Information Classification Foreign Policy and National Security

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Information ClassificationForeign Policy and
National Security

• ITRN 701-007
• Erik Smidt
• Elizabeth Fiorentino

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Summary

• History
• Issues
• Revisions
• Interests
• Questions

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Why Classify?

• "Damage to the national security"
• means harm to the national defense or foreign
  relations of the United States from the
  unauthorized disclosure of information, to
  include the sensitivity, value, and utility of
  that information.

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Definition

• "Classification" means the act or process by
  which information is determined to be classified
  information.
• "Information" means any knowledge that can be
  communicated or documentary material that is
  owned by, produced by or for, or is under the
  control of the United States Government.
• "Control" means the authority of the agency that
  originates information, or its successor in
  function, to regulate access to the information.

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Sec. 1.5. Classification Categories

• Information may not be considered for
  classification unless it concerns
• military plans, weapons systems, or operations
• foreign government information
• intelligence activities (including special
  activities), intelligence sources or methods, or
  cryptology
• foreign relations or foreign activities of the
  United States, including confidential sources
• scientific, technological, or economic matters
  relating to the national security
• United States Government programs for
  safeguarding nuclear materials or facilities or
• vulnerabilities or capabilities of systems,
  installations, projects or plans relating to the
  national security.

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History Revolution to WWI

• Revolutionary War Trusted Courier, Fake
  Documents and Double Agents
• Civil War Lack of Discretion
• Economic Espionage Rampant
• Practiced by Labor and Corporate Spies
• Spanish American War need to organize bureaus
  within Army and Navy was led by Secret Service
• WWI Germany secretly purchasing plans and
  equipment used to supply the British

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World War II The Wizard War

• Worry about German and Japanese spies
• Technological edge critical to success
• Rapid growth in size of military and civilian
  government
• British System adopts practices already in use
  by allied government
• Soviet sympathizers cooperate with ally

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Cold War

• Soviet Union maintains a high budget for
  intelligence services
• Profit seeking
• Third Country Nationals
• Disgruntled
• Sympathizers
• Larger reliance on protecting technology and
  communications
• Economic Espionage Important

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Post Cold War

• Economic Espionage Gains Status
• Protecting Operations Sources
• Protecting Technology Information Systems
• 2008 "Targeting U.S. Technologies A Trend
  Analysis of Reporting from Defense Industry"
• https//www.dss.mil/GW/ShowBinary/DSS/special_aler
  ts/specialalert012609.html

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Classification Authority

• Individual charged with responsibility to
  determine level and state reason for
  classification
• Must determine declassification date at time of
  creation
• Develop and publish Classification Guides for
  users and Agencies

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Sec. 1.6 Limitations on Classification

• If there is significant doubt about the need to
  classify information, it shall not be
  classified.
• In no case shall information be classified in
  order to conceal violations of law, inefficiency,
  or administrative error to prevent embarrassment
  to a person, organization, or agency to restrain
  competition or to prevent or delay the release
  of information that does not require protection
  in the interest of national security.
• Basic scientific research information not clearly
  related to the national security may not be
  classified.
• The President or an agency head or official
  designated under Sections 1.2(a)(2), 1.2(b)(1),
  or 1.2(c)(1) may reclassify information
  previously declassified and disclosed if it is
  determined in writing that
• the information requires protection in the
  interest of national security and
• the information may reasonably by recovered.
  These reclassification actions shall be reported
  promptly to the Director of the Information
  Security Oversight Office.

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Limitations on Classification

• Information may be classified or reclassified
  after an agency has received a request for it
  under the Freedom of Information Act (5 U.S.C.
  552) or the Privacy Act of 1974 (5 U.S.A. 552a),
  or the mandatory review provisions of this Order
  (Section 3.4) if such classification meets the
  requirements of this Order and is accomplished
  personally and on a document-by-document basis by
  the agency head, the deputy agency head, the
  senior agency official designated under Section
  5.3(a)(1), FN1 or an official with original Top
  Secret classification authority.

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Collateral (NISP)

• Confidential would cause damage to national
  security if disclosed
• Lay out of Cleared American Access space
• Secret would cause serious damage to national
  security
• Equipment specified for CAA space
• Top Secret release would cause exceptionally
  grave damage
• Cryptographic Keys used by various agencies

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Special Programs (JFAN 6/4)

• Specified Handling Instructions for certain
  classified information
• Special Access Program (SAP)
• Existence of program would negate utility
• stolen Sigma Machine in WWII
• S or TS
• Sensitive Compartmented Information (SCI)
• Identities or Methods of collecting information
• requires TS

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Espionage Act of 1917

• Crime to
• interfere with the operation or success of the
  Armed Forces of the United States or promote the
  success of its enemies
• convey false reports or false statements with
  intent to interfere with the operation or success
• Remains a law but last used in 1971

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Updates of Espionage Act

• Cryptographic Intelligence and Methods18 USC 798
  
• Nuclear Weapons and Materials (Restricted Data)
  Atomic Energy Act of 1954, 42 USC 2162, 2163,
  2168, and 7383
• Industrial Espionage Act of 1996 (Industrial
  Trade Secrets) 18 USC Chapter 90
• Intelligence Identities Protection Act
  (intelligence sources) 50 USC 421426
• Computer Fraud and Abuse Act (Data Stored on
  Computers) 18 USC 1030 and the Stored
  Communications Act 18 USC 2701
• Health Insurance Portability and Accountability
  Act (patient medical records) 110 Stat 1936
• Video Privacy Protection Act (video tape rental
  and sale records) 18 USC 2710

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Executive Orders Reagan

• EO 12356 11 pages
• Original order current system is based on

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Executive Orders Reagan

• Original Classification
• Classification Authority
• Classification Categories
• Duration of Classification
• Identification and Markings
• Limitations on Classification
• Declassification Authority
• Transferred Information
• Systemic and Mandatory Review for
  Declassification
• General Restrictions on Access
• Special Access Programs
• Access by Historical Researchers and Former
  Presidential Appointees
• Information Security Oversight Office

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Executive Orders Clinton

• EO 12958 27 pages
• Changes
• General Responsibilities
• Implementation
• Appeals
• Special Access Programs
• 10 years auto declassification
• Classification Standards

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Executive Orders Clinton

• Two others
• EO 12972
• Changed definitions
• EO 13142
• Longer auto declassify date

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Executive Orders Bush

• EO 13292 24 pages
• Changed Classification Authority VP
• Special Access Programs
• Computer Systems
• Created new handling instruction for CUI
• Controlled Unclassified Information

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Classified Information Procedures Actof 1980

• Determines at an early stage if there is a
  dilemma between disclosing classified info or
  dismissing a court case
• Limit the practice of graymail by criminal
  defendants
• Graymail is the threat to disclose classified
  government information by a criminal defendant
• Requires defendants to disclose if they are going
  to use classified info in their defense pre trial
• Protects unnecessary disclosure of info

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National Archives

• Has an Information Security Oversight Office
  (ISOO)
• Responsible for the Policy and oversight of
  government wide security classification programs
• Authority from EO 12958 and EO 12829
• Three components
• Classification Management staff
• Operations staff
• The controlled Unclassified Information (CUI)
  Office

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Freedom of Information Act

• Signed into Public Law by President Johnson
  September 6, 1966
• Consistent with what people have a right to
  know
• Does not apply to Congress, the States, the
  courts and the central offices of the White House
• States do have FOIA like legislation

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9 exemptions to FOIA

• in the interest of national defense or foreign
  policy and classified
• internal personnel rules and practices of an
  agency
• exempted from disclosure by statute
• trade secrets and commercial or financial
  information
• inter-agency or intra-agency memoranda or letters
  
• personnel and medical files
• records or information compiled for law
  enforcement purposes
• information of an agency responsible for the
  regulation or supervision of financial
  institutions
• geological and geophysical information

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FOIA

• Problems?
• Bureaucratic delay
• Excessive charges levied
• 1974 Amendment
• Supposed to remove obstacles to information
• Federal Judge can now review information to
  decide if it is classified
• Deadline for agencies to respond to request for
  information
• 1996 Amendment Electronic Freedom of Information
  Act (E-FOIA)
• needs to be in an electronic format, and have
  electronic reading rooms

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Cases regarding FOIA

• Hoover
• USDOJ v. Landano
• Scott Armstrong, et al. v. Executive Office of
  the President
• Barbara Schwartz

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Problems

• Classification Authority
• Protected Interests
• On Time Release
• Foreign Government Obligations
• Classified Accumulation

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Cheney Controversy
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Authority Proper Use

• Reduce List of Authorizers to Clinton/Reagan era
• Enforce Declassify Date Requirements
• Creation of Declassification Centers within Each
  Agency to Review documents

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Foreign Info

• Conflicts of US law and treaties with information
  classification
• This pertains to any information from a foreign
  source.

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Final Note
Lessons Learned 9/11 The Pentagon
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216 Safes located in damaged area
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Problem

• Contents dated back to 1960s
• New DOD requirements for annual house cleaning
• Debate to create a Declassification Center

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Questions?