For decades, security clearance holders and applicants have been asked to self-report foreign contacts that are “close and/or continuing” on the SF-86 form. Specifically, the SF-86 asks:

“Do you have, or have you had, close and/or continuing contact with a foreign national within the last seven (7) years with whom you, or your spouse, or legally recognized civil union/domestic partner, or cohabitant are bound by affection, influence, common interests, and/or obligation?”

What constitutes a bond of affection or influence is, of course, somewhat subjective. Nonetheless, the guideposts set forth in the question at least offer security clearance applicants a good frame of reference on the type of relationships that are considered reportable.

The evolution of social media resulted in certain Intelligence Community agencies supplementing the SF-86 with their own foreign contact reporting forms 10-15 years ago. These forms, which remain in use today, include language requiring even passive social media connections with foreign nationals to be reported – arguably overkill but at least a clear requirement.

In June 2017, however, the Director of National Intelligence graced us with Security Executive Agent Directive (SEAD)-3. That Directive adds, for the first time in history, language requiring security clearance holders to self-report “any contact with a foreign national that involves the exchange of personal information.” (See Section F(2)(b)(2)). What precisely constitutes “personal information” is never defined in the Directive, but one could imagine a wide range of scenarios in which the exchange of apparently personal information would ordinarily occur. These include payment to a foreign vendor by credit card; exchange of business cards while traveling abroad; even having a conversation about families with other guests at a bed-and-breakfast or aboard a cruise, to name a few. In today’s internet era, just a few bits and pieces of “personal” information can be used to ascertain someone’s identity, their home address, even names and ages of their relatives. All of this information could be valuable in cultivating potential spies or otherwise compromising national security.

SF-86 vs. SEAD 3: Muddying the Waters on Foreign Reporting Requirements

The question thus becomes whether it is reasonable – or even possible – for security clearance applicants to self-report every such contact. If so, wouldn’t this pose an impossible burden for diplomats and others who regularly interact with foreign nationals? Is this really what ODNI meant by “personal information”?

Moreover, why did ODNI decide to muddy the waters with new language? Why haven’t instructions on the SF-86 been updated to mesh with the Directive? Does the sheer volume of foreign contacts that are potentially now reportable under SEAD-3 risk burying the few foreign contacts that do pose a legitimate security risk? Which instructions are clearance holders to follow: the SF-86 or SEAD-3?

All of these questions deserve answers – but so far, we simply don’t have them. For now, all we can advise security clearance holders and applicants to do is to follow the instructions provided by their respective agencies, ask questions for clarity, and operate using good faith and common sense.

When still in doubt, be sure to keep a paper trail of questions posed to security officials and consider retaining legal counsel for an assessment of your specific factual situation.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com