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There has always been a delicate balance between
freedom of scientific research and national security,
particularly during the Cold War. The balance
is kept in check through debate between those
who believe free and open research is beneficial
for the country and national security, and those
who wish to guard against the use of the results
of research in harmful ways by enemies of the
U.S.
In November 2001, National Security Advisor Condoleezza
Rice cited the importance of "open and collaborative
basic" scientific research in combating terrorism
and reaffirmed that "the policy set forth
in NSDD-189 shall remain in effect" in the
U.S. government.[1] National Security Decision
Directive 189 (NSDD-189), signed by former President
Ronald Reagan, guaranteed that there would be
"no restrictions…upon the conduct or
reporting of federally-funded fundamental research
that has not received national security classification."[2]
Shortly after Rice's letter, Andrew H. Card, Jr.,
President Bush's Chief of Staff, issued a memorandum
to government agencies in March 2002 on safeguarding
"sensitive but unclassified" (SBU) information,
also known as "Sensitive Homeland Security
Information."[3] The SBU term later appeared
in the Homeland Security Act of 2002 (Public Law
No. 107-296) in Sections 891 and 892, which detailed
procedures and guidelines for the sharing of SBU
information. Consisting of declassified but "sensitive"
information, the SBU label serves as a means of
"preserv[ing] confidentiality without formal
classification."[4] The establishment of
such a category as "sensitive but unclassified"
information has significant implications for scientific
research and communication because of potential
restrictions on information exchange between scientists,
the government, and the public.
In January 2002, as part of the effort to safeguard
SBU information, the Bush administration began
withdrawing more than 6,500 declassified documents
relating to sensitive chemical and biological
warfare information from public access. The White
House also proposed that journal editors not publish
"sections of articles that give experimental
details researchers from other labs would need
to replicate the claimed results" to create
biological weapons. [5] In September 2002, the
National Research Council published a study for
the U.S. Department of Agriculture (USDA) [6]
on agricultural bioterrorism with eight case-studies
excised due to USDA concerns that the case studies
could compromise national security. In March 2002,
the Department of Defense circulated Security
Directive 106 (SD106) on "Research and Technology
Protection (RTP) within the Department of Defense"
detailing methods to safeguard Critical Research
Technology (CRT) and Critical Program Information
(CRI) at Department of Defense Research, Development,
Test and Evaluation (RDT&E) sites.[7] The
directive was later retracted in May 2002 after
opposition by scientists at universities and other
research institutions to measures potentially
restricting foreign travel, foreign collaboration,
and publication of findings.
In accordance with the SBU categorization of
information, federal agencies have been removing
previously public documents from the Internet,
ordering that information at public libraries
be removed from public access or be destroyed,
and "stopped providing…information that
used to be routinely released to the public."[8]
Information regarding the location of hazardous
materials and facilities has been removed from
public access, but "agencies have not articulated…the
standards they used in choosing what information
to make secret."[9] Further efforts to remove
sensitive information from public access include
provisions in the Homeland Security Act of 2002.
These provisions expand exemptions to public information
access under the Freedom of Information Act by
restricting disclosure of critical infrastructure
vulnerabilities provided by private companies
to the Department of Homeland Security (DHS).
The provisions also protect disclosing companies
from civil law suits and sanction criminal punishment
against whistleblowers within government agencies
who disclose company data to the public.
It is not always the government that goes too
far in censoring material. On February 15, 2002,
a librarian at the State University of New York
at Oswego sent an email urging libraries to screen
requests for Nuclear Regulatory Commission documents.
Many librarians were shocked, and approved of
a strongly worded letter by the U.S. Government
Printing Office urging Oswego's library to resume
free access to the document, and stating they
had no authority to restrict access in the first
place. [10]
The House of Representatives Committee on Science
held a hearing concerning SBU information on October
10, 2002 at which several university officials
opposed the SBU category. They preferred self-policing
measures adopted by the scientific community.
The witnesses strongly rejected pre-publication
review as going against the tenet of open research
and sound science. Dr. John Marburger III, director
of the White House Office of Science and Technology
Policy claimed that the government was not considering
pre-publication review.
Several interest groups and coalitions have spoken
out against the SBU category. In August 2003,
Rick Blum from OMB Watch, wrote a letter on behalf
of over 70 professional organizations, civil rights
groups, special interest groups, and academic
associations urging DHS Secretary Tom Ridge to
allow public input into the process of defining
"homeland security information" in accordance
with the Homeland Security Information Sharing
Act (HSISA) (P.L. 107-296). [11]
In April 2004, the Association of American Universities,
in conjunction with the Council on Government
Relations (COGR) Task Force, released Restrictions
on Research Awards: Troublesome Cases. The report
details 138 instances where restrictive publication
practices or prohibitions on foreign nationals
were preconditions for acceptance of research
grants. The report recommends that federal agencies
adhere to NSDD-189, and that the agencies make
the distinction between basic research, which
is done to increase knowledge, and applied research,
done by industry to develop new products. The
report stressed that government restrictions are
not compatible with academic research. [12]
A study by the Rand Corporation released in May
2004 found that government's attempt to censor
information on its websites was ill-advised and
ineffective. The U.S. shut down 36 sites and over
600 public databases. The Rand Corporation found
that much of the information was not critical
for terrorists, and could be obtained elsewhere,
such as textbooks, non-government sites, trade
journals, or maps. [13]
Despite public outcry, the federal government
has expanded the SBU category. DHS issued a directive
on June 14, 2004 that exempts agencies from releasing
Environmental Impact Statements to the public
as required by the National Environmental Policy
Act (NEPA). This would allow DHS to withhold the
statements either in whole or in part from the
public, which could render them meaningless. Currently,
there are no procedures detailing how to identify
sensitive material in the reports. [14]
H.R. 3550, a highway spending bill passed by
the House in June 2004, has a provision that would
allow the government to keep records secret related
to transportation of hazardous materials through
cities. [15] This would supersede open-records
laws at the state level, and give the Transportation
Security Administration (TSA) wide latitude in
defining what information is sensitive and should
not be released. This would authorize the agency's
director to withhold information deemed "detrimental
to the safety of passengers in transportation,
transportation facilities or infrastructure or
transportation employees." Openness advocates
have expressed concerns that the law would essentially
suspend oversight of the TSA. [16]
Scientists in particular are concerned about
the effects of "sensitive but unclassified"
on their research. The lack of a widely accepted
definition of "sensitive" information
means there are no standardized criteria for identifying
sensitive information warranting removal from
public access. Work on such a definition is underway
at the White House Office of Management and Budget.
Scientists also oppose removal of the methodological
sections in scientific papers. Although the omission
of methods used would make it difficult for terrorists
to exploit researchers' findings, it would hamper
efforts by legitimate scientists to repeat a researcher's
experiment, which is essential for verification
of results. Reproducibility of experiments is
one of the tenants of the scientific method. Furthermore,
since science progresses by building on the work
of others, research and innovation could be impeded
if scientific information is removed from the
public domain, or if access by scientists is otherwise
restricted.
Finally, scientists and concerned citizens worry
that removal of "critical infrastructure
information," such as locations of hazardous
materials, may compromise public safety and health,
since locals would not know the risks, vulnerabilities,
and threats associated with living next to industrial
factories or power plants.
Ryan Ricks
July 2004
Notes: [1]. Atlas, Ronald M. "National Security
and the Biological Research Community." Science.
298(2002): 753-754.
[2]. NSDD-189, 21 September 1985.
[3]. "OMB Tackles Sensitive but Unclassified
information." Secrecy News. 85(2002).
[4]. Ibid.
[5]. Broad, William J. "U.S. is Tightening
Rules on Keeping Scientific Secrets." The
New York Times. 17 February 2002.
[6]. Countering Agricultural Bioterrorism. National
Academy Press, 2002.
[7]. SD-106, 25 March 2002. (later titled "Mandatory
Procedures for Research and Technology Protection
within the DoD", DoD 5200.39-R)
[8]. Matthews, William. "OMB Weighs Information
Classification." Federal Computer Week. 16
September 2002.
[9]. Guzy, Gary S. "Are We Protecting Secrets
or Removing Safeguards?" The Washington Post.
24 November 2002: B1.
[10]. Carlson, Scott. "Librarian Calls for
Screening Public Access to Nuclear Documents."
The Chronicle of Higher Education. 26 February
2002.
[11]. Coalition letter from Open the Government
to Secretary Tom Ridge.
[12]. Restrictions on Research Awards: Troublesome
Cases. AAU/COGR Task Force. 8 April 2004.
[13]. Baker, John C. et. al. "Mapping the
Risks: Assessing the Homeland Security Implications
of Publicly Available Geospatial Information."
Rand Corporation, 2004 (MG-142-NGA).
[14]. "DHS Seeks Exemptions from Public Disclosure
Requirements." OMB Watch. 28 June 2004.
[15]. H.R. 3550 Transportation Equity Act: A Legacy
for Users (Engrossed as Agreed to or Passed by
House)
[16]. Bruggers, James. "Highway bill's secrecy
rules spark public-safety debate." Courier-Journal
27 June 2004.
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