Patents Granted to Two Formerly Secret Inventions

Two patent applications that had been subject to “secrecy orders” under the Invention Secrecy Act for years or decades were finally granted patents and publicly disclosed in 2016.

“Only two patents have been granted so far on cases in which the secrecy order was rescinded in FY16,” the US Patent and Trademark Office said this week in response to a Freedom of Information Act request.  They were among the 20 inventions whose secrecy orders were rescinded over the past year.

One of the patents concerns “a controllable barrier layer against electromagnetic radiation, to be used, inter alia, as a radome for a radar antenna for instance.” The inventor, Anders Grop of Sweden, filed the patent application in 2007 and it was granted on April 5, 2016 (patent number 9,306,290).

The other formerly secret invention that finally received a patent this year described “multi-charge munitions, incorporating hole-boring charge assemblies.” Detonation of the munitions is “suitable for defeating a concrete target.” That invention was originally filed in 1990 by Kevin Mark Powell and Edward Evans of the United Kingdom and was granted on October 25, 2016 (patent number 9,476,682).

The inventors could not immediately be contacted for comment. But judging from appearances, the decision to control the disclosure of these two inventions for a period of time and then to grant them a patent was consistent with the terms of the Invention Secrecy Act, and it had no obvious adverse impacts.

Invention Secrecy Increased in 2016

There were 5,680 invention secrecy orders in effect at the end of Fiscal Year 2016. The U.S. Patent and Trademark Office reported that 121 new secrecy orders were issued in 2016, but also that 20 existing orders were rescinded, for a net increase of 101 over the year before. The latest figures were released under the Freedom of Information Act.

The government may impose a “secrecy order” on a patent application under the Invention Secrecy Act of 1951 if it believes that disclosure of the underlying invention would be “detrimental to national security.” Under those circumstances, a patent is withheld and the inventor is prohibited from revealing the invention unless and until the secrecy order is withdrawn.

The majority of secrecy orders apply to inventions that were developed with government sponsorship, in national or military laboratories or by government-funded contractors. So the ensuing secrecy amounts to the government silencing itself.

In a subset of cases, however, secrecy orders are imposed on private inventors who developed their idea without government support. There were 49 such orders in FY 2016. These orders, known as “John Doe” secrecy orders, seem like a form of prior restraint on individual speech that would be arguably inconsistent with the First Amendment.

But there have been few constitutional challenges to the Invention Secrecy Act to date, and none that has dislodged or modified the Act.

In 2014, inventors Budimir Damnjanovic and Desanka Damnjanovic filed a lawsuit seeking compensation for a secrecy order that the U.S. Air Force imposed on them. They also argued that the Invention Secrecy Act itself was unconstitutional.

“Because the Patent Secrecy Act prohibits Plaintiffs from speaking of their Invention to third parties, including potential customers, it violates the First Amendment of the Constitution,” their May 14, 2014 complaint stated.

Moreover, “the Patent Secrecy Act has resulted in Plaintiffs being deprived of property without due process and just compensation in violation of the Fifth Amendment.”

The court dismissed the constitutional claim because by that time the secrecy orders had been lifted and therefore, the court determined, the inventors did not have standing to make their constitutional case.

“Plaintiffs’ First Amendment argument fails because the harms they claim they suffered are past injuries. Further, the purported prohibition on speech Plaintiffs allegedly endured is not an ongoing issue, given that the secrecy orders have been lifted,” according to a September 22, 2015 court order. (Damnjanovic v. US Air Force, E.D. of Michigan, S. Div., 14-11920).

Ultimately, however, the parties reached a settlement regarding the compensation issues, and in December 2015 the government agreed to pay the inventors a lump sum of $63,000 to dismiss the case.

For related background, see “Congratulations, Your Genius Patent is Now a Military Secret” by Joshua Brustein, Bloomberg, June 8, 2016.

The Department of Defense published a proposed rule in the Federal Register today on “Withholding of Unclassified Technical Data and Technology From Public Disclosure.”

The rule “is meant to control the transfer of technical data and technology contributing to the military potential of any country or countries, groups, or individuals that could prove detrimental to U.S, national security or critical interests.”

“For the purposes of this regulation, public disclosure of technical data and technology is the same as providing uncontrolled foreign access. This rule instructs DoD employees, contractors, and grantees to ensure unclassified technical data and technology that discloses technology or information with a military or space application may not be exported without authorization and should be controlled and disseminated consistent with U.S. export control laws and regulations.”

Government Secrecy and Censorship

From its beginning, the Federation of American Scientists has been immersed in policies and issues regarding government secrecy and censorship. By the time World War II broke out, the fission process had been observed, followed by detection of the neutron, and recognition of induced uranium fission. In the early 1940s, some scientists in the United States, Great Britain, the Soviet Union, and Germany realized the potential for nuclear weapons.

The three atomic bombs detonated in the summer of 1945 were created and assembled at secret U.S. government sites by a mixed pedigree of scientists, engineers, and military officers. The decision to drop two of them on Japanese cities was determined by military and political events then occurring, particularly in the final year of World War II.

Our Soviet wartime ally, excluded from the American, British, and Canadian nuclear coalition, used its own espionage network to remain informed. Well-placed sympathizers and spies conveyed many essential details of nuclear-explosive development. Through this network, Stalin learned of the Manhattan Project and the Trinity test. As the German invaders began to retreat from Soviet borders, he established his own secret nuclear development project.

Read on: View the full version of the article here.

 

Nuclear Transparency and the Stockpile Stewardship and Management Plan

ssmp2016By Hans M. Kristensen

I was reading through the latest Stockpile Stewardship and Management Plan from the National Nuclear Security Administration (NNSA) and wondering what I should pick to critique the Obama administration’s nuclear policy.

After all, there are plenty of issues that deserve to be addressed, including:

– Why NNSA continues to overspend and over-commit and create a spending bow wave in 2021-2026 in excess of the President’s budget in exactly the same time period that excessive Air Force and Navy modernization programs are expected to put the greatest pressure on defense spending?

– Why a smaller and smaller nuclear weapons stockpile with fewer warhead types appears to be getting more and more expensive to maintain?

– Why each warhead life-extension program is getting ever more ambitious and expensive with no apparent end in sight?

– And why a policy of reductions, no new nuclear weapons, no pursuit of new military missions or new capabilities for nuclear weapons, restraint, a pledge to “put an end to Cold War thinking,” and the goal of disarmament, instead became a blueprint for nuclear overreach with record funding, across-the-board modernizations, unprecedented warhead modifications, increasing weapons accuracy and effectiveness, reaffirmation of a Triad and non-strategic nuclear weapons, continuation of counterforce strategy, reaffirmation of the importance and salience of nuclear weapons, and an open-ended commitment to retain nuclear weapons further into the future than they have existed so far?

What About The Other Nuclear-Armed States?

Despite the contradictions and flaws of the administration’s nuclear policy, however, imagine if the other nuclear-armed states also published summaries of their nuclear weapons plans. Some do disclose a little, but they could do much more. For others, however, the thought of disclosing any information about the size and composition of their nuclear arsenal seems so alien that it is almost inconceivable.

Yet that is actually one of the reasons why it is necessary to continue to work for greater (or sufficient) transparency in nuclear forces. Some nuclear-armed states believe their security depends on complete or near-compete nuclear secrecy. And, of course, some nuclear information must be protected from disclosure. But the problem with excessive secrecy is that it tends to fuel uncertainty, rumors, suspicion, exaggerations, mistrust, and worst-case assumptions in other nuclear-armed states – reactions that cause them to shape their own nuclear forces and strategies in ways that undermine security for all.

Nuclear-armed states must find a balance between legitimate secrecy and transparency. This can take a long time and it may not necessarily be the same from country to country. The United States also used to keep much more nuclear information secret and there are many institutions that will always resist public access. But maximum responsible disclosure, it turns out, is not only necessary for a healthy public debate about nuclear policy, it is also necessary to communicate to allies and adversaries what that policy is about – and, equally important, to dispel rumors and misunderstandings about what the policy is not.

Nuclear transparency is not just about pleasing the arms controllers – it is important for national security.

So here are some thoughts about what other nuclear-armed states should (or could) disclose about their nuclear arsenals – not to disclose everything but to improve communication about the role of nuclear weapons and avoid misunderstandings and counterproductive surprises: Continue reading

CIA Withdraws Email Destruction Proposal

The Central Intelligence Agency has formally rescinded its widely-criticized plan to destroy the email records of all but 22 senior agency officials, the National Archives said last week.

The CIA proposal generated controversy when it became public in 2014 because of its surprisingly narrow scope, which would have precluded preservation of vast swaths of CIA email records. Such records have proved invaluable not only for historical purposes, but also for contemporary accountability and congressional oversight.

“The agency has withdrawn this schedule effective March 21, 2016, due to the agency’s reorganization,” wrote Margaret Hawkins, director of records appraisal and agency assistance at the National Archives and Records Administration, in an email message to the Federation of American Scientists.

“In our last communication on this schedule, it was conveyed that a public meeting would be held to address all comments received. With the schedule’s withdrawal, this meeting will not be held.”

In any case, CIA is still obliged to present a plan to the National Archives to explain how it will preserve or dispose of its email records. CIA can either adopt the standard template known as the Capstone General Records Schedule, or it can devise a specific plan of its own for approval by the National Archives.

“If the agency chooses to submit a new agency-specific records schedule, it will be available for request and comment to the public through the Federal Register process,” Ms. Hawkins wrote.

Support Secrecy News

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Last month the House Committee on Homeland Security published a report of its task force on combating terrorist and foreign fighter travel. In a footnote, the Committee cited a related report from the Congressional Research Service and, unexpectedly, provided a link to the report on the FAS website (footnote 23).

This was incongruous because Congress has gone out of its way to resist online public distribution of CRS reports, and the cited report was obtained and posted by Secrecy News without authorization. But having an online source for such CRS reports evidently proves useful to Congress nonetheless.

This zone of incongruity is the natural habitat of Secrecy News. It is where declared policies go unmatched by actual practices, and where official promises of transparency are unrealized in fact.

Sometimes we can help to reduce the distance between rhetoric and reality, and to nudge the process along, with measurable results. Thanks in part to a recurring government-wide review of classification guidance that was conceived by FAS in 2009 (and which we advocated at the time as “the single most productive secrecy reform action that could now be undertaken”), the annual number of new national security secrets created last year was the smallest on record, and amounted to just 13% of what it had been a decade earlier.

Anyway, you know best whether this work is of value to you or not. If it is, and if your circumstances permit, we could use your help to carry on.

Tax-deductible contributions to the Federation of American Scientists can be made online here (direct your donation to “Government Secrecy”).

Checks payable to the Federation of American Scientists and earmarked for Secrecy News can also be mailed to us here:

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DNI Directive on Controlled Access Programs

The Director of National Intelligence last month issued a new directive on Controlled Access Programs (CAPs).

CAPs are the Intelligence Community equivalent of what are otherwise called Special Access Programs (SAPs). These are classified programs that involve access restrictions above and beyond ordinary classification controls. CAPs include compartmented intelligence programs, but are not limited to them.

The new directive, Intelligence Community Directive 906, establishes the policy framework for management and oversight of Controlled Access Programs. The directive itself is unclassified.

Patents Awarded to Formerly Secret Inventions

Last year, 95 secrecy orders barring disclosure of inventions under the Invention Secrecy Act of 1951 were imposed on new patent applications while 36 prior secrecy orders were rescinded. Three of the newly releasable inventions have recently received patents, decades after the inventors filed their applications.

The three new patents were identified by the U.S. Patent and Trademark Office in response to a Freedom of Information Act request.

The formerly secret inventions that received patents this year are:

Patent Number 9057604: Point-ahead laser pointer-tracker systems with wavefront correction in both transmit and receive directions. Filed in April 1989, the patent application was finally granted in June 2015.

Patent Number 9115993: Fused PM fiber single-polarization resonator. It was filed in August 1990 and granted in August 2015.

Patent Number 9181140: Solid propellant bonding agents and methods for their use. It was filed in December 1993 and granted in November 2015.

The factors that led the U.S. government to impose secrecy orders on these particular inventions more than two decades ago (and to release them this year) are not self-evident. But neither do they seem to indicate an obvious abuse of authority.

There were a total of 5,579 invention secrecy orders in effect at the end of fiscal year 2015, the highest number of such secrecy orders since FY 1993.

Science Experiments Blocked Due to Safety Risks

The U.S. government blocked dozens of life science experiments over the past decade because they were deemed to pose undue risks to public health and safety.

Between 2006 and 2013, researchers submitted 618 potentially restricted experiment proposals for review by the Centers for Disease Control (CDC) Division of Select Agents and Toxins (DSAT), according to a new study published in the journal Health Security.

Fifteen percent of those (91) were found to meet the regulatory definition of a “restricted experiment.” 31 of those experiments were nevertheless approved because they included appropriate safety measures.

But “DSAT did not approve 60 restricted experiment requests due to potentially serious biosafety risks to public health and safety,” researchers found. “All 60 denied restricted experiments proposed inserting drug resistance traits into select agents that could compromise the control of disease.”

See Review of Restricted Experiment Requests, Division of Select Agents and Toxins, Centers for Disease Control and Prevention, 2006-2013 (abstract only) by Jacinta Smith, Denise Gangadharan, and Robbin Weyant, Health Security, Vol. 13, No. 5, September 2015: 307-316.

Regulatory restrictions on research can infringe on academic freedom and may have the unintended consequence of foreclosing important — and beneficial — avenues of scientific investigation.

But the risks involved in genetic manipulation of biological agents are so profound that almost everyone agrees that some limits are necessary and appropriate.

“A product resulting from a restricted experiment has the potential to be directly misapplied by others to pose a threat to public health and safety, agricultural crops and other plants, animals and/or the environment,” the authors wrote. “In addition, the accidental release of a product of a restricted experiment may compromise the control or treatment of the disease agent in humans, animals, and/or plants.”

There have been four reported cases involving violations of restricted experiment regulations in recent years, the authors noted. Two of the restricted experiment violations resulted in civil penalties ranging from $40,000 to $1 million.

Some say the existing regulatory regime does not go far enough to restrict hazardous research.

“In the current Wild West of otherwise completely unregulated, and otherwise nearly completely unmonitored, US pathogens research, the requirement for review of ‘restricted experiments’ under the select agent rule is the one small bright spot,” said Richard H. Ebright, a molecular biologist at Rutgers University.

He noted that current regulations specify only two categories of potentially restricted experiments, which leaves much research on pathogens beyond regulatory control or oversight.

“The most effective avenue for the [US government] to implement a requirement for review of other pathogen research projects–for example, to implement a requirement for review of pathogen research projects that create new potential pandemic pathogens–would be to add additional ‘restricted experiments’ to the select agent rule,” Dr. Ebright said.

“Controlled Unclassified Information” Is Coming

After years of preparation, the executive branch is poised to adopt a government-wide system for designating and safeguarding unclassified information that is to be withheld from public disclosure.

The new system of “controlled unclassified information” (CUI) will replace the dozens of improvised control markings used by various agencies that have created confusion and impeded information sharing inside and outside of government. A proposed rule on CUI was published for public comment on May 8 in the Federal Register.

While CUI is by definition unclassified, it is nevertheless understood to require protection against public disclosure on the basis of statute, regulation, or agency policy. In many or most cases, the categories of information that qualify as CUI are non-controversial, and include sensitive information related to law enforcement, nuclear security, grand jury proceedings, and so on.

Until lately, “more than 100 different markings for such information existed across the executive branch. This ad hoc, agency-specific approach created inefficiency and confusion, led to a patchwork system that failed to adequately safeguard information requiring protection, and unnecessarily restricted information sharing,” the proposed rule said.

One of the striking features of the new CUI program is that it limits the prevailing autonomy of individual agencies and obliges them to conform to a consistent government-wide standard.

“CUI categories and subcategories are the exclusive means of designating CUI throughout the executive branch,” the proposed rule states. “Agencies may not control any unclassified information outside of the CUI Program.”

Nor do agencies get to decide on their own what qualifies as CUI. That status must be approved by the CUI Executive Agent (who is the director of the Information Security Oversight Office) based on an existing statutory or regulatory requirement, or on a legitimate agency policy. And it must be published in the online CUI Registry. There are to be no “secret” CUI categories.

Importantly, the CUI Program offers a way of validating agency information control practices pertaining to unclassified information. (A comparable procedure for externally validating agency classification practices does not exist.) But CUI status itself is not intended to become an additional barrier to disclosure.

“The mere fact that information is designated as CUI has no bearing on determinations pursuant to any law requiring the disclosure of information or permitting disclosure as a matter of discretion,” the new proposed rule said. The possibility that CUI information could or should be publicly disclosed on an authorized basis is not precluded.

More specifically, a CUI marking in itself does not constitute an exemption to the Freedom of Information Act, the rule said. However, a statutory restriction that justifies designating information as CUI would also likely make it exempt from release under FOIA.

One complication arises from the fact that simply removing CUI controls does not equate to or imply public release.

“Decontrolling CUI relieves authorized holders from requirements to handle the information under the CUI Program, but does not constitute authorization for public release,” the rule said. Instead, disclosure is only permitted “in accordance with existing agency policies on the public release of information.”

The upshot is that while there can be “controlled unclassified information” that is publicly releasable, there can also be non-CUI (or former CUI) information that is not releasable. The latter category might include unclassified deliberative materials, for example, that are not controlled as CUI but are still exempt from disclosure under the Freedom of Information Act.

More subtly, noted John P. Fitzpatrick, the director of the Information Security Oversight Office, there is a large mass of material that is neither CUI nor non-CUI– until someone looks at it and makes an assessment. In all such cases (other than voluntary disclosure by an agency), public access would be governed by the provisions and exemptions of the FOIA.

The genealogy of the CUI Program dates back at least to a December 16, 2005 memorandum in which President George W. Bush directed that procedures for handling what was called “sensitive but unclassified” information “must be standardized across the Federal Government.”

At that time, the impetus for standardization (which never came to fruition) was based on the need for improved sharing of homeland security and terrorism-related information. The initiative was broadened and developed in the 2010 Obama executive order 13556, which eventually led to the current proposed rule. Public comments are due by July 7.