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Porn still turning up in the federal workplace despite ban

| Wednesday, March 7, 2018, 11:21 a.m.
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WASHINGTON — It's been six years since Congress began banning federal employees from watching pornography in the workplace. But even though lawmakers have gradually added the rule to spending bills, implementing it agency by agency, some workers are still pulling up porn — and some departments still aren't covered.

As the spotlight on sexual exploitation intensifies in Washington and around the nation, it's clear that the problem of online porn in the federal workplace hasn't gone away.

Roll Call was able to identify 69 cases of federal employees or others using federal networks to access pornography since Congress began rolling out the ban in November 2011. At least 27 occurred at departments where the rule was already in place.

The Department of Veterans Affairs was one of the first to be covered. But an employee at a VA Medical Center in Kerrville, Texas, regularly downloaded child pornography on his work computer during his midnight shift, according to an inspector general report from the spring of 2014. He was arrested and sentenced to 46 months in prison.

At the National Oceanic and Atmospheric Administration, an employee downloaded “14 adult pornographic video files, 92 adult pornographic images, and 3 unauthorized computer programs,” auditors reported more than a year after the ban took effect for the Commerce Department.

And last year, a few months after the ban was extended to the National Archives and Records Administration, auditors identified at least two employees who admitted they'd made a habit of visiting porn websites at work. One acknowledged spending “approximately 90 minutes each working day” using an office computer to view pornography and escort-related services, according to an inspector general report to Congress. The report did not make clear if the practice continued after the ban.

To find the cases, Roll Call combed through audits of departments already covered by the ban. A search of Oversight.gov, a new storehouse that keeps a broader swath of IG reports, turned up additional records.

It may be impossible to know how many more cases exist. As of July 2017, there were nearly 2.2 million civilian federal employees, not counting the U.S. Postal Service, according to the Bureau of Labor Statistics.

No agency is responsible for gathering or overseeing federal workplace complaints, investigations or offenders, and some say that may be part of the problem.

“Too many times, when things are done that are the right bills or laws, if you don't follow back up, you don't know for sure if it's been implemented,” said Rep. Walter B. Jones, a North Carolina Republican who spearheaded an effort to expand the pornography ban as part of the fiscal 2017 omnibus.

On Jan. 9, he sent a letter to Office of Management and Budget Director Mick Mulvaney asking for updates on implementation of the ban, and another to House Appropriations Chairman Rodney Frelinghuysen, a New Jersey Republican, requesting that the ban be “included again for all departments and agencies across the federal government.”

“From our time together in the House, I know you share my belief that ending federal employees' viewing of pornography in the workplace would be a major victory for taxpayers,” Jones wrote to Mulvaney.

When implemented at an agency, the ban generally blocks the downloading, transmission or viewing of pornographic material on federal computer networks.

Following an interview, Jones directed his staff to look into the problem of porn violations that continue in spite of the rules.

Besides the letters he sent in January, Jones is also co-sponsoring a bill introduced by North Carolina Republican Rep. Mark Meadows that would direct OMB to issue guidelines for the ban that could help bring consistency across departments.

In the scattershot implementation, the first porn prohibitions to take effect covered only employees funded under the Military Construction-VA and Commerce-Justice-Science appropriations bills for fiscal 2012 — just two of the 12 that fund the government.

By writing the bans into spending bills, Congress figured it could exert its power of the purse and withhold funds for computer networks as punishment for violations.

Such funding limitations can be powerful tools. The Congressional Research Service has detailed how lawmakers have used them to affect everything from U.S. military action in foreign countries to regulations at the Bureau of Alcohol, Tobacco, Firearms and Explosives.

But the rules are enforced to varying degrees. A determination by the Government Accountability Office can in some cases lead to funds being pulled under what's known as the Antideficiency Act, but the agency said it hasn't issued a legal opinion regarding the ban.

Further, of the 12 spending bills that cover federal agencies, seven avoided the porn rules until last year. Even today, the departments of Transportation and Housing and Urban Development still are not subject to the ban.

A Senate Appropriations Committee staffer said those agencies were exempted last spring due to a technical issue, which the aide attributed to Department of Transportation concerns that such a ban would “interfere with daily work processes.”

The provision was put in the House's version of the fiscal 2018 Transportation-HUD bill, so it stands a chance of making it into the final version in conference.

In the meantime, a Transportation Department spokesman said, the agency has its own policy that essentially echoes the ban. Employees must sign an annual “rules of behavior” document acknowledging that access, viewing and storage of pornography on computers and mobile devices is prohibited.

The department also blocks access to porn sites from its networks.

But the vastness of the federal computer network and the pervasiveness and easy access to pornography on the internet makes implementing the ban a serious challenge, said Kevin Kosar, vice president of policy at the R Street Institute and a former Congressional Research Service employee. Kosar co-founded the Legislative Branch Capacity Working Group, which organizes meetings of staff from both parties to discuss whether Congress has the tools to do its job.

“Just think — we have more than 150 government agencies,” Kosar said. “Checking in to see that each of them has developed robust enough filters that nobody is able to get on to objectionable sites and fritter away taxpayer dollars — that's an unbelievably huge challenge.”

Another problem, he adds, is that “smut is everywhere on the internet,” and Congress has limited resources for oversight.

“Congress is grossly understaffed and doesn't nearly have the capacity to check these things,” Kosar said.

The Department of Homeland Security is among several agencies where the ban was implemented after serious employee crimes.

In September 2014, for example, an operations support technician with U.S. Citizenship and Immigration Services was sentenced to four years in prison and 15 years of supervised release for using a work computer to access websites that displayed images of child pornography at the agency's St. Albans, Vermont, shipping and receiving warehouse.

Since the ban was implemented for the Department of Veterans Affairs, at least eight child pornography cases have been documented — four of them involving employees, and four involving veterans.

An April 2016 report describes how a VA medical support assistant in Huntsville, Ala., was found with porn on his computer screen when he was arrested for using his work computer to send sexually explicit emails to a police detective posing as a minor child.

After the National Archives cases were discovered last year, an auditor warned that “while effective blocking technology exits … it's imprecise.”

Still, enforcement is key. Neither the House nor Senate Appropriations committees could cite an instance in which the committee has ever cut funding for an agency because of documented violations — even numerous violations.

Jennifer Hing, senior adviser and director of communications for House Appropriations, said the committee consistently conducts oversight regarding funding limitations in bills.

“The committee expects federal agencies to comply with appropriations law,” she said. “The matter will continue to be reviewed.”

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