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FC: US law makes it a crime to disclose crypto-secrets
From: Declan McCullagh <declan () well com>
Date: Sun, 12 Dec 1999 19:07:29 -0500
Current law makes it a felony for anyone in the US to disclose classified cryptographic or communications intel-related information. It was enacted in 1950 and was discussed during the Church committee hearings in 1975 (p7 of the transcript). It is, of course, reasonable for the government to punish its employees or contractors for disclosing info they promised to keep secret. But the law appears to apply to anyone, including journalists, no matter how they obtained the data. That raises First Amendment issues. If I get a "NSA crypto secrets" email or letter from an anonymous source that checks out and I write an article based on that info, I go to prison for up to 10 years. Even if the NSA "secret" info really wasn't all that secret and really shouldn't have been classified in the first place. I'm not even allowed to publish info "concerning the communication intelligence activities of the United States or any foreign government." An analysis from a very well-informed lawyer is below. -Declan (who was at NSA crypto-museum yestreday. if you haven't been recently, it's worth another visit. they've expanded the gift shop with posters and more stuffed animals.) ********** http://www4.law.cornell.edu/uscode/18/798.html Sec. 798. Disclosure of classified information (a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information - (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or (3) concerning the communication intelligence activities of the United States or any foreign government; or (4) obtained by the process of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes - Shall be fined under this title or imprisoned not more than ten years, or both. (b) As used in subsection (a) of this section - The term ''classified information'' means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution; The terms ''code,'' ''cipher,'' and ''cryptographic system'' include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications; The term ''foreign government'' includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States; The term ''communication intelligence'' means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients; The term ''unauthorized person'' means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States. [...] **********
Key terms here are "knowingly and willfully," "unauthorized person," and "to the detriment of the United States." Note that structurally there are really 2 distinct offenses (I would argue) regarding the 4 categories of information: --knowing and willful "making available" to an "unauthorized person" --knowing and willful publication or use "to the detriment of the United States." I don't know of any constitutional challenges to the law. It's been discussed in law review articles as part of more general discussions of the Espionage Act. I recall a long Harvard L.Rev. "Developments in the Law - National Security" piece about it, probably more than 20 years ago. My vague recollection is that it has actually been used in a prosecution, I think in U.S. v. Boyce (remember the movie Falcon and the Snowman, where one of the guys was a mole); that wouldn't be hard for someone with a Lexis or WESTLAW account to figure out. It has been held as a (b)(3) FOIA "exemption" statute so that the government need not disclose classified cryptographic information under FOIA. There are far broader provisions respecting "national defense information" in the Espionage Act. One of the classic cases is Gorin v. United States (sometime in the '40s or '50s), which upheld one of these provisions against a vagueness challenge because the provision required a showing of intent for conviction. It's an interesting question whether modern First Amendment law alters that result. There are occasional Espionage Act cases, like U.S. v. Morrison (or Morison), who was a gov't employee. In any case, none of these provisions is drafted especially well. I'm sure it won't surprise you to learn that I did some research on this...
Let's just say that I felt it necessary to analyze its constitutionality then. One of the major and difficult issues in the provision is the role of "classified" as defined in (b). My recollection is that under Boyce, the defendant may not challenge the propriety of the classification -- all that matters is that it was formally classified.
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