position, the respondent used his office computer to view and download adult material from the internet.(5) The respondent testified that he was primarily interested in photographs similar to those found in Playboy magazine. He also occasionally downloaded animated clips having a duration of about one minute. The respondent explained that frequently he would not know the contents of what he was downloading until it started to appear on his screen. If it was something he was not interested in, e.g., photographs of nudist colonies containing children, he would delete the file, often before it had finished downloading.(6) Id. at 103-06. He only accessed free material that did not require him to submit a credit card number.

The respondent acknowledges that his former employer had a policy prohibiting personal use of computers. Hearing Transcript at 120. He concedes that he often spent an hour or more per day at this activity and may have downloaded more than 1,000 photographs over this two to three year period. However, he emphasizes that he did not deprive his employer of his services by spending time viewing adult material, as he frequently remained in the office late into the night to finish his work. His employer had a flexible policy that allowed employees to take time during the normal work day for personal reasons and make it up later. Id. at 107, 121-22; PSI at 12.

The respondent's misuse of his work computer was uncovered during an investigation by the DOE Office of Inspector General into the misuse of a main-frame computer at Lawrence Livermore National Laboratory through which a substantial amount of pornographic material was made available through the internet. The respondent was not involved in placing material on the Lawrence Livermore computer, but he did download material from that source. As a result of this activity, he was asked to resign his position.

According to the respondent, there were two main causes for his actions. One was a fascination with new technology and the internet. The other was stress in his married life. He explained that:

I was unhappy in my married life . . . . In some fashion I kind of stumbled upon this ability to satisfy a frustration through the internet. . . . It presented itself at a very bad time in my life, and because of that I was vulnerable. . . . But like I said, my particular need at the time was a hunger for a sexuality that I was missing in my life.

Hearing Transcript at 115-16. See also id. at 102-03. This is consistent with his wife's testimony:

I guess I was reserved, or whatever you want to call it. XXXXXXXXXXXXXXX XXXXXXXXXXXXXX And I really think that was the essence of it. . . . I think . . . he's exceptionally healthy, probably in his attitude.

Id. at 72. See also id. at 70-74. The respondent's psychiatrist concurred with this assessment. Id. at 87, 91.

The record indicates that the respondent has been extremely open and repentant with his past and present coworkers, as well as his wife, concerning his conduct and its consequences. He has admonished coworkers to follow the rules and avoid his mistake of misusing the contractor's equipment. Id. at 15, 18-21 (current supervisor), 34-35, 37-38 (current coworker), 55-58 (former coworker), 109-10 (respondent). The respondent's coworkers testified that the respondent is an honest and reliable person who strongly regrets his actions, and they are of the opinion that he will not repeat such conduct. Id. at 15-16, 29 (current supervisor), 34-35 (current coworker), 56 (former coworker), 109 (respondent). The psychiatrist is also of the opinion that he is honest and would follow the rules in the future. Id. at 81-82, 92.

As noted above, one contributing cause of the respondent's interest in adult material was dissatisfaction with certain aspects of his marriage. The respondent's wife testified that discovery and loss of the respondent's job precipitated increased communication between them. As a result, they are closer since the conduct occurred and have been working out the problems in their marriage. Id. at 63-65, 73-74, 112-13. The psychiatrist testified that although the respondent and his wife have not resolved all their problems, they have resolved the most serious problems in their marriage, and as a result, the respondent is no longer compelled to seek out adult material. Id. at 87, 91-92.

IV. Standard of Review

DOE regulations provide that my opinion is to be based on a comprehensive, common- sense judgment, after considering all relevant information, as to whether continuing the respondent's access authorization would endanger the common defense and security and whether it would be clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The factors I must consider are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct; the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of his conduct; the age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors.

A DOE administrative proceeding under 10 C.F.R. Part 710 is not a criminal proceeding, where the burden is on the government to prove the individual guilty beyond a reasonable doubt. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,202 (1996). A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.27(d). See Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) and cases cited therein. This standard implies that if there is doubt, the decision should be against granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).

IV. Analysis

As an initial matter, I find that respondent was candid in his testimony at both the hearing and at the PSI. He did not seek to minimize his conduct and there was no hint of evasiveness in his testimony. His testimony was consistent and corroborated by that of the other witnesses, who from their demeanor, I also believe are credible.

This proceeding involves two separate, but related issues — the respondent's misuse of his work computer and his preoccupation with adult material. Neither the Notification Letter nor DOE Counsel specified the security concerns that arise from these issues.(7) As I can best infer, however, the DOE may be concerned that the respondent's interest in adult material may indicate general unreliability, and the same marital problems that compelled him to view such material might compel him in the future to do something that would compromise the national security.(8) Misuse of the computer raises a security concern because someone who violates one type or rule may also be inclined to violate the rules pertaining to the protection of classified information. In this context, however, security concerns are not implicated by all rule violations, but only those violations that an individual could reasonably believe are serious matters. For example, the DOE does not require clearance holders to even report minor traffic violations.

The most significant aggravating factors in this case are the length and intensity of the respondent's conduct. The respondent engaged in viewing adult material on the internet over a period of two to three years on a regular basis. This may have been a way of avoiding his marital problems. Nevertheless, there is no evidence that his conduct adversely affected his employer, his work product, or any other person.

There are also, however, substantial mitigating factors. First, I must emphasize that there is no claim that the respondent had a pathological mental condition as a result of his viewing adult material that caused a defect in his reliability. In this regard, the adult material that he viewed was decidedly "soft core," which does not present as serious a concern as would child pornography or graphic material concerning sexual acts. Second, the respondent's conduct was of limited duration. His wife testified that he seldom viewed adult material before he started using his computer to access the internet. Hearing Transcript at 75. Finally, while the respondent knew that his former employer had a policy against personal use of the computer, it is not clear that the employer viewed it as a serious matter, and it may have been prompted to take strong action against him only because he was caught up in an IG investigation.(9) In this regard, the record indicates that the respondent's former supervisor knew of his conduct, but said nothing. Id. at 108. This implies that even if the employer deemed misuse of equipment a serious matter, it did not make this concern clear to its employees. To the extent that the respondent had little reason to believe that personal use of equipment was a serious violation of the rules it reduces the security concern raised by that conduct. The record also contains extensive testimony that the respondent always took the rules concerning the protection of classified matter very seriously.

I find that the connection between interest in material of an adult nature and the national security is tenuous,(10) but for purposes of this opinion I will assume that there is one. Moreover, the respondent's misuse of his work computer clearly raises a valid security concern under Criteria L. Had this matter come before me in 1994, deciding whether these concerns were substantial enough to find that the respondent was an unacceptable security risk would be a difficult decision. However, I need not base my opinion on the situation that existed in 1994. There is overwhelming evidence that in the two and one-half years since he was forced to resign his previous position, the respondent has been rehabilitated. The psychiatrist testified that the respondent and his wife have resolved the serious marital problems that prompted his interest in adult material.(11) See Personnel Security Hearing, Case No. VSO-0045, 25 DOE ¶ 82,774 (1995), aff'd, (OSA 1996) (individual resolved stressful situation involving wife's chronic illness that induced his drug abuse); Personnel Security Hearing, Case No. VSO-0021, 25 DOE ¶ 82,763 85,803, proceedingterminated, (OSA 1995) (remorse over marital affairs and disclosure to his wife). In addition, I find the respondent's testimony that he sincerely regrets his misuse of the office computer and would never do such a thing again to be credible. That testimony is corroborated by his coworkers and present supervisor. He has been very open with fellow employees about what he did and its consequences, and he has not misused office equipment in his two years with his present employer. He has, in short, become a strong advocate of following the rules of the workplace. I find, based upon the respondent's demeanor during the hearing and upon the full record of this proceeding, that he is an honest and reliable individual who sincerely regrets his actions. Consequently, I find that he has been rehabilitated from any security concerns raised by his prior conduct. See Personnel Security Hearing, Case No. VSO-0069, 25 DOE ¶ 82,795 at 85,803, aff'd, (OSA 1996) (accepted responsibility for failing to file tax returns on time and no indication conduct will be repeated).

V. Conclusion

For the reasons set forth above, I conclude that with respect to the allegation under 10 C.F.R. § 710.8(l), that the respondent has demonstrated that granting him an access authorization would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, it is my opinion that the respondent be granted an access authorization.

Bryan F. MacPherson

Hearing Officer

Office of Hearings and Appeals

Date: May 2, 1997

(1)Part 710 governs the resolution of questions concerning the eligibility of individuals for access to classified matter or special nuclear material. This access authorization is commonly referred to as a security clearance.

(2)DOE regulations provide an opportunity for hearing and review in cases where an individual's eligibility for access authorization cannot be favorably resolved by interview or other action. When the Director, Office of Safeguards and Security, has authorized an administrative review proceeding, a Notification Letter is sent to the respondent. This letter sets forth the information which creates a substantial doubt regarding the eligibility of the respondent for access authorization, and states that the respondent may file a request for a hearing in writing. 10 C.F.R. § 710.21(a), (b)(2), (b)(4).

(3)Part 710 lists twelve broad categories of derogatory information which might create questions as to an individual's eligibility for access authorization. 10 C.F.R. § 710.8(a)-(l). These categories constitute the criteria which the DOE uses to review determinations regarding access authorization. Only Criterion L is at issue in this case. It applies where the individual has:

Engaged in unusual conduct or is subject to circumstances which tend to show that the individual is not honest, reliable, or trustworthy, or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security.

(4)The psychiatrist saw the respondent seven times (once jointly with his wife).

(5)The respondent's computer did not have a direct internet connection but was connected through an intraoffice network to a coworker's computer that was connected to the internet. The signals were therefore routed through this coworker's computer. Transcript of Personnel Security Interview 8-9 (hereinafter PSI); Hearing Transcript at 97 (testimony of respondent). Neither of these computers contained classified information.

(6)DOE Counsel asserted that certain statements in the PSI indicated that the respondent may have viewed child pornography. PSI at 5. I disagree. While the PSI transcript is not the model of clarity, the respondent clearly states with respect to photographs of children that "I delete them before they even finished [downloading]." Id. See also Hearing Transcript at 103-04 (testimony of respondent).

(7)Although "testimony" concerning the nexus between an individual's conduct and the security concerns raised by that conduct is usually not appropriate in cases such as this one, some explanation of the DOE's security concerns should be provided. Neither the respondent nor the hearing officer should have to guess as to the nature of DOE's concerns.

(8)While the Notification Letter is not clear on the issue, it did imply a possibility that the respondent could be subject to blackmail or coercion because at the PSI the respondent did not know whether his current employer knew of the circumstances under which he left his previous employment. However, it is clear that his current employer does know why he was forced to resign his previous position and the respondent's openness with his employer and current and former coworkers concerning his conduct eliminates the possibility of blackmail or coercion from any source.

(9)I note that many employers do not mind if their employees use office computers for personal business, so long as it is kept within reason.

(10)In 1970, the President's Commission on Obscenity and Pornography concluded:

In sum, empirical research designed to clarify the question has found no evidence to date that exposure to explicit sexual materials plays a significant role in the causation of delinquent or criminal behavior . . . . On the positive side, explicit sexual materials are sought as a source of entertainment and information by substantial numbers of American adults. At times, these materials also appear to serve to increase and facilitate constructive communication about sexual matters within marriage.

Report of the Commission at 27, 53, quoted in, Paris Adult Theater v. Slaton, 413 U.S. 49, 108 n.26 (1973) (emphasis added).

(11)The psychiatrist does not think that the respondent's viewing of adult material on an occasional basis is a problem that would lead to him to resume his excessive interest in viewing adult material. Hearing Transcript at 88-89.