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agonizing choice the judge would decide for the government on the merits. Nevertheless, even in that case, the government

failed in the world because the data was published elsewhere.

It is hard to imagine that the data can actually be suppressed

without an elaborate network of government observation of

pending publication.

Such an enforcement arrangement

and its

probable concomitant of the emergence of an "insider's" information

network

would be a very heavy and real First Amendment price.

Second, there is a vagueness problem.

The exact con

tours of what information can and cannot be published under the

above statutes are almost necessarily classified; the definition

relies upon administrative determinations which are not generally

made public.

This forces persons to "speculate" as to whether

their actions violate the statutes.

Gorin v. United States,

312 U.S. 19, 26 (1940).

It thus poses a barrier to criminal

prosecution and encourages injunctive enforcement. It also risks a chilling effect on the distribution of information outside the

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tradition of free inquiry and questioning.

As the Special Senate

Committee Report on the Atomic Energy Act of 1946 stated:

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build atomic weapons or power plants...and, at the
same time, sufficient freedom of interchange
between scientists to assure the Nation of con-

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tinued scientific progress.

As noted above, it is conceivable that this tradition may have to be restrained, but the need is to restrain it as

little as possible consistent with the social demands of a new

5/ era of technology.

Fourth, restraints should be applied only if they

actually help.

Restraints on large research programs such as

those supported by government or industry might, for example,

effectively serve the goal of suppressing a technology. But those on what an individual does on his or her own, working with pure logic or public domain information are unlikely to be

effective.

Learned Hand described it as "fatuous" to forbid

the transmission of what is already in the public domain and

read the espionage acts as not prohibiting such transmission,

U.S. v. Heine, 151 F. 2d 813, 816 (2d Cir.

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is true of information developed by individuals working on

their own

it is too likely that someone else, somewhere else

in the world, will be able to develop the same information.

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Fifth, it is precisely with respect to those tech

nologies that might be suppressed that public debate is most

essential.

The decision to control a technology that can

bring both risks and benefits is a decision in which the entire

society should have a role.

The "born classified" concept

would place this decision in the hands of government officials

alone

in complete antithesis to our traditions.

Plausibly,

the debate can sometimes be divided, as through distinguishing weapon design information from information relating to the desirability of nuclear secrecy; such a distinction is not always possible and any arrangement that leaves categorization

of the information in government hands is likely in practice

to be biased against public debate.

This fundamental political

point is strongest when the technology affects the balance

between the government and the rest of society, an issue raised

in the recent controversy concerning the development of private

6/ cryptographic systems.

After reflection on the above factors, we conclude that

with respect to the publication of privately generated technical

information such as an individual has generated working on his or her own, the severe civil liberties problems associated with

restraint through either injunctive or criminal law approaches substantially outweigh the very limited information control

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benefits that might be argued to accrue. This conclusion is clearly correct for what might be called "deducible" informa

tion

information that can be developed "from known physical

principles, careful reasoning, extrapolation from demonstrated

capabilities of related technologies, and the large body of

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general information that is already in the public domain.

There is no point in classifying such information; it must be

assumed to be available to any nation or organization that makes

serious effort to obtain it.

For slightly different reasons,

we would reach the same conclusions for what we might call

"insightful" use of deducible information

an uncommon intuition

based on deducible information

such as the original idea that a

chain reaction could be used to make a nuclear weapon or the

mathematical insight that permits creation of a new class of

cryptographic systems.

It cannot be said that such insights will

occur to another. But to attempt to restrict this type of insight is to chill an activity of great human importance; insights of

this type often work to good.

Moreover, as

soon as the govern

ment relies on such an insight, as by building a nuclear weapon,

the insight may become deducible to others.

In contrast, what can be reasonably classified is informa

tion that will not generally be accessible to the private thinker:

the "non-deducible" technical choices made by the government,

e.g. the key to

a particular cipher; and information that can be

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gained by deduction or insight only from an elaborate experi

mental program of the type carried out or sponsored by the government. Thus, the principle we recommend need not necessarily

prohibit the Congress from acting to restrain the Executive or

perhaps industry from conducting large scale research programs

in sensitive areas.

Such large scale programs are likely to be

essential to the development of information that can successfully be protected and is significant from a social or international viewpoint; even then, the information can only be protected for a

limited period of time.

Although there may be significant equal

protection problems with restraints on such programs, such restraints are the least harmful from a civil liberties viewpoint.

Legislative implementation of our recommendation is

difficult and there are several important pitfalls in the way

of this (or any other) reform in the area.

The first is the interplay between the provision at

hand and the general espionage acts.

It is possible, but not

clearly established, that these acts do not apply to publica

tion of information obtained from the government, except for

See

those specific provisions using the word "publication."
New York Times, supra, concurring opinion of Douglas, J.);
H. Edgar & B. Schmidt, "The Espionage Statutes and Publication

of Defense Information," 73 Colum. L. Rev. 929, 1032 ff (1973).

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