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cannot reside in facilitating its use by condensing and arranging it." (at 817). (See also, Defendant's Brief, supra, at 22).

The Government in Progressive rejected arguments by the defendants that it was obligated under 42 U.S.C. 2274(b) to demonstrate that the information at issue would in fact be used to injure the United States. And defense contentions that the data was in the public domain were also disputed:

Nowhere in the public domain is there a correct de-
scription of the type of design used in United States
Thermonuclear weapons. The Morland article goes far
beyond any other publication in identifying the nature
of the particular design used in thermonuclear weapons
in the United States stockpile. Although a minor pro-
portion of the Restricted Data in the article is avail-
able in unrelated and scattered public sources, the
preponderance of the Restricted Data is not available
to the public in this form. In sum, its publication
would provide a more comprehensive, accurate, and de-
tailed summary of the overall construction and operation
of a thermonuclear weapon than any publication to date
in the public literature. (Reply Brief For United States,
at 6).

The central issue here would appear to be the nature of the label "in the public domain." That is, does the fact that a piece of information has appeared somewhere, sometime, no matter how small the circulation and no matter how small a piece of the whole it is considered to be, mean categorically that such information has "entered the public domain?" In Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir. 1975), cert. denied, 421 U.S. 992 (1975), it was held that classified information does not enter the public domain merely for having been "leaked," absent official declassification. circulate and sometimes get into print. It is one thing for a reporter or author to speculate or guess that a thing may be so or even, quoting undisclosed sources, to say that it is so. The reading public is accustomed to treating reports from uncertain sources as being of uncertain reliability, but it would

"Rumours and speculations


not be inclined to discredit reports of sensitive information revealed by an official of the United States in a position to know of what he spoke." (at 1370). "It is true that others may republish previously published material, but such republication by strangers to it lends no additional credence to it." (Id.). While exceptions to such rules were acknowledged, the court urged judicial caution in this area: "One may imagine situations in which information has been so widely circulated and is so generally believed to be true, that confirmation by one in a position to know would add nothing to its weight. However, appraisals of such situations by the judiciary would present a host of problems and obstacles." (at 1370-1371).

The Government relied on several Freedom of Information Act (5 U.S.C. 552) suits to demonstrate its contention that the atomic energy information in Morland's article was not, in fact, already in the public domain. In Aspin v. United States Department of Defense, 453 F. Supp. 520 (E.D. Wis. 1978) the court said "past release of confidential information should not bind the executive branch if at a later point in time it is determined that further release would jeopardize national security." (at 524, citing Halperin v. Central Intelligence Agency, 446 F. Supp. 661, 665-666 (D.D.C. 1978)). And in Lesar v. United States Department of Justice, 455 F. Supp. 921 (D.D.C. 1978) name deletions were challenged in a suit to gain access to investigative reports with respect to the assassination of Dr. Martin Luther King, Jr. The court said: "Plaintiff, who has been a student of the King and Kennedy assassinations, claims that because he believes he can identify many of the names deleted, these names are in the public domain. This is fallacious. The fact that an

expert can piece together identifying data does not make the identifications in question automatically part of the public domain." (at 925).


It would appear that whether or not a piece of information has entered the public domain has been a matter for case-by-case adjudication--the subject simply does not lend itself to the imposition of general rules when potentially dangerous national security information is at issue. The few cases specifically on point suggest that while official publication will likely place the information in the public domain, anything short of that will not unless public knowledge is so pervasive as to render classification meaningless. And public awareness of

parts of the whole will not necessarily be interpreted as public knowledge of an assemblage of those parts. The issue is perhaps more conducive to judicial resolution when the data involved has undergone an orderly classification process. Under the atomic energy statutes however, as illustrated in Progressive, the "born classified" concept allows that step to be om itted and leaves only the subject matter itself for review.

In a footnote to its Statement of Points and Authorities to the District

Court the Government stated: "The fact that some of the secret Restricted Data contained in the 'Article' may represent the original work product of defendant Morland would not change its status as secret Restricted Data. Congress was well aware of the need to treat such information as confidential, even though no formal action had yet been taken by the government to restrict its distribution. This concept, known as 'classified at birth,' was deemed necessary by Congress to ensure that sensitive information would not be divulged before the United States had the opportunity to assess its importance and take appropriate classification action. Accordingly, the prohibitions against disclosure of Restricted Data apply with equal force to information 'born classified.'" (at 4).


In Hearings before the Joint Committee on Atomic Energy, 83rd Congress, 2d Session, on S. 3323 and H.R. 8862, To Amend The Atomic Energy Act of 1946, the Committee received testimony from a member of the Federation of American Scientists that "at present, the Atomic Energy Act specifies that information relating to atomic power is 'restricted data' unless specifically found to be unrestricted. This means that every new piece of information in the field is automatically classified at birth and must be declassified piece by piece." (at 379). The witness took issue with this policy, stating that "this is a difficult process and one which will seriously impede the development of peacetime atomic power. We propose that the Commission should be empowered to specify areas in the field of atomic power which are not of military importance or sensitive in nature and in which no classification would be required." (Id.). While 42 U.S.C. 2162 provides authority for the declassification and removal of data from the Restricted Data category, the "born classified" concept would seem to remain applicable today. As the Government's brief in Progressive concluded, "despite some objection by scholars and scientists to this interpretation [that a new discovery, development, or article is instantly classified], Congress declined to modify it, thus giving occasion for application of the 'venerable principle that the construction of a statute by those charged with its execution should be followed...especially when Congress has refused to alter the administrative construction." (Plaintiff's Statement of Points and Authorities, at 4, citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969); Zemel v. Rusk, 381 U.S. 1, 11-12 (1965); Alstate Construction Co. v. Durkin, 345 U.S. 13, 16-17 (1953); and Costanzo v. Tillinghast, 287 U.S. 341, 345 (1932).


The Magazine suggested in Progressive that this aspect of atomic energy law is void for its overbreadth, i.e., that the "born classified" concept prohibits constitutionally protected conduct: "In enacting the Atomic Energy Act of 1954, Congress went too far in restricting the free exchange of information, and the government in this case has gone too far in its attempt to apply that Act to restrict freedom of the press. In the Act Congress recognized the legitimate need to protect certain information dealing with atomic weapons and atomic energy. But it adopted the most restrictive, the most drastic means for accomplishing that goal. It placed everything within the definition of 'Restricted Data,' banning its communication, transmission, or disclosure regardless of its origin or general availability unless it has been specifically declassified." (Defendant's Memorandum Brief, at 34). In addition, the Magazine argued that such a system creates a statutory schema which is unconstitutional for its vagueness in that "fair notice" is not accorded the individual citizen regarding what is Restricted Data and what has been declassified. (Id., at 40, citing United States v. Hariss, 347 U.S. 612, 617 (1954)).

The Government's Supplemental Memorandum defended the system both at its conception and as it applies today:

The concept that information can be "born classified, "...
is not so surprising when one considers the extraordinary
context in which Congress was legislating. Congress was,

of course, in the Atomic Energy Act of 1946...declaring the
production of fissionable materials to be a government mon-
opoly. N.Y. Phillips' Gloeilampen fabrieken v. Atomic Energy
Commission, 316 F.2d 401, 404 (D.C. Cir. 1963).
To accomp-
lish that purpose, for example, section 11 of that Act
"drastically affected the property concepts surrounding pat-
ent law in the field of atomic energy," Hobbs v. United
States, 376 F.2d 488, 491 (5th Cir. 1967), by, in essence,
prohibiting the granting of a patent for any invention or
discovery useful "in the utilization of special nuclear
material or atomic energy in an atomic weapon." 42 U.S.C.

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