PSH-13-0103

*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 XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: September 6, 2013 )
) Case No.: PSH-13-0103
__________________________________________)
Issued: December 23, 2013
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Hearing Officer Decision
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Steven L. Fine, Hearing Officer:
This Decision concerns the eligibility of XXXX XXX(hereinafter referred to as "the Individual")
to maintain a security clearance 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.” For the reasons set forth below, I conclude that the Individual’s security
clearance should not be granted.
I. BACKGROUND
On January 29, 2013, the Individual completed and submitted a Questionnaire for National
Security Positions (QNSP) to a Local Security Office (LSO). In this QNSP, the Individual
admitted that he had used a neighbor’s internet connection without permission on several
occasions in 2010 and 2011, and had downloaded copyrighted software and media to his
computer without permission from the copyright holders from 2000 through 2006. Exhibit 7 at
18-19. On February 14, 2013, the Individual was interviewed by an Office of Personnel
Management (OPM) investigator. During this interview, the Individual stated that he has
“struggled with an addition to pornography since he was 11 years old.” Exhibit 9 at 62. The
LSO conducted a Personnel Security Interview (PSI) of the Individual on May 9, 2013, and then
referred him to a DOE Psychologist who diagnosed the Individual as suffering from Other
Specified Paraphilic Disorder (OSPD), a condition that the DOE Psychologist opined can cause
significant defects in his judgment or reliability. Exhibit 6 at 8.
Unable to resolve the security concerns raised by the Individual’s conduct, and the OSPD
diagnosis, the LSO initiated administrative review proceedings by issuing a letter (Notification
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Letter) advising the Individual that it possessed reliable information that created a substantial
doubt regarding his eligibility to hold a security clearance. In the Notification Letter, the LSO
set forth the derogatory information at issue and advised that the derogatory information fell
within the purview of potentially disqualifying criteria set forth in the security regulations at
10 C.F.R. § 710.8, subsections (h) and (l).
The Notification Letter informed the Individual that he was entitled to a hearing before a Hearing
Officer in order to resolve the substantial doubt regarding his eligibility for access authorization.
The Individual requested a hearing, and the LSO forwarded his request to the Office of Hearings
and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in this matter
on September 9, 2013.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, his spouse, a DOE personnel security specialist, and the DOE Psychologist. See
Transcript of Hearing, Case No. PSH-13-0103 (hereinafter cited as “Tr.”). The LSO submitted
nine exhibits, marked as Exhibits 1 through 11. The Individual submitted seven exhibits, marked
as Exhibits A though G.
II. STANDARD OF REVIEW
The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency
and the Individual and to render a decision based on that evidence. See 10 C.F.R. § 710.27(a).
The regulations state that “[t]he decision as to access authorization is a comprehensive,
common-sense judgment, made after consideration of all relevant information, favorable or
unfavorable, as to whether the granting or continuation of access authorization will not endanger
the common defense and security and is clearly consistent with the national interest.” 10 C.F.R.
§ 710.7(a). I have considered the following factors in rendering this decision: the nature, extent,
and seriousness of the conduct; the circumstances surrounding the conduct, including
knowledgeable participation; the frequency and recency of the conduct; the Individual's age and
maturity at the time of the conduct; the voluntariness of the Individual's participation; the
absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the
motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; the
likelihood of continuation or recurrence; and other relevant and material factors. See 10 C.F.R.
§§ 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the
testimony and exhibits presented by both sides in this case.
III. FACTUAL BACKGROUND
On January 29, 2013, the Individual submitted a QNSP to the LSO, in which he admitted that he
had used a neighbor’s internet connection without permission on several occasions in 2010 and
2011, and had downloaded copyrighted software and media to his computer without permission
from the copyright holders from 2000 through 2006. Exhibit 7 at 18-19.
On February 14, 2013, the Individual was interviewed by an OPM investigator. The Individual
again admitted using neighbors’ internet connections without permission on several occasions in
2010 and 2011, and downloading copyrighted software and media to his computer without
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permission from the copyright holders from 2000 through 2006. Exhibit 9 at 61-62. The
Individual also stated that he had continued to use the copyrighted software and media until
December 2012, when he decided to delete this material from his computer. Exhibit 9 at 61.
During his interview with the OPM investigator, the Individual volunteered that he had
“struggled with an addiction to pornography since he was 11 years old.” Exhibit 9 at 62. He
stated that “His wife knows about his struggles before their marriage and they made an
agreement that he wouldn’t tell her if [he] ‘messed up.’” Id. He stated that he had never
received treatment or counseling. Id.
On May 9, 2013, the LSO conducted a Personnel Security Interview (PSI) of the Individual.
During this PSI, the Individual discussed his pornography use at length. He repeatedly stated
that he had an addiction to pornography. Exhibit 8 at 8, 62, 65, 72, 93, 106. The Individual
stated that he found it difficult to stop using pornography. Exhibit 8 at 11, 41. He stated “I
couldn’t just stop it cold turkey.” Exhibit 8 at 41. He indicated that he repeatedly tried to stop
viewing pornography and would succeed (sometimes for months at a time) before he would
return to viewing it again. Exhibit 8 at 41, 44, 53, 59, 85. He stated: “Every time that I've
stopped, I've always thought I wasn't gonna do it again, um, I think it's more wishful thinking.”
Exhibit 8 at 85. He described his pornography use as “something he wanted to fight and that
[he] wanted to overcome.” Exhibit 8 at 48. He stated that at the age of 19, he became more
involved in his faith and “started to combat the issue by not watching it.” Exhibit 8 at 40. The
Individual spoke of his pornography use as an “engrained” habit which required him to “get that
release” from “the gratification.” Exhibit 8 at 62. He further stated: “I would call it an, an
animal type of habit, where it's a habit that I developed and it's just one of those habits that's hard
to break.” Exhibit 8 at 63. The Individual stated that his pornography use is “almost always
followed up with disgust.” Exhibit 8 at 72. He stated that he was concerned about his
pornography use. Exhibit 8 at 85. When the Individual was asked if he had received any
professional counseling, he provided conflicting information. He first stated that he had
“professional counseling” but assumed that the counselors would not be able to help him.
Exhibit 8 at 89-92. He later stated he had never sought professional counseling but had sought
counseling from pastors. Exhibit 8 at 91.
He stated that he confided his problems with pornography to a past girlfriend and believed that
his pornography use may have contributed to their break-up. Exhibit 8 at 48. He stated that he
stopped viewing pornography for about a year after his marriage. Exhibit 8 at 56. When he was
asked if his wife was aware of his pornography use, he stated: “Yes and no. . . . She and I have
an understanding through the conversations that we've had that it's something that she knows that
I'm capable, she knows my past and knows that I have looked at it. . . . She knows that I'm still
capable of looking at it, . . . but it's not something that I'm going to keep her in on the loop about,
if that makes sense.” Exhibit 8 at 57. The interviewer asked him: “why are you not keeping her
informed?” He responded by stating: “primarily because it’s destructive, um, in nature if she
knew about it.” Exhibit 8 at 57. The Individual stated that his wife does not know of his recent
pornography use. Exhibit 8 at 98, 106. He felt it could cause problems in their relationship if his
wife became aware of his pornography use. Exhibit 8 at 98- 100, 105-106. His wife understands
that he has struggled with pornography. Exhibit 8 at 102-103.
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He claimed that he last used pornography a month and a half before the PSI. Exhibit 8 at 78.
He claimed his future intention was to abstain from viewing pornography, but that he did not
believe he could guarantee he would not view pornography in the future. Exhibit 8 at 95-96.
On June 21, 2013, the DOE Psychologist conducted a psychological evaluation of the Individual.
On June 23, 2013, the DOE Psychologist issued a report in which he opined that the Individual
met the criteria for OSPD set forth in the Diagnostic and Statistical Manual- Fifth Edition (DSM-
V). Exhibit 6 at 7. The DOE Psychologist opined that the Individual’s OSPD is significant for
two reasons: “First, as an addiction, it constitutes behaviors that, as he views them and therefore
is the case, have control over him. The second reason is that the situation of his obscuring and
misleading his wife is likely a time bomb.” Exhibit 6 at 8. The DOE Psychologist therefore
opined that OSPD is an illness or mental condition which causes, or could cause, a significant
defect in the Individual’s judgment and reliability. Exhibit 6 at 8.
IV. DEROGATORY INFORMATION AND SECURITY CONCERNS
The record shows that a DOE psychologist has diagnosed the Individual with Other Specified
Paraphilic Disorder. An opinion by a duly qualified mental health professional that the
individual has “a condition . . . that may impair judgment, reliability, or trustworthiness” may
raise a security concern and be disqualifying. Revised Adjudicative Guidelines for Determining
Eligibility for Access to Classified Information, issued on December 29, 2005, by the Assistant
to the President for National Security Affairs, The White House (Adjudicative Guidelines)
Guideline I at ¶ 28.
“Sexual behavior that . . . indicates a personality or emotional disorder, reflects lack of judgment
or discretion, or which may subject the individual to undue influence or coercion, exploitation, or
duress can raise questions about an individual's reliability, trustworthiness and ability to protect
classified information.” Adjudicative Guideline D at ¶ 12. Specifically, “a pattern of
compulsive, self-destructive, or high-risk sexual behavior that the person is unable to stop” can
raise a disqualifying security concern. Id. at ¶ 13(b). Similarly, sexual behavior that causes an
individual to be vulnerable to coercion, exploitation, or duress, can also raise a disqualifying
security concern. Id. at ¶ 13(c).
With regard to the illegal downloading of copyrighted materials, I find that such criminal activity
creates doubt about a person's judgment, reliability and trustworthiness. By its very nature, it
calls into question a person's ability or willingness to comply with laws, rules and regulations.
Adjudicative Guideline J at ¶ 30. Also, noncompliance with rules, procedures, guidelines or
regulations pertaining to information technology systems may raise security concerns about an
individual's reliability and trustworthiness, calling into question the willingness or ability to
properly protect sensitive systems, networks, and information. Information Technology Systems
include all related computer hardware, software, firmware, and data used for the communication,
transmission, processing, manipulation, storage, or protection of information. Adjudicative
Guideline M at ¶ 39.
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V. ANALYSIS
A DOE administrative proceeding under 10 C.F.R. Part 710 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, an individual must produce evidence sufficient to convince the DOE that granting or
restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d); see also Department of
Navy v. Egan, 484 U.S. 518, 532 (1988) (Egan) (security clearances will be granted only when
“clearly consistent with the national interest”); Personnel Security Hearing, Case No. PSH-12-
0100 (2012), and cases cited therein.1 The regulations and the case law further instruct me to
resolve any doubts concerning the Individual’s eligibility for access authorization in favor of the
national security. Egan, 484 U.S., at 532 (“the clearly consistent standard indicates that security-
clearance determinations should err, if they must, on the side of denials”); 10 C.F.R. § 710.7(a).
Accordingly, unlike a criminal matter, where the government has the burden of proving the
defendant guilty beyond a reasonable doubt, the standard in this proceeding places the onus on
the individual because it is designed to protect national security interests. An individual,
however, is afforded a full opportunity to present evidence supporting his eligibility for an access
authorization. The Part 710 regulations are drafted so as to permit the introduction of a very
broad range of evidence at personnel security hearings. Even appropriate hearsay evidence may
be admitted. 10 C.F.R. § 710.26(h).
Criterion L
The Individual has a history of using neighbors’ wi-fi internet connections without permission on
several occasions in 2010 and 2011, and downloading copyrighted software and media to his
computer (without permission from the copyright holders) from 2000 through 2006. By doing
so, he violated various statutes rules and regulations, and exhibited poor judgment and lack of
trustworthiness.
However, there are three factors which mitigate the security concerns raised by the Individual’s
unauthorized use of wi-fi internet connections and copyrighted software and media. First, and
most importantly, the Individual’s transgressions were relatively minor in nature, as admitted by
the DOE Personnel Security Specialist in her testimony at the hearing. Tr. at 65-66. Moreover,
a sufficient period of time has passed to resolve the relatively minor security concerns raised by
the Individual’s unauthorized use of wi-fi internet connections and copyrighted software and
media. The Individual last downloaded copyrighted software or media in 2006, and discontinued
his unauthorized wi-fi access in 2012. Finally, I note the Individual’s unauthorized use of wi-fi
internet connections and copyrighted software and media came to DOE’s attention through his
candid disclosure during his background investigation.
After careful consideration of these mitigating factors, I find that the Individual has resolved the
security concerns raised under Criterion L.
1
Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.energy.gov/oha.
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Criterion H
I find that the Individual has not mitigated the security concerns raised under Criterion H by his
OSPD diagnosis. At the hearing, the Individual challenged the DOE Psychologist’s opinion that
that Individual suffers from OSPD. However, the Individual did not present any expert
testimony in support of his assertion that he does not suffer from OSPD.
The Individual testified that, since his marriage, his use of pornography has been sporadic, and
that he has not viewed pornography during the past “eight or nine” months. Tr. at 78, 103-104.
He now claims that he is not addicted to pornography. Tr. at 78. To this end, he stated:
After having done some research -- surprisingly, I was kind of hoping that [the
DOE Psychologist] would define for me whether or not I was addicted, but after
doing my own research because of all of this, I think it would have been best for
me to retract the statements regarding whether or not I had an addiction or a habit,
primarily because of how infrequent my usage of pornography was and how --
how intense it wasn't. So I definitely wouldn’t diagnose myself with having an
addiction and, psychologically speaking, it doesn’t seem as if there is much
ground for that.
Tr. at 78-79.
The Individual admitted feeling guilty about viewing pornography. Tr. at 91-92. He provided
the following description of his wife’s understanding of his pornography issues:
She's been aware of this my entire marriage, even before we were married, and
she's aware that it's also a pretty big struggle for a lot of Christian men, which is
not unfamiliar to her. So what we both decided was that it would be inappropriate
for her to be involved in learning the details of my struggle. So, in other words,
basically, she was aware that I had an issue of looking at pornography before, but
that she wouldn't be involved in -- or, excuse me, she's known that I had a
pornography issue before and she knows that I have the potential to view
pornography again at any particular point in time, but she and I both agree that it's
something that would be inappropriate to share in a detailed fashion together.
***
She knows that I've been diagnosed by Dr. Smith to have an other specified
paraphilic disorder. She knows that it's been suggested that I have an addiction to
pornography. She knows that I have looked at pornography within our marriage.
Tr. at 99-102.
The Individual’s wife testified on his behalf at the hearing. She testified that was aware that her
husband has viewed pornography. Tr. at 112. She testified that she knew that it was common
for men to view pornography, and that the Individual was “striving not to do that anymore.” Tr.
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at 112. She testified that the Individual’s past pornography use does not bother her, and that she
does not “see it as an issue.” Tr. at 113, 114. She would not have a problem if the Individual
were to continue to use pornography. Tr. at 122. She further testified that she was aware that the
DOE Psychologist found that the Individual was addicted to pornography. Tr. at 113. The
Individual’s wife testified that her husband had never expressed the belief that he was addicted to
pornography to her, but he had informed her that he told the DOE Psychologist that he was
addicted to pornography. Tr. at 123-124. She testified that she has chosen not to know the
specific details of the Individual’s pornography use. Tr. at 119-120, 124.
The DOE Psychologist was present for the testimony of each of the other witnesses at the
hearing. He testified after the other witnesses had completed their testimony. The DOE
Psychologist testified that he had administered a sexual addition screening questionnaire to the
Individual. Tr. at 127. The Individual’s answers to the test suggested that the Individual has a
high likelihood of sexual addiction. Tr. at 127. He noted that the Individual reported to him that
the Individual gets critical, resentful and moody (which the DOE Psychologist notes are all
symptoms of depression) if he does not have sex regularly. Tr. at 128-129. He noted that the
Individual presents himself as a highly principled person, yet violates these principles in order to
obtain sexual gratification. Tr. at 131, 141. The DOE Psychologist opined that the Individual,
by repeatedly using pornography in violation of his principles, is picking and choosing which
laws or rules he will obey as it suits him. Tr. at 131-133, 141. The DOE Psychologist testified
that the Individual has demonstrated his compulsion to, and inability to desist from, using
pornography. Tr. at 133-135. He noted that the Individual has previously described his
pornography use as an addiction and described his inability to stop using it. Tr. 134-136. The
DOE Psychologist opined that the Individual may have stopped using pornography for the time
being, but is unlikely to avoid relapsing. Tr. at 137. The DOE Psychologist noted that the
Individual needs formal treatment for his addiction, but is not receiving it. Tr. at 137-138. The
DOE Psychologist testified that the Individual obscures the true extent of his addiction from his
wife, and that his marriage would be threatened if his wife were to become fully aware of the
extent of his pornography addiction. Tr. at 140, 144. The DOE Psychologist further testified
that the Individual is therefore subject to manipulation as a result of this concealment. Tr. at 140.
The DOE Psychologist therefore found that the Individual’s judgment and reliability have been
significantly affected by his OSPD. The DOE Psychologist was also concerned about the
Individual’s willingness to break his own moral rules when he wanted something. Tr. at 141-
142. The DOE Psychologist noted that the Individual was experiencing clinically significant
distress because he was worried and upset by his pornography use and that anxiety and distress
caused him to conceal his activities from his spouse, which met Criterion B of the DSM-V’s
description of OSPD. Tr. at 156. The Individual also experienced clinically significant distress
when he repeatedly failed to discontinue using pornography. Tr. at 160-161, 175.
The Individual has attempted to challenge the DOE Psychologist’s finding that he suffers from
OSPD. Essentially, the Individual is contending that I substitute his judgment for that of an
experienced clinical psychologist on a matter which requires the expertise of a credentialed
mental health professional to resolve. I decline to do so. Moreover, it is clear that the Individual
has, for many years, experienced an intense and extreme compulsion to view pornography. He
has repeatedly tried to avoid pornography use, which he considers immoral, disgusting and an
“animal habit.” Yet he has always eventually returned to pornography use which has left him
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feeling remorse and guilt. The Individual’s compulsion to use pornography has caused him to
exhibit behaviors which show that his unresolved compulsion or addiction has negatively
affected his judgment, reliability and trustworthiness by causing him to act contrary to his own
moral code, and to conceal the full extent of his behavior from his wife. Moreover, the
Individual was being quite frank and honest about his addiction and the difficulties it had caused
him prior to the hearing, but at the hearing, attempted to reverse course and claim that he was not
addicted to pornography, and that his use of pornography was not intensive or frequent. This
change of heart, and apparent deviation from his previous candor, provides a further example of
his OSPD affecting his judgment, reliability, and trustworthiness.
Moreover, I find the DOE Psychologist’s compelling testimony that the Individual will likely
relapse without proper treatment to be persuasive. Accordingly, I find that the Criterion H
allegations before me remain unresolved.
V. CONCLUSION
For the reasons set forth above, after carefully considering the evidence before me, I find that the
Individual has resolved the security concerns raised under Criterion L, but has not resolved the
security concerns raised under Criterion H. Therefore, the Individual has not demonstrated that
granting his security clearance would not endanger the common defense and would be clearly
consistent with the national interest. Accordingly, I find that the Individual’s security clearance
should not be granted. The Individual may seek review of this Decision by an Appeal Panel
under the procedures set forth at 10 C.F.R. Part 710.28.
Steven L. Fine, Esq.
Hearing Officer
Office of Hearings and Appeals
Date: December 23, 2013