SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 39
April 27, 2012

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

GOVT APPEALS COURT-ORDERED RELEASE OF CLASSIFIED DOCUMENT

Government attorneys said yesterday that they would appeal an extraordinary judicial ruling that required the release of a classified document in response to a Freedom of Information Act request.

The document in question is a one-page position paper produced by the U.S. Trade Representative (USTR) concerning the U.S. negotiating position in free trade negotiations. It was classified Confidential and was not supposed to be disclosed before 2013.

But immediate disclosure of the document could not plausibly cause damage to the national security, said DC District Judge Richard W. Roberts in a February 29, 2012 opinion, and so its continued classification, he said, is not "logical." He ordered the government to release the document to the Center for International Environmental Law, which had requested it under FOIA. See "Court Says Agency Classification Decision is Not 'Logical'," Secrecy News, March 2, 2012.

This kind of independent review of the validity of classification decisions, which is something that judges normally refrain from doing, offers one way to curb galloping overclassification.

While the substance of the USTR document is likely to be of little general interest, the court's willingness to disregard the document's ill-founded classification and to require its disclosure seems like a dream come true to critics of classification policy. If the decision serves as a precedent and a spur to a more broadly skeptical judicial approach to classification matters, so much the better.

But what may be a dream to some is a nightmare to others. The bare possibility of such an emerging challenge to executive classification authority was evidently intolerable to the Obama Administration, which will now seek to overturn Judge Roberts' ruling in the DC Circuit Court of Appeals.

PATENT OFFICE WEIGHS PATENT SECRECY FOR "ECONOMIC SECURITY"

In response to congressional direction, the U.S. Patent and Trademark Office is considering whether to expand the scope of patent secrecy orders -- which prohibit the publication of affected patent applications -- in order to enhance "economic security" and to protect newly developed inventions against exploitation by foreign competitors.

Currently, patent secrecy orders are applied only to patent applications whose disclosure could be "detrimental to national security" as prescribed by the Invention Secrecy Act of 1951. At the end of Fiscal Year 2011, there were 5,241 such national security secrecy orders in effect.

But now the Patent Office is weighing the possibility of expanding national security patent secrecy into the "economic security" domain.

"The U.S. Patent and Trademark Office is seeking comments as to whether the United States should identify and bar from publication and issuance certain patent applications as detrimental to the nation's economic security," according to a notice that was published in the Federal Register on April 20:

That would be a mistake, I wrote in my own comments submitted to the Patent Office yesterday.

Economic security -- which could conceivably implicate all new inventions -- is not analogous to the more limited domain of national security-related inventions, "so the use of secrecy orders is inappropriate to protect economic security," I suggested.

Instead, the existing option for an applicant to request nonpublication of his or her patent application up to the point that the patent is issued is a superior alternative to a mandatory secrecy order, I wrote. "The inventor is likely to be better qualified than any third party to assess the economic significance of the invention, and is also likely to be best motivated to protect his or her own financial interests."

"The USPTO has not taken a position" on these questions, the Patent Office said in its April 20 notice, "nor is it predisposed to any particular views."

CARBON CAPTURE RESEARCH, AND MORE FROM CRS

Noteworthy new and updated reports from the Congressional Research Service that Congress has not made readily available to the public include the following.

Carbon Capture and Sequestration: Research, Development, and Demonstration at the U.S. Department of Energy, April 23, 2012:

Members of Congress Who Die in Office: Historic and Current Practices, April 25, 2012:

Hydraulic Fracturing and the National Environmental Policy Act (NEPA): Selected Issues, April 25, 2012:

Domestic Content Legislation: The Buy American Act and Complementary Little Buy American Provisions, April 25, 2012:

The STOCK Act, Insider Trading, and Public Financial Reporting by Federal Officials, April 19, 2012:

Data Security Breach Notification Laws, April 10, 2012:

Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis, April 6, 2012:

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

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