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vast sums with slight computer changes. Industrial spies are concentrating on the theft of computer programs. Our laws concerning theft and malicious destruction of property are not drafted for the computer age. Our laws on privacy are largely directed against the government, not our fellow citizens. The Congress is now considering a bill developed by the Administration that we believe would resolve these difficulties and make such activities a crime.
Finally, Mr. Chairman, you have requested that we address the subject of pre-publication review. While this concept of reviewing written material of those who are under a nondisclosure obligation in advance of publication has drawn particular attention since the issuance of NSDD-84, the practice itself is much older and extends beyond the area of national security. Early in my career at the Department of Justice I was assigned the task of reviewing an article prepared by a Department attorney to insure that it did not contain nonpublic information obtained through his government employment. The regulation prohibiting such disclosure, 28 C.F.R. 45.735-12, did not then, nor does it now, explictly require pre-publication review. It does, however, impose a non-disclosure obligation on all Department employees and the surest way to meet the
obligation is to have material reviewed in advance. In addition to this regulation, department attorneys have an obligation to insure that any writings or lectures they give do not breach the grand jury secrecy provisions of Rule 6 (e) of the Federal Rules of Criminal Procedure or the attorney-client confidentiality prescribed by the Code of Professional Responsibility. In my own experience the most effective way to insure that I have met these obligations is to get a "second opinion," i.e., submit an article for prepublication review. I might add that the articles I have submitted pre-date NSDD-84 and had nothing whatever to do with intelligence information.
Much of the criticism of prepublication review has focused on it as a form of censorship. I submit that this is a slanted view. As I noted at the outset, Congress has imposed a number of non-disclosure obligations on federal employees enforced by criminal sanctions. It has done so, presumably, because they come into possession of the information under a duty of public trust. Pre-publication review is a prophylactic form of law enforcement to insure that the obligations of public trust are met. It is not the employee's ideas which are subject to review but rather the underlying government information. Of course, one could assert that the criminal sanction, imposed after
information is released, is sufficient enforcement.
overlooks the damage that disclosure may cause to an
individual's privacy or economic interests or to the broader interests of the nation.
The more sensitive information is and the more harm disclosure may cause, the greater the need for prophylatic measures. There are, of course, many yardsticks by which to measure harm potential. One such yardstick is the severity of the criminal penalties Congress has attached to unauthorized disclosures. Among the most severe penalties Congress has authorized are those dealing with unauthorized disclosures or even negligent disclosures of classified information. 18 U.S.C. 793-798. Presumably this reflects a judgment that the harm flowing from disclosure is great.
In imposing a prepublication review requirement, beyond that traditionally imposed by CIA and NSA, NSDD-84 did not encompass the full range of information protected by the espionage laws. It singled out only those having access to the most sensitive categories of information. Many of those covered are already covered by prior CIA and NSA review requirements. Others, like myself, share access to this information and, accordingly, are asked to share the same obligations. It is one which I would have undertaken, in any case, given the sensiti
vity of the information and the harm it could do my country. Nor am I alone in this view. The Subcommittee may not be aware that former Attorney General Bell submitted for pre-publication review in 1981 those chapters of his book dealing with intelligence matters, not because of any signed agreement but because of his appreciation of the sensitivity of the subject matter. Others have done the same. As a personal note,
Mr. Chairman, I might add that whether or not Congress restricts the use of prepublication review agreements, I propose to continue to seek that "second opinion" before writing anything that may impinge on the national security.
I will be happy to answer any questions.
Mr. KASTENMEIER. Thank you, Ms. Lawton.
May I observe, however, merely because some people, including yourself and former Attorney General Bell, for various reasons submit to prepublication review even if not required to, that does not sanctify the procedure. There may be those who volunteer for military service. Merely because some volunteer for military service does not mean that others who may have objections to military service may not have a case to be made.
On the question of complaints that some scientists and acadamicians have made that technology transfer has impinged upon their freedoms, why isn't classification sufficient? Why have we cracked down on scientists and others who feel they ought to be free to engage in exchange of scientific papers and the like?
Ms. LAWTON. Well, classification, of course, can only be imposed, under the current structure, on a thing, an object or a piece of paper. Where the spoken word is derived from such an object or a piece of paper, it remains classified as the paper or object was, but that which is yet to be reduced to a classifiable form may, nevertheless, be classifiable in its content.
Where you have Government contracts, that is one issue and the system is arranged for the Government to classify, but where you do not, the information may be such that would in the hands of the Government be classified, but there is no one out there to classify it in the academic setting. Now, there certainly is fundamental basic research as distinct from applied research that is probably so esoteric and so broad in its nature that there is no basis for classifying it or limiting its exportation or otherwise restricting it, but there are matters with which we are concerned. The export control laws, you will recall, put different rules as to different countries for the same information.
A computer, which is not classified in this country and not restricted in its export to some portions of the world is, nevertheless, by statute, restricted to export to other portions of the world. That is easy to do with a tangible object. They may ship it here, but not there. It is harder to do with the spoken word in a mass meeting where people from both here and there are present. That is the problem. That is why we have brought the academic community in to help us try to resolve it.
We have not issued the new regulations. We are working on them and we are working with the scientific community to try and resolve these issues.
Mr. KASTENMEIER. I understand you. The cases in court have indicated that universities and open scientific communication have been the source of very little of this so-called technology transfer problem. I am wondering whether we may not overreact in that regard and create a climate in this country that is adverse to the intellectual exchange of ideas. That would be a great price to pay for these fears.
Mr. Plesser, in suggesting that not much was being done in the administration with respect to some of these problems, were you not, in fact, indirectly or directly calling for the creation of some new entity for purposes of privacy or classification or whatever in terms of the problem as contemplated today?
Mr. PLESSER. Well, I think so. One of the important recommendations of the Privacy Commission, of which I was general counsel, was a permanent entity in the Federal Government that would study the issues, but also be-would go a step farther and give guidance to Government agencies in the implementation of the Privacy Act and related statutes. I see the need for that almost greater now than I did in 1977 and I do call for the establishment and think that it would be important to have an entity in the Federal Government.
I guess part of my hesitation in putting it forward is that it seems from, as a result of the GAO report and some of the other reports that we have seen, that the current administration, until this morning, I must say, because I think some of the things Mary said were really very positive in acknowledging and recognizing some of the concerns and the need to look at it, but really-but for what I have heard this morning, the reaction has seemed so negative in the administration-if not negative, almost just nonexistent, viewing it as a-with no interest in it and as a nonissue, that it is a little-I feel a little uncomfortable in recommending a permanent entity to be established and manned by people who really seem to have no interest in it.
But if there is some interest and concern in it, I think that there really does need to be an entity on the Federal level looking at it along the lines that the Privacy Commission recommended, and as I said before, it was that kind of entity, I think, that was also recommended by the ABA panel that met this summer.
Mr. KASTENMEIER. As was recognized by the GAO report on privacy activities, NTIA funding for privacy personnel had dropped from 15 positions in 1979 to 6 in 1981 to 1 current position. That would suggest that privacy protection is diminishing.