ISCR Case 03-08175.h1

Case Headnote

ISCR Case No. 03-08175.h1

deniedDec 2, 2004· Hon. Joseph Testan· hearing

Summary

A 49-year-old engineer was denied a security clearance under Guidelines D (Sexual Behavior), E (Personal Conduct), and J (Criminal Conduct) due to his repeated use of government computers to access and download sexually explicit images, including child pornography. This activity occurred frequently over a long period and was a knowing violation of agency regulations.

The applicant continued this conduct even after being advised that it violated agency guidelines and could lead to dismissal. His actions included accessing and downloading child pornography, which constitutes criminal conduct under 18 U.S.C. 2252, regardless of whether formal charges were filed.

The judge determined that the applicant's conduct demonstrated a lack of judgment, discretion, and trustworthiness. This pattern of dishonesty and rule violations, coupled with a disregard for agency regulations, led to the conclusion that he could not be relied upon to safeguard classified information.

Why the Applicant Was Denied

Applicant accessed and downloaded sexually explicit images, including child pornography, on government computers in violation of agency regulations.
Applicant continued this conduct despite being informed of the agency's policies prohibiting such actions.
Applicant's actions reflected a lack of judgment and reliability, undermining his trustworthiness for a security clearance.

Conditions Referenced

Disqualifying

E2.A4.1.2.1appliedSexual Behavior of a Criminal Nature, Whether or Not the Individual Has Been Prosecuted.
E2.A4.1.2.3appliedSexual Behavior That Causes an Individual to Be Vulnerable to Coercion, Exploitation, or Duress.
E2.A4.1.2.4appliedSexual Behavior of a Public Nature And/or That Which Reflects Lack of Discretion or Judgment.
E2.A5.1.2.4appliedPersonal Conduct That Increases an Individual's Vulnerability to Coercion, Exploitation or Duress.
E2.A5.1.2.5appliedA Pattern of Dishonesty or Rule Violations, Including Violation of Any Written or Recorded Agreement Made Between the Individual and the Agency.
E2.A13.1.2.3appliedRemoval (or Use) of Hardware, Software or Media From Any Information Technology System Without Authorization, When Specifically Prohibited by Rules, Procedures, Guidelines or Regulations.

Key Rule Quoted

“The fact that he continued to utilize his application with this knowledge is sufficient to satisfy the scienter requirement of 18 U.S.C. 2252.”
— 18 U.S.C. 2252

Procedural Posture

SOR issuedMar 3, 2004
Answer filedMar 31, 2004
Hearing heldAug 26, 2004Applicant requested a continuance.
Decision dateDec 2, 2004

Cite For

Denial of Clearance Due to Accessing Child Pornography Under Guideline D
Impact of Repeated Violations of Agency Policy on Security Clearance Eligibility
Judgment and Reliability Concerns Stemming From Personal Conduct Under Guideline E

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
1.a	Applicant's use of government computers to access and download sexually explicit images, including child pornography, on a frequent basis over a long period, in knowing violation of agency regulations, reflects adversely on his judgment.	Against Applicant	Child Pornography Involvement	Denied	(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted (c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress	—	—
2.a	Applicant knowingly violated agency regulations by accessing and downloading sexually explicit images onto his government work station computer on many occasions over a long period of time.	Against Applicant	Unspecified Sexual Behavior	Denied	(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted (c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress	—	—
3.a	Applicant accessed and downloaded child pornography onto the same computer in violation of 18 U.S.C. 2252.	Against Applicant	Child Pornography Involvement	Denied	(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted	—	—
4.a	Applicant continued to access and download pornography onto his government work station computer after being advised that it violated agency guidelines and could result in his dismissal.	Against Applicant	Unspecified Sexual Behavior	Denied	(c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress	—	—

Allegation

Finding

Type

Response

Disqualifying (¶13)

Mitigating applied (¶14)

Mitigation

1.a

Applicant's use of government computers to access and download sexually explicit images, including child pornography, on a frequent basis over a long period, in knowing violation of agency regulations, reflects adversely on his judgment.

Against Applicant

Child Pornography Involvement

Denied

(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted

(c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress

—

2.a

Applicant knowingly violated agency regulations by accessing and downloading sexually explicit images onto his government work station computer on many occasions over a long period of time.

Against Applicant

Unspecified Sexual Behavior

Denied

(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted

(c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress

—

3.a

Applicant accessed and downloaded child pornography onto the same computer in violation of 18 U.S.C. 2252.

Against Applicant

Child Pornography Involvement

Denied

(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted

—

4.a

Applicant continued to access and download pornography onto his government work station computer after being advised that it violated agency guidelines and could result in his dismissal.

Against Applicant

Unspecified Sexual Behavior

Denied

(c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress

—

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant's use of government computers to access and download sexually explicit images, including child pornography, on a frequent basis over a long period, in knowing violation of agency regulations.	Against Applicant	Questionable Judgment General	—	Denied	(e) personal conduct or concealment creating vulnerability to exploitation	—	—
2.a	Applicant engaged in this activity on a frequent basis over a long period of time.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Denied	(e) personal conduct or concealment creating vulnerability to exploitation	—	—
3.a	Applicant continued to access and download pornography onto his government work station computer despite being informed that it was against agency policy.	Against Applicant	Rules Violation at Workplace	—	Denied	(e) personal conduct or concealment creating vulnerability to exploitation	—	—
4.a	Applicant did not continue to post pornographic material to offsite computers after he was advised by a colleague to cease this activity.	For Applicant	Unspecified Personal Conduct	—	Admitted	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

1.a

Against Applicant

Questionable Judgment General

—

Denied

(e) personal conduct or concealment creating vulnerability to exploitation

—

2.a

Applicant engaged in this activity on a frequent basis over a long period of time.

Against Applicant

Pattern of Dishonesty or Rule Violations

—

Denied

(e) personal conduct or concealment creating vulnerability to exploitation

—

3.a

Applicant continued to access and download pornography onto his government work station computer despite being informed that it was against agency policy.

Against Applicant

Rules Violation at Workplace

—

Denied

(e) personal conduct or concealment creating vulnerability to exploitation

—

4.a

Applicant did not continue to post pornographic material to offsite computers after he was advised by a colleague to cease this activity.

For Applicant

Unspecified Personal Conduct

—

Admitted

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant's accessing and downloading of child pornography was criminal conduct, regardless of whether he was formally charged.	Against Applicant	Sexual Offense Criminal	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.b	Applicant's accessing and downloading sexually explicit images in violation of agency policies reflects a pattern of dishonesty and rule violations.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(b) evidence of criminal conduct, regardless of charge or conviction	—	—
1.c	Applicant's conduct demonstrates a lack of discretion and judgment, making him vulnerable to coercion or exploitation.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(c) currently on parole or probation	—	—
1.d	Applicant's continued access to pornographic sites after being warned of the consequences indicates a disregard for agency regulations.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(d) violation of parole/probation or failure to complete a court program	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant's accessing and downloading of child pornography was criminal conduct, regardless of whether he was formally charged.

Against Applicant

Sexual Offense Criminal

Conduct No Charge

Denied

(a) pattern of minor offenses casting doubt on judgment/reliability

—

1.b

Applicant's accessing and downloading sexually explicit images in violation of agency policies reflects a pattern of dishonesty and rule violations.

Against Applicant

Unspecified Criminal Conduct

Conduct No Charge

Denied

(b) evidence of criminal conduct, regardless of charge or conviction

—

1.c

Applicant's conduct demonstrates a lack of discretion and judgment, making him vulnerable to coercion or exploitation.

Against Applicant

Unspecified Criminal Conduct

Conduct No Charge

Denied

(c) currently on parole or probation

—

1.d

Applicant's continued access to pornographic sites after being warned of the consequences indicates a disregard for agency regulations.

Against Applicant

Unspecified Criminal Conduct

Conduct No Charge

Denied

(d) violation of parole/probation or failure to complete a court program

—

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Case Profile

Summary

Why the Applicant Was Denied

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES