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(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes

Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

(b) As used in subsection (a) of this section

The term "classified information" means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;

The terms "code." "cipher." and "cryptographic system" include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;

The term "foreign government" includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;

The term "communication intelligence" means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;

The term "unauthorized person" means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.

(c) Nothing in this section shall prohibit the furnishing, upon lawful demand, of information to any regularly constituted committee of the Senate or House of Representatives of the United States of America, or joint committee thereof.

This provision refers only to U.S. or foreign codes, but extension to private inventions has been suggested, D. Shapley, "Intelligence Agency Chief Seeks 'Dialogue' with Academics," 202 Science 407 (27 Oct


There have evidently also been cases in which the government sought to apply 35 U.S.C. $181, a

provision which authorizes patents to be classified, to the cryptographic area. (In our analysis, we intimate no position with respect to patent issues the relevant factors are clearly different and the decision to file a patent application is voluntary with the inventor, save as affected by 42 U.S.C. $2181 (c) which requires compulsory filing of information with the Commission with respect to new inventions "useful in the production or utilization of special nuclear material or atomic energy.")

There are at least two other contexts in which comparable issues arise. The first is the espionage acts themselves, 18 U.S.C. SS 793 ff, which, in general, seek to prohibit. efforts to obtain (as well as transfer) defense information with "intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation." The second is the array of technology export control rules, which have been interpreted to prohibit the export without license of information developed by logical inference from published information (which can be exported without a license). See H. Berman & J. Garson,

"United States Export Controls

Past, Present, and

Future," 67 Colum. L. Rev. 791, 859-62 (1967).


1946 U.S. Code Cong. Serv. 1327, 1334.



For arguments with respect to the possible First Amend-
ment status of a freedom of research, see: R. Delgado
& D. Miller, "God, Galileo, and Government: Toward
Constitutional Protection for Scientific Inquiry," 53
Wash. L. Rev. 349 (1978); J. Robertson, "The Scientist's
Right to Research: A Constitutional Analysis, 51 So. Cal.

L. Rev. 1203 (1977).

See D. Shapley, supra n. 2 at 410 and D. Kahn, "Cryptology
Goes Public," 58 Foreign Affairs 141 (1979).



G. E. Marsh, A. DeVolpi, T. A. Postol and G. S. Stanford,
Joint Statement for the House Subcommittee on Government
Information and Individual Rights p. (3) (undated, 19801)

One of our legislative proposals, a proviso which uses the
word "publication," probably impacts on the parallel con-
troversy with respect to 42 U.S.C. $2274, for the word
"publication" does not appear in the main prohibition

section of the statute. It may be impossible to avoid some
impact on the controversy.

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Whenever in the judgment of the Commission any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this chapter, or any regulation or order issued thereunder, the Attorney General on behalf of the United States may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing by the Commission that such person has engaged or is about to engage in any such acts or practices, a permanent or temporary injunction, restraining order, or other order may be granted.

10. Although somewhat different issues are involved, it may

also be desirable to amend either 35 U.S.C. $181 or 42 U.S.c. $2181 which provide an alternative route for the govern

ment to compel classification of privately-generated

technical information through the patent process.




Physicist, H Division, Physics Department
Lawrence Livermore National Laboratory
Livermore, California 94550

Events during the course of the Progressive case last year raised questions concerning the workability of the "born classified" section of the Atomic Energy Act of 1954 (42 U.S.C. 2274) and questions concerning the implementation of this law by U.S. government officials. As this subcommittee considers the "born classified" provisions of the law as applied to private citizens, it is important that both the structure of the existing law and its implementation in the recent past be taken into account. My comments to follow are based on my experience as a staff member (with secret clearance) of a nuclear weapons laboratory, and as a participant in the Progressive case. It is my belief that the production of nuclear explosives belongs properly in the complete control of the U.S. Government, but that because of the widespread availability of information about the functioning of nuclear weapons, that private citizens have considerable leeway to speculate about nuclear bomb designs. It is difficult to see how such published speculative designs based

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