{ "id": "RS21900", "type": "CRS Report", "typeId": "RS", "number": "RS21900", "active": true, "source": "CRSReports.Congress.gov, EveryCRSReport.com, University of North Texas Libraries Government Documents Department", "versions": [ { "source_dir": "crsreports.congress.gov", "title": "The Protection of Classified Information: The Legal Framework", "retrieved": "2023-03-04T04:04:11.062732", "id": "RS21900_20_2023-02-02", "formats": [ { "filename": "files/2023-02-02_RS21900_4531b757bb62bae95486b7003226becdf2190336.pdf", "format": "PDF", "url": "https://crsreports.congress.gov/product/pdf/RS/RS21900/20", "sha1": "4531b757bb62bae95486b7003226becdf2190336" }, { "format": "HTML", "filename": "files/2023-02-02_RS21900_4531b757bb62bae95486b7003226becdf2190336.html" } ], "date": "2023-02-02", "summary": null, "source": "CRSReports.Congress.gov", "typeId": "RS", "active": true, "sourceLink": "https://crsreports.congress.gov/product/details?prodcode=RS21900", "type": "CRS Report" }, { "source_dir": "crsreports.congress.gov", "title": "The Protection of Classified Information: The Legal Framework", "retrieved": "2023-03-04T04:04:11.061519", "id": "RS21900_18_2022-08-12", "formats": [ { "filename": "files/2022-08-12_RS21900_9a57cd14e12afb89f723b8562ae3bfc414322f95.pdf", "format": "PDF", "url": "https://crsreports.congress.gov/product/pdf/RS/RS21900/18", "sha1": "9a57cd14e12afb89f723b8562ae3bfc414322f95" }, { "format": "HTML", "filename": "files/2022-08-12_RS21900_9a57cd14e12afb89f723b8562ae3bfc414322f95.html" } ], "date": "2022-08-12", "summary": null, "source": "CRSReports.Congress.gov", "typeId": "RS", "active": true, "sourceLink": "https://crsreports.congress.gov/product/details?prodcode=RS21900", "type": "CRS Report" }, { "source": "EveryCRSReport.com", "id": 463733, "date": "2017-05-18", "retrieved": "2017-10-02T22:48:46.727104", "title": "The Protection of Classified Information: The Legal Framework", "summary": "This report provides an overview of the relationship between executive and legislative authority over national security information. It summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information, as well as civil and administrative penalties. Finally, the report describes some recent developments in executive branch security policies and relevant legislative activity.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/RS21900", "sha1": "87eb84fc499a8827ed1ea0f852dea6f1161e1a25", "filename": "files/20170518_RS21900_87eb84fc499a8827ed1ea0f852dea6f1161e1a25.html", "images": {} }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/RS21900", "sha1": "526ecac5e51d316934d2b531129f89c840d4ae63", "filename": "files/20170518_RS21900_526ecac5e51d316934d2b531129f89c840d4ae63.pdf", "images": {} } ], "topics": [ { "source": "IBCList", "id": 4809, "name": "National & Military Intelligence" }, { "source": "IBCList", "id": 4930, "name": "Government Information" } ] }, { "source": "EveryCRSReport.com", "id": 444060, "date": "2013-01-10", "retrieved": "2016-04-06T21:29:22.533953", "title": "The Protection of Classified Information: The Legal Framework", "summary": "Congressional Research Service\n7-5700\nwww.crs.gov\nRS21900\nSummary\nThis report provides an overview of the relationship between executive and legislative authority over national security information, and summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information, as well as civil and administrative penalties. Finally, the report describes some recent developments in executive branch security policies and relevant legislative activity.\nContents\nBackground\t1\nExecutive Order 13526\t3\nHandling of Unauthorized Disclosures\t5\nInformation Security Oversight Office\t6\nIntelligence Community\t7\nDepartment of Defense\t8\nPenalties for Unauthorized Disclosure\t10\nCriminal Penalties\t10\nCivil Penalties and Other Measures\t10\nDeclassification vs. Leaks and \u201cInstant Declassification\u201d\t11\nRecent Developments\t14\nExecutive Branch Initiatives\t14\nCongressional Activity\t15\n\nContacts\nAuthor Contact Information\t17\n\nBackground\nPrior to the New Deal, classification decisions were left to military regulation. In 1940, President Franklin Roosevelt issued an executive order authorizing government officials to protect information pertaining to military and naval installations. Presidents since that time have continued to set the federal government\u2019s classification standards by executive order, but with one critical difference: while President Roosevelt cited specific statutory authority for his action, later Presidents have cited general statutory and constitutional authority.\nThe Supreme Court has never directly addressed the extent to which Congress may constrain the executive branch\u2019s power in this area. Citing the President\u2019s constitutional role as Commander-in-Chief, the Supreme Court has repeatedly stated in dicta that \u201c[the President\u2019s] authority to classify and control access to information bearing on national security ... flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.\u201d This language has been interpreted by some to indicate that the President has virtually plenary authority to control classified information. On the other hand, the Supreme Court has suggested that \u201cCongress could certainly [provide] that the Executive Branch adopt new [classification procedures] or [establish] its own procedures\u2014subject only to whatever limitations the Executive Privilege may be held to impose on such congressional ordering.\u201d In fact, Congress established a separate regime in the Atomic Energy Act for the protection of nuclear-related \u201cRestricted Data.\u201d\nCongress has directed the President to establish procedures governing the access to classified material so that no person can gain such access without having undergone a background check. Congress also directed the President, in formulating the classification procedures, to adhere to certain minimum standards of due process with regard to access to classified information. These include the establishment of uniform procedures for, inter alia, background checks, denial of access to classified information, and notice of such denial. The statute also explicitly states that the agency heads are not required to comply with the due process requirement in denying or revoking an employee\u2019s security clearance where doing so could damage national security, although the statute directs agency heads to submit a report to the congressional intelligence committees in such a case.\nWith the authority to determine classification standards vested in the President, these standards tend to change whenever a new administration takes control of the White House. The differences between the standards of one administration and the next have often been dramatic. As one congressionally authorized commission put it in 1997:\nThe rules governing how best to protect the nation\u2019s secrets, while still insuring that the American public has access to information on the operations of its government, past and present, have shifted along with the political changes in Washington. Over the last fifty years, with the exception of the Kennedy Administration, a new executive order on classification was issued each time one of the political parties regained control of the Executive Branch. These have often been at variance with one another ... at times even reversing outright the policies of the previous order.\nVarious congressional committees have investigated ways to bring some continuity to the classification system and to limit the President\u2019s broad powers to shield information from public examination. In 1966, Congress passed the Freedom of Information Act (FOIA), creating a presumption that government information will be open to the public unless it falls into one of FOIA\u2019s exceptions. One exception covers information that, under executive order, must be kept secret for national security or foreign policy reasons. In 2000, Congress enacted the Public Interest Declassification Act of 2000, which established the Public Interest Declassification Board to advise the President on matters regarding the declassification of certain information, but the act expressly disclaims any intent to restrict agency heads from classifying or continuing the classification of information under their purview, nor does it create any rights or remedies that may be enforced in court. Most recently, Congress passed the Reducing Over-Classification Act, P.L. 111-258, which, among other things, requires executive branch agencies\u2019 inspectors general to conduct assessments of their agencies\u2019 implementation of classification policies.\nExecutive Order 13526\nThe present standards for classifying and declassifying information were last amended on December 29, 2009. Under these standards, the President, Vice President, agency heads, and any other officials designated by the President may classify information upon a determination that the unauthorized disclosure of such information could reasonably be expected to damage national security. Such information must be owned by, produced by, or under the control of the federal government, and must concern one of the following:\nmilitary plans, weapons systems, or operations;\nforeign government information;\nintelligence activities, intelligence sources/methods, cryptology;\nforeign relations or foreign activities of the United States, including confidential sources;\nscientific, technological, or economic matters relating to national security;\nfederal programs for safeguarding nuclear materials or facilities;\nvulnerabilities or capabilities of national security systems; or\nweapons of mass destruction.\nInformation may be classified at one of three levels based on the amount of danger that its unauthorized disclosure could reasonably be expected to cause to national security. Information is classified as \u201cTop Secret\u201d if its unauthorized disclosure could reasonably be expected to cause \u201cexceptionally grave damage\u201d to national security. The standard for \u201cSecret\u201d information is \u201cserious damage\u201d to national security, while for \u201cconfidential\u201d information the standard is \u201cdamage\u201d to national security. Significantly, for each level, the original classifying officer must identify or describe the specific danger potentially presented by the information\u2019s disclosure. In case of significant doubt as to the need to classify information or the level of classification appropriate, the information is to remain unclassified or be classified at the lowest level of protection considered appropriate.\nThe officer who originally classifies the information establishes a date for declassification based upon the expected duration of the information\u2019s sensitivity. If the office cannot set an earlier declassification date, then the information must be marked for declassification in 10 years\u2019 time or 25 years, depending on the sensitivity of the information. The deadline for declassification can be extended if the threat to national security still exists.\nClassified information is required to be declassified \u201cas soon as it no longer meets the standards for classification.\u201d The original classifying agency has the authority to declassify information when the public interest in disclosure outweighs the need to protect that information. On December 31, 2006, and every year thereafter, all information that has been classified for 25 years or longer and has been determined to have \u201cpermanent historical value\u201d under Title 44 of the U.S. Code will be automatically declassified, although agency heads can exempt from this requirement classified information that continues to be sensitive in a variety of specific areas.\nAgencies are required to review classification determinations upon a request for such a review that specifically identifies the materials so that the agency can locate them, unless the materials identified are part of an operational file exempt under the Freedom of Information Act (FOIA) or are the subject of pending litigation. This requirement does not apply to information that has undergone declassification review in the previous two years; information that is exempted from review under the National Security Act; or information classified by the incumbent President and staff, the Vice President and staff (in the performance of executive duties), commissions appointed by the President, or other entities within the executive office of the President that advise the President. Each agency that has classified information is required to establish a system for periodic declassification reviews. The National Archivist is required to establish a similar systemic review of classified information that has been transferred to the National Archives.\nAccess to classified information is generally limited to those who demonstrate their eligibility to the relevant agency head, sign a nondisclosure agreement, and have a need to know the information. The need-to-know requirement can be waived, however, for former Presidents and Vice Presidents, historical researchers, and former policy-making officials who were appointed by the President or Vice President. The information being accessed may not be removed from the controlling agency\u2019s premises without permission. Each agency is required to establish systems for controlling the distribution of classified information.\nThe Information Security Oversight Office (ISOO)\u2014an office within the National Archives\u2014is charged with overseeing compliance with the classification standards and promulgating directives to that end. ISOO is headed by a Director, who is appointed by the Archivist of the United States, and who has the authority to order declassification of information that, in the Director\u2019s view, is classified in violation of the aforementioned classification standards. In addition, there is an Interagency Security Classifications Appeals Panel (\u201cthe Panel\u201d), headed by the ISOO Director and made up of representatives of the heads of various agencies, including the Departments of Defense, Justice, and State, as well as the Central Intelligence Agency, and the National Archives. The Panel is empowered to decide appeals of classifications challenges and to review automatic and mandatory declassifications. If the ISOO Director finds a violation of E.O. 13526 or its implementing directives, then the Director must notify the appropriate classifying agency so that corrective steps can be taken. \nHandling of Unauthorized Disclosures\nUnder E.O. 13526, each respective agency is responsible for maintaining control over classified information it originates and is responsible for establishing uniform procedures to protect classified information and automated information systems in which classified information is stored or transmitted. Standards for safeguarding classified information, including the handling, storage, distribution, transmittal, and destruction of and accounting for classified information, are developed by the ISOO. Agencies that receive information classified elsewhere are not permitted to transfer the information further without approval from the classifying agency. Persons authorized to disseminate classified information outside the executive branch are required to ensure it receives protection equivalent to those required internally. In the event of a knowing, willful, or negligent unauthorized disclosure (or any such action that could reasonably be expected to result in an unauthorized disclosure), the agency head or senior agency official is required to notify ISOO and to \u201ctake appropriate and prompt corrective action.\u201d Officers and employees of the United States (including contractors, licensees, etc.) who commit a violation are subject to sanctions that can range from reprimand to termination.\nExecutive Order 12333, United States Intelligence Activities, spells out the responsibilities of members of the Intelligence Community for the protection of intelligence information, including intelligence sources and methods. Under Section 1.7 of E.O. 12333, heads of departments and agencies with organizations in the Intelligence Community (or the heads of such organizations, if appropriate) must report possible violations of federal criminal laws to the Attorney General \u201cin a manner consistent with the protection of intelligence sources and methods.\u201d \nInformation Security Oversight Office\nISOO Directive No. 1 (32 CFR Part 2001) provides further direction for agencies with responsibilities for safeguarding classified information. Section 2001.41 states:\nAuthorized persons who have access to classified information are responsible for: (a) Protecting it from persons without authorized access to that information, to include securing it in approved equipment or facilities whenever it is not under the direct control of an authorized person; (b) Meeting safeguarding requirements prescribed by the agency head; and (c) Ensuring that classified information is not communicated over unsecured voice or data circuits, in public conveyances or places, or in any other manner that permits interception by unauthorized persons.\nSection 2001.45 of ISOO Directive No. 1 requires agency heads to establish a system of appropriate control measures to limit access to classified information to authorized persons. Section 2001.46 requires that classified information is transmitted and received in an authorized manner that facilitates detection of tampering and precludes inadvertent access. Persons who transmit classified information are responsible for ensuring that the intended recipients are authorized to receive classified information and have the capacity to store classified information appropriately. Documents classified \u201cTop Secret\u201d that are physically transmitted outside secure facilities must be properly marked and wrapped in two layers to conceal the contents, and must remain under the constant and continuous protection of an authorized courier. In addition to the methods prescribed for the outside transmittal of Top Secret documents, documents classified at Secret or Confidential levels may be mailed in accordance with the prescribed procedures. Agency heads are required to establish procedures for receiving classified information in a manner that precludes unauthorized access, provides for detection of tampering and confirmation of contents, and ensures the timely acknowledgment of the receipt (in the case of Top Secret and Secret information).\nSection 2001.48 prescribes measures to be taken in the event of loss, possible compromise, or unauthorized disclosure. It states: \u201cAny person who has knowledge that classified information has been or may have been lost, possibly compromised or disclosed to an unauthorized person(s) shall immediately report the circumstances to an official designated for this purpose.\u201d\nAgency heads are required to establish appropriate procedures to conduct an inquiry or investigation into the loss, possible compromise or unauthorized disclosure of classified information, in order to implement \u201cappropriate corrective actions\u201d and to \u201cascertain the degree of damage to national security.\u201d The department or agency in which the compromise occurred must also advise any other government agency or foreign government agency whose interests are involved of the circumstances and findings that affect their information or interests. Agency heads are to establish procedures to ensure coordination with legal counsel in any case where a formal disciplinary action beyond a reprimand is contemplated against a person believed responsible for the unauthorized disclosure of classified information. Whenever a criminal violation appears to have occurred and a criminal prosecution is contemplated, agency heads are to ensure coordination with the Department of Justice and the legal counsel of the agency where the individual believed to be responsible is assigned or employed. Violators are generally subject to imprisonment or fine, and in some cases, loss of retirement or other benefits. \nIntelligence Community\nThe most recent intelligence community directives related to the safeguarding of classified information appear to be Intelligence Community Directive (ICD) 700, Protection of National Intelligence, effective June 7, 2012, and ICD 701, Security Policy Directive for Unauthorized Disclosures of Classified Information, effective March 14, 2007. ICD 700 mandates an integration of counterintelligence and security functions for the purpose of protecting national intelligence and sensitive information and, among other things, to strengthen \u201cdeterrence, detection, and mitigation of insider threats, defined as personnel who use their authorized access to do harm to the security of the US through espionage, terrorism, unauthorized disclosure of information, or through the loss or degradation of resources or capabilities.\u201d Under ICD 701, Senior Officials of the Intelligence Community (SOICs) are to promptly notify the Director of National Intelligence (DNI) and, if appropriate, law enforcement authorities of any actual or suspected unauthorized disclosure of classified information, including any media leak, that is likely to cause damage to national security interests, unless the disclosure is the subject of a counterespionage or counterintelligence investigation. Disclosures to be reported include:\nUnauthorized disclosure to an international organization, foreign power, agent of a foreign power, or terrorist organization;\nNational intelligence activities or information that may be at risk of appearing in the public media, either foreign or domestic, without official authorization;\nLoss or compromise of classified information that poses a risk to human life;\nLoss or compromise of classified information that is indicative of a systemic compromise;\nLoss or compromise of classified information storage media or equipment;\nDiscovery of clandestine surveillance and listening devices;\nLoss or compromise of classified information revealing U.S. or a foreign intelligence partner\u2019s intelligence operations or locations, or impairing foreign relations;\nSuch other disclosures of classified information that could adversely affect activities related to US national security; and\nLoss or compromise of classified information revealing intelligence sources or methods, US intelligence requirements, capabilities and relationships with the US Government.\nUpon determining that a compromise meeting the above reporting criteria has or may have occurred, the SOIC is required promptly to report it to the DNI, through the Special Security Center (SSC), and to any other element with responsibility for the material at issue. The SOIC is then required to provide updated reports as appropriate (or as directed). This process occurs in tandem with any required reporting to law enforcement authorities.\nThe required formal notification to the DNI is to include a complete statement of the facts, the scope of the unauthorized disclosure, sources and methods that may be at risk, the potential effect of the disclosure on national security, and corrective or mitigating actions. SOICs are further required to identify all factors that contributed to the compromise of classified information and take corrective action or make recommendations to the DNI. \nDepartment of Defense\nDepartment of Defense Directive 5210.50, \u201cUnauthorized Disclosure of Classified Information to the Public\u201d (July 22, 2005) governs procedures for handling unauthorized disclosures of classified information to the public. In the event of a known or suspected disclosure of classified information, the heads of DOD components must report the incident to the Deputy Secretary of Defense of Intelligence and conduct a preliminary investigation to confirm that classified information was disclosed, identify the particulars of the incident and who was involved, ascertain whether the information was properly classified or was authorized to be released, and identify any leads that might identify the person or persons responsible. The preliminary investigation should also ascertain whether further inquiry might increase the damage caused by the compromise.\nEnclosure 2 to Directive 5210.50 lists factors for determining whether to initiate an additional investigation by military, criminal, or counterintelligence investigative organizations, or the Department of Justice:\nThe accuracy of the information disclosed.\nThe damage to national security caused by the disclosure and whether there were compromises regarding sensitive aspects of current classified projects, intelligence sources, or intelligence methods.\nThe extent to which the disclosed information was circulated and the number of persons known to have access to it.\nThe degree to which an investigation shall increase the damage caused by the disclosure.\nThe existence of any investigative leads.\nThe reasonable expectation of repeated disclosures.\nThe extent to which the classified information was circulated outside the Department of Defense.\nIf classified DOD information appears in a newspaper or other media, the head of the appropriate DOD component is responsible for the preparation of a \u201cDOJ Media Leak Questionnaire\u201d to submit to the Deputy Secretary of Defense for Intelligence, who prepares a letter for the Chief, Internal Security Section of the Criminal Division at the Department of Justice. The following eleven questions are to be promptly and fully addressed:\nDate and identity of the article containing classified information.\nSpecific statements that are classified, and whether the information is properly classified.\nWhether disclosed information is accurate.\nWhether the information came from a specific document, and if so, the originating office and person responsible for its security.\nExtent of official circulation of the information.\nWhether information has been the subject of prior official release.\nWhether pre-publication clearance was sought.\nWhether sufficient information or background data has been published officially or in the press to make educated speculation on the matter possible.\nWhether information is to be made available for use in a criminal prosecution.\nWhether information has been considered for declassification.\nThe effect the disclosure of the classified data might have on the national defense. \nPenalties for Unauthorized Disclosure\nIn addition to administrative penalties agencies may employ to enforce information security, there are several statutory provisions that address the protection of classified information as such. No blanket prohibition exists to make it unlawful simply to disclose without authority any information that is classified by the government for national security reasons. \nCriminal Penalties\nGenerally, federal law prescribes a prison sentence of no more than a year and/or a $1,000 fine for officers and employees of the federal government who knowingly remove classified material without the authority to do so and with the intention of keeping that material at an unauthorized location. Stiffer penalties\u2014fines of up to $10,000 and imprisonment for up to 10 years\u2014attach when a federal employee transmits classified information to anyone that the employee has reason to believe is an agent of a foreign government. A fine and a 10-year prison term also await anyone, government employee or not, who publishes, makes available to an unauthorized person, or otherwise uses to the United States\u2019 detriment classified information regarding the codes, cryptography, and communications intelligence utilized by the United States or a foreign government. Finally, the disclosure of classified information that discloses any information identifying a covert agent, when done intentionally by a person with authorized access to such identifying information, is punishable by imprisonment for up to 15 years. A similar disclosure by one who learns the identity of a covert agent as a result of having authorized access to classified information is punishable by not more than 10 years\u2019 imprisonment. Under the same provision, a person who undertakes a \u201cpattern of activities intended to identify and expose covert agents\u201d with reason to believe such activities would impair U.S. foreign intelligence activities, and who then discloses the identities uncovered as a result is subject to three years\u2019 imprisonment, whether or not violator has access to classified information.\nCivil Penalties and Other Measures\nIn addition to the criminal penalties outlined above, the executive branch employs numerous means of deterring unauthorized disclosures by government personnel using administrative measures based on terms of employment contracts. The agency may impose disciplinary action or revoke a person\u2019s security clearance. The revocation of a security clearance is usually not reviewable by the Merit System Protection Board and may mean the loss of government employment. Government employees may be subject to monetary penalties for disclosing classified information. Violators of the Espionage Act and the Atomic Energy Act provisions may be subject to loss of their retirement pay.\nAgencies also rely on contractual agreements with employees, who typically must sign non-disclosure agreements prior to obtaining access to classified information, sometimes agreeing to submit all materials that the employee desires to publish to a review by the agency. The Supreme Court enforced such a contract against a former employee of the Central Intelligence Agency (CIA), upholding the government\u2019s imposition of a constructive trust on the profits of a book the employee sought to publish without first submitting it to CIA for review.\nIn 1986, the Espionage Act was amended to provide for the forfeiture of any property derived from or used in the commission of an offense. Violators of the Atomic Energy Act may be subjected to a civil penalty of up to $100,000 for each violation of Energy Department regulations regarding dissemination of unclassified information about nuclear facilities.\nUnder some circumstances, the government can also use injunctions to prevent disclosures of information. The courts have generally upheld injunctions against former employees\u2019 publishing information they learned through access to classified information. The Supreme Court also upheld the State Department\u2019s revocation of passports for overseas travel by persons planning to expose U.S. covert intelligence agents, despite the fact that the purpose was to disrupt U.S. intelligence activities rather than to assist a foreign government.\nDeclassification vs. Leaks and \u201cInstant Declassification\u201d\nAs noted above, E.O. 13526 sets the official procedures for the declassification of information. Once information is declassified, it may be released to persons without a security clearance. Leaks, by contrast, might be defined as the release of classified information to persons without a security clearance, typically journalists. Recent high-profile leaks of information regarding sensitive covert operations in news stories that seemed to some to portray the Obama Administration in a favorable light raised questions regarding the practice of \u201cinstant declassification,\u201d or whether disclosure of classified information to journalists may ever be said to be an \u201cauthorized disclosure\u201d by a senior official.\nThe processes for declassification set forth in E.O. 13526 seem to presuppose that agencies and classifying officials will not have any need or desire to disclose classified information in their possession other than to comply with the regulations. Yet it has long been noted that there seems to be an informal process for \u201cinstant declassification\u201d of information whose release to the public serves an immediate need. As Representative William Moorhead, at the time chairman of the Foreign Operations and Government Information Subcommittee of the House Government Operations Committee, stated in 1974:\nCritics of the present system of handling classified information within the Executive Branch point to an obvious double standard. On one hand, the full power of the Government\u2019s legal system is exercised against certain newspapers for publishing portions of the Pentagon Papers and against someone like Daniel Ellsberg for his alleged role in their being made public. This is contrasted with other actions by top Executive officials who utilize the technique of \u201cinstant declassification\u201d of information they want leaked. Sometimes it is an \u201coff-the-record\u201d press briefing or \u201cbackgrounders\u201d that becomes \u201con-the-record\u201d at the conclusion of the briefing or at some future politically strategic time. Such Executive Branch leaks may be planted with friendly news columnists. Or, the President himself may exercise his prerogative as Commander in Chief to declassify specific information in an address to the Nation or in a message to the Congress seeking additional funds for a weapons systems.\nNothing in the Executive Order addresses an informal procedure for releasing classified information. E.O. 13526 Section 1.1. provides that \u201c[c]lassified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information,\u201d but does not address what happens in the event of a disclosure that was in fact authorized. By definition, classified information is designated as such based on whether its unauthorized disclosure can reasonably be expected to cause a certain level of damage to national security. This may be read to suggest that disclosures may be authorized under such circumstances when no damage to national security is reasonably expected. Nothing in the order provides explicit authority to release classified information that exists apart from the authority to declassify, but it is possible that such discretionary authority is recognized to release information outside the community of authorized holders without formally declassifying it. \nPart 4 of the Executive Order describes safeguarding of classified information from unauthorized disclosure and preventing access to such information by \u201cunauthorized persons.\u201d Most of the provisions appear to envision classified documents or communications and storage devices used for classified information rather than the spoken word. Section 4.1(g) requires agency heads and the Director of National Intelligence to \u201cestablish controls to ensure that classified information is used, processed, stored, reproduced, transmitted, and destroyed under conditions that provide adequate protection and prevent access by unauthorized persons.\u201d If \u201ctransmitted\u201d is read to include oral dissemination and \u201cunauthorized persons\u201d is read to mean persons who do not meet the criteria set forth in Section 4.1(a), then it would seem that agency heads who approve leaks could be in breach of their responsibilities under the Order. \nMoreover, there is a provision for \u201cemergency disclosure\u201d of classified information \u201cwhen necessary to respond to an imminent threat to life or in defense of the homeland\u201d to \u201can individual or individuals who are otherwise not eligible for access.\u201d Section 4.2(b) provides that such disclosures must be in accordance with im", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/RS21900", "sha1": "77785c415784a00637f2c8519c1620230ad23eae", "filename": "files/20130110_RS21900_77785c415784a00637f2c8519c1620230ad23eae.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/RS21900", "sha1": "e2c10b22dc59a25cd6484089c968ef56afaff580", "filename": "files/20130110_RS21900_e2c10b22dc59a25cd6484089c968ef56afaff580.pdf", "images": null } ], "topics": [ { "source": "IBCList", "id": 2170, "name": "Government Information: Transparency, Protection, and Access" } ] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc491562/", "id": "RS21900_2012Dec17", "date": "2012-12-17", "retrieved": "2015-01-27T19:40:46", "title": "The Protection of Classified Information: The Legal Framework", "summary": "This report provides an overview of the relationship between executive and legislative authority over national security information, and summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information, as well as civil and administrative penalties. Finally, the report describes some recent developments in executive branch security policies and legislation currently before Congress (S. 3454).", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20121217_RS21900_4f55acd17a4007244369a697b556617f386cc53e.pdf" }, { "format": "HTML", "filename": "files/20121217_RS21900_4f55acd17a4007244369a697b556617f386cc53e.html" } ], "topics": [ { "source": "LIV", "id": "Government information", "name": "Government information" }, { "source": "LIV", "id": "Government and the press", "name": "Government and the press" }, { "source": "LIV", "id": "Information leaking", "name": "Information leaking" }, { "source": "LIV", "id": "Information policy", "name": "Information policy" } ] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc122339/", "id": "RS21900_2011Jan10", "date": "2011-01-10", "retrieved": "2012-11-30T09:28:34", "title": "The Protection of Classified Information: The Legal Framework", "summary": "This report provides an overview of the relationship between executive and legislative authority over national security information, and summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20110110_RS21900_e7ed17e9cd4216f633bcfc92e86f19d0c703216a.pdf" }, { "format": "HTML", "filename": "files/20110110_RS21900_e7ed17e9cd4216f633bcfc92e86f19d0c703216a.html" } ], "topics": [ { "source": "LIV", "id": "Government information", "name": "Government information" }, { "source": "LIV", "id": "Government and the press", "name": "Government and the press" }, { "source": "LIV", "id": "Information leaking", "name": "Information leaking" }, { "source": "LIV", "id": "Information policy", "name": "Information policy" } ] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc805106/", "id": "RS21900_2006Dec21", "date": "2006-12-21", "retrieved": "2016-03-19T13:57:26", "title": "The Protection of Classified Information: The Legal Framework", "summary": null, "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20061221_RS21900_264e9dcbc262446cbd9b64d7a1c96a7c8547a9a1.pdf" }, { "format": "HTML", "filename": "files/20061221_RS21900_264e9dcbc262446cbd9b64d7a1c96a7c8547a9a1.html" } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metacrs5934/", "id": "RS21900 2004-08-05", "date": "2004-08-05", "retrieved": "2005-06-11T19:44:45", "title": "The Protection of Classified Information: The Legal Framework", "summary": null, "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20040805_RS21900_52f39c1818daade35cb2c08283e2e85649482b63.pdf" }, { "format": "HTML", "filename": "files/20040805_RS21900_52f39c1818daade35cb2c08283e2e85649482b63.html" } ], "topics": [ { "source": "LIV", "id": "Government information", "name": "Government information" }, { "source": "LIV", "id": "Congressional-Executive relations", "name": "Congressional-Executive relations" }, { "source": "LIV", "id": "Security classification (Government documents)", "name": "Security classification (Government documents)" }, { "source": "LIV", "id": "Executive departments", "name": "Executive departments" }, { "source": "LIV", "id": "Congress", "name": "Congress" } ] } ], "topics": [ "Foreign Affairs", "Intelligence and National Security", "National Defense" ] }