Peter Galison Secrecy in Three Acts
THE ESPIONAGE ACT: SPYING-SABOTAGING-UTTERING AT i:i8 PM ON APRIL 6, I917, THE CONGRESS OF THE UNITED Stateslaunched the countryinto the great European conflict that had beenraging for almost three years: "The state of war between the United Statesand the ImperialGerman Government, which has been thrust uponthe United States, is herebyformally declared" (National Center). In June,Congress passed the EspionageAct, the firstact of the three secrecy-definingstatutes that have shaped so muchof the last hundred yearsof modern American secrecy doctrine.1 Along with the two other statutesthat followedin later decades- the AtomicEnergy Acts of 1946 and 1954, and the PatriotAct of 2001- these threeacts picked out inflectionpoints in thegreat ratcheting process that has expanded secrecyfrom the protection of troop positions and recruitmentstations throughan entirefield of the physical sciences to almostthe whole of governmentand civilsociety. Along with a surroundof orders,direc- tives,laws, and policies,these three acts ground the modernworld of nationalsecurity secrecy. Necessarilyschematic, my aim here is to followthe long-term historyof secretsover the last 100 years,using the debatesand cases thatencircled them to understandbetter the governingprinciples of whatinformation had to be hidden.What dangers did each periodiden- tifyamong that which should be secret?What were the properties and
I wouldlike to thankJeanne Haffher for her exceptionally helpful research assistance and thoughtfulcomments; Robb Moss whose collaborationon our film,Secrecy, lies behindmany of the concernsexplored here; and AlexWellerstein for many fascinat- ingdiscussions surrounding his originalresearch into nuclear secrecy.
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions assumedpower of thesesecrets? What could, in the end,properly be declaredsecret? In short,I am interestedin usingthe acts to fixwhat it is thatsecrets were: a historicallychanging ontology ofsecrets from World WarI throughthe Long War (World War II throughthe Cold War), and finallyinto the Terror Wars, our age's unboundedconflict. Thefirst of our three breakpoints, the 1917 Espionage Act, forbade justthe kind ofthing you might expect: it laid out stern punishment for anyoneconvicted of stealing secrets about the national defense in order to harmthe United States. Here are proscribedin sections1 and 2 just the kindof cloak and daggeractivities that its titlesuggested: enter- ing or flyingover forbidden sites to obtaininformation about ships, aircraft,dockyards, torpedo stations, defense works, canals, factories, camps,communications centers, or troopmovements. Punishable too wouldbe copying,taking or making sketches, photographs, documents, blueprints,code booksor modelsof defense materials for the purpose ofcausing injury to theUnited States. For mere destruction or misuse, the perpetratorcould be imprisonedfor two years and fined$10,000. Asthe misdirection of, say, a secretphotograph moved toward a foreign recipient,the consequencesbecame graver.Worst of all would be deliberatelyhanding such items in wartimeto enemyagents - a crime punishableby death (Espionage Act of 1917; Sedition Act of 1918). To keep the secretsof the Armyand Navysafe fromsnoops, Congressvested in the presidentthe power to designateany site a prohibitedplace. Other titles within the EspionageAct addressedthe dangerof sabotage- settingfire, for example, to a munitionsfactory, or plantingbombs on ships. Where an enemywas illicitlyobserv- ing,destruction could not be farbehind. More surprising and fateful forordinary citizens was thatthe EspionageAct went on, in section 3, to addressutterances - the kindof speechor writtenact thatmight obstructrecruitment, hamper the successof military force, or, in time ofwar, precipitate insubordination, mutiny, disloyalty, or dereliction ofduty. The moveto censormet resistance. President Woodrow Wilson himselfobjected in a letterto ArthurBrisbane, the NewYork newspa- pereditor on April25, 1917that
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions I sincerelyappreciate the franknessof your interesting letterof Apriltwentieth with referenceto the so-called Espionage Bill now awaitingaction of the Congress.I approveof thislegislation but I need not assureyou and thoseinterested in it that,whatever action the Congress maydecide upon, so faras I am personallyconcerned, I shallnot expect or permitany part of this law to applyto me or anyof my official acts, or in anyway to be used as a shieldagainst criticism. I can imagineno greaterdisservice to thecountry than to establisha systemof censorship that would denyto the people of a freerepublic like our own theirindisputable right to criticisetheir own publicoffi- cials.While exercising the great powers of the office I hold, I wouldregret in a crisislike the one throughwhich we are now passingto lose thebenefit of patriotic and intelligent criticism. In these tryingtimes one can feel certainonly of his motives,which he muststrive to purgeof selfishnessof everykind, and awaitwith patience for the judgment of a calmerday to vindicatethe wisdom of the course he has triedconscientiously to follow(Woodrow Wilson 1917).
Whatkind of utterances were actually prosecuted? Ves Hall was a rancherfrom Rosebud Country, Montana. In January 1918, the prosecu- tor,Assistant District Attorney Homer G. Murphyhauled him before federaldistrict Judge George M. Bourquin,charging him withviolat- ing the EspionageAct: interfering with military operations, blocking recruitment,aiding the enemy. From the court proceedings: "At diverse timesin thepresence of sundry persons, some of whom had registered forthe draft,[Hall] declared that he wouldflee to avoidgoing to war, thatGermany would whip the UnitedStates, and he hoped so, that the Presidentwas a Wall Streettool, using the UnitedStates forces in thewar because he was a Britishtool, that Wilson was the crookedest [censored]-everPresident; that he was the richestman in the United
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions States."Murphy went after the ranchertooth and nail (Nelles1918: 6; Gutfield1968: 168). In his prosecution,Murphy had the fullbacking of the press, whichwas ownedby the big miningcompanies. Federal District Court JudgeGeorge M. Bourquinshrugged off the pressurefrom both the extractionindustry and fromthe Justice Department itself - refusing to be shovedinto convicting war-resisting "slackers." In the Hall case, Bourquinfound that the loud-mouthedfellow had, in fact,said the thingsof which he was accused,but had done so in a villagewith a popu- lationof 60, 60 milesfrom the railway and thousandsof miles from the frontlinesof the armies and navieshe was supposedto havewounded withwords: "The declarationswere oral,some in badinagewith the landladyin a hotelkitchen, some at a picnic,some on thestreet, some in hot and furioussaloon argument"(Nelles 1918: 6). Thanksto the nonpresencein Montanaof a greatnaval fleet or army, the judge judged thatHall did not seem to have had an intentto interferewith their operations.In Bourquin'sview, someone who shotanother with a .22 pistolfrom three miles away could hardlybe convictedof attempted murder- so it was withHall; his verbalassault was so distantfrom its targetthat there simply was no plausiblecase to be made forinterfer- encewith military operations or recruitment(Gutfield 1968: 168-169). Morelikely than Hall suddenlysinking the U.S. Navy,Bourquin added,would be Hall gettinga "brokenhead" in a barroombrawl: "The EspionageAct is not intendedto suppresscriticism or denunciation, truthor slander,oratory or gossip,argument or loose talk,"but only actual obstructionor injuryto the military.The idea, he concluded, thatslanderous or disloyaltalk could get the utterer prosecuted by the UnitedStates "is a mistake."The courtacquitted Hall, though not with- out a roarof disapprovalfrom the nationalistpress and the impeach- mentof one ofHall's character witnesses, Judge Charles L. Crum (Nelles 1918:6-8; Gutfield 1968: 163). Prosecutorswere moresuccessful in theirOctober 1917 indict- mentof 27 Socialistfarmers in HutchinsonCounty, South Dakota, with EmanuelBaltzer as the lead defendant.The accusedsent a petitionto
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions the sheriff,treasurer, and auditorof HutchinsonCounty and to the governorof the state,arguing that the people were againstthe draft, thatthe county quota was unfairlyfixed, and a referendumon thewar and draftwas needed.Ignoring this petition, so saidthe farmers, would "spellsure defeat for you and yourparty." The chargehere was thatthe accusedhad deliberatelyinterfered with an official'sdischarge of his dutiesto runthe draft. Judge F. A. Youmans instructed the jury to assess whetherthe defendantswere in conspiracyand whethertheir actions willfullyobstructed the draft. The jury convicted, but the district court's decisionwas reversedby a highercourt on December16, 1918 (Nelles 1918:17-18).1 On August29, 1917,in theSouthern District of Georgia, the post- mastersought to blockmailing privileges for "The Jeffersonian" under the EspionageAct. A bill came beforethe courtto removethe block. The courtread from the Espionage Act and admiredthe "light... ofa validand vitallaw" thatshone upon the dark,nefarious pages of "The Jeffersonian."In contrastto the subversionof those pages,the pros- ecutorurged the courtto thinkof the "thousandsof the elite of the Americanarmy [who] were on thesoil of France." Then came a patriotic hymn:"At any moment the crash of their rifle fire and thethunders of theirartillery in the vindicationand defenseof humanliberty might be heard.American men-of-war manned by Americanswere swiftly cleavingthe watersforbidden by the enemyto our commerce,quest- ingevery billow for his lurkingand deadlycraft." Every strong-hearted Americanwas risingto theoccasion: "[G]allant youth of every American Statewere rallying to theFlag . . . over-subscriptionofthe Liberty Bonds . . . self-sacrificialspirit of women . . . our country'sdaughters were no whitbehind her sons" (Nelles1918: 31). In contrastto thesepatri- ots, the prosecutorintroduced some offendingpassages from"The Jeffersonian":
►"Men conscripted to go to Europeare virtuallycondemned to death and everybodyknows it." ►"Are we, likethe sow returningto herwallow and thedog to his
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions vomit,to go backto themedievalism of personal rule, a Pope's wordruling the church and a king'sword ruling the state? Why not call WoodrowWilson by the name of King, or Kaiser,or Czar.. . ." ►"What about a carload ofGerman soap madeout of our boys? Whatabout manuring German fields with our bravest youths, and fatteningGerman hogs on thechoicest selection from American manhood?I raisedmy boy to be a soldiersays the song, but did motherraise him to be a pigfeed?"
Shouldthe postmasterhave let such propagandawend its way throughthe mails, then, so saidthe prosecutor, he wouldhave contrib- utedto thebloody defeat of a demoralizedAmerican army. The world would have beheld the degradationof America,its "disintegration underfire" not unlike the ignominousdefeat of the Russianarmy, broughtabout "by methodsmuch the same . . . the destructionof [America's]institutions and the perishingof popularGovernment on earth."The judge agreed;the mail ban imposedon "TheJeffersonian" wouldbe maintained(Nelles 1918: 32-33). Cases like those of Hall, Baltzer,and "The Jeffersonian"all involvedputatively false, willful, and potentdisloyal statements. But even thatwide radiuswas not enough:censorship could reigneven whenthe truthof the utterancewas indisputable,that is wherethere was clearlyno violationof Section3 (thewillful making of false state- ments).That much is clear fromthe November1917 case of Robert Goldstein,a 34-year-oldJewish costume store owner who, in 1917, produceda film,The Spirit of '76. Judge Benjamin Franklin Bledsoe, from southernCalifornia, conceded that the film made excellent use ofsuch prominentand laudablephases of the war as Paul Revere'sride or the signingof the Declarationof Independence.But Spiritshowed some thingsthat wouldn't do at all: the WyomingValley Massacre (1778, in WyomingPennsylvania), for example. Worse, it depicteda British soldier"impaling on a bayoneta baby lyingin its cradle and then whirlingit aroundhis head so impaled."Loyalists shot harmless young women,and, in preparationfor "unspeakable" aims, the redcoats could
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions be seen on screen"dragging off, sometimes by the hair of the head, . . . youngAmerican girls" (Slide: 1993: 207-208). Now,Bledsoe reckoned,the UnitedStates was in the midstof "thegreatest emergency we have ever. . . confronted,"which was no timefor anything that might limit efficiency of the cause. Depicting the perfidyof the Britishwas preciselythat. "History is history,and factis fact.There is no doubtabout that. ... It is a factthat we wereat warwith Great Britain during the Revolutionarytimes, and whatever occurredthere is writtenupon the pages of historyand will have to stand,whomsoever may be injuredor hurtby the recitalor recollec- tionof it." But facts, Bledsoe insisted, have their time and place.Sowing dissension,creating animosity or lack of confidencebetween allies - thiswas a real danger"because so to do weakensour efforts,weak- ens the chanceof our success,impairs our solidarity,and rendersless usefulthe lives we aregiving, to theend thatthis war may soon be over and peace maysoon becomea thingsubstantial and permanentwith us."The result:Spirit seized, Goldstein jailed. He struggledfor rehabili- tation,and indeedPresident Wilson eventually pardoned him after the war.Still, he spentthe restof his lifestruggling for rehabilitation. In the 1930s,Goldstein went scrounging for movie funding in Germany, and veryprobably died in the Holocaust,for want of the nine dollars he neededto renewhis Americanpassport (Slide 1993: 209-210;Noah 2000). Allthese cases (Hall,Baltzer, "The Jeffersonian," Goldstein) took placebetween August 1917 and January 1918. The war continued, blood- ily,and chauvinismextended its reach. On April15, 1918,U.S. Attorney GeneralThomas Watt Gregory read an addressto the AmericanBar Association,and a fewweeks laterit was read into the Congressional Record.Lynching, the attorneygeneral said, was the mostcowardly of crimes,and a purportedGerman sympathizer lynched in Illinoiswas guiltyof nothing, his death the product of a mobfrustrated by its sense thatthe governmentwas not doing anything.The attorneygeneral pressedthe BarAssociation on the point:"to giveyou an idea of the ineffectivenessofthe [Espionage Act], I referto celebratedcase recently
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions decidedby a districtjudge [Bourquin]of the United States, which will giveyou an idea ofhow impossibleit is to enforceit in somejurisdic- tions."That case - VesHall's - was an affrontto theattorney general, a clearsign that disloyalty could go unpunished.Even a German,chemist WalterT. Scheele,who had plottedto sinkvessels on thehigh seas with incendiaries,got awaywith a mere$2,000 fine. "Hanging would have been too good forthat crime, because womenand childrenwith no protectionwere on thosevessels." With 1,500,000 male aliensenemies over14 yearsof age, the attorney general suggested that each suchman or youngman belongedto a familyof at leastthree, and so concluded thatthere would be 4.5 million"enemy aliens within our borders. This willgive you an idea ofthe size ofthe problem." Somewhere between reportingand agitating,he intoned,"from every side sectionof the countrycomes up the crythat the disloyaland seditiousshould be triedby military courts-martial and promptlyshot." That, the attorney generalsaid, might be goinga tad too far.Civilian courts could do the job if lawyersrose to thisnational emergency (All quotations in this paragraphfrom Congressional Record 1918: 6233-6234). Reactionto theVes Hall acquittalwas a keyevent in the formu- lation and passage of the May 1918 amendmentto Section3 of the EspionageAct. This expansion became known as the SeditionAct, and heldsway until its repeal in 1920.Dangerous language loomed even more powerfullyas a majorproblem - languagespoken, printed, written, or published.Examples of the revised section Espionage Act included these:
►Whoever, when the United States is at war,"shall willfully make or conveyfalse reports or falsestatements with intent to interfere" withthe military; ►Whoever shall "make or conveyfalse reports or falsestatements . . . withintent to obstructthe sale bythe United States of bonds"; ►Whoever . . . shallwillfully utter, print, write, or publishany disloyalprofane, scurrilous, or abusivelanguage" about the form of U.S.government; ►Whoever shall utter, print, write or publish"any language intended
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions to bringthe form of the government of the United States, or the Constitutionof the United States, or themilitary or navalforces of theUnited States, or theflag of the United States . . . intocontempt, scorn,contumely, or disrepute"; ►Any official or employeeof the U.S. government who "uttersany unpatrioticor disloyallanguage, or who,in an abusiveand violent mannercriticizes the Army or Navyor theflag of the United States" (Nelles1918: 1-2).
Arisethe civilian courts did. Walter Nelles, the Yale law professor and pacifistwho assembledprécis of the variousEspionage Act cases, reportedthat there had been 877 convictionsunder the act between June30, 1917 and June30, 1919. No doubtgreat harm had come to them and the manyother cases prosecutedbut not convicted.But Nellesworried in TheNation of December1920 thatthe real damage wentfarther: the act had "cowedminds." Though by the end of 1920, the legislationhad fallendormant, Nelles found that minds had been all toowell mobilized, "incapacitated for independent thinking." And a legacyof "vague and disingenuousstatutes" allowed people to be pros- ecutednot for real injury to theArmy, Navy, or recruitmentoffices, but insteadfor having spoken their minds. Many of the jailed had said no morethan President Wilson himself in St.Louis on September5, 1919: "Why,my fellow-citizens, is there any man here,or woman,who does not knowthat the seed ofwar in the modernworld is industrialand commercialrivalry? This war was a commercialand industrialwar. It was nota politicalwar" (Nelles 1920: 684). Nellesblasted the Supreme Courtfor having backed Espionage Act prosecutions, even when there was neither"visible and tangibleharm" nor proof of "causalresponsi- bility."This, Nelles warned, amounted to the impositionin Americaof the old Englishinfractions of seditiouslibel and constructivetreason. Prosecutionfor "reason to believe"was, he concluded,a fundamental threatto theFirst Amendment. At firstblush, the EspionageAct offersa puzzle: How did clas- sical espionage(photographing a "prohibited area," or sequesteringa
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions code book) findan easygrouping with the denunciationof President Wilsonas a Britishtool or thecry that young Americans would end up fertilizinga Frenchbattlefield? But espionage joined sabotagein the darkcrimes of enemyagents; and sabotagecarried over in practiceto includeutterances that, the state contended, causally and proximately blockedthe capacity of the armed forces to recruitor fight. Agitatedtimes: Franz Bopp the Germanconsul in San Francisco, sat accusedof conspiring to blowup Americanmunition ships. On the dayfilmmaker Robert Goldstein's trial began, the Los Angeles Times put a pictureon itsfront page depictingthe canvas sign advertising The Spini of76, damaged by winds to readSpi '76. Superimposed on itwere images ofGoldstein and Boppwith the headline "Dynamiter of Munition Ships Goldstein'Angel'?" Forbidden knowledge, the unutterable,extended itsdomain. In thewriting and applicationof the Espionage Act, words becameacts, judged as ifthey were bombs.2 Aim near with a weapon and intent,you couldbe convictedfor attempted murder; aim farand wide,and youmight go free. Espionagein the midstof World War I mayat firstseem to be trench-coatspies with secret cameras and furtivesaboteurs with hiss- ingfirebombs. But it soon became much more than that: a greatdragnet forpurportedly dangerous words, a campaignthat prosecuted thou- sandsof cases and drovethe first, not the last, of a large-scalepolitical repressionbehind a façadeof counterespionage.Though the excesses ofthe expanded Section 3 wererepealed in 1920,the larger structure of theEspionage Act remained, amended numerous times to takeaccount of new technologiesand new threats- and remainsin forceinto the twenty-firstcentury.
THE ATOMIC ENERGY ACT (1946, REVISED 1954) Battlesin WorldWar I turnedon manyfactors: troop numbers, endur- ance,weather, machine guns, and, thoughin fewerinstances than is oftenthought, poison gas. But taken in itstotality, World War I was not, in the main,a technologicalwar, at least not in comparisonwith its sequel,which began in 1939.Measured by budget, personnel, or weap-
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions ons,the Second World War, far more than the First, was a battleof tech- nologyand science.Radar took a keyrole, both in directingbombers to theirtargets and in defendingthose targets from attack. But though the"battle of the beams." as itwas called,raged furiously, secrecy was a short-livedaffair. British and Germanscientists were constantly detect- ing and counteringthe otherside; a radarset at the cuttingedge of 1943was thoroughlyobsolete and notworth protecting in 1944. Though the ManhattanProject itself operated duringWorld WarII underthe legal cloak of the EspionageAct, within weeks after Hiroshimaand Nagasaki debate began about what kind of secrecy wouldreign over all thingsatomic. More than any other technology, a new scope,scale and evenontology of secrecy entered, orbiting, as it were,around the nucleus.Many scientists demanded openness about the new world of heavynuclei and theirproperties. Enrico Fermi commented,"Unless research is freeand outsideof control, the United Stateswill lose itssuperiority in scientificpursuit" (Hewlitt 1981: 20). 3 Forpoliticians, especially the conservative politicians who domi- natedcongressional discussion, the fear above all elsewas thatthe tech- nologyof nuclearweapons would be passed to potentialenemies. In the"Dissemination of Information" section of the 1946Atomic Energy Act,the bill triedto splitthese two realms.Senator Brien McMahon, whotook the atomic bomb to be "thegreatest thing since Jesus Christ," was keen forrestriction, and his originalbill insistedthat fissionable materialalong with all facilitiesand fissionablematerials would belong to theAtomic Energy Commission (AEC), compensating, if necessary, the inventor.Section 9 (Disseminationof Information)of the original bill guaranteedthat basic scientificinformation about atomicenergy wouldbe distributedin librariesand publicationswith "related techni- cal information"that were determined not to harmnational security. Buteven informationnot so determinedwas not,for that, automati- callyin violationof the Espionage Act. As the bill moved throughhearings, it became increasingly restricted."Control of Information"(Section 10) displacedthe older ambitionfor "dissemination." And though the bill did notuse thelater
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions term"born secret," the act as passedpromoted the category, "restricted data" to include any informationabout the manufactureor use of fissionablematerial, nuclear weapons, or nuclearpower - unlessthat informationwas de-classifiedby theAEC. Scientistsprotested in vain. The commissionbacked up a powerfullyinclusive notion of secrecy withsevere punishment for violation. Distributing information to any foreignnation with intent to injurethe United States may be "punished bydeath or lifeimprisonment" (Hewlitt 1981: 20-21). Morespecifically, what misuse of restricteddata wouldprecipi- tatepunishment ? Anyonewho communicates,transmits, or discloses restricteddata withintent to injurethe United States or secureadvan- tage to a foreignnation could be punishedby deathor lifeimprison- ment.Anyone who movesthe restricteddata with"reason to believe" thattheir communication, transmission, or disclosurewill injurethe UnitedStates or secureadvantage to a foreignnation could face up to 20 yearsin jail and/orup to a $20,000fine. Indeed, death or lifeimpris- onmentcould be punishmentfor conspiring to acquirerestricted data withintent to injurethe United States - as couldany attempt to alter, mutilate,or destroydocuments or materielused in the production of fissionablematerial (Atomic Energy Act 1975; Newman1946-1947: 781-782). Bylumping together knowledge from theoretical nuclear physics withthe fabricationof isotopeseparation devices, the Atomic Energy Actof 1946 erodedthe distinctionbetween pure and appliedscience. Throughpatent law italso beganto eat awayat thedistinction between officialsecrets and privatesecrets (Newman 1946-1947:781-782). Thoughperhaps surprising in retrospect,the atomic bomb project was debatingthe role of patents from the beginning. The Officeof Scientific Researchand Developmenthad two contracts.One was short- it did notneed muchelaboration since it turnedover to thegovernment all powerto dispose of rightsin discoveriesand inventions.When this fullsurrender form met resistance among key industrial entities, the governmentwrote up a longform that left the contractor with the title, butceded to thegovernment rights for use in nationaldefense. As the
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions ManhattanProject rose in scale,the big contractors- Standard Oil and thenColumbia University, the Kellogg Company, DuPont, and others- agreedto theshorter, more direct form of government control. But this full concessionwas temporary.When the shooting stopped,suddenly patents, ownership, and theprospects of a vastnew industrybrought intellectual property front and center.On February 11, 1946,hearings took place beforethe SenateSpecial Committee on AtomicEnergy. Captain Robert A. Lavender(chief patent adviser to the Officeof Scientific Research and Development,or OSRD)responded to questions:
The Chairman:If an individualor a companyworks in the atomicenergy field at his own expense,there would be no waythat you could get hold of [the patent]? CaptainLavender: There is one partof the EspionageAct, whichrequires that information involving national defense come as a resultof some relationwith the Government. The Governmentcould go to the inventorand place him underthe Espionage Act, and he wouldnot be permittedto disclosehis invention.
In practice,the commissioner of patents would report the patent to the AtomicEnergy Commission, and the AEC would have author- ityto purchaseit or otherwisegain control.Lavender: "this is in effect the seizingof the inventionand restrictingthe inventorunder police power"(Senate Hearings on AtomicEnergy 1946: 11; "AtomicBomb Patents"1946: 30-31).Just this seizure and police power restriction put manyon alert.Suppose you were cautious enough not to publish, in orderto avoidtransmitting the atomicenergy invention to foreign nationsto theiradvantage, or worse,to theinjury of the United States. You stillwould not onlyneed to guardyour own morals,your own intent,but also monitorthose within the UnitedStates to whomyou conveyedyour ideas. Forjust this reason,the AtomicEnergy Act of 1946 metwith shock among many in the legal community.James R.
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions Newman,who had been counselto the SenateSpecial Committeeon AtomicEnergy, warned in theYale Law Review that "one mustalso judge theloyalty, patriotism and discretionof those with whom one commu- nicatesand runthe risk of imprisonment ifthis judgment should prove erroneous"(Newman 1946-47: 787). Newmancontinued: "the unprec- edentedprovisions which prescribe the death penaltyin peacetime forsuch an offenseas 'mutilating'a 'sketch'relating to researchon atomicenergy partially financed by federal funds can be ascribedonly to superstitiousdread. Terror of the atomic bomb is naturaland under- standable- perhapseven healthy; but terror at theloss ofthe 'secret' is a tribalfear which, once gainingascendancy in our minds,must inevi- tablyweaken rather than strengthen our defensive power as a nation" (782-783). Bitby bit,over the courseof 1946, 1947, and 1948,the wheels of declassificationturned. Certain categories of ManhattanProject secretscracked open to allow the outsideworld to catcha glimpseof themyriad advances that had been gainedin nuclearinstrumentation, mathematicaltechniques, particle accelerators, chemical processes, medicaland healthstudies, and "propertiesof elements below 90." So theproperties of the basic elements of the universe were for all to see- at leastthose that ran from hydrogen, helium and up throughfrancium (87),radium (88), and actinium(89). Butthe commissionleft a neplus ultraon the periodictable just to the rightof actinium:beyond it lay the forbiddenzone of thorium(90), protactinium(91), uranium(92), neptunium(93), and plutonium(94). But the draconian web ofsecrecy thathad coveredthe Manhattan Project - backedin manyways by the 1946 Act- beganto frayin the immediatepostwar years as scientists, industry,and foreignpowers began to dig intothe atom.Hearings in the1950s led to a significantrevision to theact in 1954. The problemin formulatingthe 1954 act was the same one Congresshad been grapplingwith foryears. The governmentwas caughtbetween a rockand a hardplace: on one sideit wanted to encour- age scientistsand industryto advancethe technologyand scienceof all thingsnuclear. To encouragework on nuclearpower, the 1954 act
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions allowed privatecompanies access to relevantrestricted data if they followedAEC securityand secrecystipulations. The new act partially openedexchange with foreign countries, and it liberalizeda fewof the patentprovisions. By the 1960s,pressures of anothersort emerged as foreigncompanies began developinguranium centrifuge technology. Open communicationcould, the AEC hoped,maintain a modicumof control(Hewlitt 1981: 21-22).4Onthe otherside, the early1950s were McCarthydays and theterrible fear of disloyal scientists and an uncon- trolledindustry. The problemof the wideninggyre of secrecycaught the attentionof some in Congress.In one hearingabout amending theAtomic Energy Act of 1946,Representative Carl T. Durhamput it starkly:
Rep. Durham: Do you thinkit would be possible, or would it be reasonable,for a physicistwho has of course fullknowledge of practicallyall of these developments, who has neverhad contactwith the AEC,who has never seen a classifieddocument, to writean articlein a newspa- perwhich could be construedas beingclassified material? It looksto me likeit is possible." OscarRuebhausen [Chairman of the SpecialCommittee ofthe New York City Bar Association]: "I am verytroubled byit, too, sir Itis thecomplete absence of any exception forthe whollyinnocent communication which bothers me. Maybewe have no otheralternative than to penalize theinnocent with the guilty. But before we do it,it is a very drasticstep, and I knowthe committee will search for ways to softenit" (Cheh 1979-1980: 186).
By collapsing scientificideas, technologicalprinciples, and device design into the conglomeratecategory of "restricteddata," Congressmade almost any kind of disclosurepunishable. Since so muchof nuclear bomb and energyproduction was technical-industrial, itbecame ever more plausible to Congressthat the secrets of the bomb
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions could be controlledby restrictionson patents.In fact,considerable controversysurrounding the atomic energy bill swirledaround patent provisions.Essentially, the government claimed a formof intellectual eminentdomain: nonpatentability, compulsory licensing, and govern- mentacquisition by a sweeping,a prioricondemnation of the entire field.Inventors had to discloseto the commissionany work useful in theproduction of "special materials" for power or weaponsand notify theAEC of all patentapplications falling in the government'snuclear dominion(Risenfeld 1959: 40-68).5 For its part, the AEC would establish a PatentCompensation Board that would compensate the inventor, the waythe governmentpaid a familywhose house it had condemnedto builda highway. Unlikea condemnedpiece of land, however,the condemned intellectualproperty was not somethingthat already existed and for whichpositive government action was required.Here, in the nuclear domain,an entirelynew process, device, or design could come into exis- tenceand be subjectautomatically and from the outset to condemnation byeminent domain. If it had to do withnuclear power or nuclearweap- ons,it was, as the philosopherswould say, "always already" subject to governmentlicensing, whether secret, partially secret, or open. Here is a real case fromJanuary 1955 thatillustrates precisely how thegovernment and courtsput the atomicpatent monopoly into action,though in this instancethe device was seized but not held secret.Harold Washburn of Consolidated Engineering Corporation had in hand threepatents one from1948 (firstsubmitted in 1943),along withtwo from 1952, to defendthe company's invention of a new kind ofmass spectrometer,an instrumentthat can determinethe chemical and isotopecontent of a gas. In particular,it coulddistinguish the rela- tivepresence of U235 from U238. ConsolidatedEngineering, argued that the governmenthad manufacturedand used its G-107 line recorders without license - and so shouldpay compensation.6 For its part, the Atomic Energy Commission franklyadmitted that it was using"G-107 line recorders"equivalent to Consolidated'sdevice. But the government claimed that the Atomic
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions EnergyAct of 1946 excludedthe suit,citing the statute"No patent [grantedafter 1 August1946] shall confer any rights with respect to any inventionof discoveryto the extentthat such inventionor discovery is used in the productionof fissionablematerial or in the utilization of fissionablematerial or atomicenergy for a militaryweapon." The nuclearauthorities contended that "used" in the act meantthat the governmentnot only had the rightto employbut also to manufacture theinvention. In reply,Consolidated said, first, that since their instru- mentwas an analyzer,it was notpart of the "production"process, and second,"used" did not conveythe manufacturingrights (Van Young 1979:28-32; 131 Ct.Cl. 819; 127 F.Supp.558 1955). The courtzeroed in on thosetwo questions:was the G-107part of production,and did the AtomicEnergy Act seizure of patentsalso confercontrol over manufacture? All existingmethods of separating U235 fromU238 involvedpreparing a gas,uranium hexafluoride. One method,the dominantone in WorldWar II, came fromdiffusing that "hex" as it was called, throughporous material.It was slow- each step in the diffusionlet a bit moreof the lighterU235 throughthan it did the heavierU238. On the farend of a barrier,the enrichedgas (havinga largerpercentage of U235) was pumpedout and delivered to the nextbarrier. After some 5,000 or so passagesthrough porous barriers("the cascade"), Oak Ridgecould produce about 1 kgper day of highlyenriched uranium - thatis, almostpure U235 fora Hiroshima- typebomb every few weeks (1 kg/dayfrom Van Young1979: 30, from theSmyth Report). In a typicalcivilian patent infringement suit, the accusedwould arguethat the devicewas not muchlike the one the plaintiffheld up forthe court's examination, and thenshrug off the purported infringe- mentas incidentalto the core of the defendant'sindustrial process. Here,in theupside-down black world, the logicfunctioned backward. The AEC insisted,with the aid of scientificevidence provided by John R. Mahoney,assistant superintendent of the InstrumentEngineering Departmentfor Carbide and CarbonChemicals Company at Oak Ridge, thatthe line recorderwas a fundamental,permanent, part of separa-
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions tion.It was, Mahoneycontended, part of Carbide'soperation at Oak Ridge,part of the isotopeseparation plant at Paducah,Kentucky, and wouldsoon be partof a uraniumenrichment plant being constructed by GoodyearAtomic Corporation at Portsmouth,Ohio. Onlyby moni- toringthe isotopie and chemicalpurity of the product could the whole processfunction:
Thisinformation permits correction of malfunctioningof unitsof the cascadesand thussecure[s] the optimumrate of productionof the uraniumisotope of mass 235 having the requiredchemical and isotopiepurity and that the uraniumisotope of mass 235 could notbe producedwith the requiredchemical and isotopiepurity at the present productionrats in the existinggaseous diffusion cascades withoutthe use of Line Recorders.The separation of uraniumisotopes by diffusion results in a concentrationof theisotope Uranium 235 whichis a fissionablematerial as definedin Section5(a) ofthe Act. Defendant urges that this constitutesa productionof fissionable material within the meaningof the Act (131 Ct. Cl. 819,127 F.Supp.558 (1955)).
The courtconcurred with the AEC, removingany claim that ConsolidatedEngineering might have: the patentsheld no protec- tionfor the plaintiff;having proven their worth within the apparatus ofU235 production,the governmenthad control.Judge Benjamin H. Littletonwrote for the court:"We hold thereforethat the plaintiff's patentsconferred no rightswith respect to theinventions which were used or manufacturedto be used in thespecified instances in thiscase. The plaintiffobtained no rightsunder the patents insofar as and to the extentthat the patenteditems were used bythe defendant.It follows thenthat there can be no recovery"(131 Ct. Cl. 819, 127 F.Supp.558 (1955)). Alongsideclaims like that of Consolidated,there were lesser plaintiffs- like the retired dentist Cornell Joel Grossman,who
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions claimedto havea particularlylethal Nitro Hydrogen Bomb that would be producedby placingpowdered uranium in a "HighVoltage High FrequencyElectro Thermic Furnace" and allowingit to explode- or by droppingin some potassiumnitrate and zirconiumpowder, or maybe,the inventoradded, some tanks of arsenic,hydrogen, and fluorine.Denying the claim,the PatentCompensation Board found nothinguseful for the utilization of atomic weapons (or anything else) and,to nail the case closed,pointed out thatthe dentisthad failedto submithis case withinthe required60 days of August1, 1946 (Van Young1979: 42). If Dr. Grossman had considerablyless than Consolidated Engineeringto offerthe weapons program, there were others that had considerablymore. Enrico Fermi and his colleagueshad a claimon the use of slow neutronsto inducenuclear reactions (slow neutronsare essentialto building a nuclearreactor). This discovery was key- reactor moderatorsthat slow neutronsare centralto the productionof pluto- nium,including, of course, the fissile Pu coreused in thebomb dropped on Nagasaki.Their patent, 2,206,634, "Process for the Productionof RadioactiveSubstances" was issuedon July2, 1940 to Fermi,Edoardo Arnaldi,Bruno Pontecorvo, Franco Rasetti, and EmilioSegrè. The reac- tormen spentyears pursing $1,000,000 for their claim (at one point considerablymore than that); in 1953,they were given $300,000. Glen Seaborgfirst separated plutonium - he too made a claimfor which he received$100,000 in compensation.Physicist Herb Anderson, who had madekey contributions to theuranium lattice in thereactor, filed late, buteffectively, to get an award.The PatentCompensation Board: "[The purposeof the awardprovision] is to encourageand stimulatecontin- ued privateresearch and activityin a fieldin whichthe government in the overalldefense has necessarilycircumscribed the proprietary recognitionusually accorded invention" (Van Young 1979: 54).7 In comparingthe Espionage Act with the Atomic Energy Act, we could focuson any one of a myriadcontrasts. There are manysimi- larities,intentionally so. The transmissionof secret information to the enemyis forbidden- as are acts of sabotage.Language such as "docu-
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions ment,writing, sketch, photograph, plan, model,instrument, appli- ances,note or information"is taken nearly directly from the Espionage Act.So too are thecrimes of using such material to "injurethe United States"or to "securean advantageto any foreignnation." Even the AtomicEnergy Act's graduated system of punishments march in paral- lel to theEspionage Act - fromfines up to a deathsentence. In contrastingthe Espionageand AtomicEnergy Acts there are threesalient points that bear on changesto thereferent of the hidden. First,unlike actions proscribed under the Espionage Act, atomic secrets are muchless dependenton the statusof the secretkeeper: a scientist in a privatelaboratory, not privyto secrets,not in receiptof govern- mentfunds, could be jailed forpublishing his resultsif he had "reason to believe"that doing so wouldinjure the UnitedStates. So secretsin thenuclear domain were more autonomous, in thesense of being freer fromquestions of intent or contractualstatus.8 Second, the Espionage Acthas "prohibitedplaces," mainly government owned or controlled defensefacilities: naval yards, coaling stations, arsenals, and railroads. Thesecontinued into the Atomic Energy Act - thefenced-off sites of Los Alamos,Sandia, Oak Ridge,Hanford, many of which were taken by the governmentby eminent domain. But the Atomic Energy Act extended thisnot only beyond the government's own sitesbut to all thoseplaces wheresecret work was takingplace. Moreover, it broadened the govern- ment'seminent domain to the intellectualsphere - claimingmonop- oly powerover fissionable materials (later the moregeneral "special nuclearmaterials"), manufacturing sites and know-how. Any nuclear property,physical or intellectual, could be broughtunder government control(Newman 1946-1947: 792). Third,the EspionageAct reservedits harshestpunishment for actsintended to injurethe United States when committed in wartime. Thismade sense, since the secrets themselves had a finitelifetime: troop positions,fort layouts, access points to munitionsfactory. By contrast, the AtomicEnergy Act can mete out death or lifeimprisonment for restricteddata abuse even in peacetime. Nothing in theAtomic Energy Act edictsabout secrecy violations makes reference to war: secretsin the
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions nucleardomain could be permanent.That is, thoughyou could block knowledgeof a weapon invented,it was generallyto be held in the netherworldof secrecyonly until the end ofhostilities. Nuclear weap- onshad no give-awaydate - becausethey are never so completelyout of dateas an obsoletehowitzer or theaddress of the hotel where General GeorgePatton was staying. Theeternal threat of even a crudenuclear weapon gave the "born secret"doctrine an entirelynew meaning. We couldsay of nuclear weap- ons knowledge:born secret, some atomicsecrets never die. Thisthen is a shiftin theontology of secrets,with many structural implications. Forexample, during the Cold War, it mighthave seemedreasonable to respondto thechallenge of dealing with semi-infinite dangerous knowl- edge (createdin a timeand place,then never obsolete) with monopo- listicgovernment control. Patents, key to thatfabrication, would then seema fittinginstrument ofthat monopoly. When it came to theassess- mentof threats (and therefore the levying of punishment), we can ask: Whatcould, in theeyes of the security establishment, alter the balance of poweraway from the UnitedStates? In WorldWar I, theseactions clearlyincluded utterances as wellas "traditional"spying and sabotage. Censorshipseemed in 1917-1919to be a riposteto these dangerously effi- caciousutterances. Black ink, postal repression, and jail termsfor forbid- denspeech appeared to be preciselyanalogous to fencesand guards. Whatsort of thing might slide the balance of poweraway from the UnitedStates in the LongWar? That mightoccur through espio- nage, of course- Ted Hall, Allan Nunn May,Klaus Fuchs,and Julius and EthelRosenberg - in additionto the fearsof sabotage(destroying sketches,breaking equipment, etc.) But in the new worldof scientific- technicalsecrecy, authorities feared as well the wrongfuldissemina- tionof knowledge to thewider world through an articleor patent.
THE PATRIOT ACT: THE ETERNAL, PLANETARY BATTLEFIELD Withthe end ofthe Cold War, the eerie oppositional symmetry broke. No longerwas nuclear-tippedwarhead pitted against nuclear-tipped
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions warhead;no morenuclear submarine duets in the NorthSea. An end to targetteams matching Soviet against American missile silos, White House againstKremlin. With the terrorwars raging across the globe, sitespreviously invisible to the targeters- passengertrains, shopping centers,sports stadiums, monuments - suddenlycame all too clearly intoview. It is to thistargetable infrastructure that we now turnto unravelthe nature of secrecy in this,our time. Back in the 1990s, PresidentBill Clintonissued an Executive Order(12958) that simplifiedand unifiedthe classificationsystem. One section,1.8(b) forbade the status"classified" from being applied to "basic scientificresearch information not clearlyrelated to the national security."After September 11, 2001, the whole systemof nationalsecurity began to shift,first with the PatriotAct (October 26, 2001) and thenin a hostof otheralterations to the law. One key changein thesecret universe was PresidentGeorge W. Bush's Executive Order13292 of March25, 2003 thatamended Clinton's on classifica- tion.For Bush, the goal was to providea systemof information control thatwould continue the older"scientific, technological, or economic mattersrelating to thenational security," but added to itthe clause that thisshould "include defense against transnational terrorism" (Federal ResearchDivision 2004: 1). The governmentwould seek as well protec- tionto cover(new language in italics)"vulnerabilities or capabilitiesof systems,installations, infrastructure, projects, plans, or protection services relatedto the national security,which includes defense against transnational terrorism"With this new vocabulary, especially in theinclusion of infra- structure,lay a sea changein the ontologyof secrecy(Federal Research Division2004: 1). Neverbefore had infrastructureper se been the referentof the secret,blacked-out word. But what was infrastructure?What came underthis heading and how did it alterover time? Executive Order 13010 (July15, 1996) by PresidentClinton defined critical infrastruc- tureas societalstructures "so vitalthat their incapacity or destruction wouldhave a debilitatingimpact on the defenseor economicsecurity ofthe United States." That, in 1996,included telecommunications, elec-
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions tricalpower systems, gas and oil storageand transportation,banking and finance,transportation, water supply, emergency services, and continuityof government. New to thisrange of the vital was the addi- tionof threats to electronic,radio frequency or computerbased struc- tures- "cyberthreats."9 Justtwo years later,on May 22, 1998, Clintoncame back to these issues with PresidentialDecision Directive/NSC-63,Critical InfrastructureProtection: "The United States possesses both the world'sstrongest military and itslargest national economy. Those two aspectsof our power are mutuallyreinforcing and dependent.They are also increasinglyreliant upon certaincritical infrastructures and upon cyber-basedinformation systems." NSC-63 set a nationalgoal: before the year2003, the UnitedStates should have achievedthe abilityto protectthe critical infrastructure from assaults that the federal govern- mentcould performits nationalsecurity missions, public health and safety;local governmentscould maintain order; and theprivate sector could continuethe deliveryof communication,energy, finance, and transportation.This meant appointing "lead agencies"- (forexample, Commercewould standat the frontfor information and communi- cations,CIA would lead foreignintelligence), with the whole woven togetherthrough a new and moreefficacious communication (White House 1998). The September11 attacksjumped the secrecyratchet several moresprockets. President Bush issued a new ExecutiveOrder, 13228, on October8, 2001,establishing the Officeof HomelandSecurity and the HomelandSecurity Council: "The Officeshall coordinateefforts to protectthe UnitedStates and its criticalinfrastructure from the consequencesof terrorist attacks," working with all levelsof local and federal,private and public entities.Defining the criticalinfrastruc- tureto includeenergy, transportation, or communicationwas bythen routine- but Bushwent on to includenuclear use, storageor disposal as well.These had to be protectedfrom terrorist attack; new too were informationsystems or majorpublic events, whether public or private. For the firsttime, agricultureand livestock,and more generally
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions "systemsfor the provision of water and foodfor human use" joined the wideningcircle of critical infrastructure to be guardedagainst terrorist attack- alongsidea broadprotection against chemical, biological, or nuclearmaterials that might be incorporatedinto such an assault. Alreadybefore 9/11, the ambitof the hiddenwas spreadinglike black ink across a blotter;talk of asymmetricwarfare had been on the risejust at the momentwhen the Cold War enemywas receding. But9/11 crystallized the terroristas the oppositionand thereforealso drewa linearound who wouldbe battlingthem and withwhat means. Introducinga "NationalStrategy for the PhysicalProtection of Critical Infrastructures"in February 2003, George Bush wrote: "The September 11, 2001, attacksdemonstrated the extentof our vulnerabilityto the terroristthreat. In theaftermath of these tragic events, we, as a Nation, have demonstratedfirm resolve in protectingour criticalinfrastruc- tureand keyassets from further terrorist exploitation." Only a combi- nationof government,private sector, and "concernedcitizens across thecountry" could counter threats ranging from the aviation industry to the8,000 or so majordams; from nuclear reactors to chemicalrefin- eries- alongwith the fragile cyberstructures that controlled them. Key assetsbroadened the remit of infrastructure protection to embracethe "nationalmonuments, symbols and icons"that stand for "our Nation's heritage,traditions and values, and politicalpower." The "National Strategy"warned that tourists and the media flockto thesesymbolic sites,making an attackon themconsequential and theirprotection vitalto the preservationof publicconfidence. And once monuments, symbols,and iconswere in themix, so too,the report reasoned, should commercialcenters, office buildings, sports stadiums. Reading the list makesone thinkback on ColdWar target lists as modestindeed. Bush framedthe nationalstrategy with a pictureof the opposition:"The terroristenemy that we faceis highlydetermined, patient, and adap- tive"(U.S. Dept. of Homeland Security 2003: 71-72). As the "NationalStrategy" began to grapplewith this extended dominion,it leapt ever fartherinto new sectorsof society.Mere "systems,"that great categorical entity of the LongWar, now seemed
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions toomodest. The "NationalStrategy" enjoined policy makers to consider notonly the systemsthey had to protect,but the "systemof systems." Indeed,now thatthe terroristenemy had been revealedas so capable ("creative"and "adaptive,"showing "determination" and "sophistica- tion"),a newanti-terrorist alliance would have to form,one thatwould notbe held even to the nationalboundary. "Terrorists do not respect internationalboundaries," the report opined: the infrastructure protec- tioneffort would have to embraceMexico, Canada, and friendlycoun- triesaround the world.(U.S. Dept of HomelandSecurity 2003: 81-82). Thiswas planetarywarfare, and as becameclear from the ever-shifting designation"enemy combatant," the battlefieldcould be anywhere fromArizona to Azerbaijan. The scope of criticalinfrastructure expanded. So too did "criti- cal infrastructureinformation" (CII), which would reveal its workings. Sometimesthe definition bends the mind, as in thisexcerpt (one offive criteria)from a comprehensivesourcebook: "CII is specificallydefined consistingof anyof the fivecriteria, such thatit: 1. Representsinfor- mationdirectly relating to specificdata, tasks,or informationrelat- ing to any givencritical infrastructure." Stripped down, that would include"information representing information relating to informa- tion relatingto infrastructure"(there are, it seems,grammatical as well as terroristenemies). One suspects(after some parsing)that the designation"critical infrastructure information" is mainly information aboutthe operationand vulnerabilitiesof specificsites and networks. Operationshaving to do witheveryday procedures ought be keptunder wrapsbecause theycould provideguidance about how to interfere. Vulnerabilitieswould include not onlygaps in securityarrangements, revealingaccess points or maps,but also cyber,meteorological, or seis- micthreats (Radvanovsky and McDougall2010: 161). This immenseand growingworld of infrastructureand infor- mationabout infrastructure fell largely outside the Cold Warbounds on classification.This was not informationabout agents,cryptogra- phy,foreign relations, or forthat matter about intelligence activities, sources,or methods.Nor were these stricturesabout infrastructure
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions also aboutweapons systems - or nuclearfacilities, materials, or weap- ons. No, thiswas about the aviationindustry, passenger trains, and waterconduits - electricalgenerators, oil refineries,and telephone switchingstations. Before September 11, by and large information about the operationsand vulnerabilitiesof infrastructurehad not been classifiable.By the end of October2001, that had begun to change. But there was anotherlogic at work,quietly expanding the blacked-outdominion. It had begunout of publicsite with a plethora of abbreviations,a decentralizedand ad hoc systemof justifications thattogether constituted "sensitive but unclassifiedinformation." T TransportationSecurity Administration denotes it as "sensitivesecu- rityinformation." Turn to theDepartment of Defense and youwill find "ControlledUnclassified Information." The listcontinues: "For Official Use Only,""Sensitive Homeland Security Information," with dozens of agenciesconcocting their own rulesand hiddendrawers. By 2006, openthegovernment.org's"Secrecy Report Card" counted some 50 separatedesignations for this para-classification. By 2007, thatsame organizationfound over 100 suchlabels. The National Security Archive, lookingover 37 agencies,found only 8 withthe legal authorityto do so. Ofthe others some had internallygenerated policies and othersno policyat all (Banisar2007: 18). One 1994 report,entitled "Joint Commission on Security"and launchedby the secretaryof defense and the directorof centralintel- ligence,found that up to 75 percentof all the information held by the federal governmentmight be "sensitive"(Kelley 2006). The implicationsof this are vast: it means thatour tacitlyassumed notion that our worldof governmentis mostlyopen, with a fewexceptional arenas of blacked- outsecrecy, may well need revision. The terrorist threat, launched with boxcuttersand a horrendousattack, had done what 70,000 nuclear warheadshad failedto do overthe course of 60 years:if the CIAdirec- torand thedefense secretary could even hypothetically group the large majorityof government documents as "sensitive,"then the very idea of opengovernment is in question.
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions On May 9, 2008, PresidentBush took this sprawlingarray of nomenclatureand relabeledit "ControlledUnclassified Information" (CUI).At thatmoment CUI became "the single,categorical designa- tion. . . throughoutthe executivebranch." It was to protectinforma- tionon one side,and allow it to moveinside a new kindoffence ("the InformationSharing Environment") on the other.In the blackworld, threefundamental markings structured the flowof information:top secret,secret, and confidential.Now, paralleling this tripartite division, thegray world too wouldhave its own three-fold marking system:
►"Controlled with Standard Dissemination," which means that the informationrequires standard safeguarding measures that reduce therisks of unauthorized or inadvertentdisclosure. Dissemination is permittedto theextent that it is reasonablybelieved that it wouldfurther the execution of a lawfulor officialpurpose. ►"Controlled with Specified Dissemination" [safeguarding as in the abovedesignation] and "Materialcontains additional instructions on whatdissemination is permitted." ►"Controlled Enhanced with Specified Dissemination." This is "safe- guardingmeasures more stringent than those normally required sincethe inadvertent or unauthorizeddisclosure would create risk ofsubstantial harm" and thematerial would contain additional instructionson dissemination(Bush 2008).
It is here,in the grayzone of "ControlledUnclassified Infor- mation"- betweenopen and closed- thatthe government lodged criti- cal infrastructureinformation, and withit the cornucopia of categories it absorbedand replaced.High on theagenda was blockingControlled UnclassifiedInformation from the Freedomof Information Act (FOIA). That act had leftnine establishedexemptions - frominformation aboutlaw enforcement,wells and geologyand interagencycommuni- cationto personaland financialdata. To immunizeinfrastructure infor- mationagainst the pryingeyes of FOIA,the governmentinvoked two of theseescape clauses: exemption3 (forbidsdisclosure if forbidden
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions underanother statute) and exemption4 (forbidsdisclosure of "trade secretsand commercialor financialinformation obtained froma personand privilegedor confidential")(Radvanovsky and McDougall 2010:263-265). Congresshas used FOIAexemption 3 (otherstatutes) to block release of informationabout cybersecurityand HomelandSecurity Information.Exemption 4 (sequesteringtrade and commercialitems) blocksinformation from companies. This is especiallyimportant since the November2002 HomelandSecurity Act aimed to pull information aboutcritical infrastructure toward the government- and 85 percent ofthe designatedcritical infrastructures are in the privatesector. As a result,industry pushed hard to preventinformation about them from being disclosedunder the Freedomof InformationAct. Courts have backedthe privatesector here, securing against FOIA requests infor- mationranging from real and cyberthreats to infrastructures,vulner- abilities,and defensivemeasures, and all the repairs,reconstructions, insurance,or otheroperational issues that arise in theirmaintenance (Radvanovskyand McDougall2010: 265). When ControlledUnclassified Information is held closelyby cabinet-levelagencies, forbidden from public disclosure;when this bodyof documentshas been made proofeven againstthe legal struc- turesof the Freedomof InformationAct, secrecy has jumped its Cold War corral.Returning to our persistentquestion about the ontology of secrecywe can ask: Whatis the referentof ControlledUnclassified Information?Critical infrastructure alone widenedhidden knowledge farpast the old fencesguarding Los Alamos, CIA agents, code-breakers or spysatellites, far beyond even the gatesof privatecompanies like DuPont,Union Carbide, or Kellogg that operated nuclear facilities. Here in ControlledUnclassified Information, we havenew roads guiding the flowof information from every government agency: blacked-out crops and cows,hidden laws and procedures,withdrawn chemical disaster plans and contingenciesabout dam failures,unobtainable schematics ofhigh-tension electrical lines, reservoirs, and chemicalplants. But it is notjust thegovernment: by sweeping private industry into the concep-
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions tionof critical infrastructure, thepara-secret world goes much farther thanthe Atomic Energy Act authors could have imagined. At a certainpoint, the veryidea of "behindthe fence"fails us,even metaphorically. The fence fails to capturethe new scope of secrecy;it fails to capturethe virtual as wellas physicaldimension of secrecy;and it fails to capture the double breakdown of our old catego- riesdividing public from private and war from peace. Our new security fenceis everywhere, not delimited by time or space. And with these last steps,the war on terror loses, legally and practically, all ties to the now quaintand finite battlefields ofThermopylae or Ypresthat one could stillfind on a map.
THE WIDENINGGYRE OF SECRETS Secrecygrows in leaps,fed by wars. But while conflicts may have begunin the hotand cold warssparked in 1914,1939, 1947, and 2001, secrecy,once ratchetedoutward, seems ever harderto reverse.True, the worst excesses of the Sedition Act were repealed afterWorld War I - and the 1954Atomic Energy Act backed off a bitfrom the more dramatic 1946 restrictions. But start by protect- inga fortor convoy and soonyou are securingagainst discouraging speech.Try to hold on to the uranium bomb and it spirals out into an attemptto controla vastnuclear establishment embracing a world oftechno-scientific knowledge, both private and public. Such jumps in thenature of secrecy: World War I secrecywas finitein duration evenif disastrously wide in scope.The dangerthat a VesHall or a RobertGoldstein presented disappeared when the war ended - word and imagesaboteurs (and theirproducts) could be releasedsoon afterthe Germanssurrendered in MarshalFoch's Versailles rail- waycarriage. Atomic secrets, by contrast,had no timelimit, and so had to be guardedby institutions that perpetuated themselves endlessly.Soldiers may have demobilized after World War I - butthe LosAlamos laboratory has outlasted World War II, the Cold War, and is solidlyin placefor twenty-first century conflicts. Eternal vigilance was nota matterof physical property: the government monopoly
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions overnuclear intellectual property was absolute,from secret birth to eternalcustodianship. In theirsemi-eternal structure, the restricteddata of scientific and patentnuclear know-how seemed, in the Cold War,to definethe outerreaches of the grasp of secrets. In retrospectthat pessimism may have been too optimistic.Even the half-centuryCold War had a well- definedterminus: when the BerlinWall fell,it was clear an era had ended.One cannoteven imagine a parallelending to theTerror Wars. Whatwould the end mean in such a mutableconflict where no one agreeson whothe "terrorist enemy" is, what that enemy wants, or what victorywould designate? Without boundaries in space,time, or target we have produceda formof secretsappropriate to this day.Critical UnclassifiedInformation fits our age exactly:a formof secrecywith no end date,no limitof scope,and littleaccess throughthe Freedom ofInformation Act. In shortwe have a new ontologyof hidden knowl- edge:multiply infinite secrets for a boundlessconflict.
NOTES 1. It is worthnoting, however, that the 1911 Defense Secrets Act, along withseveral federal statutes in 1909,preceded the Espionage Act and had someof the same goals. See "SafegardingClassified Information" (1975:258-259, 288); and American Protective League (1918). 2. On theLos Angeles Times see Slide(1993: xviii). Though never proved, the causal efficacyof dangerousspeech was reiteratedtime after time."By the living God, the president of the United States publicly declaresthat he willbanish millions of American citizens, and send themto die on foreignfields of blood! In thename of the Almighty, whatspirit of evil has takenpossession of the Federal government?" This pamphlet,a screedwith a reprintedspeech by Thomas E. Watson,blasted the government for adopting the very totalitarian- ism it purportedto oppose.That a Mr.Blodgett sent the broadside to registered21-23-year-old male Americansbrought him under the gun of one clause (causingmutiny, insubordination, refusal of service)and another(obstructing recruitment). Blodgett tried
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions defendinghimself- on groundsof insanity,which would, were it to have been sustained,have exemptedhim fromthe "willful" clausewithin the act. It was notan implausibleclaim since the state of Iowa had, on April13, in factdetermined him insane.Blodgett claimedhis was nothingmore than a signin the road.Well, Judge MartinJoseph Wade responded, you see a signin theroad that says "Stop!The bridgeis out!"at the veryleast, you stop and go back, maybeyou investigate whether the bridge was, in fact,out. But this is preciselywhat the governmentdoes not want:a Stop!sign just beforenew conscriptsarrive at the enlistmentoffice. Was Blodgett seekingto "discourage,persuade, frighten, scare or in any other manner"obstruct military enlistment? Then, so said the court,he shouldbe convicted.He was: 20 years'imprisonment. See Nelles (1918:51-53). 3. Fora historyof nuclearweapons patenting see Wellerstein(2008: 57-87). 4. On foreigninformation exchange and AEC control,see Leon(2005). León sees the 1954 AtomicEnergy Act as an attemptto control information:"The initiative adopted the prestigecause of offering theunderdeveloped world the gift of nuclearenergy as a meansof havingcontrol in thenuclear programs that incorporated American aid andtechnology." 5. Eminentdomain claims forpatents were not new with nuclear fission.For example, in 1912,the Supreme Court of the United States refusedto stop the chief of ordnance from making gun carriages using a patentowned by Krupp. The court did order the Unites States to pay theowner of the mechanism for hermetically sealing the breech at theinstant of explosion. But the American government had the right to producethe "Bange gas check"by "right of eminent domain." See NewYork Times (1912: 6). 6. Thereare fourelements to a spectrometertypically: 1) a heatedfila- mentthat generates electrons; 2) an ionizationchamber where these electronsionize the atoms of the sample gas; 3) an analyzerthat sepa- ratesthe samplegas beam intosub-beams according to the charge-
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions to-massratio of its ions; and 4) an accumulatoror detectorthat measuresthe densitiesof the constituentsub-beams. Washburn's inventionimproved the accuracyof mass spectroscopeby holding gas in the electron-sourcechamber at a lowerpressure than the ionizationchamber. This minimized contact by the sample gas with the filamentsurface. Such contactcorrupted the electron-emission processand madethe ionization irregular. The new instrumentwas thereforemore accurate, more stable,and moredurable than its predecessors. 7. Forthe award given Fermi and associates,and moregenerally for a case studyof patent2,206,634 by Fermiet al., see Turchetti(2006: 2). Turchettialso rightlyobserves that the spreadof nuclear power and energyto othercountries challenged the effectivenessof the Americangovernment monopoly on atomicpatents (see Turchetti "Patentingthe Atom"). 8. On the comparisonof punishmentsin the Espionageand Atomic EnergyActs, see Newman(1946-47: 769-802). On "reasonto believe," see p. 793. 9. Cybersecurityhas become a vastarena within national security. A few sourcessketching the problem are Clarkeand Knake(2010); Zittrain (2008,esp. chap. 3); Kramer,Starr, and Wentz (2009).
REFERENCES AmericanProtective League. Lounter-tspionage Laws oj me uniieabiaies. Washington,DC: AmericanProtective League, 1918. "AtomicBomb Patents." Bulletin ofthe Atomic Scientists (1946): 30-31. AtomicEnergy Act of 1946 and Amendments.Washington, D.C.: U.S. GovernmentPrinting Office. 1975. Banisar,David. "Government Secrecy: Decisions Without Democracy." Openthegovernment.org(2007)
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions FederalResearch Division, Library of Congress.Laws and Regulations Governingthe Protectionof Sensitive but UnclassifiedInformation. 2004. EspionageAct of 1917. 40 Stat.217, 1917-1919. Gutfield,Arnon. "The Ves Hall Case,Judge Bourquin, and the Sedition Actof 1918." Padfic Historical Review 37 (1968):163-78. Cheh,Mary M. "TheProgressive Case and theAtomic Energy Act: Waking to the Dangersof GovernmentInformation Controls." George WashingtonLaw Review 48 (1979-1980). Clarke,Richard A., and RobertK. Knake.Cyber War. The Next Threat to NationalSecurity and What to Do About It. New York: HarperCollins, 2010. Hewlett,Richard G. "BornClassified in theAEC: An Historian'sView." Bulletinofthe Atomic Scientists 37 (1981): 20-27. Kelley,Sara E.."Features - A Select Bibliographyon 'Sensitivebut Unclassified'and SimilarlyDesignated InformationHeld by the FederalGovt." LLRX, June, 10 2006
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This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions Radvanovsky,Robert, and AllanMcDougall. Cñticdllnfrastructure: Homeland Securityand EmergencyPreparedness. Boca Raton,London, New York: CRC Press,2010. Risenfeld,Stefan A. "PatentProtection and AtomicEnergy Legislation." CaliforniaLaw Review 46 (1958): 40-68. "SafegardingClassified Information: The Evolution of Present Federal Law."Congressional Digest (November 1975). SeditionAct of 1918. 40 Stat.553 1918. "Senate Hearingson AtomicEnergy." Bulletin of the Atomic Scientists (1946): 10-11. Slide, Anthony,ed. RobertGoldstein and "TheSpirit of 76" Metuchen,N.J.: ScarecrowPress, 1993. U.S. Dept. of Homeland Security.The NationalStrategy for thePhysical ProtectionofCñtical Infrastructures and KeyAssets. February 2003. Turchetti,Simone. "ForSlow Neutrons,Slow Pay,"Isis 97 (2006): 1-27 . "Patentingthe Atom."Unpublished ms. Van Young,James. Judges and Science.The Case Law onAtomic Energy. New York:Arno Press, 1979. Wellerstein,Alex. "Patentingthe Bomb: Nuclear Weapons, Intellectual Property,and TechnologicalControl," Isis 99 (2008): 57-87. White House. PresidentialDecision Directive/NSC-63.May 22, 1998. Woodrow Wilson to ArthurBrisbane, April 25, 1917. Wilson-McAdoo Collection, Bernath Mss. 18, Department of Special Collections, UniversityLibraries, University of California,Santa Barbara. Zittrain,Jonathan. The Future of the Internet and How to StopIt. New Haven and London:Yale UniversityPress, 2008.
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