Documents were being stamped Confidential, Secret, and Top Secret
under the regulations of various US government departments long
before the string of Executive Orders. (The first was 10290,
"Prescribing Regulations Establishing Minimum Standards for the
Classification, Transmission, and Handling, by Departments and
Agencies of the Executive Branch, of Official Information which
Requires Safeguarding in the Interest of the Security of the United
States," issued by Harry Truman in 1951. The current one is 12958.)
The Executive Orders standardized the rules across all departments.
I believe it the executive branch takes the position that documents
marked in this way are covered by the Espionage Laws, i.e. sections
793 and 794, and that position probably goes back to 1917 when the
laws were first passed. From my reading of the Supreme Court
decisions in the Pentagon Papers, the courts have the same
presumption. I suppose an attorney defending someone charged under
these laws might attack that link, claiming the specific documents in
question in fact had no bearing on the National Defense as defined in
793 and 794. But unless the misclassification was pretty blatant, it
would be a tough sell.
Has anyone ever done a history of the security classification system?
Arnold Reinhold
At 1:13 PM -0500 12/12/99, Donald E. Eastlake 3rd wrote:
>The law you cite is unaffected by whether the information is
>classified. Except for a few special laws, such as the Atomic Energy
>Act which makes certain information "born classified" no matter who
>comes up with it, and the previously cited Crypto info law which was,
>perhaps, an attempt to make comsec and comint information "born
>classified", as far as I known the entire classifcation system rests
>on a continuing series of Presidential Executive Orders and it is not
>clear to me how much they effect someone who is not a government
>employee and who has not entered into an agreement regarding such
>material.
>
>Donald
>
>From: "Arnold G. Reinhold" <[EMAIL PROTECTED]>
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>Date: Sun, 12 Dec 1999 08:59:54 -0500
>To: Declan McCullagh <[EMAIL PROTECTED]>, [EMAIL PROTECTED],
> [EMAIL PROTECTED], [EMAIL PROTECTED]
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>>It's not just crypto. The US Espionage laws prohibit the disclosure
>>of classified information by anyone. See Title 18 Sec. 793(e):
>>
>>(e) Whoever having unauthorized possession of, access to, or control
>>over any document, writing, code
>> book, signal book, sketch, photograph, photographic negative,
>>blueprint, plan, map, model, instrument,
>> appliance, or note relating to the national defense, or
>>information relating to the national defense which
>> information the possessor has reason to believe could be used
>>to the injury of the United States or to the
>> advantage of any foreign nation, willfully communicates,
>>delivers, transmits or causes to be
>> communicated, delivered, or transmitted, or attempts to
>>communicate, deliver, transmit or cause to be
>> communicated, delivered, or transmitted the same to any person
>>not entitled to receive it, or willfully
>> retains the same and fails to deliver it to the officer or
>>employee of the United States entitled to receive it;
>> or ...
>>
>>As I recall, classified documents are required to carry a legend on
>>each page saying something like "This document contains information
>>affecting the national defense within the meaning of the espionage
>>laws, Title 18 793 and 794, the transmission or revelation of which
> >to unauthorized persons is prohibited by law." In any case the
>>restrictions on classified material go far beyond a voluntary
>>agreement by those given access to keep the information secret.
>>
>>People who have authorized access take on the additional burden that
>>negligent handling of classified information is a crime (793 (f)). I
>>presume this is the basis for prosecuting Dr.Lee of Los Alamos.
>>
>>It's true that Section 798 specifically includes the word "publishes"
>>while 793(e) does not. That distinction, along with legislative
>>history, was relied on by some of the Justices (e.g. Justice Douglas)
>>in the Pentagon Papers case. Still I don't think the question of
>>whether publishing classified material is criminal was clearly
>>settled. The issue then was prior restraint, not after-the-fact
>>prosecution. Some of the majority Justices indicated they might even
>>approve prior restraint if the Government had shown an immediate
>>danger comparable to publishing the departure time of transport ships
>>in war time.
>>
>>Since the Pentagon Papers case, I don't think the Government has
>>dared to prosecute the press for publishing classified information.
>>Printing proof that NSA has broken the Fredonian diplomatic code
>>might tempt them to try, however.
>>
>>By the way, I was told that after the NY Times won the right to
>>publish the Pentagon Papers, they were visited by someone from the
>>NSA who asked them not to publish verbatim the text of certain
>>classified telegrams. The Times complied.
>>
>>
>>Arnold Reinhold
>>(who is not a lawyer)
>>
>>
>>At 1:14 PM -0500 12/10/99, Declan McCullagh wrote:
>>>It would be one thing if this law (enacted in 1950) restricted government
>>>employees or contractors from disclosing cryptographic or COMINT info they
>>>agreed to keep secret. But it seems to apply to anyone, including
>>>journalists or cypherpunks, no matter how they obtained the data. That
>>>raises First Amendment issues.
>>>
>>>This was discussed during the Church committee hearings in 1975 (p7 of the
>>>transcript) but I don't know if it's come up in court cases.
>>>
>>>-Declan
>>>
>>>http://www4.law.cornell.edu/uscode/18/798.html
>>>
>>>Sec. 798. Disclosure of classified information
>>>
>>> (a) Whoever knowingly and willfully communicates, furnishes,
>>> transmits, or otherwise makes available to an unauthorized person,
>>> or publishes, or uses in any manner prejudicial to the safety or
>>> interest of the United States or for the benefit of any foreign
>>> government to the detriment of the United States any classified
>>> information -
>>> (1) concerning the nature, preparation, or use of any code,
>>> cipher, or cryptographic system of the United States or any
>>> foreign government; or
>>> (2) concerning the design, construction, use, maintenance, or
>>> repair of any device, apparatus, or appliance used or
>>> prepared or
>>> planned for use by the United States or any foreign
>>> government
>>> for cryptographic or communication intelligence purposes; or
>>> (3) concerning the communication intelligence activities of the
>>> United States or any foreign government; or
>>> (4) obtained by the process of communication intelligence
>>> from
>>> the communications of any foreign government, knowing the
>>> same to
>>> have been obtained by such processes -
>>> Shall be fined under this title or imprisoned not more than ten
>>> years, or both.
>>>
>>...
>>
>
