SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2004, Issue No. 98
November 8, 2004

A NON-DISCLOSURE AGREEMENT FOR UNCLASSIFIED INFO

In a momentous expansion of the apparatus of government secrecy, the Department of Homeland Security (DHS) is requiring employees and others to sign legally binding non-disclosure agreements as a condition of access to certain categories of unclassified information.

Up to now, non-disclosure agreements have only been used by government agencies to regulate access to classified information. In fact, they are one of the defining features of the national security classification system, along with security clearances and the "need to know" principle. As far as Secrecy News could determine, such classification-like controls have never before been systematically imposed on access to unclassified information.

But now at DHS a non-disclosure agreement must be executed in order to gain access to any one of a panoply of new and existing categories of unclassified information, including:

The proliferation of controls on unclassified information signifies a massive increase in government secrecy, particularly since the number of officials who are authorized to designate information in one of these categories dwarfs the number of officials who can create classified information.

And while the classification system operates according to certain well-defined rules and limitations, including procedures for review and challenge of classification decisions, the same is not true of the "sensitive but unclassified" domain. Furthermore, there is nothing like the Information Security Oversight Office to monitor and oversee the restriction of unclassified information.

(Some types of sensitive but unclassified information are not specifically protected by statute and can still be successfully requested under the Freedom of Information Act. But with Justice Department encouragement, agencies take an expansive view of the scope of the Act's exemptions and access is increasingly uncertain.)

The DHS non-disclosure agreement is apparently the first such document crafted in the Bush Administration. It represents a new high water mark in the rising tide of official secrecy.

A copy of DHS Form 11000-6, Non-Disclosure Agreement for Sensitive But Unclassified Information, dated August 2004, was obtained by Secrecy News and is posted here:

DOD ON CLASSIFICATION MARKING, INFORMATION SHARING

The Department of Defense is revising the way that it marks classified documents in order to facilitate appropriate sharing of classified information with allies.

"In support of homeland security and coalition warfare we have an increased need to share data with our foreign partners," wrote Stephen A. Cambone, Under Secretary of Defense for Intelligence. "Our ability to share in a timely manner will determine our ability to leverage our unmatched capabilities."

A copy of his September 27, 2004 memo identifying various technical changes in classification marking policy is posted here (thanks to RT):

"Please ensure widest dissemination," Mr. Cambone wrote. Consider it done.

Last April, Mr. Cambone circulated revisions to the Pentagon's information security program that will be incorporated in a forthcoming DoD regulation on the subject (DoD 5200.1-R). An attachment provided interim guidance on safeguarding controlled unclassified information categories like FOUO, LES, SBU, etc.

See (36 pages, 1.2 MB PDF file):

PROTECTING AIRLINERS FROM TERRORIST MISSILES (CRS)

U.S. government officials acknowledged last weekend that thousands of shoulder-fired surface-to-air missiles once held by Saddam Hussein's Iraq are missing, as reported by the New York Times (11/6/04) and the Washington Post (11/7/04).

The threat to civilian aviation posed by such missiles (formally known as Man-Portable Air Defense Systems or MANPADs) was addressed in a recently updated report from the Congressional Research Service.

See "Homeland Security: Protecting Airliners from Terrorist Missiles," October 22, 2004:

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

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