Techdirt. Stories filed under "classified"

Techdirt. Stories filed under "classified" Easily digestible tech news... http://www.techdirt.com/ en-us Techdirt. Stories filed under "classified"http://www.techdirt.com/images/td-88x31.gifhttp://www.techdirt.com/ Tue, 24 Jul 2012 10:16:00 PDT Court Says State Department Can Live In Fantasyland & Pretend Documents Leaked By Wikileaks Are Still Secret Mike Masnick http://www.techdirt.com/articles/20120724/04221719809/court-says-state-department-can-live-fantasyland-pretend-documents-leaked-wikileaks-are-still-secret.shtml http://www.techdirt.com/articles/20120724/04221719809/court-says-state-department-can-live-fantasyland-pretend-documents-leaked-wikileaks-are-still-secret.shtml considered classified by the government, even though the concept is ludicrous. It leads to absolutely ridiculous situations, such as government employees not being able to look at documents available on Wikileaks, even as everyone else in the world can easily log in and see them. Or the case (linked above) in which lawyers representing Guantanamo detainees weren't allowed to look at these documents -- which anyone else in the world can see -- which relate to their clients. Even the NY Times called this situation "absurd." And it is. In the business world, people commonly sign "non-disclosure agreements," but they're always considered null and void if that same information becomes public by other means. It's bizarre that the government doesn't recognize the same policy.

However, in a lawsuit we first discussed last year, where the ACLU sued the State Department for failing to declassify (under a FOIA request) documents that were already widely available on Wikileaks, a judge has ruled against the ACLU, and said that the documents remain classified. Once again, this is absurd. It's as if everyone is actively denying reality.

The ACLU relied on the part of the test that questions whether the disclosure of the information "reasonably could be expected to result in damage to national security." Seeing as anyone seeking to "damage" our national security can just surf over to Wikileaks, and has been able to do that for quite some time, you'd think that the ACLU's argument was pretty rock solid. Not according to the court (pdf and embedded below). The court seems to tapdance around the issue. It argues that the Court should "defer" to the judgment of the administration on this question, and that it's possible that the official release of these documents could impact national security. I don't buy it. Any official release is unlikely to have any different impact than the unofficial release. To argue that making those releases official has some sort of new "threat" involved just doesn't pass the laugh test.

What's most distressing about this is that it shows a government that is not dealing in reality, but is dealing in a fantasy land, where it pretends that if it sticks its fingers in its ears, and hands over its eyes, it can pretend that the documents, which are very, very public, are not at all public. I want a government that deals in reality and not fantasy. Unfortunately, with this situation, we have the reverse -- and, bizarrely, the courts are saying that an executive branch that lives in fantasyland is just fine.

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]]> head-in-sand-approach http://www.techdirt.com/comment_rss.php?sid=20120724/04221719809 Thu, 1 Sep 2011 13:11:33 PDT Feds Insist That As Long As They Break The Law In A 'Classified' Way, They Can Never Be Sued Mike Masnick http://www.techdirt.com/articles/20110901/10365515768/feds-insist-that-as-long-as-they-break-law-classified-way-they-can-never-be-sued.shtml http://www.techdirt.com/articles/20110901/10365515768/feds-insist-that-as-long-as-they-break-law-classified-way-they-can-never-be-sued.shtml considering restating them after an appeal via the EFF.

What's pretty stunning about the federal government's position is that it seems so farcical on its face. It seems to be claiming that (1) as long as the government breaks the law in a classified way, that can never be subject to litigation and (2) if lawsuits concerning illegal activity would be a burden on those who participated in the illegal activity, then such lawsuits should not be allowed. I'm not kidding. A couple of quotes:

“Congress made a considered decision that it would be unfair if [the telcos] were subject to potential suits and ruinous liability,” Kellogg said.

Department of Justice Attorney Thomas Bondy urged the panel of judges to abide by Congress’ wishes. He repeated over and again that litigating the allegations would expose national security secrets.

“Who was or who was not surveilled, that’s classified,” he said. “What any particular carrier did or did not do, that’s all classified.”

But combine those two things and you're basically saying the government has full impunity to do whatever the hell it wants and can never face any legal consequences. On top of that, those who help the government can never face legal consequences either. How does that possibly make sense? It appears that at least two of the judges on the three judge panel had significant concerns about this:

Judge Michael Daly Hawkins wondered aloud, “If these plaintiff’s don’t have standing, who would?” Judge M. Margaret McKeown said the “concern” she had was that the suits’ dismissal “cuts off the plaintiffs … from ever pursuing a claim.”

But, those random musings aren't necessarily indicative of how the court will rule. I am hopeful they realize the plainly ridiculous state of the government simply being able to hide any illegal activity behind a claim that "it's classified," and will allow at least some of these cases to go forward.

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]]> please-explain-how-that-works http://www.techdirt.com/comment_rss.php?sid=20110901/10365515768 Fri, 25 Mar 2011 11:31:00 PDT Court Seals Unclassified Document In Whistleblower Case... After Gov't Falsely Says It's Classified Mike Masnick http://www.techdirt.com/articles/20110325/10464113630/court-seals-unclassified-document-whistleblower-case-after-govt-falsely-says-its-classified.shtml http://www.techdirt.com/articles/20110325/10464113630/court-seals-unclassified-document-whistleblower-case-after-govt-falsely-says-its-classified.shtml the most aggressive president ever in terms of attacking any whistleblowers. The administration has brought more indictments for leaking than all other presidents combined. Think about that for a second.

In one such case, against former NSA employee Thomas Drake (accused of leaking NSA info to the press), the feds are now trying to falsely claim that unclassified documents are classified -- which is actually a key point in the legal fight. Slashdot points us to the latest news in which Drake's lawyers submitted some evidence to the court concerning how the NSA classifies documents. Drake's team is arguing that nothing he had in his home or which was sent to the press was "classified," and that the NSA is falsely claiming unclassified works were classified. So here's the issue: the feds asked to court to seal the exhibits, claiming they were classified:

"As grounds [for sealing the records], the information contained within the exhibits derives from NSA. As the holder of the privilege for this information, NSA has classified the documents as 'FOUO', which means 'For Official Use Only.' This means that the information is not for public dissemination. Until such time as NSA downgrades the information to 'Unclassified,' the exhibits should not be publicly filed,"

And, as seems to happen all too often, the judge immediately agreed, sealing the "official use only" filings. Except, here's the thing, contrary to the statement above, "FOUO" documents are, by definition, not classified. As the report linked above points out, under DoD regulation 5200.1-R (pdf) "By definition, information must be unclassified in order to be designated FOUO."

In fact, one "sealed" document, which is still available (pdf) on the Federation of American Scientists web site, quite clearly shows that the document itself is marked unclassified:

And, in a way, this actually proves the whole point of Drake's defense team. The government wants to pretend that unclassified documents that he had were classified. And, apparently without any sense of irony at all, it demonstrated its own problem of falsely claiming unclassified documents were classified, by claiming an unclassified document about how the government classifies documents... was classified! (Say that three times fast). What's troubling, of course, is that the court seemed to just accept the claim that this clearly unclassified document was classified and ordered the seal.

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]]> attack-on-leakers http://www.techdirt.com/comment_rss.php?sid=20110325/10464113630 Mon, 2 Mar 2009 16:59:00 PST US Contractor Follows Japanese Example: Leaks Military Secrets Via P2P Mike Masnick http://www.techdirt.com/articles/20090302/0115073940.shtml http://www.techdirt.com/articles/20090302/0115073940.shtml leaked them via a file sharing app on his personal computer. It was never clearly explained why he had those classified work-related materials on his personal computer, but it led to quite a mess, with the government begging people to delete the nuclear secrets, if they found them. You would hope that with that as a guide, other government and military contractors around the world would be more careful. No such luck. Lots of folks have been sending in the news that the details on Marine One, President Obama's helicopter were recently leaked via file sharing software found on the computer of a (you guessed it) government contractor. Apparently no one takes things like basic computer security seriously anymore.

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]]> security-software-anyone? http://www.techdirt.com/comment_rss.php?sid=20090302/0115073940 Thu, 11 Dec 2008 22:35:00 PST Would A Patent's Title Be Classified? Mike Masnick http://www.techdirt.com/articles/20081207/1747383042.shtml http://www.techdirt.com/articles/20081207/1747383042.shtml the title of the patent is listed solely as "Classified." It would be interesting if some patent attorneys in the crowd could weigh in on this. If the purpose of the patent system is to distribute knowledge, then you would think a classified patent doesn't make much sense -- but this is even odder, in that it's the title, not the patent itself (which is for some sort of weapon), that is "classified." It could be that the inventor himself (Peter Lockhart) set the title as "classified" but that doesn't make much sense either. Anyone know what's going on here?

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]]> just-wondering... http://www.techdirt.com/comment_rss.php?sid=20081207/1747383042 Mon, 21 Jul 2008 19:38:00 PDT Why Are UK Defense Ministry Officials Carrying Classified Info On USB Keys? Mike Masnick http://www.techdirt.com/articles/20080718/1805551731.shtml http://www.techdirt.com/articles/20080718/1805551731.shtml it's lost plenty of laptops with classified info on them. That, alone, isn't really all that newsworthy, given how common it is for governments around the world to lose such things. What was more interesting was the admission that employees have also lost 26 portable memory sticks (USB keys) with classified info on them (out of a total of 131 memory sticks lost). Given just how easy it is to lose such USB keys, it makes you wonder why they would ever put classified info on them. One would hope that any such info would be encrypted, but the report doesn't seem to indicate one way or the other on that.

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]]> seems-like-a-reasonable-question http://www.techdirt.com/comment_rss.php?sid=20080718/1805551731