FAS Note: The following two legislative provisions restricting access to certain information were proposed by the Department of Defense for inclusion in the FY 2008 Defense Authorization Act. Both sections 923 and 924 appear in the Senate bill as introduced (S. 567). Section 924 was not included in the House bill as introduced (H.R. 1585). The Pentagon's justification for the proposed language follows in the Section by Section analysis below.

A BILL To authorize appropriations for fiscal year 2008 for military activities of the Department of Defense, to prescribe military personnel strengths for fiscal year 2008, and for other purposes.

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SEC. 923. PROTECTION OF INFORMATION REGARDING WEAPONS OF MASS DESTRUCTION.

SEC. 924. PROHIBITION ON DISCLOSURE OF CERTAIN GEODETIC PRODUCTS.

Section-by-Section Analysis

Section 923 would exempt from disclosure under the Freedom of Information Act (FOIA) certain information in the possession of the Department of Defense concerning weapons of mass destruction (WMD) which does not also meet the threshold for national security classification.

The exemption would be available to the Department for only the period of time the information remains sensitive. It would also require the Department to safeguard such information commensurate with its sensitivity, and it would preempt contrary State or local laws. It would also require the Department to take reasonable actions to ensure the information is also safeguarded by parties with whom it shares the information.

Individuals, corporations, universities, and State and local governments operate research programs, chemical plants, nuclear power stations, medical treatment facilities, and other activities that generate information that easily could assist a terrorist or other adversary to make or use a weapon of mass destruction. Such information created by or for the United States Government can be classified under current authorities, when appropriate, and certain unclassified information about U.S. Government programs may be properly withheld from disclosure under exemption (b)(2) of FOIA.

Exemption (b)(2), however, does not provide protection against release of unclassified information about non-U.S. Government facilities and activities that may be of significant value to terrorists or other adversaries seeking to attack U.S. interests by chemical, biological, radiological, or nuclear means. When in the Department of Defense's possession, in some cases, the information about non-U.S. Government facilities or activities will not fall within any current FOIA exemption, even though its release might create a risk to national security. This section would provide statutory protection against a requirement to release such information under FOIA and similar State and local laws, but for only that period of time the information remains sensitive.

Exemption (b)(4) does provide protection against release of information from non-U.S. Government facilities provided it is (1) confidential business information, (2) which is voluntarily provided to the government and (3) is customarily protected by the submitter. However, meeting this multi-tiered test is not always easily achieved.

Due to the uncertainties described above, a WMD withholding statute is warranted, but only one of limited scope and duration. The limitations are necessary because much of the information at issue is not under the control of the Department of Defense or any other Federal, State or local agency and thus may become public through other means. At such time, it would be unnecessary for the Department of Defense to continue to withhold and safeguard the same information.

Also, information such as security plans and inventories of specific private sector facilities would quickly become non-sensitive if, for example, the facility closed or the inventory was moved to another location. Again, continued withholding and safeguarding by the Department would be unnecessary.

Additionally, the narrow scope is necessary to ensure information necessary for disclosure and exchange for medical or public heath and safety reasons may be disclosed pursuant to existing law and regulation.

EXAMPLES OF THE NEED FOR A FOIA EXEMPTION FOR WEAPONS OF MASS
DESTRUCTION INFORMATION

Information provided to the United States Government (USG) by non-USG persons or entities. As long as such information is controlled by a non-USG person or entity, there is generally no legal requirement to release it to the public, and the research community has displayed some degree of sensitivity to the need for voluntary restraint in publishing it. Once in USG hands, it would be difficult to classify it under EO 12958, and it would be subject to release under FOIA unless it fits within some statutory exemption.

EXAMPLES:

Information created by the government that needs to be shared with researchers, industry, or state and local governments. Classification of such information makes it difficult to share with everyone who needs it, since a large number of recipients might need to be individually granted security clearances, and because provisions would have to be made for storing and safeguarding it. The national security interests involved could be adequately protected by non-disclosure agreements. The likelihood of success in defending the application of a high-2 exemption in court would be uncertain.

EXAMPLES:


Section 924. To protect Limited Distribution (LIMDIS) products and to assist in the investigation and prosecution of those who violate distribution restrictions, this section would establish specific criminal and administrative penalties for the wrongful disclosure, possession or conveyance of LIMDIS products. Amending 10 U.S.C. 455 would enable the Department of Defense (DoD) to protect sensitive geodetic information from inappropriate disclosures, including postings of such products on the internet, and internet commerce.

Section 455 of title 10 is a Freedom of Information Act (FOIA) exemption 3 statute. Under this statute, all LIMDIS products are exempt from disclosure to the public under the FOIA. Accordingly, only products exempt from FOIA release will be subject to the proposed civil and criminal penalties.

All LIMDIS materials must be marked with a complete LIMDIS caveat that cites 10 U.S.C. 455. Upon enactment of this revision to the statute, the LIMDIS caveat published on such materials will be changed to inform users of the new civil and criminal penalties under the revised 10 U.S.C. 455. Notice of this change would also be posted in the Federal Register. DoD and the National Geospatial-Intelligence Agency (NGA) will also revise agency directives and instructions as necessary to implement this requirement.

The proposed protections are similar to the protection offered for sensitive procurement information by 41 U.S.C. 423, "Restrictions on disclosing and obtaining contractor bid or proposal information or source selection information."

The geneses of this new subsection are repeated requests and feedback from agents of the Defense Criminal Investigative Service (DCIS) for more clear and effective proscriptions on the disclosure to unauthorized persons and the wrongful possession and selling of geodetic products that the Secretary of Defense and the Director, NGA, have determined to withhold from the public. Section 455 of title 10 identifies three categories of unclassified geodetic products that may be withheld from the public. These include products obtained or produced, or which contain information that was provided, pursuant to an international agreement that restricts disclosure to Government officials of the agreeing parties or that restricts use of such information for Defense or other Government purposes only. Almost half of the geodetic product currently withheld fall into this category. The United States must be able to assure our international partners that we have the capabilities to enforce our agreement to protect such products. The second and third categories of products directly relate to the intelligence and military missions of NGA. The second category includes products that contain information that has been determined -- in writing -- would, if disclosed, reveal classified or sensitive sources and methods or capabilities used to obtain source material for production of the geospatial information and data. The third and final category of geospatial products which are withheld from the public are those products which contain information that has been determined in writing would, if disclosed, jeopardize or interfere with ongoing military or intelligence operations; reveal military operational or contingency plans; or reveal, jeopardize, or compromise military or intelligence capabilities. The use of these products for warfighting and intelligence purposes mandates that they not be classified. Still, such sensitive geodetic products must be protected from disclosure to all unauthorized sources, to include being posted on the internet where they are immediately available to those who would do harm to U.S. troops and allies. Current protection efforts have been ineffective, at least in part, because of the lack of effective penalties for unauthorized possession, sell, and use.

In accordance with DoD and NGA regulatory guidance, these sensitive geodetic products bear a caveat identifying them as "LIMITED DISTRIBUTION (LIMDIS)." For several years, products bearing the LIMDIS caveat have wrongfully been offered for sale to the public through a variety of means from surplus stores to on-line auctions. NGA Office of International and Policy, Disclosure and Release Division, has repeatedly found LIMDIS products such as Evasion maps being offered for sale worldwide on eBay or displayed on internet sites. To date, DCIS efforts to prosecute the eBay sellers have not been successful. Arguments to prosecutors that these items are government property, the wrongful possession of which may be prosecuted as theft or wrongful conversion of government property, while legally correct, do not adequately convey the sensitivity and value of the products.

Cost Implications: Enactment of this section would not increase costs for the government.