By John V. Berry, Esq., www.berrylegal.com
On May 12, 2016, the Director of National Intelligence James Clapper issued the first government policy on the federal government’s use of social media when evaluating background investigations and security clearances for federal employees and government contractors. The policy is known as Security Executive Agent Directive 5, which will have a major impact on the review of social media information in the context of security clearance investigations.
Security Executive Agent Directive 5
Security Executive Agent Directive 5 does not require that security clearance decisions necessarily consider social media information, but instead permits the collection of “publicly” available social media information if an agency official determines it to be a useful tool for security clearance investigations. From experience, it is extremely likely that most, if not all, agency officials will find such information to be a necessary tool for security clearance investigations in the future given how significant social media has become in our society. While the new policy does not require the collection of non-publicly available social media information, it is possible that such information could be required in future policies governing security clearance investigations, especially for individuals with top secret clearances or special access. For now, however, security clearance investigators are only reviewing publicly available social media information under the new policy. Information that is protected by appropriate privacy settings will not be reviewed by security clearance investigators.
Furthermore, unless there is a national security concern or an additional criminal reporting requirement, information uncovered as a result of a review of an applicant’s publicly available social media information that involves other individuals or groups will not be pursued. Security clearance investigators are also restricted from requesting or requiring individuals to provide their social media passwords or requiring individuals to log on to their private social media accounts to disclose non-publicly available information. The new policy also bars security clearance investigators or agencies from creating or using social media accounts to “Friend” or “Follow” the individual who is under investigation. The new directive is the first major policy by the government in incorporating social media into security clearance investigations, but it is likely that the scope of the information sought will increase in future policies.
Conclusion
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