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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
Such an enforcement arrangement
probable concomitant of the emergence of an "insider's" information
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
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
tradition of free inquiry and questioning.
As the Special Senate
Committee Report on the Atomic Energy Act of 1946 stated:
build atomic weapons or power plants...and, at the
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
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
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.
is true of information developed by individuals working on
it is too likely that someone else, somewhere else
in the world, will be able to develop the same information.
Fifth, it is precisely with respect to those tech
nologies that might be suppressed that public debate is most
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
in complete antithesis to our traditions.
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
benefits that might be argued to accrue. This conclusion is clearly correct for what might be called "deducible" informa
information that can be developed "from known physical
principles, careful reasoning, extrapolation from demonstrated
capabilities of related technologies, and the large body of
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
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.
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
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
those specific provisions using the word "publication."
of Defense Information," 73 Colum. L. Rev. 929, 1032 ff (1973).