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PaperclipPerfector  2mo ago (text post)   2666 thread views

Friday Fun Thread for September 20, 2024

Be advised: this thread is not for serious in-depth discussion of weighty topics (we have a link for that), this thread is not for anything Culture War related. This thread is for Fun. You got jokes? Share 'em. You got silly questions? Ask 'em.

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Volokh: Security Clearance Denied for Watching Furry Porn Depicting Animated 16-Year-Olds

Bierly confessed that some of the furries in the videos he watched were depicted as minors as young as age 16. The SOR advised that Bierly's history of "engaging in criminal sexual behavior by viewing and masturbating to pornographic images of minors" and intent to continue doing so constituted a "security concern". For his part, Bierly objects to characterizing the videos as child pornography because they featured animated characters rather than actual 16-year-old people.

Bierly's constitutional claims are as follows:

  • Count I claims that viewing animated furry pornography is protected speech under the First Amendment, and that DCSA's suspension of his security clearance therefore infringes this right.

  • Count II argues that DCSA's suspension of his security clearance abridges Bierly's First Amendment freedom to associate with others who share his political, religious and cultural beliefs.

  • Count III contends that SEAD 4, which allows the DCSA to withhold clearance based on sexual behavior that "demonstrates a lack of judgment or discretion or may subject the individual to undue influence of coercion, exploitation, or duress", is unconstitutionally overbroad under the First Amendment.

  • Count IV challenges the same language in SEAD 4 as unconstitutionally vague.

  • Count V is a substantive due process claim, arguing that the viewing of legal pornographic material is a protected liberty interest that the DCSA has wrongfully abridged.

  • Count VI is a Fifth Amendment Equal Protection argument, alleging that the defendants have unequally and arbitrarily applied SEAD 4 against Bierly, and that this uneven application fails strict scrutiny.

The court avoided the substantive constitutional questions, in part because federal precedent provides that "the grant of security clearance to a particular employee is committed by law to the appropriate agency of the Executive branch" and therefore "employment actions based on denial of security clearance are not subject to judicial review", especially when it comes to requests for injunctions seeking the grant of a clearance (to oversimplify in some measure).

The court also rejected Bierly's separate statutory claims under the Administrative Procedure Act, Freedom of Information Act, and Privacy Act. Note that Bierly's Complaint states that, "Mr. Bierly admitted to watching 16 year old Furry pornography when he was 15 years old, and the polygrapher used that age for all subsequent Furry pornography that Mr. Bierly admitted to watching," though that wouldn't affect, I think, the court's analysis.

when he was 15 years old

That kind of changes the whole picture. It's beyond idiotic to hold a grown man, years later, for shit he did on the internet when being a horny teenager. Ever more idiotic, they apparently allowed him to work for 2.5 years, presumably accessing all that top secret information, and then suddenly they started digging into his behavior as 15 years old? So many levels of pure dumb.

At least from the complaint, Bierly's work history only included :

Mr. Bierly worked as an intern with the U.S. Cybercommand for a summer internship from June 15, 2020 through July 17, 2020. During the summer internship with JWAC, Mr. Bierly worked from May 24, 2021 through August 13, 2021. Lastly, On November 18, 2022, after working in his position with the Air Force from August 15, 2022, Mr. Bierly was issued a Statement of Reasons (SOR) from DCSA notifying him of the DCSA’s intent to revoke Mr. Bierly’s eligibility for access to classified information.

Most of the time during his probationary period he worked at a university tech support field, according to his LinkedIn, and for the internships or three months at the job there's a lot of restrictions about what new hires get. There's a fair argument that the DoD needs to figure out how to handle the broader class of stuff at a more reasonable rate -- taking three+ years to onboard new people is a problem! -- but this sorta one-hand-can't-find-the-other is why those prolonged probationary periods exist.

On the other side, in the SOR letter the investigator claims to have understood this to include continued and recent viewing of porn involving 16-year-old characters as recently as a month before the polygraph (page 147 here, cw: more details about a dude jerking it than I wanted to know). Bierly's complaint alleges that the polygraphers inserted that age as an assumption for everything but his admission while 15-years-old, though, and his more recent viewings had been focused on 18+ characters.

There are even some technical reasons with how e621's tag and blacklist system worked at the time where that confusion might be reasonable! Or the investigators could have gotten a face full of prohibited content when checking the normie keywords Bierly provided, had to soak their computers in bleach, and either not believed or wanted to take it out on him.

some of the furries in the videos he watched were depicted as minors as young as age 16

How old were they in dog years?

(Asking for a friend...)

EDIT: This could be cougar porn

Oof. That's a mess.

While it (and even the publicity) might not completely kill this guy's career, it definitely chops a lot of potential off it. There's some civilian uses for the sorta skills the software parts of that career field do, and some cybersecurity shops won't really care, but quite a lot of them either depend on background checks or lower levels of clearance that are gonna red flag this. Even if he didn't plan on staying in the DoD, having a security clearance before leaving can be worth a lot of salary.

(LinkedIn points to a higher education nonprofit, which... works, I guess, though depending on exactly where it falls in 'higher ed' would raise different concerns if he really were a threat. Dunno if it's more or less of a Google Problem than having your real name tied to the other sort of 1000-year-old dragon.)

And while not the most central case of where these definitions break down, and squicks me a bit (especially "intent to continue doing so" as he stops being a teenager, though not being able to read the complaint leaves me some concern for how accurately that's being repeated), it's still the sort of thing that also gets played at Cannes or put into a school library when there's a sufficient bow slapped on top. Law is filled with these sorta graduations, but if you wanted a similar level of 'officially banned, unofficially tolerated or sometimes feted' the first place to come to mind would be marijuana legalization, which... hasn't worked out great.

It's not clear whether it's illegal in the strict formalist sense. Ashcroft v Free Speech is usually what people point to as suggesting that obviously fictional works can't be generally prohibited, but that opinion allowed such speech to be restricted under the rules around obscenity, and Congress did do that. While that definition is vague (imo badly so) and counterproductive (imo badly so), modern technical advances have made Rehnquist's dissent much more persuasive at the same time that SCOTUS's makeup is more skeptical of the ACLU takes. From a legal realist perspective? It's a clusterfuck to determine if any one piece has 'redeeming value' (though a majority of furry porn is straight-up porn that would directly fail by honest tests, and others by close-enough checks), whether it offends community sensibilities, whether the ways it does offend community sensibilities are actually the sort the courts unofficially overlook because it's a proxy for 'animus', what the age of characters even are (is this goat the probably-older-than-universe-but-woefully-immature Asriel from Undertale, the unknown-aged-but-probably-late-high-schoolish Ralsei from Deltarune, an aged-down version of either, an aged up version of either, or an Original Character Donut Steel?), yada yada. Prosecutors generally don't want to deal with it, but they have on rare occasions with especially clear cases.

On the other hand, this isn't criminal prosecution: especially this level of higher-tier security clearance. There's a reason you can tell who's been through that level of interview from those who've just heard about it by the extent they flinch at certain questions. For all the official guidelines are about really overt behavior showing sympathy to foreign governments, illegal behaviors, or blackmailable targets, the practical guidelines are looking for broader understandings of strong impulse control and good judgement, pretty vaguely defined. If playing War Thunder is an unacceptable security risk -- and I think it's pretty persuasive that it is -- it's not like this is that unreasonable.

On the gripping hand, the extent the underlying laws and definitions are a mess and largely unconfrontable is gonna keep making the paradoxes more present, both here and in cases with more serious consequences. I get that critics of the law are (understandably!) looking for cases with perfectly sympathetic defendants and especially clear legal processes, both for normal legal tactics and because a decent number of the 'it's ephibophilia' people end up taking off the mask, but in practice there's been thirty years of establishing a pretty harsh new social norm.

((On the other gripping hand, it's quite possible we'll seriously confront those central cases where the definitions completely break down and decide that's because we do need to crank up enforcement of stricter social and legal norms. Totally fictional porn by people who are just working through their own missed opportunities in their youth still have the Kabier problem, and there's a lot more evidence in favor of even sometimes-above-age-of-consent sexualization being either risky or prone to abuse.))

It's not clear whether it's illegal in the strict formalist sense.

It probably isn't, but as you observed, you can be denied a security clearance for behavior that is not illegal. For example, smoking weed in a state where it's legal (granted, that is still federally illegal), or having too many foreign contacts, or having financial problems or a gambling habit.

It used to be, of course, that homosexuality was grounds for denying a security clearance. The reasoning was that it "made you vulnerable to extortion," but even an out and proud homosexual would be judged unsuitable. Homosexuality is now a protected class, but being a furry hentai aficionado is not (yet).

So yeah, looking at underage hentai, even if they are 1000-year-old vampires, is probably legal but still likely gonna get you flagged as "deviant with lack of impulse control and judgement" by a background investigator. (I too have questions about "intent to continue doing so" - who actually tells the humorless polygrapher who's about to torpedo your career, "Yes, I totally intend to keep doing this"? But then I have watched a lot of police bodycam and predcatcher YouTube, and the things people will admit to on camera is amazing, so...)

I think some or all of the underage content would be covered and illegal under federal obscenity law, if in the same marijuana sense. There probably is a Stanley v. Georgia right to receive non-obscene furry porn, though I wouldn't want to wager that much on any one piece as passing that test and I wouldn't be absolutely confident in Stanley surviving modern review.

I too have questions about "intent to continue doing so" - who actually tells the humorless polygrapher who's about to torpedo your career, "Yes, I totally intend to keep doing this"?

I tracked down the full complaint and security background paperwork (attachment 2, relevant page 147) on the FOIA project. 'Intent to continue' seems attached only to the supercategory of 'these types of images', even by the government's telling. Especially if Bierly didn't realize how deep shit he was in, not completely disavowing future consumption of above-age furry porn and/or insufficiently distinguishing between it is... plausible. And it's kinda clearance investigator's jobs to not let people they're investigat_ing_ realize the shit is neck-high.

((Hell, there are some internal parts of how tags/blacklisting worked at e621 at the time where that might have augmented that confusion even had Bierly been very aggressive about blocking underage content, though I expect no one wants to hear about those details.))

But short of his account getting linked to his real name, and maybe not even then, we're probably never gonna know with more certainty than just what he wants us to think the story is.

On the other hand, this isn't criminal prosecution: especially this level of higher-tier security clearance. There's a reason you can tell who's been through that level of interview from those who've just heard about it by the extent they flinch at certain questions. For all the official guidelines are about really overt behavior showing sympathy to foreign governments, illegal behaviors, or blackmailable targets, the practical guidelines are looking for broader understandings of strong impulse control and good judgement, pretty vaguely defined. If playing War Thunder is an unacceptable security risk -- and I think it's pretty persuasive that it is -- it's not like this is that unreasonable.

It does seem like the space between "can't get security clearance" and "criminal prosecution" should be fairly large.

Yeah, and it's not necessarily a completely overlapping set of circles -- there's a lot more security clearance red flags in totally-legal levels of financial mismanagement than in getting in an ill-advised fistfight. A clearance isn't an official designation that you're a good person, or even a completely trustworthy one, so much as trying to hedge off certain security risks. As I said, I'm not sure the clearance determination here is wrong.

But the heuristics are wonky, here. I'm sure mine aren't representative, but it's hard to name ones that are compatible with what we do.

Really, I'm not entirely sure why this is an issue. Security clearance depends on a low blackmail attack surface, so as Puritanism [about what books one reads, in this case] in the population increases or becomes more powerful as a social force, things that wouldn't be an issue in more liberal times start to become viable blackmail avenues.

And yes, that means society is leaving talent on the ground; on the other hand, defending people who hate you is stupid and if their fake moral standards get them killed because of it, then so be it. Maybe the survivors will smarten up.

Security clearance depends on a low blackmail attack surface

That's the excuse yes. But open proud people are also denied. So there's an unrelated aspect of disapproving schoolmarm-ism that doesn't contribute to their goal even according to their justifications, but they like being this way so they do it.

But open proud people are also denied.

If they're going to put being Proud before national security concerns (in the same way, and for the same reasons, that War Thunder players do it- because they're more likely to value winning an argument above national security) this, too, is the right call.

The national security concern is blackmailability. You can't be blackmailed for what you openly do. So that's a fake reason.

I think the real reason is OPM doesn't want to give security clearances to icky people. Like homosexuals in the early 90s or people who admit to jerking it to furry porn today. And back in the early 90s openly gay people complained that the blackmail excuse didn't make sense since it isn't a secret that they're gay.

I would like national security to be correctly prioritized. And I'm skeptical that filtering out icky gays and furries is actually pursuing that goal. Especially when the given justifications are obviously false. But I also don't suppose an Executive Order 12968 but for shota furry enthusiasts is likely to be signed anytime soon.

openly gay people complained

What kind of openly gay people complained, the angry kind that will throw national security under the bus to win an internet argument, or the quiet ones [who are much less likely to take the government to court over getting denied a clearance for it in the first place]?

@thrownaway24e89172 more clearly elucidated the problem with this than I managed to- being Out and Proud is fundamentally at odds with having enough self control to shut the fuck up and not create problems for [from the government's viewpoint] fundamentally selfish reasons. Not being able to put your identity away on the clock, or worse, having a chip on one's shoulder about it (which is what "Proud" means), is the risk factor here.

There were a pretty sizable number of Sipple-like people, who were pretty quiet about things and did not openly go nuclear warfare, but were also still out of the closet and did not believe it was good policy at the time.

That's been more common later, but Watkins first was drafted in the late 1960s, and while a bit of a progressive putz by military standards, was pretty much a poster child for don't-start-nothing-won't-be-nothing.

I have no reason to think "out and proud" people or furries are any more likely to sell secrets to the Russians or leak them on the internet.

being Out and Proud is fundamentally at odds with having enough self control to shut the fuck up

I have absolutely no reason to think this is a true statement. In the absence of compelling evidence I'm going to continue to think that OPM just generally doesn't like icky sorts of people like this furry porn guy. Not that liking Pride and "out and proud" has any correlation with leaking secrets.

This guy is right to take them to court. I'm not faulting him for getting screwed by a Federal bureaucrat and going to court. If they don't like that they can make the lifestyle polygraph focused on actual blackmailability rather than unrelated society conservative disapproval of porn and gay sex, as they traditionally have.

It harms national security to have OPM deny people based on bogus reasons, like being gay in 1994 or earlier. There is a responsibility on OPM's part to correctly deny blackmail vulnerable people and not incorrectly deny people they just don't like. I don't think they do a great job at this. That comes at a real price.

This seems to be a misinterpretation of some kind. If {SUBALTERN_QUALITY} is a blackmail attack surface, the method of that blackmail is finding secret evidence and threatening to reveal it to people who don't already know. But if someone is out-and-proud, that means that people already know that they have the quality, and they're not worried about new people finding out about it, so it's no longer a blackmail attack surface. If anything, being 'proud' in this way should be reckoned as a positive when it comes to evaluating their national security concerns.

...unless, of course, you're referring to the impact on their prospects from possible superiors who will use it as a way to weed them out. In which case the motivation to hide it, and therefore the existence of a blackmailable attack surface, comes from those superiors' perception that such out-and-proudness is disqualifying. That seems like a far graver instance of putting personal feelings over national security concerns!

If you have a {SUBALTERN_QUALITY} and want a security clearance, you pretty much have one option: nonchalant openness when confronted about it without normally drawing attention to it otherwise. Hiding it is evidence you can be blackmailed into revealing secrets. "Out and proud" is an indication that you can't keep your mouth shut and can be tricked into revealing secrets to protect your pride. The latter is just as big (if not bigger) a problem as the former.

Every time I see furry artists cancelling each other because one of them drew a guy fucking a cartoon dog that was only 17 years old in one of the Nickelodeon spin-offs, I become even more grateful that foxy Maid Marien didn't groom me as a toddler.

Wouldn't even have such a problem with furries if they'd stick to their own communities and leave the rest of us to play Blue Archive in peace. But the number of furry communist they/thems who do nothing but witch-hunt for artists who drew, said, or thought something "problematic" makes the entire community too toxic to coexist with. I can't imagine how awful it is to actually be a part of it.

It'd be funny if it were just the they/them Marx fandom furries -- hell, it wouldn't even be the most defamatory thing from DogPatch Press, somehow. But I think that the problems the furry fandom fight with are just particularly prominent, because the most arguable border cases and the central version of the prohibited content are visible without the FBI getting involved or having to read three hundred pages of crappy Harry Potter AU fanfic for context, and the resulting internal discourse has given some of the witchiest and witch-hunterist people a lot of ammo to work with.

There's been similar problems throughout the various writing spheres, Archive Of Our Own gets regular attacks over it, it's one of the main Tumblr Discourse platter options. And the New Right has its own versions. I think there's a broader matter where it's become the new room temperature.

I mean, SomethingAwful was the original furry community. That should tell you all you need to know about how things were going to play out.

The fact that 4chan splintered from SA because of loli is similarly informative about the politics of its people, for good and ill.

Furries are hypermasculine superstimulus, loli (and shota) are hyperfeminine superstimulus, neither one wants to admit the obvious implications (though zoophilia is the lesser of those), and the narcissism of small differences does the rest.

(Actually, I wonder if that means diaperfurs/cub fans are more likely to be bisexual? Furries are generally gay and lolicons are generally straight, so maybe furry lolicons are more likely to be a mix compared to the average.)

Furries heavvvvily predate SomethingAwful: for adult content focuses VCL dates back to something like 1995, PureYiff and YiffStar to 2002. For SFW content, Werewolf(.)com was not solely furry but had more furry and therian content than SA, was on its second or third software iteration by the time 4chan launched; WereWeb had been launched, had its height, and died before 4chan launched. And that's ignoring IRC or UseNet communities.

The entire original Burned Furs mess happened before 4Chan existed, and started before SomethingAwful was founded. (Thankfully.)

Furries are hypermasculine superstimulus, loli (and shota) are hyperfeminine superstimulus, neither one wants to admit the obvious implications (though zoophilia is the lesser of those)

Sorry but I'm lost. Do you mind elaborating? What's a (hyper-masculine/-feminine) superstimulus, how is furry masculine, how is dubious anime porn feminine?

I assume the obvious implications you imply are that furries probably wanna fuck animals and hentai people probably wanna fuck children.

how is furry masculine, how is dubious anime porn feminine?

Look at the faces.

Furry [well, unless it's actively trying to avoid this... and ends up looking like a girl/boy in a onesie] is typically so far divorced from facial neoteny it might as well be bara. Anime characters, by contrast, tend to have round faces and large eyes- emphasis is on soft/round/cute/happy, not hard/angular/ugly/angry.

(Western animation tends to have a mix of both- the largest exception to that was, of course, My Little Pony (specifically Gen 4), and now you know why 4chan liked it so much.)

Mind you, this is just the broad strokes of it- it's a lot more detailed (and honestly, a lot more normal) than I make it out to be- but these are the broad strokes as they relate to the people who are most taken by that stimulus.

Sounds like it's not just masculine and feminine, but also mature/overdeveloped vs child-like/adolescent/underdeveloped.

I'm still having laughing fits from his post, so sorry if there's typos in this.

I think what he's getting at is that all furry porn is gay bathhouse sex orgies, with slightly more literal bears. It's hyper-male-sexuality in the sense of bro-y casual sex where the guys drink beer and lose their keys fisting each other.
If characters are sexual they are grotesquely so, with comically large sex organs and insatiable appetites (again often literally, because eating each other is sexualized too). Non-sexual characters literally don't exist somehow, because the scenes bounce from frat party to shower room to bdsm club to meat grinder. Even the straight porn is gay male hyper-stimulus. All the furry transsexuals you see dress as bimbos and get enormous fake breasts because his fetish is at its core a hyper-male autogynophilic fixation.

And on the other hand your typical loli book has an awkward girl who looks like a potato thinking about her feelings for 30 pages (or 60 chapters if it gets serialized). She is possibly caught in a love triangle between her kindly vampire English tutor and a dark and handsome werewolf delinquent who rescued her from bullies on his motorbike. One or both of these relationships may be socially forbidden, heightening the emotional tension. When they finally have sex there will be closeups of hand-holding and flowers in the screentone background.

The way he said it is guaranteed to upset both sides (which is why it's so hilarious), but the basic truth behind it is undeniable.

The way he said it is guaranteed to upset both sides (which is why it's so hilarious), but the basic truth behind it is undeniable.

Huh? Why is it guaranteed to upset both sides? It seems obviously directionally correct to me (I'd nitpick that femininity is more prominent than masculinity rather than being hyper-feminine, which implies the near absence of masculinity to me) from the lolicon side and I have pointed to research supporting much the same conclusion in the past:

Recall Kinsella's suggestion that lolicon be understood as men performing the shōjo to come to terms with an unstable gender identity (Kinsella 2006: 81-83). If being a man ceases to promise power, potency and pleasure, it is no longer the privileged subject position. Akagi explains that lolicon is a form of self-expression for those oppressed by the principles of masculine competitive society (Akagi 1993: 232).32 Lolicon is a rejection of the need to establish oneself as masculine and an identification with the "kindness and love" of the shōjo (Akagi 1993: 233). This interpretation reverses the standard understanding of lolicon as an expression of masculinity to one of femininity. This is, of course, not the only way to approach the wide range of lolicon images, but it certainly highlights the complexity of "pornographic content" and its uses.

What's there to be upset over?

Probably worth noting that the research you cite comes from japan, where the culture is different. Lolicon stuff (in fictional form) is legal there and at least somewhat tolerated. Pretty different from the US where it will get you arrested.

Fictional lolicon gets people arrested in the US? I think generally not. I see 9 cases since 2008, mostly involving people who also had real child porn which is how they wound up in court. Your average "16 year old furry comic" enjoyer shouldn't fear prosecution even if it is hypothetically possible. But sure, it is more than zero getting busted.

for those oppressed by the principles of masculine competitive society

Fucking academics. Saying "men who are getting off using the mental/sexual pathways that [normal] women use to get off with, by projecting themselves onto the self-insert female character just like everyone who read 50 Shades does, maybe because a thing or combination of things in their brains makes that the more attractive option" doesn't need to be this hard.

But then again I'm also of the opinion that the real reason we don't have an accurate taxonomy of sexual behaviors is that we don't have the language to express them, they're all defined by their [statistical] normal distribution anyway, and then people just take language not meant for them and wield it as a weapon so maybe it's pointless anyway.

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