Classifying the Unclassified - Blanket Secrecy License?
Submitted by dcornwall on Sun, 2008-05-11 08:14.
On May 9, this past Friday, the White House issued a memorandum doing away with the old category of "Sensitive But Unclassified" and replacing it with "Controlled Unclassified Information."
The memo is titled, "Memorandum For The Heads Of Executive Departments And Agencies - SUBJECT: Designation and Sharing of Controlled Unclassified Information (CUI)".
Here is how the memo defines CUI (bolding mine):
a. "Controlled Unclassified Information" is a categorical designation that refers to unclassified information that does not meet the standards for National Security Classification under Executive Order 12958, as amended, but is (i) pertinent to the national interests of the United States or to the important interests of entities outside the Federal Government, and (ii) under law or policy requires protection from unauthorized disclosure, special handling safeguards, or prescribed limits on exchange or dissemination. Henceforth, the designation CUI replaces "Sensitive But Unclassified" (SBU).
This is such a broad brush that it could be used to exempt anything from public disclosure. By definition, isn't anything the government produces at least somewhat pertinent to the national interests of the United States? Otherwise, why waste taxpayer dollars and government time creating the product?
Then there's the allowance for "policy." I'm sure that DoD's 2002 domestic propaganda program probably "required protection" from "unauthorized disclosure" for "policy" reasons.
This is a definition that appears to be designed to give the executive branch total control over what information is released by the US Government regardless of existing law. It is an order that should be challenged by Congress today with no funding permitted for its implementation. Assuming the President doesn't back down, it should be one of the first items revoked by the incoming President.
Government information items should be properly classified and protected, safeguarded when containing individuals personal data, or public record. No twilight zone of "It's unclassified, by I can't give it to you for reasons of government policy."
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by what authority?
My question is: to what degree does the executive branch have authority "to [prescribe] limits on exchange or dissemination" by "policy", regardless of the justification? Checking carefully when a FOIA request is filed should already happen.
What this means is really unclear. Isn't most governmental information controlled, but unclassified? The records schedules set by NARA set dissemination and handling guidelines. What does this memo succeed in that the GRS's from NARA don't?
CUI=Common frame of reference
The author misunderstands and misrepresents the policy. First CUI is NOT a classification category (these are CONFIDENTIAL, SECRET, TOP SECRET & above), but a standardized national term/descriptor and uniform system to replace current disparate marking schemes. It is intended to facilitate sharing and safeguarding information across government by providing a common vocabulary and understanding of authorized distribution and appropriate handling. Second the policy does not create new criteria or protections, but is based on existing policies, laws and regulations. Some CUI examples include information that is: exempt from FOIA (5 USC Sec 552) ; subject to export control (22 USC 2778 and 50 USC 2401, criminal penalty = $1million + 10years); or proprietary subject to contract and nondisclosure restrictions (10 USC 1905; 18 USC 1831-39 + state laws).
Common usage, not legal usage
Dear Klein,
Thank you for taking the time to comment on my writeup of the new policy on CUI. I understand why you took issue with my headline. In the legal, technical sense "classification" has the meaning you describe and CUI is not "classification" in this limited sense.
I was using "Classifying" in the sense that I think most lay people understand it -- the practice of withholding information from the general public for purposes unrelated to people's privacy. It might not be classified, but it is beyond disclosure and beyond accountability. And several administrations, including the current one have sought to penalize people for mishandling data unrelated to privacy that is not classified.
And in this sense, the CUI designation appears to be a new way of perpetuating withholding information while not technically classifying it. This is the sense of many experts include those at the Federation of American Scientists Secrecy News:
Source:
White House Issues Policy on “Controlled Unclassified Info”
http://www.fas.org/blog/secrecy/2008/05/white_house_issues.html
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"And besides all that, what we need is a decentralized, distributed system of depositing electronic files to local libraries willing to host them." -- Daniel Cornwall, tipping his hat to Cato the Elder for the original quote.
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