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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 con
tentions that the data was in the public domain were also disputed:
Nowhere in the public domain is there a correct de-
The central issue here would appear to be the nature of the label "in the
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 in
formation 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. "Rumours and speculations
circulate and sometimes get into print.
It is one thing for a reporter or au
thor 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
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 execu
tive 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 de
letions 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 danger
ous 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 re
solution 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.
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 distribu
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
Accordingly, the prohibitions against disclosure of Re
stricted Data apply with equal force to information 'born classified.""
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 Scien
tists that "at present, the Atomic Energy Act specifies that information relat
ing to atomic power is 'restricted data' unless specifically found to be unre
This means that every new piece of information in the field is
automatically classified at birth and must be declassified piece by piece."
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 re
quired." (Id.). While 42 U.S.C. 2162 provides authority for the declassifi
cation 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 scien
tists 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
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 en
But it adopted the most restrictive, the most drastic means for accom
plishing 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 regard
ing 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 Supplement al Memorandum defended the system both at its conception and as it applies today:
The concept that information can be "born classified,"...