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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:

1

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 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

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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).

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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.

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 distribu

tion.

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 Re

stricted Data apply with equal force to information 'born classified.""

(at 4).

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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

stricted.

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 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

[blocks in formation]

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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

ergy.

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,"...
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' Gloeilampenfabrieken 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 V.S.C.

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