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PaperclipPerfector  7mo ago (text post)   3142 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.

when he was 15 years old

That kind of changes the whole picture. It's beyond idiotic to hold a grown man, years later, for shit he did on the internet when being a horny teenager. Ever more idiotic, they apparently allowed him to work for 2.5 years, presumably accessing all that top secret information, and then suddenly they started digging into his behavior as 15 years old? So many levels of pure dumb.

At least from the complaint, Bierly's work history only included :

Mr. Bierly worked as an intern with the U.S. Cybercommand for a summer internship from June 15, 2020 through July 17, 2020. During the summer internship with JWAC, Mr. Bierly worked from May 24, 2021 through August 13, 2021. Lastly, On November 18, 2022, after working in his position with the Air Force from August 15, 2022, Mr. Bierly was issued a Statement of Reasons (SOR) from DCSA notifying him of the DCSA’s intent to revoke Mr. Bierly’s eligibility for access to classified information.

Most of the time during his probationary period he worked at a university tech support field, according to his LinkedIn, and for the internships or three months at the job there's a lot of restrictions about what new hires get. There's a fair argument that the DoD needs to figure out how to handle the broader class of stuff at a more reasonable rate -- taking three+ years to onboard new people is a problem! -- but this sorta one-hand-can't-find-the-other is why those prolonged probationary periods exist.

On the other side, in the SOR letter the investigator claims to have understood this to include continued and recent viewing of porn involving 16-year-old characters as recently as a month before the polygraph (page 147 here, cw: more details about a dude jerking it than I wanted to know). Bierly's complaint alleges that the polygraphers inserted that age as an assumption for everything but his admission while 15-years-old, though, and his more recent viewings had been focused on 18+ characters.

There are even some technical reasons with how e621's tag and blacklist system worked at the time where that confusion might be reasonable! Or the investigators could have gotten a face full of prohibited content when checking the normie keywords Bierly provided, had to soak their computers in bleach, and either not believed or wanted to take it out on him.

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