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Think Before You Post: Social Media History Now Reviewable During Background Checks

On May 13, 2016, the Office of the Director of National Intelligence (“ODNI”)announced a new policy under which federal agencies may consider publicly available social media information in connection with an application for a security clearance.  The new security directive, entitled “Security Executive Agent Directive 5” (“Directive 5”), was signed on May 12 by Director of National Intelligence James Clapper.

Directive 5 applies to all individuals seeking initial or continued eligibility for a security clearance.  It allows the collection by a federal agency conducting a background check of publicly available social media information, provided the information sought is consistent with the “Adjudicative Guidelines for Determining Eligibility For Access to Classified Information,” most recently updated by the White House in 2005.  Those guidelines outline disqualifying and mitigating factors that can impact decisions regarding the denial or revocation of security clearances.  In general, the purpose of the adjudicative guidelines—and the security clearance application process—is to assess whether an individual’s background renders him or her untrustworthy or unusually susceptible to coercion or blackmail.

According to Bill Evanina, the Director of ODNI’s National Counterintelligence and Security Center, Directive 5 will assist in that assessment because it recognizes that “[s]ocial media has become an integral—and very public—part of the fabric of most American’s daily lives” and may offer additional insight into whether an applicant can be trusted with sensitive information.  Indeed, lawmakers have expressed surprise that the government is just now codifying its right to consider publicly available social media information in connection with the security clearance process.

ODNI emphasized, however, that Directive 5 is not limitless.  In announcing it, ODNI expressly cited the importance of protecting individual privacy and noted that the directive “comes into effect after a long, deliberative process recognizing the ubiquity of social media and the importance of maintaining privacy and civil liberties.”  As crafted, Directive 5 attempts to protect such privacy and civil liberties in a number of ways.  It makes the decision to review an applicant’s social media profile entirely discretionary by the agency conducting the background check, and instructs that “[a]bsent a national security concern, or criminal reporting requirement,” information uncovered as part of such a check that relates to individuals other than the applicant “will not be pursued,” even if collected inadvertently.  Moreover, investigators (1) may not require or request that applicants disclose their social media passwords or account information; (2) access applicants’ non-public social media accounts; or (3) take any other action that would result in the disclosure of non-public social media information.

Nonetheless, applicants already undergo intense background screens to obtain security clearances, and Directive 5 will only make the process more rigorous.  It is difficult to predict all of the types of information gleaned from an applicant’s social media profile that might be deemed disqualifying for clearance purposes.  But in announcing the policy, ODNI argued that “[t]hese requirements, along with considering an applicant’s public social media presence, ‘are a small price to pay to protect our nation’s secrets and ensure the trust the American people have placed in us.’”  Directive 5 confirms the significance (and permanence) of social media, and should serve as a reminder of the importance of thinking before posting.

© 2020 Covington & Burling LLPNational Law Review, Volume VI, Number 145
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Repeatedly ranked as having one of the best privacy practices in the world, Covington combines exceptional substantive expertise with an unrivaled understanding of the IT industry, and of e-commerce and digital media business models in particular.  Our practice provides exceptional coverage of all of the substantive areas of privacy, including IT/technology, data security, financial privacy, health privacy, employment privacy, litigation and transactions.  One of our core strengths is the ability to advise clients on relevant privacy and data security rules worldwide,...

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