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PaperclipPerfector  7mo ago (text post)   3138 thread views

Friday Fun Thread for September 20, 2024

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Volokh: Security Clearance Denied for Watching Furry Porn Depicting Animated 16-Year-Olds

Bierly confessed that some of the furries in the videos he watched were depicted as minors as young as age 16. The SOR advised that Bierly's history of "engaging in criminal sexual behavior by viewing and masturbating to pornographic images of minors" and intent to continue doing so constituted a "security concern". For his part, Bierly objects to characterizing the videos as child pornography because they featured animated characters rather than actual 16-year-old people.

Bierly's constitutional claims are as follows:

  • Count I claims that viewing animated furry pornography is protected speech under the First Amendment, and that DCSA's suspension of his security clearance therefore infringes this right.

  • Count II argues that DCSA's suspension of his security clearance abridges Bierly's First Amendment freedom to associate with others who share his political, religious and cultural beliefs.

  • Count III contends that SEAD 4, which allows the DCSA to withhold clearance based on sexual behavior that "demonstrates a lack of judgment or discretion or may subject the individual to undue influence of coercion, exploitation, or duress", is unconstitutionally overbroad under the First Amendment.

  • Count IV challenges the same language in SEAD 4 as unconstitutionally vague.

  • Count V is a substantive due process claim, arguing that the viewing of legal pornographic material is a protected liberty interest that the DCSA has wrongfully abridged.

  • Count VI is a Fifth Amendment Equal Protection argument, alleging that the defendants have unequally and arbitrarily applied SEAD 4 against Bierly, and that this uneven application fails strict scrutiny.

The court avoided the substantive constitutional questions, in part because federal precedent provides that "the grant of security clearance to a particular employee is committed by law to the appropriate agency of the Executive branch" and therefore "employment actions based on denial of security clearance are not subject to judicial review", especially when it comes to requests for injunctions seeking the grant of a clearance (to oversimplify in some measure).

The court also rejected Bierly's separate statutory claims under the Administrative Procedure Act, Freedom of Information Act, and Privacy Act. Note that Bierly's Complaint states that, "Mr. Bierly admitted to watching 16 year old Furry pornography when he was 15 years old, and the polygrapher used that age for all subsequent Furry pornography that Mr. Bierly admitted to watching," though that wouldn't affect, I think, the court's analysis.

Oof. That's a mess.

While it (and even the publicity) might not completely kill this guy's career, it definitely chops a lot of potential off it. There's some civilian uses for the sorta skills the software parts of that career field do, and some cybersecurity shops won't really care, but quite a lot of them either depend on background checks or lower levels of clearance that are gonna red flag this. Even if he didn't plan on staying in the DoD, having a security clearance before leaving can be worth a lot of salary.

(LinkedIn points to a higher education nonprofit, which... works, I guess, though depending on exactly where it falls in 'higher ed' would raise different concerns if he really were a threat. Dunno if it's more or less of a Google Problem than having your real name tied to the other sort of 1000-year-old dragon.)

And while not the most central case of where these definitions break down, and squicks me a bit (especially "intent to continue doing so" as he stops being a teenager, though not being able to read the complaint leaves me some concern for how accurately that's being repeated), it's still the sort of thing that also gets played at Cannes or put into a school library when there's a sufficient bow slapped on top. Law is filled with these sorta graduations, but if you wanted a similar level of 'officially banned, unofficially tolerated or sometimes feted' the first place to come to mind would be marijuana legalization, which... hasn't worked out great.

It's not clear whether it's illegal in the strict formalist sense. Ashcroft v Free Speech is usually what people point to as suggesting that obviously fictional works can't be generally prohibited, but that opinion allowed such speech to be restricted under the rules around obscenity, and Congress did do that. While that definition is vague (imo badly so) and counterproductive (imo badly so), modern technical advances have made Rehnquist's dissent much more persuasive at the same time that SCOTUS's makeup is more skeptical of the ACLU takes. From a legal realist perspective? It's a clusterfuck to determine if any one piece has 'redeeming value' (though a majority of furry porn is straight-up porn that would directly fail by honest tests, and others by close-enough checks), whether it offends community sensibilities, whether the ways it does offend community sensibilities are actually the sort the courts unofficially overlook because it's a proxy for 'animus', what the age of characters even are (is this goat the probably-older-than-universe-but-woefully-immature Asriel from Undertale, the unknown-aged-but-probably-late-high-schoolish Ralsei from Deltarune, an aged-down version of either, an aged up version of either, or an Original Character Donut Steel?), yada yada. Prosecutors generally don't want to deal with it, but they have on rare occasions with especially clear cases.

On the other hand, this isn't criminal prosecution: especially this level of higher-tier security clearance. There's a reason you can tell who's been through that level of interview from those who've just heard about it by the extent they flinch at certain questions. For all the official guidelines are about really overt behavior showing sympathy to foreign governments, illegal behaviors, or blackmailable targets, the practical guidelines are looking for broader understandings of strong impulse control and good judgement, pretty vaguely defined. If playing War Thunder is an unacceptable security risk -- and I think it's pretty persuasive that it is -- it's not like this is that unreasonable.

On the gripping hand, the extent the underlying laws and definitions are a mess and largely unconfrontable is gonna keep making the paradoxes more present, both here and in cases with more serious consequences. I get that critics of the law are (understandably!) looking for cases with perfectly sympathetic defendants and especially clear legal processes, both for normal legal tactics and because a decent number of the 'it's ephibophilia' people end up taking off the mask, but in practice there's been thirty years of establishing a pretty harsh new social norm.

((On the other gripping hand, it's quite possible we'll seriously confront those central cases where the definitions completely break down and decide that's because we do need to crank up enforcement of stricter social and legal norms. Totally fictional porn by people who are just working through their own missed opportunities in their youth still have the Kabier problem, and there's a lot more evidence in favor of even sometimes-above-age-of-consent sexualization being either risky or prone to abuse.))

On the other hand, this isn't criminal prosecution: especially this level of higher-tier security clearance. There's a reason you can tell who's been through that level of interview from those who've just heard about it by the extent they flinch at certain questions. For all the official guidelines are about really overt behavior showing sympathy to foreign governments, illegal behaviors, or blackmailable targets, the practical guidelines are looking for broader understandings of strong impulse control and good judgement, pretty vaguely defined. If playing War Thunder is an unacceptable security risk -- and I think it's pretty persuasive that it is -- it's not like this is that unreasonable.

It does seem like the space between "can't get security clearance" and "criminal prosecution" should be fairly large.

Really, I'm not entirely sure why this is an issue. Security clearance depends on a low blackmail attack surface, so as Puritanism [about what books one reads, in this case] in the population increases or becomes more powerful as a social force, things that wouldn't be an issue in more liberal times start to become viable blackmail avenues.

And yes, that means society is leaving talent on the ground; on the other hand, defending people who hate you is stupid and if their fake moral standards get them killed because of it, then so be it. Maybe the survivors will smarten up.

Security clearance depends on a low blackmail attack surface

That's the excuse yes. But open proud people are also denied. So there's an unrelated aspect of disapproving schoolmarm-ism that doesn't contribute to their goal even according to their justifications, but they like being this way so they do it.

But open proud people are also denied.

If they're going to put being Proud before national security concerns (in the same way, and for the same reasons, that War Thunder players do it- because they're more likely to value winning an argument above national security) this, too, is the right call.

The national security concern is blackmailability. You can't be blackmailed for what you openly do. So that's a fake reason.

I think the real reason is OPM doesn't want to give security clearances to icky people. Like homosexuals in the early 90s or people who admit to jerking it to furry porn today. And back in the early 90s openly gay people complained that the blackmail excuse didn't make sense since it isn't a secret that they're gay.

I would like national security to be correctly prioritized. And I'm skeptical that filtering out icky gays and furries is actually pursuing that goal. Especially when the given justifications are obviously false. But I also don't suppose an Executive Order 12968 but for shota furry enthusiasts is likely to be signed anytime soon.

openly gay people complained

What kind of openly gay people complained, the angry kind that will throw national security under the bus to win an internet argument, or the quiet ones [who are much less likely to take the government to court over getting denied a clearance for it in the first place]?

@thrownaway24e89172 more clearly elucidated the problem with this than I managed to- being Out and Proud is fundamentally at odds with having enough self control to shut the fuck up and not create problems for [from the government's viewpoint] fundamentally selfish reasons. Not being able to put your identity away on the clock, or worse, having a chip on one's shoulder about it (which is what "Proud" means), is the risk factor here.

There were a pretty sizable number of Sipple-like people, who were pretty quiet about things and did not openly go nuclear warfare, but were also still out of the closet and did not believe it was good policy at the time.

That's been more common later, but Watkins first was drafted in the late 1960s, and while a bit of a progressive putz by military standards, was pretty much a poster child for don't-start-nothing-won't-be-nothing.

I have no reason to think "out and proud" people or furries are any more likely to sell secrets to the Russians or leak them on the internet.

being Out and Proud is fundamentally at odds with having enough self control to shut the fuck up

I have absolutely no reason to think this is a true statement. In the absence of compelling evidence I'm going to continue to think that OPM just generally doesn't like icky sorts of people like this furry porn guy. Not that liking Pride and "out and proud" has any correlation with leaking secrets.

This guy is right to take them to court. I'm not faulting him for getting screwed by a Federal bureaucrat and going to court. If they don't like that they can make the lifestyle polygraph focused on actual blackmailability rather than unrelated society conservative disapproval of porn and gay sex, as they traditionally have.

It harms national security to have OPM deny people based on bogus reasons, like being gay in 1994 or earlier. There is a responsibility on OPM's part to correctly deny blackmail vulnerable people and not incorrectly deny people they just don't like. I don't think they do a great job at this. That comes at a real price.

This seems to be a misinterpretation of some kind. If {SUBALTERN_QUALITY} is a blackmail attack surface, the method of that blackmail is finding secret evidence and threatening to reveal it to people who don't already know. But if someone is out-and-proud, that means that people already know that they have the quality, and they're not worried about new people finding out about it, so it's no longer a blackmail attack surface. If anything, being 'proud' in this way should be reckoned as a positive when it comes to evaluating their national security concerns.

...unless, of course, you're referring to the impact on their prospects from possible superiors who will use it as a way to weed them out. In which case the motivation to hide it, and therefore the existence of a blackmailable attack surface, comes from those superiors' perception that such out-and-proudness is disqualifying. That seems like a far graver instance of putting personal feelings over national security concerns!

If you have a {SUBALTERN_QUALITY} and want a security clearance, you pretty much have one option: nonchalant openness when confronted about it without normally drawing attention to it otherwise. Hiding it is evidence you can be blackmailed into revealing secrets. "Out and proud" is an indication that you can't keep your mouth shut and can be tricked into revealing secrets to protect your pride. The latter is just as big (if not bigger) a problem as the former.

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