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Letters, statements, etc., submitted for the record by--Continued

Ingram, Timothy H., staff director, Government Information and Individ-
ual Rights Subcommittee:
Department of Justice memorandum to Dr. Frank Press, Science

Adviser to the President, re constitutionality under the first Page

amendment of ITAR restrictions of public cryptography............. 268-284 August 29, 1978, letter to Col. Wayne Kay, Senior Policy Analyst,

Office of Science and Technology, from Larry A. Hammond,
Deputy Assistant Attorney General, Office of Legal Counsel, re
public cryptography...

264-265 Kahn, David, author, Great Neck, N.Y.: Prepared statement and supplementary remarks ...

411-415, 432-433 McCloskey, Hon. Paul N., Jr., a Representative in Congress from the

State of California: November 12 and December 21, 1979, letters from
Argonne National Laboratory scientists .....

331-345 Moore, David Pelton, inventor and attorney: Chronology of events relating to the invention secrecy claim.....

236 Exhibits B through F

190-234 Preyer, Hon. Richardson, a Representative in Congress from the State of

North Carolina, and chairman, Government Information and Individu-
al Rights Subcommittee: March 17, 1980, letter from Roger E. Batzel,
director, Lawrence Livermore Laboratory, re views on the importance
of protecting information that is determined by DOE, under the law, to
be restricted data .....

434-435
Sciascia, Richard, Chairman, Armed Services Patent Advisory Board,
Department of Defense:
Information concerning carbon fiber technology

473 Prepared statement .....

448-461 Submissions to additional subcommittee questions

462-467 Sewell, Duane, Assistant Secretary for Defense Progams, Department of Energy: Nature and history of the classification category of “formerly restricted data”.

500-527 Prepared statements.

307-316, 485-493 Tegtmeyer, Rene D., Assistant Commissioner for Patents, Patents and Trademark Office, Department of Commerce: Prepared statement with attachments .....

10-160 Submissions to additional subcommittee questions.

175-187

531

531

547

556

560 576

APPENDIXES Appendix 1.-Statements submitted for the record

1. Barton, John H. and Marson, Charles C., professors, Stanford Law

School, Stanford, Calif.: Joint statement.. 2. Dewitt, Hugh E., Physicist, Lawrence Livermore National Laboratory,

Livermore, Calif.. 3. Kidder, Ray E., Theoretical Physics Division, Lawrence Livermore

National Laboratory, Livermore, Calif...
4. Marsh, G. E., De Volpi, A., Postol, T. A., and Stanford, G. S., Argonne

National Laboratory, Illinois: Joint statement...
Appendix 2.–Subcommittee correspondence with the Department of Energy...

1. Letter from Chairman Richardson Preyer, Subcommittee on Govern

ment Information and Individual Rights, to Honorable Charles Duncan,
Secretary of Energy, dated April 22, 1980, with reply, dated May 23,

1980
2. Letter from Honorable Charles Duncan, Secretary of Energy, to Chair-
man Richardson Preyer, Subcommittee on Government Information

and Individual Rights, dated August 18, 1980 3. Summary submitted by the Department of Energy at the request of the

subcommittee staff entitled "General History of the Handling of 25

'Special Patent Applications' ” and memorandum to file Appendix 3.-Miscellaneous materials ..

1. Letter from Richard G. Hewlett, Chief Historian (retired), Department

of Energy, to Hon. Richardson Preyer, chairman, Subcommittee on
Government Information and Individual Rights, submitting “The 'Born-
Classified Concept' in the U.S. Atomic Energy Commission," a histori-
cal study, dated June 12, 1980.

576

579

695 698

698

Appendix 3.—Miscellaneous materials—Continued

2. Public Cryptography Study Group, American Council on Education,

minutes of meetings for March 31 and May 29, 1980.......

3. “National Telecommunications Protection Policy,” White House State-

ment, February 16, 1979..

4. United States v. The Progressive et al. 467 F. Supp. 990.

5. Ellie L. Hebern and Hebern Code, Inc. v. The United States, 132 F.

Supp. 451 .....

Appendix 4.-Selected correspondence.

1. Deavours, Cipher A., associate professor of mathematics, Kean College

of New Jersey, letter to Dr. Michael Heyman, cochairman, Public Cryp-

tography Study Group, dated June 10, 1980..

2. Gapcynski, William G., Office of the Judge Advocate General, Depart-

ment of the Army, letters to Subcommittee Chairman Richardson

Preyer, dated February 27, 1980, and March 14, 1980.

3. Garfinkel, Steven, Director, Information Security Oversight Office,

General Services Administration, letter to Subcommittee Chairman

Richardson Preyer, dated August 12, 1980.

4. National Science Foundation and National Security Agency: Memoran-

da and correspondence related to NSA sponsorship of cryptographic

research, dated June 13, 1975, through December 27, 1978....

5. Papantoni-Kazakos, P., secretary, Institute of Electrical and Electronic

Engineers, letter to subcommittee staff, dated January 21, 1980.

6. Parker, Alan A., Assistant Attorney General, Department of Justice,

letter to Subcommittee Chairman Richardson Preyer, dated May 27,

1980

7. Postol, Theodore A., Marsh, Gerald E., Stanford, George S., De Volpi,

Alexander, Argonne National Laboratory, Illinois, joint letter to Sena-

tor John Glenn, Senate Subcommittee on Energy and Nuclear Prolif-

eration, dated April 25, 1979,

8. Preyer, Hon. Richardson, chairman, Subcommittee on Government

Information and Individual Rights, letter dated July 9, 1980, to Robert
M. Warner, Archivist of the United States with reply of September 26,

1980

9. Well, Robert W., Acting Director, Information Security Oversight

Office, General Services Administration, letter to Subcommittee Chair-

man Richardson Preyer, dated May 1, 1980........

10. Weiss, Hon. Ted, a Representative in Congress from the State of New

York, letter to Chairman Richardson Preyer, dated July 19, 1979

Appendix 5.-Studies prepared by the American Law Division, Congressional

Research Service, Library of Congress....

1. “The Progressive Case: Legal Issues,” February 14, 1980.

2. “Alternative Definitional Approaches to Classification of Restricted

Data Under the Atomic Energy Act,” March 12, 1980

3. "Judicial Review of Restricted Data Under the Freedom of Information

Act,” August 6, 1980

Appendix 6.-References ....

776

781

THE GOVERNMENT'S CLASSIFICATION OF

PRIVATE IDEAS

THURSDAY, FEBRUARY 28, 1980
HOUSE OF REPRESENTATIVES,

GOVERNMENT INFORMATION
AND INDIVIDUAL RIGHTS SUBCOMMITTEE
OF THE COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, D.C. The subcommittee met, pursuant to notice, at 9:40 a.m., in room 2247, Rayburn House Office Building, Hon. Richardson Preyer (chairman of the subcommittee) presiding.

Present: Representatives Richard Preyer, Robert F. Drinan, David W. Evans, Ted Weiss, Thomas N. Kindness, and John N. Erlenborn.

Also present: Timothy H. Ingram, staff director; Donna Spradling, secretary; Thomas G. Morr, minority professional staff, Committee on Government Operations; and Gerald Sturges, Congressional Research Service, Library of Congress.

Mr. PREYER. The subcommittee will come to order.

We begin today the first of 2 days of hearings on the question of the Government's ability to classify, restrict, or assert ownership rights over privately generated data.

We will focus on the Invention Secrecy Act today. The 1952 law authorizes the Commissioner of Patents and Trademarks to withhold a patent and order that an invention be kept secret "for such period as the national interest requires.” To violate a secrecy order could bring a $10,000 fine and 2 years' imprisonment.

We will examine the administration of that law and the important constitutional questions highlighted by its provisions.

Our first witness is Assistant Commissioner for Patents, Mr. Rene Tegtmeyer.

Mr. Tegtmeyer, it is the custom of the committee to swear in witnesses in factfinding hearings. If you and anyone accompanying you who will be answering questions will stand, I will administer the oath.

Do you solemnly swear that the testimony you are about to give before this subcommittee will be the truth, the whole truth, and nothing but the truth, so help you God?

Mr. TEGTMEYER. I do.
Mr. QUARFORTH. I do.
Mr. PREYER. Thank you.

We appreicate your being here and will ask you to proceed in any manner you see fit. If you wish to summarize some of your statement, that would be fine.

STATEMENT OF RENE D. TEGTMEYER, ASSISTANT COMMIS

SIONER FOR PATENTS, PATENTS AND TRADEMARK OFFICE, DEPARTMENT OF COMMERCE; ACCOMPANIED BY C. D. QUARFORTH, DIRECTOR, SPECIAL LAWS ADMINISTRATION GROUPS Mr. TEGTMEYER. Thank you, Mr. Chairman.

I have with me today Mr. C. D. Quarforth, who is the Director of our Special Laws Administration Group and who is most specifically charged with the administration of chapter 17 of title 35, which is the subject of the hearing today. Mr. Quarforth will assist me in answering any questions that the committee may have.

Mr. PREYER. We are glad to have you with us.
Mr. TEGTMEYER. Thank you.

The statutory authority for processing and examining securityrelated applications is found in patent law sections 181-188, which comprise chapter 17 of the law. However, broad statutory authority is not detained enough for the day-to-day procedures that security precautions inherently demand. Accordingly, the procedures utilized by the Office are prescribed in detail in title 37, parts 5 and 7 of the Code of Federal Regulations. These CFR provisions also implement Executive Order 9424, establishing a register for recording governmental interests in patents.

In administering these security provisions, the Office has, of course, developed and put into use various forms, secrecy orders, permits, licenses, notices, and so on. I will discuss the most important of these, but the written testimony includes a complete set and an explanation of each.

Let me begin by explaining the Patent and Trademark Office's screening process for identifying security-related information in patent applications.

The Licensing and Review Branch in our Special Laws Administration Group screens all patent applications filed in the Office to determine whether any application contains material involving national security—35 U.S.C. 18, 42 U.S.C. 2181—the production or utilization of nuclear material or atomic energy-42 U.S.C. 2182— or has significant utility for space or aeronautical activities—42 U.S.C. 2457. The vast majority of patent applications filed in the Office do not contain security-related technology,

Applications affecting national security are placed under a secrecy order at the request of a defense agency. This order prohibits any disclosure of the technical contents of the patent application. Sections 182 and 186 prescribe legal and criminal penalties for violating a secrecy order.

During fiscal year 1979 the Office received 107,409 patent applications. Of these, 4,829 were thought to contain security-related information and were therefore made available to the defense agencies for review. Only 243 secrecy orders were issued, of which 200 applications contained security classification markings when filed.

The Office, as I mentioned, has established an extensive screening system to assure the identification of all patent applications actually or possibly bearing on our Nation's security. Each patent application filed in the Office is processed through the Licensing and Review Branch in the Special Laws Administration Group. Here, patent applications are separated on the basis of their con

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