Information Classification Foreign Policy and National Security

1. Information ClassificationForeign Policy and National Security ITRN 701-007 Erik Smidt Elizabeth Fiorentino

2. Summary • History • Issues • Revisions • Interests • Questions

3. 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.

4. 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.

5. 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.

6. 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

7. 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

8. 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

9. 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_alerts/specialalert012609.html

10. 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

11. 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.

12. 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.

13. 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

14. 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

15. 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

16. Updates of Espionage Act • Cryptographic Intelligence and Methods:18 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 421–426 • 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

17. Executive Orders: Reagan • EO 12356 11 pages • Original order current system is based on

18. 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

19. Executive Orders: Clinton • EO 12958 27 pages Changes: • General Responsibilities • Implementation • Appeals • Special Access Programs • 10 years auto declassification • Classification Standards

20. Executive Orders: Clinton • Two others • EO 12972 • Changed definitions • EO 13142 • Longer auto declassify date

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

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

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

29. Cheney Controversy

30. 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

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

32. Final Note Lessons Learned – 9/11 The Pentagon

34. 216 Safes located in damaged area

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

39. Questions?