“The Indian social media scene represents a fast-emerging and influential domain of information exchange involving nearly 60% of the 83 million Internet users in the country,” according to a recent report (pdf) from the DNI Open Source Center.

Indian public attention to social media was galvanized by the November 2008 Mumbai attacks, “when citizens became instant journalists, tweeting from their mobiles what they saw.” It was reinforced by online political activity surrounding the May 2009 national elections. Social media are also employed by commercial enterprises, political dissidents and separatists and almost everybody else.

A copy of the report was obtained by Secrecy News. See “OSC Media Aid: Overview of Leading Indian Social Media,” Open Source Center, December 21, 2010.

The academic journal “Research in Social Problems and Public Policy” has devoted its latest issue to the topic of “Government Secrecy.” The special issue was edited by Susan L. Maret. The table of contents may be found here (pdf).

Two probing congressional examinations of the Espionage Act, its application and its possible reform have recently been published. The House Judiciary Committee held a December 16, 2010 hearing on “The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks.” Also newly published is a May 12, 2010 Senate Judiciary Committee hearing volume on “The Espionage Statutes: A Look Back and a Look Forward.”

Last week the Senate confirmed Stephanie O’Sullivan to be the Principal Deputy Director of National Intelligence (PDDNI), the number two position in the Office of the Director of National Intelligence (ODNI).  Ms. O’Sullivan, a longtime CIA employee who is currently Associate Deputy Director of CIA, will be the fourth person to hold that office.

A review of the materials submitted in support of her nomination, especially a set of answers to pre-hearing questions (pdf) submitted by the Senate Intelligence Committee, turns up a number of interesting new details concerning intelligence policy.  For example:

**  ODNI began an effort last year “to reinvigorate the declassification of imagery for public release,” Ms. O’Sullivan said. She indicated that this program had been “launched in May 2010,” but there is little sign that it has had any impact to date.

On the contrary, attempts to gain access to historical intelligence satellite imagery remain as contentious and mostly as fruitless as ever.  “Trying to get [satellite imagery] declassified today, it’s like I’m taking their marbles away,” said Charles P. Vick of GlobalSecurity.org earlier this month, “and it’s over 40 years old.”  (“New Secrets of Huge Soviet Moon Rocket Revealed” by Leonard David, Space.com, February 7, 2011).

**  Over the past several years, science and technology research activities at CIA “have improved substantially,” leading to the operational use of new intelligence technologies, Ms. O’Sullivan told the Senate Intelligence Committee.

This upbeat assertion contrasts, for example, with a 2006 Intelligence Science Board report which found that technological “innovation in the Intelligence Community” was “hobble[d]” and that the problem was approaching “critical levels.”  (“Intel Science Board on ‘The New S&T Landscape’,” Secrecy News, January 10, 2011).

But Ms. O’Sullivan said that “There has been a marked increase in cutting edge technology which has been developed through research and development and successfully transitioned to operations… [The CIA Directorate of Science and Technology’s] acquisitions and operations have also delivered innovative new capabilities and technical operations that have closed collection gaps.”

The nature of these capabilities and operations was not specified.  One trusts that they did not include the fraudulent intelligence-related technologies that were central to the unfolding Dennis Montgomery/e-Treppid Technologies scandal and featured in the New York Times last weekend.  (“Government Tries to Keep Secret What Many Consider a Fraud” by Eric Lichtblau and James Risen, New York Times, February 20, 2011).

Ms. O’Sullivan also provided brief commentary on the obscure and mostly classified Comprehensive National Cybersecurity Initiative (CNCI), which she said was “progressing satisfactorily.”   She discussed in general terms the government’s response to WikiLeaks, which she said “represents the magnitude of the potential danger when technology, opportunity, and malevolent human motivation combine.”  Her answers to the pre-nomination hearing questions may be found here.

Sometimes the questions that were posed to Ms. O’Sullivan were more interesting than the answers.  Thus, in an oddly flattering formulation, the Senate Intelligence Committee observed that “The National Reconnaissance Office has historically attempted to deliver more program content that can be accomplished under the budgets requested by the President or appropriated by Congress.  We understand that this problem is again arising in the fiscal year 2012 budget build now in progress.”

A routine questionnaire for Presidential nominees asks whether the nominee has ever been arrested or charged with committing a crime.  Ms. O’Sullivan noted (pdf) that she was charged with trespassing in August 1989 for “being in a public park after closing.”  The charges were subsequently dropped.

Former Congressman Steve Horn (R-CA), who was a leading congressional defender of the Freedom of Information Act and of public access to government information generally, died last week at age 79.

Rep. Horn was a primary sponsor, along with Sen. Patrick Leahy, of the Electronic Freedom of Information Act of 1996, which formally extended the provisions of the FOIA to electronic records. He led congressional efforts to oversee FOIA implementation and to address defects in agency compliance.

As chairman of a House Government Reform subcommittee with jurisdiction over FOIA, “What struck me then and now is the critical role that public access to Government information plays in our democracy,” Horn said in 2002. “It is key to having an informed citizenry and to supplying our citizens with the knowledge they need to hold their Government accountable. Therefore, I have always been a strong advocate of the Act.”

Rep. Horn “was outspoken against the abuse of secrecy by executive agencies and the willingness of many Congressional Committees to ignore their duties and allow such secrecy,” recalled Rep. Carolyn Maloney (D-NY) after his retirement in 2002. “He forced the CIA and the Department of Defense to release documents so that Congress could effectively perform oversight.”

In a rather modest gesture of respect, Congress named a post office after him in 2003 (the “Stephen Horn Post Office Building” at 2300 Redondo Avenue in Long Beach, California).

Update: Horn’s family invites donations in his name to the University Library, California State University, Long Beach, c/o CSULB Foundation, 1250 Bellflower Blvd., Long Beach, CA 90840 (via LAT).

Legislation introduced in the Senate this week would broadly criminalize leaks of classified information.  The bill (S. 355) sponsored by Sen. Benjamin Cardin (D-MD) would make it a felony for a government employee or contractor who has authorized access to classified information to disclose such information to an unauthorized person in violation of his or her nondisclosure agreement.

Under existing law, criminal penalties apply only to the unauthorized disclosure of a handful of specified categories of classified information (in non-espionage cases).  These categories include codes, cryptography, communications intelligence, identities of covert agents, and nuclear weapons design information.  The new bill would amend the espionage statutes to extend such penalties to the unauthorized disclosure of any classified information.

(Another pending bill, known as the SHIELD Act, would specifically criminalize disclosure — and publication — of information concerning human intelligence activities and source identities. Both bills were originally introduced at the end of the last Congress, and were reintroduced this month.)

“I am convinced that changes in technology and society, combined with statutory and judicial changes to the law, have rendered some aspects of our espionage laws less effective than they need to be to protect the national security,” said Sen. Cardin.  “I also believe that we need to enhance our ability to prosecute… those who make unauthorized disclosures of classified information.”

“We don’t need an Official State Secrets Act, and we must be careful not to chill protected First Amendment activities,” he said.  “We do, however, need to do a better job of preventing unauthorized disclosures of classified information that can harm the United States, and at the same time we need to ensure that public debates continue to take place on important national security and foreign policy issues.”

The bill would replace the Espionage Act’s use of the term “national defense information” with the broader but more precise term “national security information.”  It would outlaw any knowing violation of an employee’s classified information nondisclosure agreement, “irrespective of whether [the discloser] intended to aid a foreign nation or harm the United States.”  The bill would not criminalize the receipt of leaked information, and it would not apply to whistleblowers who disclose classified information through authorized channels.

But it would establish a rebuttable presumption that any information marked as classified is properly classified.  (The bill does not distinguish between “information” and “records.”)  This means that the government would not have to prove that the leaked information was properly classified;  the defendant would have to prove it was not. In order to mount a defense arguing “improper classification,” a defendant would have to present “clear and convincing evidence” that the original classifier could not have identified or described damage to national security resulting from unauthorized disclosure.  Such challenges to original classification are almost never upheld, and so the defendant’s burden of proof would be nearly impossible to meet.

The bill does not provide for a “public interest” defense, i.e. an argument that any damage to national security was outweighed by a benefit to the nation.  It does not address the issue of overclassification, nor does it admit the possibility of “good” leaks.  Disclosing that the President authorized waterboarding of detainees or that the government conducted unlawful domestic surveillance would be considered legally equivalent to revealing the identities of intelligence sources, the design of secret military technologies or the details of ongoing military operations.

And at a time when an unprecedented number of leak prosecutions are underway, the bill’s premise that an enhanced ability to prosecute leaks is needed seems questionable.  In fact, in a 2002 report to Congress, then-Attorney General John Ashcroft said that the laws already on the books were sufficient and that no new anti-leak legislation was required.

“Given the nature of unauthorized disclosures of classified information that have occurred, however, I conclude that current statutes provide a legal basis to prosecute those who engage in unauthorized disclosures, if they can be identified…. Accordingly, I am not recommending that the Executive Branch focus its attention on pursuing new legislation at this time,” Mr. Ashcroft wrote.

In 2000, Congress enacted legislation to criminalize all leaks of classified information, but the measure was vetoed by President Clinton.

“There is a serious risk that this legislation would tend to have a chilling effect on those who engage in legitimate activities,” President Clinton wrote in his November 4, 2000 veto message.  “A desire to avoid the risk that their good faith choice of words — their exercise of judgment — could become the subject of a criminal referral for prosecution might discourage Government officials from engaging even in appropriate public discussion, press briefings, or other legitimate official activities. Similarly, the legislation may unduly restrain the ability of former Government officials to teach, write, or engage in any activity aimed at building public understanding of complex issues.”

“Incurring such risks is unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed and is particularly inadvisable in a context in which the range of classified materials is so extensive. In such circumstances, this criminal provision would, in my view, create an undue chilling effect,” President Clinton wrote.

The Director of National Intelligence on Monday did what has never been done before:  He disclosed the size of the coming year’s budget request for the National Intelligence Program.  For Fiscal Year 2012, “The aggregate amount of appropriations requested for the National Intelligence Program is $55 billion,” according to a February 14 ODNI news release (pdf).

The new disclosure was required by the FY2010 intelligence authorization act (sec. 364).  That legislation permitted an optional Presidential waiver of disclosure if necessary on national security grounds, but no waiver was asserted.

The disclosure of the budget request constitutes a new milestone in the “normalization” of intelligence budgeting. It sets the stage for a direct appropriation of intelligence funds, to replace the deliberately misleading practice of concealing intelligence funds within the defense budget.  Doing so would also enable the Pentagon to (accurately) report a smaller total budget figure, a congenial prospect in tight budget times.  (See “Intelligence Budget Disclosure: What Comes Next?”, Secrecy News, November 1, 2010.)

The publication of the intelligence budget request is the culmination of many years of contentious debate and litigation on the subject.

Until quite recently, intelligence community leaders firmly opposed disclosure both of the intelligence budget total and of the total budget request.  In response to a 1999 lawsuit brought by the Federation of American Scientists, Director of Central Intelligence George J. Tenet said that revealing the budget request would damage national security and compromise intelligence methods.

“I have determined that disclosure of the budget request or the total appropriation reasonably could be expected to provide foreign intelligence services with a valuable benchmark for identifying and frustrating United States’ intelligence programs,” DCI Tenet wrote in a sworn declaration.  The court upheld the classification of the requested information.

Was DCI Tenet wrong then about the damaging effects of disclosure?  Is DNI Clapper wrong now to dismiss the significance of such damage?  Could they somehow both be right?

From our perspective, Mr. Tenet was wrong in 1999, and the damage he foresaw would not have resulted from the disclosure that he prevented. (It turns out that the FOIA litigation process is not an effective way to contest such judgments.)

More fundamentally, the changing official assessment of the need to classify this information reflects the subjectivity that is inherent in the classification process, which makes it possible for two intelligence community leaders to reach opposing conclusions.

The same subjectivity prevails today.  Thus, while the budget request for the National Intelligence Program (NIP) has now been disclosed, the request for the Military Intelligence Program (MIP) remains classified.  We have requested release of this information.

The $55 billion requested for the NIP in FY 2012 represents a slight increase over the $53.1 billion appropriated for the NIP in FY 2010.  The FY 2011 NIP appropriation has not yet been published.  It is supposed to be disclosed at the end of the current fiscal year.

The Central Intelligence Agency invoked the state secrets privilege in 2004 to cover up a case of environmental contamination at a CIA facility that caused illnesses to an Agency employee and his family, according to the employee, Kevin Shipp.

The episode was revealed in the Washington Post and the New York Times on February 11 after Mr. Shipp decided to go public with his account of the sealed case.

The story was elaborated yesterday in the Washington Post with the disclosure that the CIA also failed to respond to inquiries from Mr. Shipp’s congressman, Rep. Frank Wolf, and that the congressional intelligence committees refused to respond to Mr. Shipp at all.  See “Intelligence panels ignored CIA officer’s pleas” by Jeff Stein, February 14.

By invoking the state secrets privilege, the government denied Mr. Shipp the basic right to argue his case and to seek a remedy.  Although the Obama Administration’s September 2009 policy on state secrets held out the promise that “credible allegations of government wrongdoing” in state secrets cases facing dismissal would be referred to agency Inspectors General, there is no record of any such referral by the Obama Administration or its predecessor.

Having been refused access to judicial review of his claims and with no response from congressional overseers, Mr. Shipp evidently chose to violate the court order sealing his case and the classification controls restricting its disclosure.  He did not “leak” the information anonymously.  Instead, he publicly revealed at least the outlines of his case.  He may now pay an additional price for these violations.  But he may also have reckoned that the state secrets privilege has no force in the court of public opinion.

The National Declassification Center (NDC) at the National Archives will declassify the full text of the Pentagon Papers as well as the underlying documentation on which they are based, along with investigative material concerning the 1971 leak of the Papers by Daniel Ellsberg, the NDC said yesterday.

“One matter to keep in mind concerning the Pentagon Papers is that there is no complete record of the report in the public domain,” the NDC blog said.

The Pentagon Papers Project “is both an interagency and intra-agency effort.  NARA is working closely with its partners in the intelligence and defense communities, and the Department of Justice to ensure that we make available as much of this historical collection as possible.”

But one wonders why a “project,” complete with inter- and intra-agency coordination, is necessary at all to process defense policy records that were mostly made public 40 years ago.  A better use of public resources would be to wave a wand and simply declare the records open.

The Central Intelligence Agency has taken no action to carry out the Fundamental Classification Guidance Review, a mandatory effort to eliminate obsolete or unnecessary classification practices.

The Fundamental Review is a systematic attempt to combat overclassification by subjecting thousands of current classification instructions to critical scrutiny and revision.  It was required in President Obama’s December 2009 executive order 13526 (section 1.9), which came into effect in June 2010.  “These reviews can be extremely important in changing the habits and the practices of classifiers throughout government,” said William H. Leary of the National Security Staff last year.  But that will be true only if the required reviews are actually implemented.

In response to a Freedom of Information Act request for CIA records on its implementation of the review process thus far, CIA reported last week (pdf) that “We did not locate any records responsive to your request.”

This does not necessarily imply that the CIA is being insubordinate or that the Fundamental Review will not eventually be performed there, an Administration official said, noting that agencies were given two years — until June 2012 — to complete the Review process.  The CIA’s latest statement “means only that they have not done anything to date,” the official said.  “There are  a ton of things that agencies have to do that did not come with a two-year implementation window.”

Nevertheless, it is not very encouraging to see that the CIA, which is one of the government’s most prolific classifiers, evidently does not consider the Fundamental Review to be a matter of urgency and a high priority.  Its lethargy is in contrast with the energetic response of the Department of Energy, which developed a detailed workplan last November to implement the Review.  (See “A Bumpy Start for Fundamental Classification Review,” Secrecy News, January 18, 2011.)  The Department of Homeland Security began its Fundamental Review even earlier, in July, according to internal DHS correspondence (pdf) also released under FOIA.

Reducing government reliance on secrecy is an appropriate response to current technological and political realities, according to a report released by the American Bar Association (ABA) Standing Committee on Law and National Security (“No More Secrets: National Security Strategies for a Transparent World,” January 2011).  It would also reduce the nation’s growing susceptibility to unauthorized disclosures, and would therefore enhance national security.  “The report recommends that the government operate with fewer secrets to gain a significant advantage over those who ‘continue to cling to traditional notions of indefinite information monopoly’.”

The ABA report did not present an actionable plan that agencies could adopt to reduce the number of national security secrets they keep.  But that is what the Fundamental Classification Guidance Review was intended to provide.  The Review’s success — or its failure — will determine, for better or worse, the feasibility of reversing the growth of national security secrecy.

I made a pitch for rigorous implementation of the Fundamental Classification Guidance Review in the current issue of Nature Medicine.  See “Review of classification rules represents an opportunity, even for medicine,” February 2011 (sub. req’d).  See also “ISOO Spurs Agencies to Perform Classification Review,” Secrecy News, February 2, 2011.

The Congressional Research Service took a decidedly skeptical view of the Obama Administration’s Open Government Initiative in a recently updated report (pdf).  The report called into question not only the implementation of the Administration’s transparency policy but also its underlying rationale.

“Arguably, releasing previously unavailable datasets to the public increases transparency,” the report granted.  “The new datasets offer the public more information than was previously available, making the particular issue area more transparent.  But this type of transparency does not give Congress or the public much insight into how the federal government itself operates or executes policies,” the CRS report said.

Thus, “the dataset on child safety seats released by the National Traffic Highway Safety Administration (NTHSA), for example, increases public knowledge of child safety seats and may inform a consumer’s future purchases, but it does not affect the general transparency of NHTSA’s operations.”

But even bona fide transparency may not be altogether positive, the CRS report suggested.  “Increased transparency and mandatory public participation requirements can slow down government operations by elongating the deliberative process.  Increased participation may increase trust in the federal government while concurrently reducing the speed of government action.  Additionally, increased government transparency may prompt security and privacy concerns.”

In lieu of any conclusion, the CRS report equivocated that “Congress can decide whether to codify any of the new Obama Administration transparency policies.  On the other hand, Congress can decide whether to enact a law prohibiting the implementation of any of the open government policies.  Congress could also leave these policy decisions up to the executive branch.”

The bulk of the CRS report was written last year, but it was updated last month.  See “The Obama Administration’s Open Government Initiative: Issues for Congress,” January 28, 2011.

Last week, the Obama Administration withdrew a pending proposal to enhance federal contract transparency. “Incredibly, today’s decision would seem to place the Obama Administration in opposition [to] subsequent transparency legislation co-sponsored by then-Senator Obama,” wrote Scott Amey of the Project on Government Oversight.

The Office of the Director of National Intelligence (ODNI) will be “reduced in its size and budget,” DNI James R. Clapper Jr. told the House Intelligence Committee last week (pdf).

“We, I think, all understand that we’re going to be in for some belt-tightening. And given, you know, the funding that we have been given over the last 10 years since 9/11, that’s probably appropriate,” DNI Clapper said on February 10.

“Shortly after I became DNI, exactly six months ago today, I began a thorough review of the organization. I examined the intelligence reform law, other statutes and executive orders, and the activities that they direct the DNI to execute,” he said.

“Upon review, I decided to reduce or eliminate functions not required by law or executive order that are not core missions of the DNI. I also identified elements that should transfer out of the ODNI to another agency who would serve as the executive agent on my behalf and carry out these services of [common] concern on behalf of the ODNI. In other words, we don’t need to do everything on the DNI staff itself.”

“Based on this efficiencies review, the Office of the DNI is being reduced in size and budget,” DNI Clapper said.  The details of the reduction remain to be spelled out.

See, relatedly, these updated Congressional Research Service reports on intelligence (all pdf).

“Director of National Intelligence Statutory Authorities: Status and Proposals,” January 12, 2011.

“Intelligence, Surveillance, and Reconnaissance (ISR) Acquisition: Issues for Congress,” January 20, 2011.

“Intelligence Authorization Legislation: Status and Challenges,” January 20, 2011.

“Satellite Surveillance: Domestic Issues,” January 13, 2011.

“The National Intelligence Council: Issues and Options for Congress,” January 10, 2011.

“Intelligence Estimates: How Useful to Congress?”, January 6, 2011.

Secrecy News reported Monday on strange new guidance from the Air Force Materiel Command declaring that Air Force employees and even their family members could be prosecuted under the Espionage Act for accessing the WikiLeaks web site. On Monday night that new guidance was abruptly withdrawn.

Lt. Col. Richard L. Johnson of Air Force Headquarters released this statement:

“Air Force Materiel Command (AFMC) recently published an internal news story that discussed the implications of downloading presumed classified information from WikiLeaks. The release was not previously coordinated with Headquarters Air Force and has been removed from the AFMC website. The Air Force has provided guidance to military members and employees to avoid downloading what could be classified information into Air Force unclassified networks and reminded them that publication of information does not itself constitute declassification of such information. The Air Force guidance did not address family members who are not Air Force members or employees. The Air Force defers to the Department of Justice in all non-military matters related to WikiLeaks.”

A copy of the withdrawn release is archived here.  See also “US air force backtracks over WikiLeaks ban” by Ewen MacAskill, The Guardian, February 8,  and “No espionage charges for airmen on Wikileaks” by Scott Fontaine, Air Force Times, February 8.