Sen. Kyl is pushing a vote in Congress this week on a broad amendment that would bring the United states an Official Secrets Act. The media hasn’t focused any attention on this, with the exception of a blog post from Rebecca Carr (and my blog, which doesn’t count:) We are encouraging any and all ways of bringing this to public attention.

The following areas would be particularly helpful:

California
Texas
Pennsylvania
Delaware
Wisconsin

The Situation:

Sen. Kyl plans to push an amendment that would in effect create an Official Secrets Act in the U.S. by prohibiting disclosure and publication of information “concerning efforts by the United States to identify, investigate, or prevent terrorist activity.”

The Kyl Amendment will come up this Thursday, February 29, during the Senate Judiciary Committee markup of S. 236, an unrelated bill dealing with data mining efforts.

As you can tell, it’s very broad & would eviscerate the public’s ability to learn about the federal government’s anti-terorrism efforts. Virtually any story related to homeland security, the war on terror or public safety threats could fall under this broad definition. Despite lots of discussion last year about unauthorized disclosures, including several congressional hearings, there’s been no public debate about this proposal.

Changes to 18 USC 798 as proposed in the Kyl Amendment

[Bold indicates proposed additions.]

TITLE 18 ” href=”http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18.html%3E”>http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18.html> > PART I ” href=”http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I.html%3E”>http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I.html> > CHAPTER 37 ” href=”http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I_20_37.html%3E”>http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I_20_37.html> > § 798
§ 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 processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes or
(5) concerning efforts by the United States to identify, investigate, or prevent terrorist activity” and
shall be fined under this title or imprisoned not more than twenty years, or both.

* * * * *

Sunshine in Government Initiative
Statement on Proposed Kyl Amendment to S. 236
February 26, 2007

The amendment that Senator Jon Kyl (R-AZ) intends to propose as an amendment to S. 236, a bill dealing with federal data mining efforts, would in effect create an “Official Secrets Act” that criminalizes the publication of classified information. There have been no public hearings or discussions about this proposal.

Specifically, the amendment would prohibit unauthorized disclosure, publication or use of any information “concerning efforts by the United States to identify, investigate, or prevent terrorist activity.” It also doubles from 10 to 20 years in prison the criminal penalty for violating any aspect of Section 798 of the Espionage Act, which is very narrowly drawn to prohibit disclosures of information relating to communications intelligence.

The media understand that leaks of some government information about the war on terror can cause harm. But existing laws are adequate to protect the information that truly needs protecting. The Kyl amendment is so broad that it would make criminal the unauthorized disclosure of virtually any government information relating to terrorism. The amendment would also fundamentally alter the espionage statutes of the United States – a statutory regime that has served us well for over 80 years.

Easing tensions over media coverage of national security matters involves better dialogue between government and the media, not new laws. Some conflict between government and the media is inevitable, and even healthy, in our democracy. At the same time, representatives of the media have supported and continue to support ongoing discussions among media and government representatives to reduce some of the current tensions and better serve the interests in both our nation’s security and an informed public. This dialogue has been formalized into an ongoing series of meetings now hosted by the Aspen Institute and involving high-level leaders in government and the media. This approach shows promise. We urge Congress’ continued support of and involvement in these discussions as a constructive way to address concerns over the potential harm from disclosure of legitimate national security secrets.

Discussion Points

The amendment is vague and overbroad. By defining the information whose disclosure or publication is prohibited to include any information “concerning efforts by the United States to identify, investigate or prevent terrorist activity,” virtually any activity by government plausibly linked to security and other anti-terrorism activities would be covered by the statute. Such information would include emergency response planning, security failures, public safety and health threats and government funding of related activities and other matters routinely discussed in the media. The amendment would provide government officials a powerful tool to hide actions or facts that could be embarrassing to an agency.

The proposed language is inconsistent with the existing statute it would amend.
This amendment is completely inconsistent with the information that Congress sought to protect by enacting Section 798. The statute is very narrowly limited to protection of communications intelligence information ˆ codes, ciphers and the like. In contrast, the proposed amendment encompasses a breathtakingly broad array of information that could plausibly be linked to anti-terrorism efforts.

Senator Kyl seeks to amend 18 USC 798, which is very narrowly drawn to criminalize the disclosure of communications intelligence information, or “COMINT” e.g., codes, cyphers and intercepted communications of our adversaries. When Congress enacted 798, they recognized the extremely important role that communications intelligence plays in our national security and so incorporated elements of proof that make it easier to prosecute an individual for disclosing COMINT than for disclosing other more routinely classified information – crimes that are prosecuted under 18 USC 793 and 794.

For the most part, sections 793 and 794 require the government to prove that the individual intended to harm the United States. By contrast, section 798 requires the government to prove only that the information was “classified” and that it relates to COMINT. If the Kyl amendment is adopted, the government would have vast power to prosecute an individual merely for “communicating” or “publishing” any information “concerning” terrorism. The potential for abuse is significant and the chilling affect on the public’s – and Congress’ – right to know would be substantial.

This amendment is so broad that it may be unconstitutional. At a minimum, its vagueness imperils the effectiveness of section 798, a statute that seeks to protect some of our most vital secrets. For example, if the amendment is adopted and the government seeks to prosecute an individual for disclosing COMINT relating to terrorism, the courts may well throw the prosecution on constitutional grounds.

The amendment would greatly increase the likelihood of prosecution under the Espionage Act. Anyone who discloses information related to efforts by the United States to identify, investigate or prevent terrorist activity ˆ whether related to communications or not ˆ could be punished.

This amendment may hamper the flow of information to the Congress and the general public. The amendment precludes the public from obtaining information about government activities of great public interest. The language prevents the American public and likely many members of Congress from being fully informed about and knowledgably discussing actions taken in the name of the “war on terror.” The amendment would work to constrain critical reporting on homeland security ˆ even information as basic as homeland security grants ˆ as well as national security and foreign policy matters.

The published stories that have attracted the greatest criticism for revealing sensitive information are unquestionably within the public interest and were published after careful consideration of government arguments for protecting specific information. Individuals with knowledge of the government activities in question raised significant questions regarding to their legality. At the very least, the stories have triggered a healthy national debate as to tension between security and liberty.

The amendment hampers public involvement in anti-terrorism efforts. This will make the “war on terror” the exclusive province of a handful of intelligence agencies. It will further discourage information sharing in an area that has already been seriously hurt by a stovepipe culture within and among the agencies. The language runs counter to key 9/11 Commission recommendations that the federal government engage the public more effectively in anti-terrorism efforts.

A proposal of this magnitude should have full and open public debate. In fairness to the American people and the seriousness of the issues involved, a measure of this magnitude and consequence should not be appended to a totally unrelated piece of legislation. The proposal would dramatically alter the relationship between the government and the press. This relationship has been defined in the U.S. constitution and any significant change to it that is proposed should enjoy full and open debate.

##

— Charles N. Davis. Ph.D.
Executive Director, National Freedom of Information Coalition
Associate Professor, University of Missouri School of Journalism
179B Gannett Hall
Columbia, MO 65211
(573) 882-5736

http://www.mnadvocates.org/sites/608a3887-dd53-4796-8904-997a0131ca54/uploads/97648_FINAL_Voices_From_Silence2.pdf

It’s a long URL but it leads the searcher to a pivotal report describing the impact of 9/11 on the lives of immigrants, refugees and religious minorities in Minnesota. “Voices from Silence: Personal Accounts of the Long-Term Impact of 9/11” was issued last week by Minnesota Advocates for Human Rights. It’s a call for attention to freedom of information, the sine qua non of a democracy — and a freedom eroding in the rush to focus public attention and resources on national security, counter-terrorism and immigration.

2/23 Star Tribune, main section, page A-4:
“Brits Cry Big Brother Over Sensors in Trash Cans”. This is another story about RFID technology and what it might bring, or is bringing, to all of us.

2/23 Pioneer Press, local section, page 10b, opinion page. A very thoughtful column by Ellen Goodman about the perils of blogging entitled “Confronting a Culture that Records Indiscretions Permanently”. This presents another side of the discussion about preserving electronic information.

Utne, always “thinking ahead”, has a great article about “Preserving the Internet” by Mary O’Regan (February 8, 2007) She quotes the nonprofit Internet Archive website: “If libraries are to continue to foster education and scholarship in this era of digital technology, it’s essential for them to extend these functions into the digital world.” She introduces a term new to me, our “right to remember.” MT

Quote heard on MPR today…

Only puny secrets need protection. Big discoveries are protected by public
incredulity. Marshall McLuhan,

Journalists + Librarians = Free speech

As a faithful reader of my neighborhood newspaper, The Northeaster, I have but one recurring regret, i.e. that it is not available online and thus I have to cut and paste the old fashioned way, or, in this case, transcribe the text to digital format – it’s just that good!!!

Under the headline: “Hey…Be careful with those libraries of ours” (sure to catch my eye) the editor offers keen insights re. “the Merger” (of Minneapolis and Hennepin County Libraries) and hits the nail on the head. “The problem for us,” the editor notes, “is that we see the library – any library – in a slightly different way. There’s an undocumented kinship among newspaper people and library people, of virtually any political stripe: We fight censorship (by definition, only a government can censor, and we are referring here to censorship by governments). We abhor book banning. We stand for freedom of speech and expression on all sides of all issues. While accepting the need to curtail certain expression…we generally hold that the more repugnant the expression the more important it is to fight attempts to censor it, because if the government is allowed to censor any expression (for example, expression that’s repugnant to most people), it can censor any expression (for example, expression that’s repugnant to the rich and powerful). The way to counter repugnant expression involves exercising one’s own freedom to express the displeasure and tell why it’s repugnant. The solution to a ‘free speech’ problem will be found in more speech, not less….

…We hope any library management system will have strong protections built in for library personnel who defend unpopular speech and expression, and strong ‘whistle-blower’ procedures should management or government workers step out of line”

Northeaster, (Minneapolis) February 21, 2007

At recent COGI meetings a few people mentioned the work of the Government Information Access Council, a group created by the Legislature in 1994 (and repealed in 1997). I thought that many would be interested in the report of the group, so I had it scanned from the Legislative Reference Library’s (LRL) print copy, linked it to our catalog record, and sent out an e-mail about its availability. (report) Julie Wallace replied that it used to be on the Department of Administration Web site, along with minutes of the group and other materials, all of which are now gone. At the Legislative Reference Library, we’ve noted this on many occasions – state documents that were once online are no longer on the agencies’ servers. But it is particularly ironic in this case; a report about government information access is no longer accessible online.

Just a bit of background: The Legislative Reference Library has the statutory authority to obtain state documents. Minnesota Statute 3.302 For many years (1981-2003) we obtained and cataloged state documents that were then put on microfiche by the Department of Administration through the State Document Depository Program. That program dissolved. To fill the void, the Legislative Reference Library began a program of keeping digital copies of state documents in 2004, our e-docs grogram. (More state document information) LRL staff work hard to identify important state documents and ensure they are available long into the future. And as I mentioned, we know of many documents that were once on agency web sites, but are no longer, and we have scanned many documents that we have only been able to obtain in print. But we realize the shortcomings of the present system

National Security Archive Comments on Proposed CIA FOIA Fee Regulations(PDF – 135 KB) National Security Archive FOIA page Washington DC, February 7, 2007 – The CIA’s proposed new rule on Freedom of Information Act processing fees is likely to discourage FOIA requesters while imposing new administrative burdens both on the Agency and the public, according to formal comments filed with the CIA today by the National Security Archive of George Washington University. The Archive’s general counsel, Meredith Fuchs, commented that, “Significant time, money, and other resources were spent by the CIA on fee disputes last year. One of those disputes involved the CIA’s refusal to abide by a D.C. Circuit Court of Appeals judicial decision about the Archive’s fee status. Given that the Agency recouped only $4,732.80 in fees in FY 2006, those disputes served mainly to delay and obstruct FOIA requests.” The Archive recommended that the Agency change its proposed rule to: (1) eliminate the unnecessary and improper definitions of FOIA requester categories; (2) eliminate the requirement that all requesters make open-ended, written fee commitments because many FOIA requests can be processed without the requester incurring any fees and the CIA proposal would discourage requesters and add to the Agency’s administrative processing time; (3) eliminate the illegal provision mandating prepayment of fees before the CIA will honor form or format requests; (4) revise the proposed duplication fees provisions so that requesters pay only those “direct costs” actually incurred in the processing of the individual request, whether for paper or electronic duplication; and (5) revise the public interest fee waiver provisions to follow the letter and intent of the FOIA to promote dissemination of information in the public interest. The Archive has had to sue the CIA twice over FOIA fee issues, despite the D.C. Circuit’s definitive 1989 ruling in the Archive’s favor. The most recent case, filed in 2006, covered 42 FOIA requests that the CIA deemed not to be “newsworthy”; only after the Archive filed its legal complaint and a motion for summary judgment in the U.S. District Court for the District of Columbia did the CIA reverse course on the 42 requests, but even then fell short of committing to abide by the judicial precedents. Click here for more

Steven Aftergood was the 2006 James Madison award winner. This article (Steven Aftergood condemns the abuses of overclassification, excessive secrecy) tells the story of how Aftergood got involved with the government and their overclassification of government information – starting with a secret plan to develop a nuclear-powered rocket engine for missile defense.

FOR IMMEDIATE RELEASE

February 6, 2007

Major First Amendment Groups Condemn Government Censorship of Science about Global Warming

New York, N.Y. – Last week, the House of Representatives Committee on Oversight and Government Reform, chaired by Rep. Henry Waxman (D-CA), conducted a hearing on the censorship of government climate scientists. Among the issues the committee addressed was the suppression of federal scientists’ speech and writing, the distortion and suppression of research results, and retaliation against those who protest these acts.

In response to the hearing, nine prominent First Amendment organizations, including the American Association of University Professors, American Library Association, American Booksellers Foundation for Free Expression, American Civil Liberties Union, Association of American Publishers, National Center for Science Education, National Coalition Against Censorship, PEN American Center, and People For the American Way issued a statement commenting on the First Amendment concerns raised by this form of censorship.

The statement warns of the consequences of suppression or distortion of information that is essential to sound public policy and government accountability and applauds “the House of Representatives Committee on Oversight and Government Reform and Rep. Henry Waxman (D-CA) on their efforts to inform the public about this critical issue and look forward to their continuing oversight. The testimony provided at the hearing strongly supports the Committee’s continued vigilance to ensure that federal policy is informed by the highest quality of scientific information and that federal officials respect not just the letter but the spirit of the Constitution by encouraging free and open debate on matters of public concern.”

The statement was organized by National Coalition Against Censorship, which has examined the constitutional ramifications of censorship of science to serve political objectives.

Contact:
National Coalition Against Censorship, (212) 807-6222
Joan Bertin, ext.15
Jay Dyckman, ext.16
Rebecca Zeidel, ext.14

Joint Statement on Censorship and Science:
A Threat to Science, the Constitution, and Democracy

February 6, 2007

Introduction
A hearing held on January 30, 2007, by the House of Representatives Committee on Oversight and Government Reform revealed a widespread pattern of political interference in the operations of federal scientific activities, including censorship of federal scientists’ speech and writing, the distortion and suppression of research results, and retaliation against those who protest these acts. These charges raise profoundly important questions about the basis for public policies that rely on sound science, the government’s respect for fundamental constitutional rights and privileges, and the effective operation of our democracy.

The Integrity of Science Is At Stake
Censorship of science is deeply troubling on many levels. At the most basic, it affronts the fundamental premises of the scientific method. Science is not static. It constantly questions, borrows from, builds on, and adds to existing knowledge. Its basic tools include formulating and testing hypotheses, documentation and replication of results, peer review, and publication.* For science to advance, knowledge must be shared. Without the free exchange of ideas, science as we understand it cannot exist and progress.

The purpose of science is to produce knowledge. If science is corrupted, what flows from it is not knowledge, but something else – misinformation, propaganda, and partial-truths.

Constitutional and Historical Values Are At Stake
Censorship of science also violates two core constitutional and historical traditions: the respect for knowledge as the basis of democracy, and the commitment to the free exchange of ideas to ensure that knowledge is shared. The Founders extolled the power of education and scientific knowledge, and indeed saw the development of learning and education as a basic underpinning to democracy. Thomas Jefferson saw science as the paradigm of truth-seeking processes and described liberty as the “great parent of science.” Benjamin Franklin was well-known for his belief in scientific inquiry, rational decision making, and the need for an educated electorate. And in his 1796 farewell address, President George Washington enjoined the country to “Promote then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.”

These values have long been recognized by the Supreme Court:

The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times…. Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period. Thornhill v. Alabama, 310 US 88, 101-2 (1940).

The rights of the general public are deeply implicated by censorship of scientific speech. Just as the Court has recognized the value of speech to the speaker, it has also recognized the concomitant rights of the listener, who has a correlative right to receive information. See, e.g., Griswold v. Connecticut,

Thanks Katie! For more background, here is an article from GOVERNMENT TECHNOLOGY that discussed Rep. Thissen’s interest in this legislation.
http://www.govtech.net/magazine/story.php?id=100356