[liberationtech] Secrecy News -- 06/25/13

Tue Jun 25 08:38:38 PDT 2013

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Date: Tue, 25 Jun 2013 07:55:10 -0700
From: Steven Aftergood <saftergood at fas.org>
To: eugen at leitl.org
Subject: Secrecy News -- 06/25/13
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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2013, Issue No. 58
June 25, 2013

Secrecy News Blog:  http://blogs.fas.org/secrecy/

**     SECRECY SYSTEM SHOWS SIGNS OF CONTRACTION

The creation of new national security secrets dropped sharply in 2012,
recently released government data show.  While the proper boundaries of
official secrecy remain a matter of intense dispute, the secrecy system
itself is showing surprising new signs of restraint and even contraction.

In 2012, the number of original classification decisions, or decisions to
classify new information, decreased by 42 percent from the year before to
73,477, according to the latest annual report from the Information Security
Oversight Office (ISOO).  This was the lowest reported level of new
classification activity since at least 1989 and possibly longer.

Meanwhile, the number of executive branch officials who are authorized to
generate new classified information also dropped last year to a record low
of 2,326, the ISOO report said.

The 2012 ISOO Annual Report was transmitted to the President by ISOO
Director John P. Fitzpatrick on June 20.

	http://www.fas.org/sgp/isoo/2012rpt.pdf

Significantly, the reductions in new secrecy activity are not considered
to be a statistical fluke or within the range of normal variability but
appear to be the consequence of deliberate policy choices, the ISOO Report
said.

"A large part of this decrease [in original classification activity] can
be attributed to the Fundamental Classification Guidance Review process and
the appropriate recording of classification decisions in security
classification guides," according to ISOO.

The Fundamental Classification Guidance Review was a systematic
examination of all government classification instructions that took place
between 2010 and 2012 in an effort to validate current classification
guidance and to eliminate obsolete or unnecessary secrecy requirements.

The argument for a fundamental review of classification policy was
presented in a 2009 paper I wrote on "Reducing Government Secrecy: Finding
What Works," Yale Law & Policy Review, Spring 2009.

	http://www.fas.org/sgp/eprint/aftergood.pdf

That paper documented the failure of most classification reform
initiatives over the past half century to reduce government secrecy, but
also noted that some such initiatives had not failed. The Department of
Energy's Fundamental Classification Policy Review during the 1990s had been
a notable success and, it was suggested, could serve as a template for a
broader government-wide reconsideration of classification policy.

This proposal was briefed to the National Security Staff in July 2009, and
was incorporated in President Obama's December 2009 executive order 13526,
although in attenuated form.  Unlike the earlier review done by the Energy
Department, the Obama Fundamental Review did not provide for public comment
at the beginning and before the end of the process, nor did it bring to
bear (as it was supposed to) "the broadest possible range of perspectives"
to critique current classification policy.  So the resulting reductions in
secrecy are attenuated correspondingly.

Nevertheless, the newly reported data on reductions in original
classification provide evidence that the secrecy system is not an
autonomous entity beyond effective control, as might have been supposed,
but that it can be modified and constrained by using the levers of public
policy.

Other data reported in the new ISOO annual report indicate that
classification error correction mechanisms are at least partially
functional.

During 2012, government employees filed 402 internal classification
challenges disputing the classification of particular items of information.
While the current classification status was affirmed in two-thirds of
those cases, classification of the information was overturned in whole or
in part in one-third of them.

Appeals of mandatory declassification review requests that had been denied
by agencies also received a favorable reception in many cases from the
Interagency Security Classification Appeals Panel.  Out of 163 documents
considered by the Panel last year, prior agency classification decisions
were fully affirmed in only 8 percent of the cases, while 39 percent of the
documents were fully declassified at the direction of the Panel and 53
percent were partially declassified.

While all of this is quite encouraging, it does not mean that all is well
in the classification system.

Derivative classification, or the application of previous classification
decisions to new documents, increased by 3% to a new high of more than 95
million classification actions. (One would have expected the Fundamental
Classification Guidance Review to have had greater impact on derivative
classification -- since it is based on the newly reviewed guidance -- than
it did on original classification, but that's not what happened.)

The declassification process remains slow, cumbersome and predicated on an
absolute risk avoidance standard that is simply unworkable.  Incredibly,
the President's directive to process the backlog of 25 year old
historically valuable document for declassification and public release by
December 2013 will apparently not be achieved, although the new ISOO report
somehow neglects to mention this.

Nor has the problem of overclassification been solved.  Many
classification decisions are still excluded from critical scrutiny and
instances of overclassification are not hard to find. For example, the ISOO
annual report states that although most agencies' information security
costs are public information, the estimated costs of security incurred by
intelligence agencies are nevertheless classified, as in the past, "in
accordance with Intelligence Community classification guidance."  It's hard
to believe that any impartial observer would agree that these cost
estimates are properly classified and that their disclosure would cause
damage to national security.  (ISOO notes that the suppressed cost estimate
is "approximately 20%" of the overall government total.)

Speaking of costs, the total cost of classification-related activities was
$9.77 billion in 2012, ISOO noted. Though this figure remains historically
high, it is over a billion dollars less than the year before.  In fact, it
represents the first annual reduction in secrecy-related expenditures ever
reported by ISOO.

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood at fas.org
voice:  (202) 454-4691
twitter: @saftergood

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