SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 99
October 20, 2011

Secrecy News Blog: http://www.fas.org/blog/secrecy/

INVENTION SECRECY ON THE RISE

During fiscal year 2011, there were 143 new "secrecy orders" imposed on patent applications under the Invention Secrecy Act of 1951, the U.S. Patent and Trademark Office reported this week. This represents an increase of 66% over the year before, and it is the highest number of new secrecy orders in a single year since 1998.

The Invention Secrecy Act authorizes th government to block the disclosure of a patent application if it contains information that might be "detrimental to the national security." Remarkably, this secrecy authority extends even to privately-generated inventions that the government does not own or control.

According to USPTO statistics obtained by the Federation of American Scientists under the Freedom of Information Act, a total of 5,241 patent secrecy orders were in effect at the end of FY 2011, including both new secrecy orders and those from previous years that had been renewed. This is the highest annual total since 1995.

An explanation for the increase in secrecy orders was not reported. Nor do the statistics themselves include anything like a "figure of merit" that would confirm their validity or their legitimacy.

The use of secrecy orders has sometimes been questioned, particularly when they extend to inventions that are not clearly limited to military or other national security applications. Forty years ago, government agencies directed that advanced renewable energy technologies should be reviewed for possible restriction under the Invention Secrecy Act. These included photovoltaics that were more than 20% efficient and energy conversion systems with efficiencies "in excess of 70-80%." ("Invention Secrecy Still Going Strong," Secrecy News, October 21, 2010). To be "detrimental to national security" -- which is the threshold for a secrecy order under the Invention Secrecy Act -- is a lower standard than to cause "damage to national security," which is the criterion for national security classification.

Government reviewers may recommend imposing a secrecy order on a patent application in which the government has a "property interest" (i.e. the government owns or supported the development of the invention) whenever disclosure of the application "might be detrimental to national security," according to a 2010 directive from the Department of Defense. However, if the government does not have a property interest in the invention, then reviewers can only impose a secrecy order if disclosure "would be detrimental to national security," a more demanding standard. But the term "detrimental" was not further defined and the precise scope of the review process is not publicly known.

It has been years since Congress conducted investigative oversight of the invention secrecy program. An informative series of hearings entitled "The Government's Classification of Private Ideas" was held by the House Committee on Government Operations in 1980. Extensive excerpts from the published hearing volume are posted here:

SECRECY AND CANDY, EXPENSIVE HABITS

"The United States is the world's largest candy consumer," reported an article yesterday in the online Christian Post ("Halloween Treats Can Be Tricky for Parents," October 19). And that may well be true.

But the article went on to state that the U.S. spent "more than $8.8 billion on various sweets in 2009, according to the Information Security Oversight Office." That is a dizzying misunderstanding.

The Information Security Oversight Office (ISOO), led by director John P. Fitzpatrick, is the government agency responsible for oversight of the national security classification system. It does not gather data on candy consumption. (As far as we know.) The $8.8 billion figure -- which must be far more than Americans actually spend on candy [Update: that is not correct; Americans spend an even larger sum each year on candy] -- was presented in ISOO's 2009 report on security classification costs as the total cost within government (excluding industry) for protecting classified information.

In 2010, the annual classification cost figure reported by ISOO reached $10.17 billion.

WHITE HOUSE NOMINATIONS TO OVERSIGHT PANELS LAG

"I would be remiss if I did not express my concern over this Administration's inexplicable failure to fully appoint and staff the privacy oversight board that we created as part of our 2004 act [on intelligence reform]," said Sen. Susan Collins (R-ME) at a hearing last week.

She was referring to the Privacy and Civil Liberties Oversight Board (PCLOB) that was established by Congress to independently oversee the conduct of information sharing within government and to ensure the protection of privacy and civil liberties interests.

"I am truly baffled by the Administration's slowness in this regard because it is an important check as we seek to expand information sharing," Sen. Collins said on October 12.

A coalition of public interest groups recently asked the President to complete the process of nominating members to the PCLOB. "We urge the administration not to delay any further in nominating individuals for the remaining three slots on the Board, so that we may proceed to Senate confirmation and finally allow the PCLOB to begin its important work," they wrote in an August 25 letter to the President. (Two nominees to the Board, James X. Dempsey and Elisebeth Collins Cook, were named by President Obama in December 2010.)

Background on development of the Board was provided by the Congressional Research Service in "Privacy and Civil Liberties Oversight Board: New Independent Agency Status":

The White House has also lagged in appointing five new members to the nine-member Public Interest Declassification Board, as the terms of its previous nominees have expired. The four remaining PIDB members listed on the PIDB website are congressional appointees.

The PIDB was directed by the White House in 2009 to help "design a more fundamental transformation of the security classification system." But the PIDB has not yet reported its recommendations, and the loss of its White House-appointed members will tend to complicate the completion of that task.

"It is not an easy or fast process to find those with the appropriate background willing to serve (to include securing a clearance, etc.)," said one official, who added that "vacancies have been a challenge for the PIDB from the start. I am not sure it has ever been without a vacancy. While this is not without consequence, the Board has nonetheless remained balanced and effective."

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

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