Invention Secrecy Orders Reach a 20 Year High

On October 27, 1977, Dr. Gerald F. Ross filed a patent application for a new invention he had devised to defeat the jamming of electromagnetic transmissions at specified frequencies. But it was not until June 17, 2014 — nearly 37 years later — that his patent was finally granted (Anti-jam apparatus for baseband radar systems, patent number 8,754,801).

In the interim, Dr. Ross’s patent application had been subject to a secrecy order under the Invention Secrecy Act of 1951, which both prevented issuance of the patent and prohibited its public disclosure.

At the end of Fiscal Year 2014 (on September 30), there were 5,520 such invention secrecy orders in effect, according to statistics released by the U.S. Patent and Trademark Office under the Freedom of Information Act.

That is the highest number of invention secrecy orders in effect since 1994. It is unclear whether this reflects growing innovation in sensitive technology areas, or a more restrictive approach to disclosure by government agencies.

In fact, the overwhelming majority of current secrecy orders were issued in prior years, but there were 97 new secrecy orders that were imposed in FY 2014. Meanwhile, there were 22 existing orders that were rescinded, including the order concerning Dr. Ross’s invention.

Under the Invention Secrecy Act, secrecy orders may be imposed whenever, in the judgment of an executive branch agency, the disclosure of a patent application would be “detrimental to the national security.” This is a lower, less demanding standard than that for national security classification (which applies to information that could “cause damage to national security”) and not all secret inventions are classified. Some may be unclassified but export controlled, or otherwise restricted.

Other newly disclosed inventions formerly subject to a secrecy order that was rescinded by the government during the past year include these (according to data obtained from the Patent and Trademark Office):

Method of producing warheads containing explosives, patent number 8,689,669

Method of treating a net made from ultra-high-molecular-weight polyethylene, patent number 8,808,602

Ballistic modification and solventless double propellant, and method thereof, patent number 8,828,161

Ballistic modifier formulation for double base propellant, patent number 8,864,923

Synthetic aperture radar smearing, patent number 8,836,569

NARA Backs Away from CIA Email Destruction Proposal

The National Archives and Records Administration told the Central Intelligence Agency last week that it was withholding approval of a CIA proposal to allow the destruction of the email records of all but 22 senior Agency officials.

“NARA intends to reassess the Central Intelligence Agency (CIA) proposal for the disposition of non-senior email accounts,” wrote Paul M. Wester, Jr., Chief Records Officer at NARA in a November 20 letter to Joseph Lambert, Director of Information Management Services at CIA.

“Based on comments from Members of the U.S. Senate Select Committee on Intelligence and a number of public interest groups, we are concerned about the scope of the proposed schedule and the proposed retention periods,” Mr. Wester wrote.

Based on a preliminary review of the CIA proposal, NARA had initially recommended approval of the plan, Secrecy News reported last month. (“CIA Asks to Destroy Email of Non-Senior Officials,” October 1.)

But critical comments that were submitted to NARA — from the Federation of American Scientists, Openthegovernment.org and other public interest groups and individuals, the Department of Defense Chief Defense Counsel, and especially from Senators Feinstein and Chambliss, the leaders of the Senate Intelligence Committee, and Senators Wyden, Udall and Heinrich, Members of the Committee — turned the tide and blocked the proposal in its current form.

“We will hold a public meeting on this schedule in the coming months to address the comments raise by you and others and to share how NARA is moving forward,” wrote Margaret Hawkins of NARA Records Management Services in an email message today. “This meeting will be announced in the Federal Register and will be open to all commenters and the public.”

For related coverage, see: “The CIA Wants To Delete Old Email; Critics Say ‘Not So Fast'” by David Welna, NPR All Things Considered, November 20; “Top Senators Oppose CIA Move to Destroy Email” by Siobhan Gorman, Wall Street Journal, November 19; “National Archives: Ok, So Maybe Letting The CIA Destroy Emails Wasn’t A Great Idea” by Ali Watkins, Huffington Post, November 21; and “Furor Over CIA Shake-Up of Email System” by Adam Klasfeld, Courthouse News Service, November 7.

CIA Asks to Destroy Email of Non-Senior Agency Officials

The Central Intelligence Agency has asked for authority to destroy email messages sent by non-senior officials of the Agency. The National Archives and Records Administration (NARA) has tentatively approved the proposal.

In an August 18 appraisal of the CIA request, Meredith Scheiber of NARA wrote that any permanently valuable material in the emails would almost certainly be captured in other permanent CIA records.

“It is unlikely that permanent records will be found in these email accounts that is not filed in other appropriate files appraised as permanent,” the appraisal said.

“There are multiple records systems to capture the actions and decisions of employees and multiple internal controls in place in the event an employee was engaged in malicious activities.”

Any “remaining email not captured in other recordkeeping systems is routine or administrative in nature; transitory; or personal in nature.”

The NARA appraisal of the CIA proposal noted in passing that “The Agency’s current email policy is to print and file” rather than to save permanently valuable email in softcopy format.

“The average career of an Agency employee is 22 years,” the NARA appraisal also observed.

The CIA proposal for email disposal authority and the accompanying NARA appraisal were announced for public comment in the Federal Register on September 17.

CIA: Cost of Personal Computer in 1987 is a Secret

Updated below

Under the prevailing information policies of the Central Intelligence Agency, even some well-known public facts, such as the price of a popular personal computer, may be withheld from public disclosure.

“We bought our first Commodore Amiga in 1987 for less than [price redacted] including software,” according to a paper entitled “NPIC, Amiga, and Videotape” from the CIA journal Studies in Intelligence. It was among hundreds of papers posted online this month in response to a FOIA lawsuit brought by Jeffrey Scudder.

The redacted Amiga price figure is marked “(b)(3)(c)”, signifying that the information is being withheld under The CIA Act of 1949, by which CIA may withhold information about the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.

But is the cost of a publicly available consumer item like the Commodore Amiga computer properly subject to this exemption? A CIA information management official did not respond to an inquiry on the subject from Secrecy News.

Based on previous official statements, however, the CIA would likely say that even if the cost of the Commodore Amiga in 1987 is not intrinsically sensitive, the fact that CIA expended that amount makes it so.

Moreover, CIA seems to have adopted a declassification rule dictating that all of its expenditures, no matter how trivial, shall be withheld from disclosure, except in extraordinary cases (or the occasional mistake). The Agency might go on to argue that such a rule actually facilitates disclosure by expediting the declassification review process. That’s because instead of needing to pause to consider the potential ramifications of any individual spending disclosure, the Agency can proceed more quickly by simply withholding all such figures.

However, by adopting such sweeping non-disclosure practices, the CIA inevitably withholds more information than it should. And it lacks a reliable mechanism for correcting errors and excesses.

This has been a longstanding problem when it comes to withholding information concerning “intelligence sources and methods,” as authorized and required by the National Security Act [a FOIA exemption designated “(b)(3)(n)” in CIA’s internal notation].

The 1997 Report of the Commission on Protecting and Reducing Government Secrecy (the Moynihan Commission) said that the “sources and methods” justification for secrecy had been invoked too broadly and required clarification.

“Neither the National Security Act nor any of the relevant executive orders has defined what constitutes a ‘source’ or a ‘method,’ and the use of these provisions has been the subject of frequent criticism. Protection of sources and methods has been used to justify the classification of a range of information sometimes only indirectly related to a specific source or method,” the Moynihan Commission said (in Chapter 2 of its Report).

“In practice, the sources and methods rationale [for withholding information] has become a vehicle for agencies to automatically keep information secret without engaging in the type of harm analysis required by executive orders as a prerequisite to keeping other kinds of information secret. The statutory requirement that sources and methods be protected thus appears at times to have been applied not in a thoughtful way but almost by rote,” the Commission said (in Chapter 3).

But no action was taken on the Commission’s critique, and 15 years later the Public Interest Declassification Board still found reason to recommend that “The specific protections afforded intelligence sources and methods need to be precisely defined and distinguished.” So far, the Board’s 2012 recommendation to clarify the parameters of the National Security Act on this point has also gone unheeded.

Meanwhile, based on CIA’s promiscuous use of its withholding authorities as evidenced in the newly posted Studies in Intelligence papers, similar remedial action seems to be required with respect to the CIA Act as well.

And what was the cost of the Commodore Amiga in 1987 that CIA believes is exempt from disclosure today?

According to an online history, the Amiga 500 cost $699 in 1987, while the high end Amiga 2000 (with 1 MB RAM and a monitor) cost $2395.

Update: A CIA official said on October 1 that the redaction of the cost of the Amiga was an error, and that it would be corrected.

Update 2: The paper has been re-posted by CIA with cost figures restored here.

Wanted: Astronomer with Top Secret Clearance

NASA’s orbiting James Webb Space Telescope will be “the premier observatory of the next decade, serving thousands of astronomers worldwide, and studying every phase in the history of our Universe, ranging from the first luminous glows after the Big Bang, to the formation of solar systems capable of supporting life on planets like Earth, to the evolution of our own Solar System.”

So why does its Director need to have a Top Secret/SCI security clearance, as specified in the job description posted last month on USA Jobs?

Clearly, the secrets of the universe do not lend themselves to, or require, national security classification controls, let alone non-disclosure agreements or polygraph testing.

But in practice, the civilian space program intersects the national security space program at multiple points, and former CIA analyst Allen Thomson suggested that the future Webb Director might need a Top Secret intelligence clearance in order to engage with the National Reconnaissance Office on space technology and operations, for example.

The Webb Space Telescope “will complement and extend the discoveries of the Hubble Space Telescope, with longer wavelength coverage and greatly improved sensitivity,” according to NASA. “The longer wavelengths enable the Webb telescope to look much closer to the beginning of time and to hunt for the unobserved formation of the first galaxies, as well as to look inside dust clouds where stars and planetary systems are forming today.”

The Webb Telescope has a projected launch date in 2018.

A Look Behind President Clinton’s Veto of an Anti-Leak Bill

In 2000, both houses of Congress passed legislation that would have made any leak of classified information a felony.

The provision, contained in the FY2001 intelligence authorization act, was designed “to ensure the prosecution of all unauthorized disclosures of classified information.” said Sen. Richard Shelby, the primary sponsor of the provision, at the time.

While some unauthorized disclosures of classified information were already prohibited by statute (including the Espionage Act), others have not been specifically outlawed, or else their legal status is uncertain, requiring strenuous efforts by prosecutors to fit a prohibition to the presumed offense. The Shelby provision would have removed all ambiguities and would have simply criminalized all leaks of classified information.

But to the astonishment of nearly everyone, and to the relief of many, President Clinton vetoed the 2001 intelligence authorization bill because of the anti-leak measure.

“Although well intentioned, that provision is overbroad and may unnecessarily chill legitimate activities that are at the heart of a democracy,” he wrote in his November 4, 2000 veto message.

But that unexpected outcome almost didn’t come to pass.

Instead of a veto, White House lawyers had prepared draft signing statements for President Clinton in which he would have approved the bill, while expressing some reservations about its potential impact.

The draft signing statements were released by the Clinton Presidential Library last week. The newly disclosed presidential documents were first noted by Josh Gerstein in Politico on July 18.

“I strongly believe… that this new provision should not be applied in a manner that could chill legitimate activity or transform questions of judgment into criminal referrals,” according to the draft signing statement for President Clinton that was ultimately set aside in favor of a veto of the bill.

The worst effects of the anti-leak measure could be avoided by the limited, judicious use of prosecutorial authority, White House lawyers initially suggested.

“It is extraordinarily important, therefore, that the Justice Department use its prosecutorial discretion wisely when apparently unauthorized disclosures are referred to it for possible prosecution under this new provision,” the draft signing statement said.

Prosecutorial discretion often seems to be in short supply, however, and in all likelihood it would not have been an effective bulwark against abuse of the vetoed anti-leak provision, had it passed into law.

An apparent excess of zeal in the prosecution of classified document (mis-)handling was highlighted just last week in the case of Navy contract linguist James F. Hitselberger, who had been charged with multiple felonies in connection with the unlawful retention of national defense information. Earlier this year, Mr. Hitselberger pleaded guilty to a single misdemeanor. Last Thursday, he was sentenced to time already served (in pre-trial custody) and a fine of $250.00.

House Amendment Would Cut NSC Budget by a Third

The House of Representatives yesterday approved an amendment to cut the budget for the National Security Council by one third in response to NSC moves to block congressional access to information.

“Over the last few months, we have had several instances in which the National Security staff has mandated that the Department of Defense and other agencies selectively withhold information from congressional oversight committees,” complained Rep. Rodney Frelinghuysen (R-NJ), who introduced the amendment. It was not immediately clear which instances of withholding he was referring to.

“Accurate, complete, and timely reporting by the Department of Defense is essential for the [Appropriations] committee to conduct its oversight responsibilities,” added Rep. Peter Visclosky (D-IN), who endorsed the amendment to cut the NSC budget.

“Over the past few years, the size of the National Security Council’s staff has grown, and it appears that they have moved beyond their Presidential advisory role to involve themselves in decisions which are not in their purview,” said Rep. Frelinghuysen.

The amendment to reduce the FY 2015 NSC budget by $4.2 million, or approximately one-third, passed the House on a voice vote.

Espionage Act Case Was “Overcharged,” Defense Says

In 2012, former Navy linguist James F. Hitselberger was indicted on two felony counts under the Espionage Act statutes after several classified documents were found in his possession. In 2013, a superseding indictment charged him with another four felony counts.

But in the end, Mr. Hitselberger pleaded guilty this year to a single misdemeanor charge of removing classified documents without authorization.

Now both the defense and the prosecution are endorsing Hitselberger’s request that any jail penalty be limited to the time he has already served, including two months in DC jail and eight months of home confinement. The sentencing hearing is scheduled for July 17.

Despite the stark disparity between the multiple felony counts with which Hitselberger was charged, and the single misdemeanor of which he was convicted, the prosecution said that it had no second thoughts about the way the matter was handled.

“It is important to note that the government’s case against Mr. Hitselberger did not collapse,” prosecutors said in a June 27 sentencing memorandum. To the contrary, prosecutors wrote, “in several ways, the government’s case became stronger than what it had been when the charges were first obtained.”

Defense attorneys disputed that assertion and said the government had overreached.

“At a minimum, the evidence demonstrates that the government significantly overcharged the case, and the guilty plea to a misdemeanor not only was the appropriate result, but also demonstrates how the offense should have been charged from the beginning,” the defense wrote in a June 27 reply.

The mountain of Espionage Act charges that yielded a molehill of a misdemeanor in this case recalls a similar progression in the prosecution of former NSA official Thomas Drake, where ten felony counts gave way to a technical misdemeanor. This recurring pattern may indicate that overcharging is a standard prosecutorial approach to such cases, or that the judicial process is effectively winnowing out excessive felony charges, or perhaps both.

A June 26 sentencing memorandum submitted by the defense presented its own account of the facts of the case, along with several moving testimonials from Hitselberger’s friends and relatives as to his character.

In another pending Espionage Act case, the Obama Administration must decide if it will pursue a subpoena against New York Times reporter James Risen. For a current update, see Reporter’s Case Poses Dilemma for Justice Dept. by Jonathan Mahler, New York Times, June 27.

“For Official Use Only” is Used Too Much at DHS, House Says

There is too much information that is marked “For Official Use Only” at the Department of Homeland Security, the House Appropriations Committee said in its report on DHS Appropriations for 2015. Efforts to sort out what is really sensitive have “wasted substantial staff resources,” the report said.

Therefore, the Committee would require any official who marked a document FOUO to identify himself or herself on the document, along with a justification for doing so.

The Committee inaptly described the use of FOUO controls as a problem of “overclassification,” and spoke of “classifying” records as FOUO. Strictly speaking, however, national security classification and FOUO are mutually exclusive domains. Classified records cannot be marked as FOUO, and information or documents that are FOUO are by definition unclassified. Still, the Committee’s point is clear.

Here is the Committee language from its June 19 DHS Appropriations report:

Over-Classification of Information

The Committee is concerned with the number of reports, briefings, and responses to requests for information that are designated by the Department as “For Official Use Only” (FOUO), often without a consistent and appropriate review as to why information requires such a classification. As a consequence, both the Committee and the Department have wasted substantial staff resources deliberating over what information can and could be publicly disclosed. The Committee directs that all reports, briefings, or responses to requests for information provided to the Committee that are classified as FOUO include the name(s) and title(s) of the personnel that made the designation and the specific reasons for the classification based on requirements detailed in DHS Management Directive 11042.1, which provides guidance for safeguarding sensitive but unclassified FOUO information.

IC Media Policy Should be Revised, Sen. Wyden Says

An Intelligence Community Directive that prohibited unauthorized contacts with the news media is overbroad and needs to be corrected, said Sen. Ron Wyden last week on the Senate floor.

“I will tell you, I am troubled by how sweeping in nature this is,” Senator Wyden said about the Directive, ICD 119, issued last March. (See Intelligence Directive Bars Unauthorized Contacts with News Media, Secrecy News, April 21).

“The new policy makes it clear that intelligence agency employees can be punished for having ‘contact with the media about intelligence-related information’,” he said. “Make no mistake about it, that is so broad it could cover unclassified information. It does not lay out any limits on this extraordinarily broad term that I have described.”

“My hope is we can get this corrected because I think it is going to have a chilling effect on intelligence professionals who simply want to talk about unclassified matters on important national security issues– such as how to reform domestic surveillance or whether our country should go to war,” Sen. Wyden said on June 12.

The new IC media policy was discussed on the NPR program On the Media on June 13.