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Mr. PLESSER. I think it is viewed as a nonissue. I hate to say that it is even a negative reaction because it is almost like a marshmallow. There is no reaction. It is simply, you know, other than in obviously in the Justice Department takes positions on warrants and access to information, but if you get beyond that into what NTIA has been doing, there really just is no response.
I spent some time in Europe this last spring meeting with international privacy people and there is really great wonderment over there that there is so little demonstrated concern on these issues in this country. I don't really know what the basis of it is because I am not sure the privacy is really a political issue one way or the other. It is just simply an issue that is going to become more and more acute with the advancement of technology. I thought Ms. Lawton's comments this morning on the cordless telephone were correct. Unfortunately, the Supreme Court of Kansas disagrees with both of us, and the Supreme Court of Kansas is writing the rules so far and the Supreme Court of Kansas has said that there is no expectation of privacy for conversations on the cordless telephone and one of the facts of that case is that at some point the police were listening directly to the FM radio. It wasn't just given to them by private sector-by private individuals, and the really shocking part of that decision is the Supreme Court of Kansas said there is one issue here that we haven't resolved and we will put off until a later case and that is what is the expectation of privacy of the person on the other end of the line who has no idea of the technology being used. Whether or not it is a cordless phone or a regular phone, the person on the other end of the phone is expecting that it is a private communication protected by title III. But the Supreme Court of Kansas says, no, it is not protected by title III because it is interceptable by a radio-telephone. That kind of issue needs to be resolved and discussed, not only by the courts, not only by Congress, but also by the executive branch. I have seen almost nothing from the executive branch and I believe that an entity does need to be developed. Even if I disagree with what they come out with, at least it becomes a target and it becomes a debate so that we can go forward.
Mr. KASTENMEIER. One last question on that. Are you talking about an entity that is advisory? Does it have enforcement powers? Is it another commission?
Mr. PLESSER. I don't think it should be another commission in terms of temporary. I think it should be advisory in study. I think some of the things that NTIA had done should be done by such an entity, but I also think it should take over some of the guideline roles that OMB has had in privacy enforcement. I think it should be in a position of issuing binding rules and guidance for the Government agencies in terms of how they operate under these laws. Mr. KASTENMEIER. Ms. Lawton, as Mr. Plesser noted, you discussed the differences as you see them between title III and its limitations and FISA and its broader coverage. I suppose what has happened is it leaves people in the position of assuming either certain things in the middle are clearly covered or they are not covered and no warrant is required or they are not covered and are forbidden.
Presumably there could be activities on either side of the line for which someone presumes authority without a warrant, or they could try to get a warrant with some form of implied authority on the part of the court, or they could presume that the activity was in fact, unauthorized by statute and illegal.
That does leave an unsatisfactory state of the law. In title III. it is even worse since the word "aural" communication is so explicit. Why hasn't the administration recommended to us some statuto ry language to improve either or both of those old laws? They are outdated.
Ms. LAWTON. It is a question of one thing at a time, I think, primarily, Mr. Chairman. The big concern-well, the FISA penalty, as I said, does cover some things that title III does not. It is, after all, only applicable to those who act under color of law. People only seem to be worried about government invasions of privacy, not anybody else's. Title III, of course, covers anybody who wiretaps, but only that which is the aural communication.
We had, in recent years, a couple of examples of serious computer crimes, both in terms of people stealing from computers by manipulation of programs and then the highly publicized hacker incidents, including the penetration of a medical computer at SloanKettering, which really worried people. So, the first thing we took a look at was trying to come up with legislation to deal with that problem and that is the legislation we have proposed because there was nothing to cover that situation, not even by argument or extension of existing legislation.
So we thought to plug the gap first. That is not to say that we will not take a look at title III; it is just a question of being able to deal with one thing at a time, as we approach this area which is very difficult because, at least in Justice, it is the lawyers who draft the legislation and they are not too swift on the technology of the whole thing.
Mr. KASTENMEIER. It is my understanding that the administration's approach to computers, computer privacy, and computer crime or fraud is narrower than that of the bill that was processed by the Congress. Unrestricted access by individuals, private companies, and Government agencies is not really included in the computer crime bill recommended by the administration, while I think the committee bill does include that.
Ms. LAWTON. Well, one of our concerns, and one of the reactions we got was on the whole question of jurisdiction. There is always the federalism problem. By what authority does the Congress occupy a field of criminal law enforcement that could be occupied by States? So we drafted the statute with specific Federal interest as the base for the Federal jurisdiction.
That is, Government computers, federally insured financial institutions and interstate communication, just as the current wire fraud statute requires an interstate nexus and does not cover any use of the telphone. That is basically the reason why the other bill, as I recall, does not-refers generally to affecting interstate commerce, but without as tight a definition of what that means. Mr. KASTENMEIER. Mr. Plesser, did you-
Mr. PLESSER. I would just like to make one comment which is, I was at a hearing of the Senate Judiciary Committee 2 weeks ago
where a colleague of Ms. Lawton's from the Justice Department testified on whether or not title III should be amended to solve the aural problem and it was my recollection at that point that there was not a question of not getting to it; it was a very affirmative position that the law should not be changed. The Justice Department saw it as an unwarranted and unnecessary action that could affect their ability to obtain information. So while I appreciate Ms. Lawton's comments this morning, I think it should be noted on the record that officials of the Justice Department are not all in agreement on this issue.
Mr. KASTENMEIER. Mr. Shattuck, in your own testimony on national security issues, you referred to another point in time that started in the Nixon years, as I recall.
The fact is, apparently, that whatever threat there is to national security remains a rather constant one. Granted, we have an adversarial relationship with the Soviet Union or socialist countries in the political and the ideological and military fields, among others. I take it that historically, though, this has remained constant-a more or less static situation.
Yet, we have had ups and downs in terms of how this Government has responded to the perceived threats. You referred to an era under Mr. Nixon. All three branches of our Government responded to that by making a number of changes in the 1970's under Presidents Ford and Carter and Attorneys General Levy and Bell and then things apparently started to heat up again until we have the current situation. You cited a number of things that suggest that we are entering into a new era. I don't know whether it is as pernicious in that respect as the Nixon years you referred to. I don't think this is necessarily a Republican versus Democratic question. I wonder what your analysis is, why we have these ups and downs and irregularity in terms of response to a threat that is presumably fairly stable.
Mr. SHATTUCK. Well, that is the big question and I think it is certainly true that while the threat, as you have defined it, is relatively constant, it is perceived differently from time to time and I think it is addressed differently from time to time.
I would like to answer the question by being quite specific in terms of the issue of export controls and the growing difficulties that Ms. Lawton was referring to of trying to define how national security can best be protected in the context of scientific research and the technological information that comes out of that research and that will find its way overseas.
Until quite recently, it was generally assumed that scientific research on campus-basic research was referred to before, or sometimes even applied research-would not produce information which would then fall within the confines of the export control system. What we have today, I think, is a sense that somehow national security can best be protected by clamping down on certain kinds of scientific information which is inherently dangerous, which, if falling into the wrong hands, would come to harm us. Yet, as many experts in this field say, that is often a counterproductive way to protect national security. Edward Teller, who was not otherwise noted for his strong civil liberties views on a range of matters, is perhaps the best witness on this point. He thinks that the applica
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tion of export control systems to a growing field of scientific information is very damaging to the national security because it will reduce the innovation that is necessary in order to have the United States remain strong in certain basic scientific fields, strong not only in terms of basic research, but also in terms of applied research and in terms of-in his view-the development of certain weaponry that would come out of that research.
So I think what we have is, in answer to your question, a changing climate in which it is regarded as acceptable to assert certain kinds of controls on the free flow of information, not only acceptable, but necessary, because it will protect us against the disclosure of that information in the world at large and yet, there is a very different point of view which prevailed not terribly long ago and that is that the great strength and national security of this country is, in fact, the free flow of information and ideas, even if there is a risk that some information may, in fact, be dangerous.
If it is genuinely dangerous and in the control of the Government, then it can be subject to the Government's information control systems known as the classification scheme, but if it is out there in the world and it is being produced in the context of scientific research to say that it is either "born classified" or, as the new Executive order on classification in effect says: "It can become classified over time," is to provide a very different and much broader kind of control system.
I think that what we have seen in this area of information controls is an illustration of the changed perception of what national security requires-changed today over not terribly long ago and changed very much for the worst, not just from the point of view of civil liberties, but from the point of view of genuine national security, innovation, competition, development of resources and remaining strong in the world.
There are others in private industry who take very much the same point of view with respect to export controls.
Mr. KASTENMEIER. Thank you.
Ms. Lawton, Mr. Plesser, do you have any comments on that?
Mr. KASTENMEIER. I would like to ask Ms. Lawton one thing. I think you have correctly suggested that it isn't just the executive branch, but the Congress itself that was responsible for a lot of secrecy of classified information and you cited quite a few laws in that regard; but I know, too, that you are well aware that there has been criticism about overclassification, whether these are cotton statistics or Defense Department material or whatever. There is a tendency on the part of anyone, for whatever purpose, to overclassify and to make information inaccessible.
Is there anything we can do about that in your view? Would you concede that, we may be as bureaucrats, overclassifying material? Ms. LAWTON. Certainly there is overclassification. There is now, from my own perspective and indeed from the studies done by the Information Security Oversight Office considerably less overclassification than when I came to Government, much less. I think that is for a variety of reasons. One is that the last three Executive orders on the subject have required paragraph-by-paragraph classification. Not everybody complies with that, but it is required and that
makes you think about, not the subject matter of the memo, but the content of a paragraph. When you have to think about that, there is less classification you have to justify each paragraph. That, I think, has reduced it.
There is an Information Security Oversight Office that comes in and audits agencies and checks on whether they are properly classifying or not. That is relatively recent. I think the system has improved considerably. Certainly it can be improved more and there are areas of overclassification, but in my own personal experience over 24 years of Government, there is much less overclassification now than there used to be.
Mr. SHATTUCK. Mr. Chairman, can I make a comment on that point?
Mr. KASTENMEIER. Mr. Shattuck.
Mr. SHATTUCK. I think the perspective that has just been stated has to do with what the behavior of those who are engaged in classifying may be. The fact of the matter is, however, that the new Executive order on classification is, the broadest ever-it gives the broadest authority and the greatest amount of discretion. In fact, in some cases, it is not even discretion; it is essentially a mandate to classify. In a number of key areas it is broader than anything we have seen before.
I would just mention four specific ways in which it is substantially revised over the earlier Executive orders. First of all, it eliminates any kind of balancing test, which would require those engaged in the classification process to think about whether there is public interest in the disclosure of certain information and weigh that against the Government interest in maintaining its secrecy. Second of all, there is a shift in the presumption which existed in the earlier Executive order which is essentially when in doubt, don't classify, to, under the current order, when in doubt, do classify, and when in doubt as to what level of classification to apply, apply the higher level as opposed to the lower level.
Third, it provides new authority to reclassify and classify information that may already be public, as I was referring to before, which is a matter of considerable concern on campus in that people may make a decision to enter into certain kinds of technical research areas and then find out somewhere down the road that the information that is being produced in that area may be falling into some general classification scheme.
Fourth, it eliminates the standard for classification of some identifiable damage to the national security so that the new standard, does not require a classifier to identify any particular kind of damage or any damage that might be identified before the decision is made to classify. So in at least four major ways, and many others that are set forth in the report that I have provided to you, this new classification order is the broadest that we have seen in the entire post-World War II era since the classification system went into effect.
Mr. KASTENMEIER. Is there any way of knowing quantitatively how much we have or whether it is more or less than we had 5 or 10 or 15 years ago?
Ms. LAWTON. The Information Security Oversight Office makes an annual report to the President, which is also furnished to the