The reporting of contacts, specifically foreign contacts, for clearance holders is of the utmost importance for continued access authorization. All security clearance holders have an obligation to report potential security concerns, whether they are about themselves or others. Guideline B of the Security Executive Agent Directive (SEAD) 4 lays out the disqualifying and mitigating conditions for potential foreign influence concerns. However, before even getting to these regulations, one must decide if they are required to report foreign contacts. The reporting requirements are set forth in SEAD 3, but both SEAD 3 and SEAD 4 should be used to determine if you are required to report a foreign contact.
Under SEAD 3, the reporting of foreign contacts is governed by section F(2) and requires, in part, that a person report any “continuing association with known foreign nationals that involves bonds of affection, personal obligation, or intimate contact; or any contact with a foreign national that involves the exchange of personal information.” The last part is important to note as it provides a far broader description of when a foreign contact needs to be reported.
Many individuals look to the Standard Form 86 (SF-86) to determine what information needs to be reported in relation to foreign contacts under section 19 when it asks in part if “you have close and/or continuing contact with a foreign national with whom you, your spouse, or partner are bound by affection, influence, common interests, and/or obligations.” However, SEAD 3 provides a more complete definition as it describes the requirement to report any foreign contact that involves the exchange of personal information. This definition is left up to interpretation, but it routinely means that any foreign contact you exchanged personal information with, including simply your name, can be reported. However, the caveat comes with the continuing association aspect of the reporting requirements.
Many clearance holders who are contemplating whether or not to report a foreign contact get tripped up with the “continuing association” aspect of the reporting requirements. This is an important distinction, as one is not required to report a foreign contact they spoke to once or in their official capacity, such as a customs officer when traveling abroad. Only in rare circumstances, such as if that person is attempting to coerce or manipulate you or if they reveal themselves as a foreign intelligence officer, would there be an exception. The continuing association must be just that—continuing—and be multiple and/or ongoing.
The reporting requirements for any security clearance holder are serious, and if reporting requirements are not followed, especially for proper reporting of foreign contacts, that could have a negative impact on one’s security clearance. In many cases, the prompt reporting of foreign contacts acts as mitigation in and of itself for not only compliance with reporting requirements but also for doing so immediately, which shows adjudicators and/or investigators you understand the seriousness of these types of requirements. It is important to note that a security clearance is a privilege, not a right, and thus a person who holds a security clearance must comply with all regulations, including reporting requirements. If you don’t, you risk not only raising red flags pertaining to potential foreign influence concerns but also failing to report foreign contacts when required to do so, which can implicate personal conduct issues and thus start you down the path of potential clearance denial. Therefore, it is important to ensure that one follows all reporting requirements for the proper reporting of foreign contacts in order to avoid any potential pitfalls with your security clearance eligibility in the future.
Regardless of the actions you have taken, you should seek the assistance of an experienced security clearance attorney to assist you with understanding the nuances of reporting requirements. If you are unable to properly and fully advocate for yourself and properly comply with reporting requirements, then you face further delays and issues that could impede your career advancement and the potential for revocation of your security clearance eligibility.
Ryan C. Nerney, Esq. is the Managing Partner of the Ladera Ranch office of Tully Rinckey PLLC, where he focuses his practice primarily on national security law, with experience in federal employment and military matters. Ryan represents clients who have security clearance issues against agencies such as the CIA, NSA, DIA, DOD, NRO, and DOE, among others. He has represented numerous clients in security clearance revocation proceedings and has a proven record of saving clients’ jobs, as well as anticipating and resolving potential future issues with their security clearances. Ryan currently serves as Secretary for the National Security Lawyers Association (NSLA) and was awarded the 2022 Security Clearance Lawyer of the Year award by the NSLA. He can be reached at info@tullylegal.com or at (888)-529-4543.
