Born secret

File:Restricted Data stamp.jpg

A 1946 "Restricted Data" stamp on an Atomic Energy Commission document.

File:Goldsboro bomb Weapon No 1 color.jpg

One of the Mk 39 nuclear weapons at Goldsboro, largely intact, with its parachute still attached.

File:Rocky Flats Site in July 1995 Prior to Final Cleanup.jpg

The Rocky Flats Plant, which released plutonium into the environment.

Born secret (also born classified) is a legal doctrine in the United States under which certain information is automatically classified from the moment it is created, regardless of the author or location. Scholars describe born‑secret provisions as unique in U.S. law because they criminalize discussion of information that is already publicly available.

The rule originated in statutes covering the design, production, and use of nuclear weapons, though it can also encompass other nuclear ideas and related technologies. The United States Department of Energy has called the doctrine “very controversial."

History

Historically, the born-secret concept applied to any data related to nuclear technologies, whether or not the specific technology was developed by the United States government or by other parties. Howard Morland, writing in Cardozo Law Review, compared the doctrine to a permanent gag order on nuclear ideas and concepts.

The idea is rooted in the Atomic Energy Act of 1946, which declared that all information about nuclear weapons and nuclear energy was “Restricted Data" (RD) until officially declassified. In the 1954 revision, the United States Atomic Energy Commission gained authority to declassify entire categories of information. The policy assumed that nuclear information could be so vital to national security that it required classification even before formal evaluation. The 1954 act defined RD as:

United States government scientists working on nuclear weapons design have held Q clearance, to access Restricted Data.

In 2006, the United States Department of Energy (DOE) itself called the born-secret doctrine “very controversial." Writing for the Department, Nick Prospero cited concerns about constitutionality, the stifling of scientific progress. Prospero also noted long-standing public pressure for open access to health, safety, and environmental data—issues stretching back to the DOE’s predecessors, the United States Atomic Energy Commission and the Energy Research and Development Administration.

Legality and challenges

The constitutionality of categorically classifying information at the moment of its creation remains untested in U.S. courts.

The legality of the “born secret" doctrine was directly challenged in a 1979 freedom of the press case, United States v. The Progressive. In that case, the magazine The Progressive attempted to publish an account of the so-called “secret of the hydrogen bomb"—the Teller–Ulam design—created entirely from unclassified sources. Many analysts predicted that the United States Supreme Court would, if it heard the case, strike down the born‑secret clause as an unconstitutional restraint on speech. However, the government dropped the case as moot before it was resolved.

The born‑secret doctrine is reported as the only area of United States law in which discussion of information already in the public sphere is illegal. Writing for the Cardozo Law Review, Aviam Soifer argues that classification can even apply retroactively to the original conception—or “germination"—of an idea. In Security Classification of Information, Volume 1, Arvin Quist notes that the concept is unique to nuclear restricted data, but has been extended in principle to cryptography by the National Security Agency (NSA). However, the NSA pursued this not through legislation but through voluntary agreements with stakeholders.

Quist further observes—citing Federal Register notices in 1967 and 1972—that one narrow “loophole" exists:

In the early years of the American nuclear program, scientists expressed fear of unintentionally violating the Atomic Energy Act. Because declassifications were rare, researchers often could not tell what they were allowed to publish or even discuss. Recommendations therefore urged the Atomic Energy Commission to “publish explicit and detailed catalogues of types of data not included in the restricted category," so that those working with nuclear matters would no longer face “the intolerable fear that publication of every research finding is a violation of the Atomic Energy Act of 1946."

Risks to media coverage of nuclear incidents

Aryeh Neier, writing in 1980 for the Index on Censorship essay USA: Born classified, warned that the born-secret doctrine could be invoked to suppress reporting on nuclear accidents and contamination. As examples of incidents he believed were inadequately reported due to secrecy, Neier cited: plutonium releases at the Rocky Flats Plant near Denver, Colorado; the 1961 Goldsboro B-52 crash in North Carolina; and the 1966 Palomares B-52 crash in Spain, where a mid-air collision dropped thermonuclear weapons.

At Palomares, four weapons fell to earth. Three of the bombs were recovered on land near the fishing village of Palomares in the municipality of Cuevas del Almanzora, where the conventional explosives in two warheads detonated on impact, contaminating roughly with plutonium. The fourth bomb was located intact on the floor of the Mediterranean Sea after an 80-day search. Neier noted that the editors of The Progressive cited these incidents when challenging the born-secret doctrine in United States v. Progressive, Inc..

John Aristotle Phillips

In 1976, Princeton University undergraduate John Aristotle Phillips designed, on paper, a nuclear weapon to demonstrate how easily such technology might be acquired by American adversaries. Although his design relied solely on publicly available information, the completed work was made classified and was therefore illegal to disseminate in the United States. Phillips reflected:

Suppose an average—or below-average in my case—physics student at a university could design a workable atomic bomb on paper. That would prove the point dramatically and show the federal government that stronger safeguards have to be placed on the manufacturing and use of plutonium. In short, if I could design a bomb, almost any intelligent person could.

See also

• Classified information in the United States
• Critical Nuclear Weapon Design Information
• Defense Office of Prepublication and Security Review
• Donald Trump's disclosures of classified information
• Invention Secrecy Act
• Nuclear espionage
• Strong cryptography
• United States v. Reynolds

External links

• Interview with George Stanford from 1994 on his experiences in the Progressive trial.