5. The proposal for classification must include a time liinit after which the information must be released or the case made anew.

6. Classification must be applied to specific pieces of information- not to entire documents that may also deal with matters that do not merit classification.

7. An appeal procedure should be set up outside the agency doing the classifying, for timely hearings of complaints about improper decisions to classify information.

8. The workings of the appeal process should be subjected to congressional oversight by means of periodic reviews by a congressional committee of randomly selected cases. To facilitate this accountability process, each application of the procedures outlined above should be fully documented.

9. Those found responsible for repeatedly overclassifying information should be deprived of classification authority.

It should be evident that, if the above ideas are implemented, classifying technical information would entail considerable thought and effort. It would be done only where significant matters were involved, and abuses would be much easier to detect and correct. The result would be a great reduction in the amount of classified information. This is precisely what is intended.

6. Conclusions

The proposals made here depend on the premise that the harm done by secrecy is of a far reaching and pervasive nature, and that it significantly outweighs the damage that might be wrought by an occasional instance where a particular piece of information proves to be of value to a real or potential enemy. No doubt one could cite real or hypothetical instances where the suggested procedures would fail to protect some piece of information to the detriment of the nation's security. But it must be understood that human institutions are inherently imperfect; no system can be expected to operate flawlessly. In particular, any system that attempts to prevent all instances in which useful information passes across an unfriendly border will inevitably wreak havoc within our own borders that will be far greater than the damage that it seeks to avoid.

The concept of openness both in society in general and in the realm of science and technology is not a fragile luxury to be enjoyed in tranquil times and abandoned when the going gets rough. On the contrary, it is a robust mechanism for coping with difficult matters, and its value is greatest in situations of maximum stress. It would indeed be tragic if a loss of nerve brought about perhaps by a distorted view of reality should cause our country to abandon what has been one of its principal sources of strength.

Mr. KASTENMEIER. Thank you, Dr. Unger, for that very helpful presentation. It was very precise in terms of recommendations on how we might improve the situation.

I take it there are some respects in which your testimony agrees with other witnesses, particularly the two that appeared before the panel of which you're a member, and other respects in which it does not. You do not quite share the concern about the dangers of technology transfer to others, including the Russians, that I guess particularly Dr. Press speaks eloquently to.

Is that right? Do you feel there is less loss because of that than is made out, that the other values that are harmed in the process, our own ability to proceed with untrammeled scientific inquiry, is compromised thereby?

Professor UNGER. I agree with the conclusions of the Corson panel, that whatever harm is done by the transfer of technology is done through the transfer of hardware, of equipment, rather than pieces of paper. So I do agree with that.

However, it is my impression that the Corson Committee's recommendations were in the nature of a compromise, that they were attempting to accommodate views that they didn't necessarily agree with. Now their position is being regarded as an extreme position from which compromises are to be made. I believe this is very unfortunate.

Any attempt to shut off the flow of information to the point where no harmful information will get through will inevitably fail, or it will be so stringent that it will destroy our country in the process. In other words, we would have to become very much like the Soviet Union in order really to shutoff that flow. We have to recognize that any reasonable system that we set up will occasionally allow some pieces of information of real value to get through; we have to accept that as a cost in the real world of doing business. Mr. KASTENMEIER. Thank you.

Dr. Willenbrock, I notice that you and Professor Davida in your testimony both suggested, at least indirectly, that requests of the Federal Government-whether these are agents of the Air Force or Department of Defense or whatever-were at best either arbitrary or capricious. They say that because in Professor Davida's case they later, when you resisted, withdrew the order.

Professor DAVIDA. Yes, they did.

Mr. KASTENMEIER. And in the case of those who resisted either in terms of the restrictions on meetings or otherwise, placed conditions on them with respect to your compliance, they then withdrew their request or their insistence on destroying certain publications, which would suggest that the urgent underlying interests of national security were not that great in any of these particular matters.

Do you have any comment?

Professor WILLENBROCK. Yes. Those incidents are some of the cases we were able to document, Mr. Chairman. These are events as they occurred. One can certainly draw the conclusion that there is an overzealousness to classify and that quite frequently, when subject to further investigation, it turns out not to be as significant as originally thought. That is why I made reference to the industrial community where they seem to have worked out some of these

problems. Engineers operate with some restricted information, some unrestricted information, and they don't shoot themselves in the foot in the process.

There can be cases where classification is necessary; no one is arguing about that. But the incidents involving the late application of classification and also the reclassification of already published material don't make much sense.

Mr. KASTENMEIER. But on the other hand there is some effect, even the withdrawal of these requests, or whatever the nature of the entreaty to you was. You indicated there was at least one other conference that was canceled rather than

Professor WILLENBROCK. There are cases where papers were actually withdrawn. In one particular case the program manager just withdrew them. He felt that's all there was to it.

Actually, in response to a question asked of the previous testifiers about 2 years ago the Institute set up a technology transfer committee just to monitor, keep track of, and be concerned about such issues, and to try to develop appropriate procedures. We know how to run conferences. But a new constraint is being laid on the program managers, to learn how to handle these situations which frequently come up at the last minute. Trying to get a good system inside the Institute is what we're working on right now.

Mr. KASTENMEIER. I guess the point I was making was, even though you may have succeeded in thwarting some intrusions into your conferences and the like, there is a chilling effect that remains nonetheless. Anyone planning a conference hereinafter, or the publication of technical papers, has to wonder whether they really want to go through with it or not and subject themselves to this sort of supervision by governmental officials and any objections that may lie-and, indeed, whether they violate some law in connection with it which would subject them to severe penalties.

Professor WILLENBROCK. That's exactly the point, Mr. Chairman. That's exactly why we feel the present situation is not a desirable one. We are trying to learn how to operate with it, but we certainly would hope that the Congress could undertake to help get the situation clarified so that we don't have these very ambiguous situations.

The penalties involved in the ITAR's and the EAR's are very severe. It is not as if they can be just ignored. You really can scare people-and people really are scared-because of these sorts of events. People read about them and the impact is a significant one. Mr. KASTENMEIER. Professor Unger?

Professor UNGER. I would like to illustrate the point that you just made in connection with one of the examples that Dr. Willenbrock gave, namely, the attempt to withdraw those three papers from the IEEE Reliability Conference, the ones from Texas Instruments, which was reversed after the furor was raised.

In the reporting of that incident, it was indicated I believe by the vice president of Texas Instruments who at the end said "We're not going to get into this kind of situation-" and I'm not quoting him directly, of course-"We're not going to get into this kind of situation again. We're going to be very careful in the future before we permit such papers to be published."

I might mention that I have seen those three papers. They're in an area that I'm familiar with. They had absolutely nothing to do with any military application. They were papers of exactly the kind that are published all the time in IEEE publications.

Mr. KASTENMEIER. On a different subject—and I'm just giving this for the record-in fiscal years 1980-83, in terms of patent secrecy orders issued, there were 1,306. In 1980, 279; in 1981, about 253. But 1982 went up to 350, and already in 1983 it is 424. I was interested in whether there was some trend toward-maybe one can blame it on technology, or one can also wonder whether it's overzealousness with reference to protection in that regard.

Ironically, perhaps, this subcommittee, in addition to civil liberties-which is really the overall subject of this hearing is, as I think you now, in charge of legislation in the area of copyright and patents. One of the issues before us in terms of computer systems is what, if any, sort of protection should be afforded the semiconductor chip in terms of commercial protection as a proprietary interest in the design or whatever is imbedded in the chip, which is quite a separate question, but nonetheless is, in terms of technology transfer and other questions, not wholly unrelated. But we are interested in what is happening and whether or not there is an increasing pervasive presence of inhibiting governmental restrictions with respect to science and technology and to what extent it is justified.

Finding a balance is very difficult because if there is either an overriding or at least an important national security justification, as with the other two witnesses, it is very difficult to determine that. It is extremely elusive, it's highly subjective, actually, unfortunately. It depends on one's fears, what one anticipates, and it even has a base in ideology which makes it unsusceptible to easy legislative resolution. But I do admire the principles and the suggestions made by Professor Unger with respect to secrecy.

We have a vote on and I'm going to have to leave. I think this will conclude the hearing today. I hope that we can rely on perhaps occasion to impose upon you again, either by correspondence or otherwise, for your wisdom and your contributions, your experience in these fields, particularly in this area, which I think needs to at least be elevated in terms of public perception or visibility as a major public policy question for us to resolve.

Accordingly, I thank you for your contribution. This concludes the hearing today and the committee is adjourned.

[Whereupon, at 1:07 p.m., the subcommittee was adjourned.]

1984: CIVIL LIBERTIES AND THE
NATIONAL SECURITY STATE

TUESDAY, JANUARY 24, 1984

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES

AND THE ADMINISTRATION OF JUSTICE

OF THE COMMITTEE ON THE JUDICIARY,

Washington, DC.

The subcommittee met, pursuant to call, at 9:30 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding.

Present: Representatives Kastenmeier, Schroeder, Schroeder, Frank, De Wine, Kindness, and Sawyer.

Staff present: David W. Beier, Deborah Leavy, counsel; Joseph V. Wolfe, associate counsel; and Audrey Marcus, clerk.

Mr. KASTENMEIER. This morning, the subcommittee continues with a third day of hearings on 1984: Civil Liberties and the National Security State.

During the first 2 days of hearings, the subcommittee focused on various attempts by the executive branch, this administration and its predecessors, to restrict the free flow of information.

Today's hearing inquires into another area for civil liberties concern: Aspects of individual or personal privacy in an era of dramatic changes in technology.

The basic theme of our hearing today is to evaluate the adequacy of our laws regulating the interception of electronic communications. Other subcommittees of the Congress are investigating the question of computer crime.

What has been missing from that debate is a moral or philosophic understanding of the interests which are protected by laws against the interception of communications.

In this regard, we can perhaps benefit from examining the history of privacy protections for private communications.

In early colonial times, private communications were primarily carried on through the use of private mail systems. Despite admonitions by some Government officials not to open the mail, such openings were such a frequent practice that Thomas Jefferson and George Washington both feared to write what they thought.

Eventually, the protection of the mails was achieved through a combination of laws and a dramatic increase in the number of messages delivered. The more messages sent, the more difficult it became to identify which letter to intercept.

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