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I am pleased to submit to you "The 'Born-Classified Concept' In The U.S. Atomic Energy Commission", an historical study*which I prepared for your subcommittee. As its title indicates, the study focuses solely on the Atomic Energy Commission's (AEC) (1946-1975) experience with the concept as your subcommittee requested. The Department wishes to emphasize, however, the key role of the "born-classified" concept in the classification programs of the successor agencies to the AEC, the Energy Research & Development Administration and the Department of Energy. The Department firmly believes that the concept is as vital to the protection of the national security today, in an era of nuclear proliferation and terrorism, as it was during the post-World War II period of its conception. The grave danger to the nation posed by the proliferation of nuclear weapons information has been more keenly recognized in the last few years than ever before. The Treaty on the Nonproliferation of Nuclear Weapons and the Nonproliferation Act of 1978 evidence clear Congressional and Executive Branch concern over the ever-spreading capability of national and subnational groups to produce or acquire nuclear weapons. Most recently, of course, the Executive Branch has demonstrated its strong policy against proliferation by its attempts to enjoin publication of weapon design information generated by private citizens in the United States of America v. The Progressive, Inc., et al, and United States of America v. Indeperdent Berkeley Studert Publishing Co., Inc. Although the Government's efforts were thwarted by publication of sensitive material by a third party which mooted the law suits, the Government was successful in achieving court enforcement of the Atomic Energy Act provisions regarding Restricted Data in both cases.

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I hope that the study will be helpful to your committee. The Department will be glad to provide any further assistance that you need.

Enclosure: Historical Study


Richard D. Hewlet

Richard G. Hewlett

Chief Historian (Retired)


* Study printed in "The Government's Classification of Private Ideas," Report of the Committee on Government Operations, U. S. House of Representatives, 96th Cong. 2d Sess., Dec. 22, 1980.

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Present: All members and observers. (See attached list)

Chairman Baum reviewed the events leading to the establishment of the Study Group, beginning with the patent application case involving Professor Davida and encompassing a meeting convened by ACE in May, 1979, that recommended the establishment of the Group. Funding for the Group's work has been provided by the National Science Foundation.

Mr. Schwartz noted that the events recalled had changed some procedures in the National Security Agency but that several problems remain on which the agency needs the help of the academic world. Mr. Sturges reviewed the interests of the House Subcommittee on Government Information and Individual Rights as it studies the charter legislation of government agencies that deal with intelligence questions. Mr. Davida raised four questions that he had presented in testimony to the subcommittee March 20. (Copies of his testimony were distributed to Group members at the meeting and are attached to the file copy of these minutes.) Mr. Wilk spoke of the work of his group in the U. S. Department of Commerce in preparing a statement on policy questions related to secrecy and privacy to be submitted to the President's Science Adviser by July 1, 1980.

Chairman Baum concluded the initial discussion by raising the question of how the group should proceed, noting that the proposal to NSF had implied three steps: (1) a careful and precise articulation of the problems, (2) statements of positions on the issues, and (3) preparation of recommendations on how differences might be reconciled, to be submitted to the director of NSA and the president of ACE by the end of 1980.

The discussion focused then on the need to define the nation's legitimate security interests in a way to make necessary regulation broadly acceptable; the need for any regulations to be sufficiently specific so that those affected by them could know when they are reaching the point of constraints; the question of prior restraint of publication or discussion; the relative desirability of legislative control and voluntary action; and a variety of regulatory models.





These discussions led to the following agreements:

1. Mr. Schwartz will prepare a statement of the issues to be addressed by the group, consulting with some of the members on preliminary drafts and then distributing a later draft to all members for comment. He hopes to have the later draft in the group's hands by the end of April. The nature of the group's responses will help determine the agenda for the next meeting (May 29, see below).

2. Mr. Heyman undertook to prepare a written statement of the legal context of the questions that have been raised so far, noting the statutes covering not only intelligence activities but also other matters in which secrecy has been officially authorized (e.g., AEC).

3. The next meeting is to be held THURSDAY, MAY 29, beginning at 8:30 a.m. in Room 304, Eleven Dupont Circle, Washington, D.C. (NOTE: Eleven Dupont Circle is across the circle from One, where the first meeting was held.) Decisions on the number, dates, agenda, and funding of later meetings will be delayed until the May 29 meeting. Please put the date on your calendars.

4. At this stage, no special effort will be made to publicize the Study Group's activities or to avoid publicity.



List of members and observers

Statements of D.C. Sewell, E.J. Fygi, and F. Abrams

Attached to file copy:

Testimony of G. Davida, 20 March 1980


(202) 833-4720 CABLE: AMCONED





Second Meeting, May 29, 19801
Washington, D.C.

Present: Those members and observers on the attached list with the exception of Dean Baum, and Peter Fagone, Kean College, and Dennis Sachs, SRI International.

Acting (now Co-) Chairman Heyman reviewed the beginnings of the group's work. NSA's concerns, as indicated in Admiral Inman's statement distributed for this meeting, center on published research and associated activities, chiefly in the academic community, that pose two potential threats to the mission of NSA: (1) impairing its ability to conduct signals intelligence through potential compromising of cryptanalytic processes and the improvement of cryptography by foreign governments, and (2) rendering U.S. communication security devices ineffective. NSA looks on the present statutory tools as insufficient for minimizing these threats: (1) The Invention Secrecy Act involves only patentable devices and not information per se; (2) the Export Administration Act and ITAP involve only equipment and the information and technology directly related to it; they do not apply to knowledge and information in scholarly papers, articles, or conferences unrelated to specific hardware; (3) criminal statutes apply orly to previously classified information. Finally, NSA seeks to explore some syster analogous to that provided in the Atomic Energy Act, which proscribes publication or transmission of "restricted date" involving atomic weapons and related matters whether or not produced with government assistance. The system would be best if "voluntary."

Some ho12 (1) that NSA has abused its present authority and (2) any limitations or ron-public cryptographic research, publication, and development are unwise. The argument rests on the propositions (a) that crytography is crucially important for civilian and non-intelligence operations and these applications would be weakened by any government controls; (b) non-public work is not actually harmful to the rational security,

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