Best of 2009: Properly classified — there’s no “significant doubt”

US President Barack Obama gestures for the crowd to keep quiet about his visit to the O&H Danish Bakery to buy kringle pastries so that First Lady Michelle Obama wouldn't find out about the visit, during a town hall event on the economy at Racine Memorial Hall in Racine, Wisconsin, June 30, 2010. AFP PHOTO / Saul LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
Photo: SAUL LOEB/AFP/Getty Images

CORY DOCTOROW: Obama administration: releasing details of secret copyright treaty endangers”national security.” Er, what?

Good question, Instapundit.  Click through — the original story is here, at Wired.  The reference is to the so-called Anti-Counterfeiting Trade Agreement, or ACTA.

But you can really see all you need to see by reading the letter from the Administration responding to a Freedom of Information Act request for disclosure of this information about a copyright treaty by stating that the documents the documents you seek are being withheld in full pursuant to 5 U.S.C. sec. 552(b)(1), which pertains to information that is properly classified in the interest of national security pursuant to Executive Order 12958.

10 Years of LIKELIHOOD OF CONFUSION®
10 Years of LIKELIHOOD OF CONFUSION®

Well, good to know they’re being properly withheld!

But can this truly be the case?

Here’s what that Clinton-era Executive Order says (in part) about what shall and shall not be deemed classified (emphases added):

Sec. 1.2. Classification Standards.

(a) Information may be originally classified under the terms of this order only if all of the following conditions are met:

    (1) an original classification authority is classifying the information;
    (2) the information is owned by, produced by or for, or is under the control of the United States Government;
    (3) the information falls within one or more of the categories of information listed in section 1.5 of this order;

and

    (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security and the original classification authority is able to identify or describe the damage.

(b) If there is significant doubt about the need to classify information, it shall not be classified.

exactly-what-i-saySo now we know that information in this copyright treaty is not only properly classified, there is no significant doubt about whether it ought to be.  Well, of course there’s little room there is for doubt when it comes to the Obama Administration!  <Okay, a little more seriously, what kinds of stuff can be classified under this Executive Order?

Information may not be considered for classification unless it concerns:

(a) military plans, weapons systems, or operations;

(b) foreign government information;

(c) intelligence activities (including special activities), intelligence sources or methods, or cryptology;

(d) foreign relations or foreign activities of the United States, including confidential sources;

(e) scientific, technological, or economic matters relating to the national security;

(f) United States Government programs for safeguarding nuclear materials or facilities; or

(g) vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security.

Defining ClintonIt appears that (d) would be the most applicable one provision here, right?  Well, how about (e)?  A plain reading of (e) would suggest otherwise, because the possibly applicable “technological or economic” topics covered would have to relate to “national security.”  But wait —

Section 1.1. Definitions. For purposes of this order:

(a) “National security” means the national defense or foreign relations of the United States.

Got it!  In Clintonese, “foreign relations,” as capacious a concept as you could please and which include, strictly speaking, anything on earth, is the same as “national security.”

It’s good to be an Executive Order.

Well, we can snigger, though, but perhaps this designation is “proper” after all, under either provision.  Classification could be stupid, or unreasonable, but it sure seems legal.

And… maybe it’s not so stupid.  Maybe, after all, it makes a lot of sense not to disclose the contents of a draft treaty in the middle of the process of multilateral negotiations, regardless of the subject matter.

Good to be the King
It’s good to be an Executive Order

Even if it’s copyright.  Unless and until someone knocks over this Executive Order, why is it so hard to understand that the government isn’t interested in having the world look over its shoulders during complex treaty negotiations?

The fact that you want information to be free doesn’t mean that “it wants” to be free, or should be.  Or that it’s going to be.

But wait, not so fast.  There’s at least one loose end here.  Doesn’t the broad definition of “National Security” make Section 1.1. make provisions (d) and (e) redundant?  Subsection (e), as elucidated by Section 1.1’s definition, includes “scientific, technological, or economic matters relating to the [national defense or foreign relations of the United States],” which would certainly seem to be included in the “(d) foreign relations or foreign activities of the United States,” right?  Why would you need both categories of classified information when one is entirely included in the other?

Easy.  We demonstrated properly, right?  Well, what do you know when pants are held up by both a belt, and suspenders?  That as to whether those pants are staying up, there is no significant doubt!

Any more questions, class?

UPDATE:  It’s still bad.  Tweet-tip to @copyrightlaw.

UPDATE, and then some:  A comprehensive-seeming response (how do I know how comprehensive it is when there’s secret stuff out there?) from Ben Sheffner.  Read the comments, too.

UPDATE:  Yep:  There’s more:

Despite widespread demands from politicians around the globe, combined with promises from the USTR to be more open and transparent (despite unsubstantiated and totally ridiculous claims that countries would leave the negotiations if details were made public) and even entertainment industry lobbyists admitting that the process could be more transparent, ACTA negotiations are continuing in a veil of total secrecy to the public (unless you’re a big industry lobbyist — then it’s open). The latest meetings in Mexico were again held in total secrecy, where public concerns were mocked, but appear to have continued to move the negotiations forward with claims coming out that the document is in “final drafting stages.”

UPDATE 2015:  This is the most recent meaningful writeup I could find on this business.

Ron Coleman

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