Re: US law makes it a crime to disclose crypto-secrets
At 08:59 AM 12/12/1999 -0500, Arnold G. Reinhold wrote: 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." I think that was common in older documents, but was probably dropped in recent decades. The big deal these days is portion marking, which is driven by the Freedom of Information Act. Portion marking makes redaction a bit easier (in theory, at least). Since the Pentagon Papers case, I don't think the Government has dared to prosecute the press for publishing classified information. A fellow named Morrison (grandson of the Naval historian, I believe) was convicted several years back (late '80s or early '90s) for leaking a classified photograph. Morrison was a government analyst with a part time job for Janes Defence Weekly. He gave them a photo of a new Soviet aircraft carrier after cutting the SECRET markings off the margins. It appeared in print just as a US diplomat was trading a copy of the original photo with an intel person in the UK. The UK recipient wasn't impressed by the offering, since he'd just seen the photo published. The case was important since it was the first time someone has been successfully convicted for releasing Secret information as opposed to Top Secret information. While there *is* an inclination to assume that espionage and/or treason == disclosure of classified information, it's not ironclad as far as courts go. After all, that would violate separation of powers, since the executive branch could in theory mark anything Top Secret. I know that the counterintel people traditionally feel more comfortable chasing someone that has disclosed TS information since there's less ambiguity regarding its true value to national security. (BTW see the NSA web site's Venona collection for some good if dated examples of TS codewords). Regarding John Young's comments about sharing data among countries, imagine the headaches involved in running a state of the art multinational military operation -- lots of US intel is considered "US only" which means it can't be shared with coalition partners. So we can do certain types of plainning and data sharing among our own troops, but not with other coalition forces and commanders. A diplomatic minefield, eh? During the Gulf War, for example, Israel wanted ballistic missile warnings and we didn't want to share those particular satellite feeds. And if you're really interested in the background, see Sen. Daniel Patrick Moynahan's book "Secrecy." Or go looking for the report of the Senate commission that studied governmental secrecy -- it used to be on line and the "real meat" to Moynahan's book is printed as the report's appendix. Sorry I don't have the URL, but Moynahan was the commission chair. It's probably linked to his homepage. Rick. [EMAIL PROTECTED]
Re: US law makes it a crime to disclose crypto-secrets
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] X-Sender: [EMAIL PROTECTED] (Unverified) Message-Id: v04210101b4787bb8c0e6@[24.218.56.92] In-Reply-To: [EMAIL PROTECTED] References: [EMAIL PROTECTED] Date: Sun, 12 Dec 1999 08:59:54 -0500 To: Declan McCullagh [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED] Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: [EMAIL PROTECTED] 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,
US law makes it a crime to disclose crypto-secrets
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. (b) As used in subsection (a) of this section - The term ''classified information'' means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution; The terms ''code,'' ''cipher,'' and ''cryptographic system'' include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications; The term ''foreign government'' includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States; The term ''communication intelligence'' means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients; The term ''unauthorized person'' means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States. (c) Nothing in this section shall prohibit the furnishing, upon lawful demand, of information to any regularly constituted committee of the Senate or House of Representatives of the United States of America, or joint committee thereof. (d) (1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law - (A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and (B) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation. (2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1). (3) Except as provided in paragraph (4), the provisions of subsections (b), (c), and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of
Re: US law makes it a crime to disclose crypto-secrets
I beleive Justice Douglas made mention of this law in the Pentagon Papers case as well, though the US did not bring this up in their case agaisnt the Times Post. 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 [...]
