Comment by tptacek
15 hours ago
The SF86 has a 7-year lookback on arrests. Clearance is fundamentally discretionary, though; it's a risk assessment. I don't think you have even a due process right to it.
I say all this but --- knowing that the principals in this story might read this thread and drop in and correct me, which would be awesome --- I think it's actually more likely that their careers benefited from this news story, and that they probably didn't lose any cleared business from it. I can't say enough that these two became industry celebrities over this case.
> Clearance is fundamentally discretionary, though; it's a risk assessment. I don't think you have even a due process right to it.
Security clearance is subject to due process protections (at least, insofar as it is a component of government hiring and continuation of employment), because government employment is subject to due process protections and the courts have not allowed security clearance requirements to be an end-run around that.
Are you sure about this? I looked into it, but only for about 45 seconds, and there are cases like Navy v. Egan that basically say the opposite.
(I'm going to keep saying: this is just an abstract argument; I don't think there's any evidence these two pentesters had any clearance issues.)
Navy v. Egan (1988) acknowledges a due process protection but limits it to procedural due process, not review of the merits of the clearance determination (i.e., the due process protection does not extend to substantive due process.)
Subsequent cases (mostly at the Federal Circuit, I can’t find the Supreme Court getting involved much since) like Cheney v. DOJ (2007) and Cruz-Martinez v. DHS (2020) have developed what that requires.
For cases outside of government employment, though the decisions so far are only at the trial level, Perkins Coie LLC vs. DOJ (2025) and Zaid v. Executive Office of the President (2025) are worth checking out in this regard.