SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 87
October 9, 2003

SECRECY ORDERS IMPOSED ON PRIVATE INVENTORS RISE

Over the past year, 133 secrecy orders were imposed on new patent applications, limiting or preventing their disclosure on grounds that they could be "detrimental to the national security." More than half of the new orders affected private inventors who developed their inventions without government funding or support.

The legal authority for patent secrecy orders derives from the Invention Secrecy Act of 1951, which provides for government review of patent applications related to a wide range of military technologies, and authorizes the government to regulate or prevent their disclosure.

At the end of fiscal year 2003, there were a total of 4,838 secrecy orders still in effect, according to statistics released this week by the Patent and Trademark Office under the Freedom of Information Act.

The Invention Secrecy Act and the Atomic Energy Act are the only statutes that assert a government right to prevent the publication of privately-generated information, a provision that appears to be at odds with the First Amendment to the U.S. Constitution.

Secrecy orders imposed on such private inventors are termed "John Doe" orders. Last year, an unusually large 75 of the 133 new secrecy orders were John Doe orders. The nature of these secret inventions could not, of course, be ascertained.

Further information on the Invention Secrecy Act of 1951, including the declassified 1971 edition of the "patent security category review list" (newly posted) which defines the technology areas subject to patent secrecy, may be found here:

NAS PANEL PROPOSES REVIEW OF BIOTECH RESEARCH

There are certain areas of research in the biological sciences that are so extraordinarily dangerous as to justify the establishment of a new mechanism for review and approval of experimentation and publication in those areas, a panel of the National Academy of Sciences (NAS) reported on October 8.

"The potential threat from the misuse of current and future biological research is a challenge to which policymakers and the scientific community must respond," the Panel report stated.

This is an exceptionally delicate and controversial matter because it impinges on the openness that ideally characterizes the scientific process and pits it against vague but growing security concerns.

It is also a difficult policy problem for several reasons: There is no clear distinction between the techniques of proscribed biological weapons research and the methods of ordinary life science research. Imposing excessive or indiscriminate security could therefore stifle scientific initiative to the detriment of medical and biodefense research. Moreover, given the international character of the scientific enterprise, controls imposed in any single nation, even the United States, will be futile by themselves.

The NAS panel managed to navigate a path through these complications.

First, it limited the problem. The panel identified seven specific classes of experiments that it said warranted review, including those that would demonstrate how to render a vaccine ineffective, those that would enhance the virulence or transmissibility of a pathogen, and those that would enable the evasion of diagnostic techniques.

The NAS then proposed a layered review process, but one constituted by scientists themselves, who it says are best equipped to evaluate the hazards (and benefits) of proposed research. The review process would be "based on the voluntary self-governance of the scientific community rather than formal regulation by government."

And the panel called for efforts to establish an international consensus on the conduct of such research.

Not least, the Panel pointed out: "Given the increased investments in biodefense research in the United States, it is imperative that the United States conduct its legitimate defensive activities in an open and transparent manner."

The full text of the Panel report, "Biotechnology Research in an Age of Terrorism: Confronting the Dual Use Dilemma," may be found here:

ENERGY TASK FORCE SECRECY CASE GOES TO SUPREME COURT The Bush Administration is asking the Supreme Court to intervene in the continuing dispute over whether the Vice President must disclose records of his meetings with non-governmental advisors in the course of the 2001 Energy Task Force.

The case, initiated by Judicial Watch and the Sierra Club, concerns the parameters of the Federal Advisory Committee Act, a longstanding open government statute.

Applying the Act to the Vice President's Energy Task Force is an intolerable intrusion on executive branch procedure, the government claims, and "would open the way for judicial supervision of internal Executive Branch deliberations." The requesters argue that disclosure is an essential and legally required act of government accountability.

A copy of the government's petition to the Supreme Court, filed September 30, is posted here:

WHITE HOUSE MEMOS ON LEAK INVESTIGATION

The White House Counsel and Chief of Staff sent four memoranda to all White House employees between September 30 and October 7 instructing them to preserve materials related to the unauthorized disclosure of an undercover CIA officer's identity.

A copy of these memoranda, released by the White House press office, may be found here:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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