A background investigation is a fairly invasive process. An applicant consents to allow the government to pry into his or her life, often exposing deeply private and potentially embarrassing information. And at a time when so much information is maintained electronically, applicants are frequently concerned about what an investigator is entitled to access – be it emails, text messages and the like.
To that end, applicants can breathe a little easier. The Fourth Amendment shields us from the government conducting warrantless searches (outside of well-established exceptions). An investigator cannot, for instance, hack into an applicant’s email or require the applicant to turn over social media login information. An investigator cannot even use an applicant’s personally identifiable information to “dig up dirt” on that person through online search engines.
Consensual Release
Nevertheless, an investigation is consensual. As such, an applicant forfeits many basic privacy rights in exchange for the government’s need to figure out exactly who the person is. At the outset of an investigation, OPM requires an applicant to sign an “Authorization for Release of Information” (“release”). The scope of what an investigator can review is laid out within the four corners of the release.
The relevant section at the top of the release states:
“I Authorize any investigator, special agent, or other duly accredited representative of the authorized Federal agency conducting my background investigation, to obtain any information relating to my activities from individuals, schools, residential management agents, employers, criminal justice agencies, credit bureaus, consumer reporting agencies, collection agencies, retail business establishments, or other sources of information.”
By signing the document, an applicant consents to allow OPM to review, among other things, criminal history, credit information, and employment records. It’s all pretty standard fare. But pay special attention to the italicized portions. The language is purposely broad, and provides an investigator with access to a wide range of information from third parties. The U.S. Supreme Court has found that there is no expectation of privacy in what we knowingly expose to a third party, and the Fourth Amendment is constantly evolving with the advent of new technology.
Work vs. Personal
What does this mean for an applicant’s electronic correspondence? If your employer monitors or maintains access to your work email account (as it probably does), or you sent an email from your private email to a co-worker’s work account, that correspondence is fair game. The same principle applies to any email you sent to your landlord, college administrators etc. Emails leave behind eternal footprints.
In my experience conducting investigations, most of the correspondence I encountered during routine record checks was fairly benign and irrelevant. On occasion, a conduct issue arose at an employment and there were emails from the applicant that were related to the problem, and thus wholly relevant to the investigation.
None of this should come as much of surprise. The same considerations apply whether or not you are seeking a security clearance: be mindful of what information you send, who you send it to, and how you send it. If you are concerned about what someone sends to you, let that person know or report it to the appropriate personnel. Make sure to memorialize your concerns by email. Professionalism wins out in the end.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
