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PROTECTING CLASSIFIED INTELLIGENCE INFORMATION--AN HISTORICAL REVIEW AND SOME RECOMMENDATIONS
JOHN D. MORRISON. JR. Assistant General Counsel October,6
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CONTEXTS
Introduction
The Espionage Law a An Incomplete Structure
The Brill sh Official Secrets Acta
Intelligence Sources and Methods
The Judicial View of Intelligence
Judicial Access to Sensitive Data
Judicial Evaluation of Sensitive Data
Some Proposals for Protecting Intelligenc Information from Unauthorized Disclosur
A Legislative Proposal
ATTACHMENTS
nationroposed Law for the Protection of intelligence Data
A Proposed LawProtection of Intelligence Data"
MonographThe Espionage Laws"
MemorandumThe Use of Civil andRemedies in Protecting Government Secrets"
i
MemorandumAEC Experience with the Use of Restricted Data in Criminal Proceedings"
Principal Statutes Utilised ir. Projecting State Secretsnnotated
The Totcen Doctrine: Four Cases
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The unauthorized exposure of classified informationhronic problem for governments and intelligence agencies. Defense against the conscious agentoreign power is different from, and in some ways less difficult than, deterring revelations caused by carelessness, malice or greed on the part o; government employees. The problem is particularly acuteemocratic society whose laws and courts must provide broad protection to criminal defendants. The difficulty of prosecution under the espionage laws and related statutes weakens the deterrence provided by such laws. This is especially true in cases involving disaffected or careless employees of intelligence agencies whose defenses usually include strong equitable picas which mayympathetic public response.
No legislation or administrative procedure can offer perfect protection. ubmitted, however, that both our laws andprocedures can be improved so as to provide more effective deterrence. Some specific recommendations to this end follow.
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THE ESPIONAGE LAWSAa Incomplete Structure
A review of American legislation in tha field of criminal espionage* shows that historically there has been limited legislative effort directed to the protection of intelligence dr.:a. esult theretartling Uck at protectionovernmental function of growing importance and Perhaps tho need for laws protecting intelligence data has reached significant proportions only in the relatively recent past.
Monograph "The Espionage. C. Miskovsky, Office of Ceneral Counsel,
USC
The changes, technological and otherwise, in the manner in which na'tions deal with each other have caused some improvements in legislation dealing with the protection of state secrets. The espionage laws2 provide the basic statutory protection to the Government against the taking and use of defense information by those whose interests are inimical to the national security of the country. Diplomatic communications have traditionally been protected. Att earlyho Supreme Court suggested that the legislature recognize and provide against crimes affecting the national
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security which "have not ripened ir.to treason."^ It was notowever, that Congress passed the first important statute which dealt with the broad problem of espionage. The language of1 Act7 to road much as it does today. Moro recently Otmgraaaienitl attention has been focused--with enactment of appropriate logis)ation--on the problems involved in protecting atomic energyhe Internal Security Actade it unlawfulovernment employee merely to communicate classified information toknown representativeoreign government.' However, the espionage laws ar* still the principal statutory protection againstdisclosure of intelligence materials and information. No legislation
i
' Ex parte Bollmon and Ex parte
t seq.
8
3 ibj
Scarbeck v. V.., cert, denied,.
has yet been enacted to cover the new problems arising out of the chronic "cold war" status of international relations and the consequent need for a
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sophisticated, professional intelligence apparatus as ar. arm of tho executive. The wartime concept of the military secret does not fit intelligence data, the extreme sensitivity of which is often not readily apparent rind the revelation of which may have tho mont damaging effort on the national security.
The proposal for new legislation toategory of "Intelligence Data" to be given judicial notice as such, by virtue of official designation, is designed toexatious and recurring problem for which there is no known cure in existing laws relating to national security. That problem is tho immunity enjoyed by persons exposing sensitive information In those instances where the information cannot for practical reasons bo brought into the open for tho purposeourt proceeding.
THS BRITISH OFFICIAL SECRETS ACTS
It has often been suggested tha; if legislation is needed in this ares, the Official Secrets Actsood example to be followed through enactment of similar statutes to protect Intelligence Data or by amending our espionage laws to givu the broader protection oUoeed
by those Acts. It is not commonly understood that the British acts are
t
basedifferent theory from that of our espionage acts. Under our
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system the information, involved mutt be shown to be related to the national defense and security either by specific demonstration or as coming within the definitionstatute as in the cases of theintelligence and Atomic Energy provisions. The Sritish acts are based on the theory of privilege,hat all official information, whether or not related to the national defense and security, is theof the crown. It is, therefore, privileged as to those who receive it officially so that they may not divulge it without the crown's authority. Since this privilege is theoretically unlimited in scope, action in the event of an unauthorized disclosure involves two problems for the Attorney General. The first isolitical one as to whether the nature of the disclosure is such that prosecution should be sought; the secondegal one as to whether prosecution is feasible. If prosecution is decided upon, several consequences flow from the basic theory of privilege. Portions of the trial can be held in camera if the court agree*. This would net be possible under our constitution. While certain procedural aspects can be considered in camera in this country, no part of the actual trial could be heard privately. In Britain certain presumptions may apply. r instance, if the defendant is known to have possessionprivileged information and to have been innown foreign espionage agent, thereresumption that the information was passed. This is rebuttable but our Supremo Court
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opinions indicate thatresumption would not be permissible here. Most important, in the English system it is not necessary to prove that any one item of information relates to the national defemto and security. ood example is the so-called ISIS case in which two Oxford students published in their college magazine, ISIS, the story of their cxpcrlenceo in the Navy, including technical intelligence operations in the Baltic. The prosecution merely testified that the article contained information which they had acquired in their official service and it was, therefore, privileged. After the verdict ot" guilty^prosecution approached the court alone without presence ofor defonse counsel and briefed the court on the significance to tho Government of the items of information. This was solely for theof informing the court in connection with the sentence. o believeriefing would be held orror under ourn the case of the RAF officer, Wraight, who defected to Russia and thenovernment witness who interviewed him for the security services was allowed to testify without publicly identifying himself. His name was handed in writing to the court. Possibly this could be done here if the defensa agreed to It, but it seems clear it could not be done over the defense's objection.
u Jencksut see post Jencks Statutetc) permitting in camera examination for relevancy and editing of pre-trial reports of Government witnesses
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In short the Official Secret!ould seem to be, in important respects, unconstitutional in this country and therefore cannot be relied upon as example* of means to accomplish our purpose of protecting intelligence data.
INTELLIGENCE SO US CBS AND METHODS
The statutory authority and responsibility of the Director of Central Intelligence are set forth in) of the National
il
Security Actar nr,SC That
a
Act states, lntar alia, "And provided further, That the Director of Central Intelligence shall bo responsible for protecting intelligence sources and methods from unauthorized disclosure;
The use of the term "intelligence sources and methods" indicates the recognition by the Congress of the existencepecial kind of dataroat doal more than the usual terminology "classified information," Tho espionage laws and the statutes designed to protect communications and atomic secrets specify in great dotail the kinds of secret information and data protected. Nevertheless, they do not envision the protection of everything that might he defined as "Intclii^er-cehe exposure of which could be detrimental to the national interests. Tor example, knowing the identities of certain
vrarnDFiMuust
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CLA employees or the fact that the agency istudy ofpublished unclassified information might be of great valueoreign intelligence agency. However, there is seme question as to whether such information would be consideredourt to be included among the things protected by existing statutes.
The Congress has recognized and implemented the Director's responsibility to protect intelligence sources and methodsumber of special authorities for the Agencyumber of exemptions from certain legal requirements which have general application throughout the Government. f tlie Central Intelligence Agency Acts amended,,, providesn order further to implement the proviso of the National Security Act that the Director of Central Intelligence shall be responsible for protecting intelligence sources and methodshe Agency shall be exempted from the previsions cind 2, f the Act of, and the provisions of any other law which require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employee by the Agency: Provided. That in furtherance of this section, the Director of the Bureau of the Budget shall make no reports to the
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Congress in ccnnecrion with tlie Agency under, Title VI,f the Act ofs amended'SC
Similarity the Agency is authorized by the Central Intelligence Agency Act to expend the funds made available to it for objectsonfidential, extraordinary, or emergency nature, such expenditures to be accounted for solely or. the certificate of the Director. The Act also exempts the Agency from statutory requirements regarding the exchange of funds, the performance rating of employees, the publi-'cation of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency and from laws and executive orders governing appeals from adverse personnel actions.
Congress has charged the Director of Central Intelligence with protecting intelligence sources and methods from unauthorizedhas recognized that the term "intelligence sources and methods" encompasses an area not entirely covered in other statutesas recognized and affirmed the need for such protection by providing statutory authority for that purpose. The void in the statutory structur designed to permit protection of intelligence sources and methods is the absence of sanctions which can be invoked to prevent or punish unauthorized disclosures without disclosing the very sources and methods sought to be protected.
THS JUDICIAL VIEW OF INTELLIGENCE
The courts have long recognized that the secret intelligence activities of the executive branch are by their very nature matters the disclosure of which would be injurious to the public and yet which are indispensable to the Government.' In the Totten case recovery was soughtecret contract with President Lincoln for osplonage activities behind enemy lines in the Civil War. The opliion of the Supreme Court"If upon contracts ofature ar.gains; the government could be maintained in the Court of Claims, whenever an agent should deem himself entitled to greater or different compensation than that awarded to him, the whole service in any case, and the manner of its discharge, with the details of the dealings with individuals and officers, might be exposed, to the serious detriment of the public. ecret service, with liability to publicity in this way would be impossible; and, as such serviceu are sometimes indispensable to the Government, its agents in those services mus; look for their compensation to the contingent fund of the department employing them.
See Totter,d..
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and to such allowance from it as those who dispense that fund may award. The secrecy which such contracts impose precludes any action for their enforcement. The publicity produced by an action would itselfreachontract of that kind, and thusecovory.
"It may be stated,eneral principle, that public policy forbids the maintenance of any suitourt of justice, the trial of which would inevitably lead to the disclosure ol matters which thetself regards as confidential, and respecting which it will not let the confidence bo violated. On this principle, suits cannot be maintained which wouldisclosure of the confidences of the confessional, or those between husband or wife, or of communicationslient to his counsel for professional advice, oratient to his physicianimilar purpose. ch greater reason cuists for the aop!ica:ion of the principle to cases of contract for secret services with the Government, as the existenceontract of that kind isf>ct not to beEmphasis supplied.)
The To*icn case marks the beginning of the juridical idea--and judicial cognizance of it--that thereind of relationship to the
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stale which is confidential, beyond judicial inquiry, andrust ofature that the courts cannotreach of it, oven in their solemn duty of administering justice. *l ecret agent is almont noJUUii; ho literally cannot maintain an action in the courts whore his secret activities are germane to the ease.12
JUDICIAL. ACCESS TO SENSITIVE DATA
Sec Firth Sterling Steel Co. v. 3eth:ehom Steal Co.., in which the court struck documents from tie record on the ground that it was against public policy to disclose military secve'.s. See cases cited in
aud9 Ct.llen.t.; Tucker
J3SC,
Present espionage laws dealing with unlawful transmission or obtaining of information related to the nationalave been intarpretad as requiring proof of certain questions of fact in regard to which evidence is for submission to the jury for considerationweight and sufficiency. For instance, the information must in fact
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be related to the national deismset generally avail*hi*. The court* have heldury cannot find on those facts unless it has available the information allegedly related to the national defense and hears testimony regarding its use, importance, exclusivencss, and valueoreign government or its potential injury to the United Scatcs. 15 Likewise, access must be had by the defendant in aproceeding since the information itself may tend to exculpate with respect to dealings in that information.lo As Judge Learned. v. Andolschek. "The Government must choose; either it must leave the transactions in the obscurity fromrial will draw them, or it must expose them7
. v.iting Gorir..
, supra
v..upra note 8.
J
This situation has left the Government in the position of having to raveal in court the very information it is trying to keep secret or, in the alternative, of not prosecuting those who steal information and pass it, to the injury of the nation. To invoke the law's protection of the secret, the secret must be told.
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See Tot'on.irth Starling Steai Co. v. 3ethleherr. Steel Co.,ed.allen v. Ford Instrumentreamer Sec also Bank Lint v. ILS^,.igmore cr., and,trear.leaf or.th; Sftnford,Privileges Against tho Production of Data Within the Control of Executiveandarbilt Law SoeTiccn v.., 2C6
Most of tha English precedents are reviewed in Duncan v.aird t*.
20 Id..
titing Duncan v.
Cammel, Laird fcnd
Judicial oxparlonce With tho privilege which protects military and state secrets has beer, limited In thinritishhas been mora extensive, but still relatively slight compared with other evidentiary privileges. 19 Nevertheless, it is clear a; laast from the civil precedents that the court its elf must dctermlna whothcr the circumstances are appropriate for the claim ofnd yet do so withoutisclosure of the very thing the privilege is designed to protect.he latter requirement is tho real difficulty. In dealing with it, courts have found It helpful to draw upon judicial
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experience in dealing with an analogous privilege, tha privilege against seli-incrimin&tio::.
The Supreme Court said in tj.S. v. Reynolds. 22 "The privilege against self-incrimination presented tho courtsimilar sort of problem. Too much judicial Inquiry into the claim orfwould force disclosure of the thing the privilege was meant to protect,omplete abandonment of judicial control would lead to intolerable abuses. Indeed, in the earlier stages of judicial experience with the problem, both extremes were advocated, scene saying that the bare . assertion by the witness must be taken as conclusive, and others
aaying that the witness should be required to reveal tha matteris claim of privilege to the judge for verification. Neither extreme prevailed,cund formula of compromise was developed. ..
"Regardless cf how it is articulated, some like formula oi compromise must be applied here. Judicial control over the evidencease cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to nay that the court may automaticallyomplate disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that thoreeasonable danger that compulsion of the evidence will expose military matter* which, in the
22, Supra
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= Kaiser Aluminumhemicalie Court of Claims hold that judicialtionocument for which executive privilege has been asserted, should net be orderedefinite showing by plaintiff ofndicating reasonable cause for requiringubmission.aid the Court,, the executive determination weald he merely prslinainaryhe officer and agency moat aware of tha needs of government and most cognizant with (sic) theurrounding the legal claim will haveield determination to enrt officerourt) less well equipped."
3upra note.
interest of national security, should not be divulged. his is th* case, the occasion for the privilege ie aspropriats, and the court should not jeopardise the security which the privilege is meant to protect by insisting upon an examination of tieeve- by th-lcne, infeynoldsivil case, bit: the evidentiary difficulty inAMS It quite Thus, citing Reynolds, the Supreme Court stated in JgnclcsIt is unquestionably true than t" protection et vital national interests may militate against public disclosure o* documents in thspossession. This ha been recognised in decision* of this Court in civil causes where th Court has considered the statutory authority conferred upon the departments of government to adopt regulations netwse.f 'is records, pacers, appertaining to his depar maat. Th- Attorney General has adopted regulations pursuant tc
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authority declaring all Justice Department records confidential and that no disclosure, including disclosure in response to subpoena, may be roads without his permission.
"But this Court has noticed, in U. S. v. Reynolds, the holdings of the Court of Appeals for Second Circuit thai, in criminalthe Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rai^onala cf the crimlnaL cases is that, since the Government which prosecutes an accused also "has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive tho accused of any'.hing which might be material to his5
Out of this evidentiary difficulty hasort of "graymail. grounded on the immunity from prosecutionfton civil suit as well; enjoyed by the thief who limits his trade to information too sensitive to bo revealed.
JUDICAL EVALUATION OT SENSITIVE DATA
The quoted material from tha Reynolds case appears at
.
It must be emphasised that ur.desired disclosure is only one difficulty of submission to ihe jury of intelligence data. There is
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another great problem, the capability of the jury to evaluate such data, often meaningful only in the context of other sensitivenot otherwise hearing on the case and oftenomplex and technical nature.2^ it can, of course, bo arjuud that juries often haverapple with technical facts in order to gain uncerstanding of their significance and that the law provides, for technical advice and assistir.ee In such instances ir. the form of expert witnesses. 3utase dealing with secret information, resort to these legal devices merely increases the amount of sensitive data which must be shorn of its usefulness by disclosure, increasing the Government's reluctance to prosecute and, within the area described, thwarting Congressional intent as expressed in legislation.
SOME PROPOSALS FOR PROTECTING INTELLIGENCE INFORMATION FROM UNAUTHORIZED DISCLOSURE
The courts have recognized thai intelligence activities are
ial per se and not subject to judicial inquiry. Congress,
in tha National Security Act, has charged the Director of Centra!
Intelligence with the protection of intelligence sources and methods
Compare Ihe holding ir. the Kaiser case, supran th* competence of the court to evaluate the content* of afor which there haslaim of executive privilege)*
and has given him certain statutory authority and exemptions to assist him in meeting this obligation. Yet often he cannot use the espionage laws and related statures, otherwise invaluable aidsulfilling that duty, in those instances where the offense represents the greatest potential threat to the public welfare.
There arc three steps which would go far towards solving the problems which still exist in this area. Two of them would seem to require new legislation and the third might be accomplished by regulation under the Director'* existing authority. ITlrst wouldriminal statute defining the information to ba protected andpi_nibhmeat for exposure. Second, this statute would include injunctive authority because prevention of exposure is cfthin punishment for violation and in many cases the injunction might provide greater deterrence than the penal provisions for violation. In addition, provision might be made for forfeiture of retirement benefits by persons convicted under the Act. Precedent for this exists. the so-called "Kiss Act." equirement by the Director that all employees, agents, consultants and others enteringelationship with the Agency giving them privity to intelligence data agree in writing to assign to the Agency
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all rights ia anything published by them based on information received in tbe course of their official duties. uch an agreement and appropriate regulations governing tho dissemination ofdata could in them solver, scrvaasis for injunctive relief apart from cr as an alternative to the statutory provision for an injunction to prevent the criminal act of exposure.
A LEGISLATIVE PROPOSAL
As we have seen thereerious gap In the law*intelligence information. It is obvious that in the protection of classified information from unauthorized disclosure prosecution under tha Espionage Act must be limited to those cases where the evidence on intent is clear and the divulging of the information in ar. open court is not detrimental. Enactmentriminal statute similar to the proposal appearing ata suggestedemedy.
*
iscussion of restrictive employment agreements, and other civil remedies, see memorandum "The use ofcuitabie Ramedies in Protecting Governmentffice of General Counsel, CIA,S.
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The proposed statute would close tho gap by expanding tha kinds of information protected and making prosecution andorders possible where they are new ruled oat by the necessity of exposing sensitive information or proving intent. It wouldtep in the direction oi "crown privilege" which is the basis of the British Official Secrets Acts, in that it would permit convictionhowingersonimited category, having official access todesignated as "Intelligence Data" by tho Eirecmr of Central Litelligcnc* had imparted it to someone not entitled to receive it. The justification for the designation of the information as Intelligence Data or for th* Imparting oi it could not bo put in issue at trial.
Compare the language "in violation of his trust" used in the present espionage statute, IS,
Experience has shown that cases of unlawful disclosure of sensitive intelligence data in many instances involve persons who have obtained access to it through some relationship with an agency of the Government having tho data. Thus, the offenders fall most frequently into the very class of persons who have bcon reminded frequar^ly of the confidential nature of th* information with which they deal, the public trust involved in granting them access to such information, and the dire consequences of unlawful disclosure of it.28
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Thapersons aro, then, those who have in one way or another assumed the obligation of not doing the act charged. And so the proposed statute is concerned only with those who have, by reasonrivilege extendedy thabecome trustees of its vital secrets. It does not address itself to the question oi leaks to the press, nor docs consideration cf the proposal rsouire encounter with complex and difficult questions of freedom of speech. The proposal would applymall grouparrow "and now almost traditional, area of great difficulty.
It is submitted that the mere exister.ee oftatute for the protection of Intelli3er.ce Data willeterrent effectofase is ever prosecuted.
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The idea behind this proposal stems from tha difficulties ir. prcsacuticr. for unauthorisediahazl^ ia tho United States sapiooaga laws. Tha leading case,ecidad by the Supreme Courtas been interpreted through the.year* aa requiring two things in the prosecution ofcases: rcci that the information divulged was "to be used tonjury of the United States or to tha advantageor jijjr. nation" andtao disclosure during the trial of theial sought to ha protected, because under theule the jury must dacide whethsr the information is related to the national defense and security. Statute:-changes which modify tho Ooria rule on ir.te.ttisclosure have bsar. so aarron in scap* that for practical psrnosoi prcsscut'.en for ua-authct-Uea disclosure must continue to hs limited to those aasa* whoro the evidence cnis clear and tha divulging ai the information in. open court is not detrimental-.
Tha draft hill wouldewtatute with the limited objective cf protecting only intaUigenca data as cafined therein. It It designed to overcome the practical difficulties a; prosecution underaws and to provide greater deterrence ta unauthorised
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ould mtlce tha statute applicable abroad as wall as within the United States. Thi* jurisdiction is tha same as that cf tha ospionaga laws.
rovide* /or regulation* Uaploxaonting tho st.itute
to ba promulgated by tlia Director of Central ZntelUgeace. Tinashould naturally fail to him who has the statutory responsibility to coordinate tha intelligence activities of aha government aad to protect intelligence sources, and methods from unauthorised dlscl-sure.
efines Intelligence Data ana categorises various typss of information which are included in tho term Intelligence Data. The definition is designedeet the inadequacies of present statute* which were written to cover specific, limited and rather tangible subjects such as military nardwara. classifiednd code materials.
rovides that anyone possessing Intelligancaefore imparting it to anyone else must verify that such other person is lawfully entitled to receive it. Instead of tha gcvarr.ment prcving tnteat the dsfanfant would have the jur-an of showing that he had verified the iagality of hie action ir. imparling tha data. Although stria^amaat, this rec.uiren-.om is not unreasonable when applied only to persons who havencrough indoctrination in their
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till firce ofopcsal occur* Ir.irst theis made applicable to pre*&Bt or former employee* of the Centra! Intelligence Agency or employees of the government or member* of -he Armed Force* assijned or da Gallic to tha Agency an; Agency con-.ractors and their employe**. In effact. it world substituteamaat of the Director of Central Intelligence for that of the jury Limiting She proposal sopplies cniy to parsons lawfully racaiv lagr.c* data in the course of their employs) ant was suggested for rwcuchre tlis principal scarce of leaksttne impact of the argument tha; this type ed le-islarlotep toward censorship and infringaa upon tha freedom of the prsi
roposal toourt Injunction rc solve the
vary'real problem of how toerson fromlassified
information. Since tie key to protection of luieEigence data -Is pre-
v-nrion rather than punishment, thi* provision might wall prove to ba
tna most effective part of the law. It is patterned aftar
cf the Atomic Energy Acts amended.SC
. While this sactica ha* never been tested in the courts, it isaapon which tvonidseful purposeatarrar.
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Protection oica
- - "This chapter shall apply within the admiraltye jiigh seas aw) elsewhere,
ad within the United Siates. M
In the Loterests of Che security of the foreign intelligence activi:iis of the United Srates, the director of Central Intelligence is herebyorizcd to promulgate rulesegulations for the protection of Intelligence Data from ^authorisid disclosure,
The termE>aUM means information andrminad by the Director ointelligence as being acquired,by or used in intelligence activities of the United States concerning foreign countries and foreign nationals, and includes, but
is nc; limited to: Jl) notes, models, instruments* appliances, facta, statistics, analyses, sketches, drawings, pictures, maps, graphical representations and photographntelligence sources andeports, evaluations androcedures,evices and mathocs ased in ihe collodion and production of Intelligence Data;lassified information as described in3 ofr.iuad State* Cod< .
possesses Intelligence Data is required,sucher person, to determine and verify
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that such other person is lawfully entitled to receive such Intelligence Data.
being or having been an officer or employee
of the Central Intelligence Agency, cr being or having been an officer or employee cf any department or agency of the United States or aof the Armed Forces, assigned or detailoc to the Central Intelligence Agency, or being or havingontractor of the Central Intelligence Agency, or boing or having been an employeeontractor of tho Central Intelligence Agency, and in the course of such relationship become! possessed of Intelligence Data, knowingly directly or indirectly imparts, discloses, publishes, divulges, or makes known in any manner, or causes to be imparted, disclosed, published, divulges, or made known in any manner, such Ir.teliiger.co Data or any part thereof to any person not enrltled to receive Intelligence Data under law or executive order or rule* and regulations of the Director of Central InteUigence shall be fined not mors0 orl more than five years, or both.
la tha Judgment o: the Director ofany person has engaged or is about to engage in anypractices which constitute, or williolation ofor any regulation or order issued thereunder, theor. behalf of the Ur.il ad Spates may make application to tha
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court for an order enjoining such acts or practices, or for ar. order enforcing compliance with the provisions of this section or any regulation or order issued thereunder, andhowing by the Director of Central Intelligence that such person has engaged or Is about to engage In any such acts orermanent or temporary injunction, restraining order, or other order may be granted.
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-
Istrcductlon
- c?icorCJ lam provUa the basic statutory prc^sct'cs to tha Stort tie ttSttag cad use of defense irfSSSoa^
arly goreno Court sa^ested that tho
. 13 that
.ation for the
, 6 ave tahea the position that tto Ooverxaent <n
ct
u>oa roecrMaOatioa by the Justiceill to Dnnnfor notional defense secrets vas'mtrcaucaSSkS; r redrafts of &ecm In
n1cS?^rc:S5 ften a
:tai-ioi.
esisUttca vhich he believed containedhonae took
Ec-ancts
overed by theto vhich hofttfSJoaie else entitledca-
noetic*hotcsrapb orpictureational dsreste;"
r. Parker:
"Many people are allowed to go In mid taker. Beaaat.
eeatleoaa think the language cdfifct be losrovadl"
arker:
Ve are oot coirs to lyprovo the leusuBge. The-jaa tbe tfOTd> uhich ie used ia the"aobiaccua. -he cnV vay that veteeeen correct vas to say that Ifleoererrx^tiOD respecting the aatiojil defcyee'' aat ia the real poiat
Mr. II hjlieU
la correct, ve ought to iaeert the word *
efore 'entitled.
Mr. Parker:
scbjaation to It,o not shirk it uihee daydifference ic the aeaiiioe,"
Uterhe debate, Mr. Eeuaet wiedourist ubo tikes aa sUltexy inetalletiOB vould violate the etatuto, tev Parker la aa Inclined to tiiak oot. At any nw thera wouldarythere sai-htin eight take such aco-rmaicrtecrei^i
thesitate toill which
^ekee the innocent actaotogregfe- of a
She bill jessed theoice vote aad vas sent to the Senate Stan it passed without debate. ile text cf thes as follows:
1
a Act to prevent the disclosure of naiicaal defease sccrats.
CF THS iSSZSD SCA^ZSl ERICA in CG1SR2SS ASSE-mTKl, Thatthe purpoM of obtaining information respactias thoto whichio cot lawfully entitled, sozt>asyert-cra any navy yard,tation, fort, battery,station, arsenal, esap,office, or other place
i cornacted with tlie national defease,r constructedonstruction bynited States, or in theunder the control of the United States or njy of itsesents, and whether oituatea within the United States or incoocoatls-ious to but subject to tie jurisdiction thereof;when lawfully or unlavf-illy ujw any vessel, or in orouch placa, without proper authorial, obtains, takes, orattempts to obtain, take or rake,ocOBtEB* 3ki*;ch,phctcjraiJiic relative, plan, iicdcl, or knwledssoda naCionil dsfesso to which he is Dotwithout proper authority, receives orrscreen to receive or obtain, frca cay person,c-hphotograph, photosrujhic aegativo, pica, sodni, ortho sane to have been so obtained, taken, or laidt; orpossession of or control ovor any such docuseat. Sicephotographic negative, plan, BOAbIj orithout proper authority, costrsaicoti'S or atttcpfcstheo any person not enti-Uad to receive It, ortheucht cot, la tns Interest of the national defense,at that tias; or whoever, being lawfatly intrusted ^auy such deccaant, sketch,, pootc Sophieaai, or knot-ledge, willfully and in breach cf his trust,or attests to ooaaonleat* thehall be finedting one thousand dollars, ot* iursrirrjfiedor* tha; one
. That whoever, bavin; eeaaittedfiaed Id the precediiri section, cfxraasicates or Mfectptt .is OCUgavlOf to eay foreign govarn^ecc, cr to sayr fctglojat) th"jr*raf, any docua^-t, sketch, photograph,gatlva, plan, tcdei, oro obtained, taken, orjsr so intrusted to tin, stall be inpriconed not nore than tea years. ,
SSC. 3. That offenses ogoinat the provisixs of this Act cenrjitted upon the high seas orfatalaUolol district shall b9 OOjnittcle in the district where We cffantinr io found or into which ho larvotht; but offenses bccflU&tar cccaittod within the Philippine lelendsela eay court of said islaadsieticatitic, vith the scea right of appeal U ffixn in other cri-jirU. oaaai where iiTprisouu'Xt eaceedirsart offCti'i and .Jurlsdictioa is herebyacb coxris fcr nOB purpose.
Kerch
QPPFIDVIO FOR RELEASE DATE1
7ct
The Justice SepartMat believed1 Act "lnesapleta and defective" tad with war uhretteains? attested co Congriss revisions to1 Act. ill was introduced in tho 6Hh Congress which contained1 provisions together with prohibition against sedition and irriurrection. After several changes, tha Senate passed the bill sad it wont to tha House. Tao Eotro Judiciary Ccnnittea studied tha bill aad asde cone changes, butrthsr action -as tsiea in the &th Congress. iallcr bill vas introduced inh Congress end after nuuaroue changes wars usde tho bill was onaotsd aad bastuan Vbile the iaidteoaCQr of ths 1SU Ant was said to ba the basis fcr changes soughtspicnaga provisions of the statute enacted byh Congress, as it turned out, vere uada leas effective for tha protection of national defease information than the provisions in1 Act.
In tbe &th Congress, the espionage provisions of the bill (S.e criticisedroup of Senators, ltii by Senator Covins, who were opposed to restrictionsiti-jer.'a rigat-to-'icrsr as veil at; tho loverlas of constitutionalwhich irightexs?sic- by Covermcnt. Inh Congress, tha wording "notes objected to by Senator Cua-nacs because "it le scisg altogether too far to deny any Acsricaa citizen the right to rcah infomatio- for innocent purposes with raspect toortion of thecad lto condition.enator. Cumias, in directing criticis* ct the espionage provisions of the bill, atati-d:ra ucwillirgreat sut.be? of nev and strange offenses te created which will drav withinarg= part of the populationountry which indulges in frso speech and frest, when not necessary to protect either the territory or the hcotr of the Republic" Senator Cumins touched upoa constitutional difficulties inherent in tha bill as well as the vascaaass of its provisions. He renarhed that if1 Act "bad basa enforced for the0ore than half tha intelligent reading people of the United States would have been in the Els trguneat tea that innocent acta could not be cade illegal by statute.
The tera "net lawfully entitled" was olinicatai duriag th: Cyui Cesvgress by tha Senate Judiciary Ccji^ittee caialy because of the attacks by several Senators, includingCtureias, who at one point cccraaated that the drafters "did not understand Arericaa liberty at Heajbsn of both Houses were genuinely concerned over the pesj it ility of prosecution because of incocent acts. Tha Judiciary Couaittaeo of both BOOMS* in crder to clarify the intent necessary for violation, described it specifically "with Intent or reason to baU=vo that the information to be obtained is to ba used to the injury of tht StaltaA States, or to tha advantage cf try foreign nation." This language was approved byenate without debata.
c::g. ta,
ftf PRDVtQ fsR RIllASE DAIl
The Bbnsa *iafcreation relating to aitiocil defense" ems notined la debate. Senator Cuaeins questioned the ncaaing or the tera national defease."5 Kathat "national defense" was not defined in the Mil, nor vara there any qualifications or restric-tiona. aa tooh the tcmo "aaytbirg that ts necessary in order successfully to defend ourselves against an euGay or successfully to attack an enecy." Ko charged that all there had to begeceral connection with tho Amy or Envy." Sheso stagnant* wereil"1
Daring later debata inhowever, Senator Overman stated that, according to the tin, aaerloan citizens would oot have the right to cbt:in secrets of tbe Government or "of the nationalbea it pointed out that %oorerto" were cot statlooed, Beaotor Ovemsa. who woe ia charge of tha bill, replied, "But that ia what itenatorator ccss;atcd th-t" thvre vocll bo no violation la obtaining or traafnttting iofomatica which^een aade public nroperty. Goodrich, in his ccrscatary oa tho Xspioaageelieves that only goveriaeat eocreia" ware to be covered by the Act, but taa debates erghaaiatd that the legislators also visaed to protect Qertodn contract work which vas being perforued outside of Gorerarjeat offices.
?he Initiators were aware- of tho responsibilities of the ii:;cutive Breach in protecting information which vas vital to the AafieOM and'.war effort. Tho House Judiciary Ccsnittee recognizedyatCB had to be devised for the prohibition of publication or cccrsucicatica of iaforaa-tion relating to tha notional defense.9 Inoh Congrezs, th; Judiciary Cctaiittee noted thatave tho President authority to prohibitf information viiioh "in his joAgCDat is ofharacter that it ie or night be utyful to the essay
In Senato debate. Senator Sutherland on the floor pcdartod out that the phrase 'ln-jfullyhat ths particular inforca-tioa mitt hava bsia forbiddta, act necessarily by en act ofhar tha Secretarya Vary or theofs his Cgent nay naho regulttioas which forbid octaisdrg cartaiai theay extend those XCgQlattOBe freei tine to
The tern "national defense" while criticized as too broad, was keptha legislation so as to give tU legislation brtad step*. A3 una saidebate: ,lo Senatorwant are tJvaso plans crtific articles are in cere buildings that oughx to ha BTntinteYl, and we tado it general to protect everything ccaceoted with tha national defense."
.
-
Sfhe Control of Atonic Snei-gy, Xetosn and Wilier, page13.
BPPROVIO FDR1
includi
m*or speech .'id the thi deoleST of the right'toufcruatioa. Under its weniweTilvien: >r. could have been prosecuted for publishing or ccuotunisating iafORaetiOU which the President had jufgedto.be contrary to the beat interests of aatior.il The Seaateroviso, hswevsr, Vhich put ca record the Spate's position that thetica was act to bs construed as laadting discussion, eennsat cr critioisn of the OovecsueBt or representative j. Tho oeospr-ahip taction vas later codified aad than dropped.^
Coyrt -
The Act of Jbne-U,tO) was entitled "Aa bet to act3nterf-ereiice with the foreign relations, thathe foreignof xae Uaitidto punish espioasgs, sadto eoforoa tho criuisal lavs ofnitedaad for It was divided into thirfceia titles, the firstcoasiated of nine sections. Various sections of the Aci;considered by the Begreas Court cad thsdr constitutionalitycasaa such as.tates,3 L. Ed.v. Uaitad.rd
spionage Act waa
constitutional, but it waa notO that the Supreme Court wasl ccafrcutsd specifically with the coastivetioaaiiuy of the aapioaoge provisions of the Act.1* ussian-born investigative eaployea of the ft%tg Dopaxtoeot ard ;eikaail IT.oviet ^atieaal onployed by Actors inis wife, were indicted for violatioaj of the espionage provision of the Espionage Act. The Gorf.r, Sr.^a.
Briefly, the facta vhich lei to tha indicXsnt were as fCttCTSi Ealich was ordered by his superior to contact the Soviet Consulate in los Angelessrdertain individual, aai Salach ^ -
Al6eoticu. ReportCongress, 1st Session,
sishnd Srforcsal Irrs of the Ifcitei States.
^'oase Reporth Congress,To Acccrpacy H. R.
^Cnria v. Unitedria v. Qaited..
U.sT"olo, a3decisions tn toe above cases leu. too Supresa Court in O'Coanill y. United.1 L., andelCo. v.,
,* to declare sir-'
fcPPRIYfO FIR REUASE OATI1
Millar talked to Covin. ine later, Cor in coata-tcd Salich aad told cf his interest la Japanese ccvivitica.onverta-ion to his superior aad, ao:ordirs to the te^iiioay of hit superior, ha for^ads Salich to contact Coria. Sal^co, however, clai-sd that his superior told hia to rive Borfn iaaocuous natorial aad try to got icforaaticn froa Gorin. later. Sallch agreed to supply Coria with certain inforaaticathe ttMsy that it would benefit th: Unite! States. Ee ou^licd Goria wioh tn* substance of various intelligence reportsfat of Japaneselace to another vithia
the waiter
The Instructions to thethey have
sinceused by Other courts in giving instructions inases. Included vera the eieacats of the criao cf ccryia-- takis* and staining documents, vritings end netas of natters tannectedational defense. These vere: ast of taking or obtaining ivsst beh*r* trustarpesu of btaining lnfcir.itior. respecciiig the nationalhere HHt bo an intent or reason te baliove that the inforaition soma toused to the injur/ of the United States or to thei On Soviet tfcica; (h) the information so taken cast, inelate to the national defense. More specifically, the court instructed the Jurors thftt "they could consider the ehrraot<ar 'of the la.craaci.on recuired, as to whether or not it was susceptible to use by tao Soviet Union; and vhether or cot Silica kr.ev facts frca which he concluded, or reasonably should have ccaslvdedcould be used adventngsouoly by tao Soviet Union.JAC
Jlora specific instructions were also gives under tha second ccuct which charged the defendants with ccanunicating, delivaring end transmitting to Gorin,epresentative of the Soviet Union, vritings, notes end infomstion relating to tha national defense and describing tho sane repcrts Bttotloaod ia the first count. 2he elements of the criao charged in the second weres:
the fact of dioclosuve nust behe disclosure cast bs node to representatives orf th; Sovietra guilty intent or reason to believe that the irforation so obtained was to be uaed co the injury of the United States or to tho advania-iiJae Soviet Union trust bo present; and (te) the lcfcrtia^cn so taken, cast, in fact, actually relate to the national
The defenseirected verdict of ac^ittal at theof ail the evidence oa the grounds that: ) the innocuous
15United States v. Pedis;ulycf
l6lli F.. ^raid.
APPROVED FOR RELEASE1
tua evidencemoin>doa thatreason to believe chat tha inforuatica was toof tha Chited States or -the advantagehe evidence failed to dlscloso that any
of tha ra-wts wore related to cr were connected with the BO,tibial defease.
An egpeal was tahea to the ITiathere th* defendants* contention*i) the words "national defense" should'beilitary cad navalpecifically defined in tha preeontfho Sspicaaca Act la unconstitutional taeauna it "would fix as irniutable. standard of guilt to govern conduct aad would give no fixed and definiteut would be subject to Laftuition ts to aetciag by each court cadha Actviolatas tan- 5vh aad 6thnsufficiency of evidaataj" ha Xsvol Intelligence Reports show on their face that they do not raicta to tha rationalhsre was no evidence that appellants Uaewval reptcta to o related to tha aaticnal defenoa or that their acts were 'unlawfulhare was error ia allca-ing toatincay of tae Ciatrict Intelligence Officer which showedlich hai been told not to contact Goria. ?
nfrirzins the conviction of
-ma Solach, tae Appellate Court
of course, conscious, of toowhich cculd bs nude that the inforoitiaa div-algod aunt not bs of any iapsrtauce or the Ilaval Jartalligeaca Cfficsr vauld not have uide the iaforattica available to the public byhe reprints ia evidence. Such procedurescascity in order to try tha cane. Whether it is scuni^rveuestioa for the dctcralnation of
thaourt considared the caco sn tha dsfeudasto1 tares objections: (l) that tha prohibitions of tha Act era linitad to cht-ining cad delivering inforcatioa ccucemang thsdescribed places and thirds sat out ia tha Act, suchassal, edrcraft, fort, signal station, ccie or signalhat on
l8lll. ^xd.. ^d;'d.. ^Zd.d...
APPRimQ FOR RELEASE OATEAUG
interpretation which put vitaia tn* statute the farttisairg cf any other infomatioa connected vita or Milting to the nationaldefM3ir than that concerning these specifically described places and things would cake the Act un.cor-ii^2tioaii as violative of due process because ofhe trial court overruled ths petitioners' objection thatitter of law none of the reports dealt with national defense.20
In arguaoat, the petitioners cliined that because of tho traditional freed on of disc. the clearest sort of declaration would be required by.the Congress to bring under the statute EfttteYl not directly connects with end ysc cf the greatest important to naticnal defease." Hhe Court decided that based on "aa examination of the wards of the statute'1aieg cf national defease cannot be liaitvd to the places end things enumerated in the present. "It is ocrustice Bccd wrote in his opinion, "that itrise to obtain or deliver, in violation of the intent and Purposes specified, tho things described in)hotographs, writings, rcsps, or anything cow-anted vltl* tho national def easej without regard to their connection withaceS and thingsessels, airplanes, buildings, canals, railroads'.ie conclusion of the Court was crava free thu aeaaiag of the entire act; tho legislative history did notarge part in the decision.
On petitioners' second point, tha Court couldhe statute which woulderson cf theonteupleted action is crininal under Court pointed out that the sections of thenet siople prohibitions against obtaining or deliveringpowers informationury teay consider relatingdefense." If such were thetcrc would have to
be nadc cs to whether it had double atonies or forced anyone at his peril to speculat* as to whether cartain notices violated the0 uncertainty was found in the espionage statute because tne Intent or reason to believe "provision of the statute required those prosecuted to have acted in bad faith." "The sanctions apply only when scienter is established." liho-re there is no occasion for secrecy aa with reports relating to national defense published by authority of Congress cr the ailitiry departnonts, there can, of coarse, in all likelihood be no reasonable intent to give aa advantageoreign govemasat. Satieasl defense totalis not only militarystablishaeate but also related activities of national prepar.Jiaisa', ad the language employed is sufficiently definite "to apprise the paol'c and isita due process." ?urthcr, tha Court Mated that ttw question of the connectisn cf *h* infornafcioa with nitior.il defenseuesticn of fact to beby the Jury "as negligenae upon undisputed facts is doterr.ir.id."
CS.fiflM,
APPROVED fOR RELEASE OATEAUG
ha*1 cScfa the Suprtno Court
wionngc ^rovisioas of the acCseve-a-
vhich co^enT*^
.
eoueaa reacturesriitary ,aa .ary Ccua::al andvy Cciaetnaara testified th".t
. United Stataa au3 to
^orotga tc-tico. 2vidav:ee iuiicated that tha dopant* fitted to on officer that they kaov iterious
-sc^-vatica. The defendants-'
^.eana no rovaroihlos found ca appeal.
Court rrana
ia hsdstrongly- -
CO - ja'iagh
a-n *riety of >verar.ont va>
.In tha cana ofv,diaish upheld tha. conviotioa ofor conspiring to violate tae Ssvionagctefcea to photograph drnwirgs given to hiaj V-- *vecnpans'Tdcing defease vach, Svea -though Cretentent to do hura, tha Court said, "lac factso
to guilt than to such an ins: innocent
we
In 'J
iaaiCcuiiut- vC.ce; eis othersonspiracy to vj
Espionage Act provide onactual, telling ofAppellate Court
a the ground -chateer. bed teen triedae-ccuat provisions of.the Act. Sc.end vert acts in furtherance of a
v. arfgg Cioltf) noted that it ie
r^-r* lc3cand absurd. c -Jessica of -cae free exchange-
rrv-LCf cri isvat easa
rca oaen source, evenrraageae heu:fitoreign nation, could not be the casierosecution under the Act.
.h.-h1 P.
10
APPROVED FOR RELEASE DATE1
Po3ta.gr Cmm
The Judith Coplon trial* end the Rosenberg spyaboutesult of viola tioss Of -iheMiepartnout cf Justice employeac tried la thafor the District Of Columbia porauaut to na indictmentthe follcuiag allj-atioas: (l) that defendant "forof obtaining informatics respecting the uatioaslvita intent aad reassa to believe that the information was toto the Injury of the waited States cad to the advantagefcroi-p: nation, did copy, take, Etlie aad obtain docuaeata,notes connected with the national defease." Count Twotlie defendant, hsriag custody of documents and papersthe Justice Department unlawfully col willfully rcnovedcartels cf fttid doeuaents in violation ofrial, which Lasted abont tve cud one-half conths, sheguilty on both co .nts and was sentvneed to inprisesasatyears ca thend .thru years en tha aeoond, to The espionage etatu-ses ver* not challengedharge* ofwere insufficient to overturn
-
After indictment in the.District ofes Coplca vas indicted in the =ev 'fork District Court vith V. A.oviet national, on fear counts including*, onspiracy to violate*1 of. byho functions of the Justice Department aad depriving the GoY,-rnai.nt of its right to the honest servicesoplon as ca employee of the Justice Departnant. Count Two otowirf
o charged that "iss Coploa "lawfully
td io
having possession of, assess to, and toing intrusted withcad notss relcsins to the national defanse, .nf-eapt to coaau'Sicete and trensnit saidecdafendant, whoersonreceive .
) Count Tour caorged that liissViVaraasoa to believe that thay would beo the injury
the Unitednd the aivantigeoreign nation" attempted to transmit to her ociaf sniaat flCCcsastS, writings. psi, rotes relating to tha nationaliolation of,
Prior to the trial in Bbv 1'ork, defendants aid* severaln thess Ccplcn sought to dismiss the" indictment as
v. Copies, 63 I.Y. iS'sp), oplon v. V. art..
UPPnOWO FIR RELEASE DAT! MIS Jill
ea the ground that to try nor Inor* would constitute double Jegirey ioisaueh an oho hud been Indicted, tried, convicted end nent-eneed in tan District of Ccluabin. In denying the aoticVT Jndge
in the first count of the District ofonf the crixe) vos "obtainof decune-ats with the specific intent that thoL,ca to the injury ornited Scntcn and to the advantageforeign nation" and ttat Count TWO of the Kev forktttiro auci latent, tU onlywas that lasspossesion of the doeur.sr.tn and cttvuptad to transit to receive then.
Toe Court notedount ?orr oforh irAietnent
r olunblcJe^r'^-f^tcnt of the defendant at Ta.
5ahat under
e-enennt con bo tried for the substantive cr-.ua end the conspiracy to conmitddition to the csn-Vr^cv
he Cs,ernn,nt charSS IZT^tZ
oneral ccnsplrecy statute,. In denj-ir- a
32"Coploa case. Judge- 7yan de-cerSnsdro-action under ths conspiracyas not
TiZn pi'M?CatiMand it could not be
interpretedonspiracy to
Tlie: Cans
of the Greatest utgaitude end drceen was? Briefly, th- facts vera those: -Juliun ifas&
teioviet"Wli^and
veered to the Asians Secret.
XS^ connected acts tosh place Vr -olA-
to IfcO. an Rosenbarss vara carried in tho^ caitres'
* han to death. The Rcnunbcrga
tea end each tine their pica
loiict=aat of Julius pad Lthel Roasabsrg charged than with conspiringc IS0 to violate sectionV
.
APPRJJVEIJHflr RELEASE DATt1
an, tnitec Statesn that they conspired toad tra-esait to3 tad agents tad reprooentatives thereof ;n, writings,otes and infoaoational defense, vitb latest aod ro:ssa to believe that they would bo used -to the advantagen;nation. The one count indictment alleged eleven overt tcts setting forth tho daton thereof.
Zsfcrc trial the -fcaaalargsrsuaat to) Federal Rules of Criuiaal Froe*dur* ?er ft hill of particulars aa to the general conspiracy charge :overt cats, sal penrrcaat too, they sought ca orderiaeps-itioa and photn-raphiug of four, cat-aerated docuussts. la ftaa/irg the request, Judge Woicfeldthan there vera too basic rsro aa iadiotaaat: (l) uba accused shall be difieitely iiiforaod C9 ta the charge cgaiast Ma co that he nay be enabled to present hi3 defense and ace be ashen by surprise;hat ha may be protected cgaiarc another prosecution for tha son offoase. He bald. Haz tha indictasat cat the above test. In denying that parties cf tho notion siehing discovery under Sale lo, Judge IfeJnfold tcoU cognisance .ofo grounds of tho Goverssisns's oppesitiait ^l)o thoving that tho tfeeejasstrl vara "obtainsd free or tele--ring ca the ftofU&aot cr obtain id frsa others by seizure crwao uSstGh of vMeh tha dnferiratsopy vu classified Top Secret and anit tea ouhtiitt-ed to this effect. Citing :ishLi^v. Uaitedudge Ueiafcld said, "To Great thi3 portion oftlon would require tha Gcvernnsat at this tine to coma available tosna-an-es endltciy part of the very information relating to tha national defense vaieh it is alleged theconepir-id to uraucaitoreign government to be used ta" tha litter'a advrurtags tadc tho national welfare. SSW lam vhieh av/ arise upon the trial with raspest to ouch evidence
a toe
did cot allege that tha natter vas est puhlis. a-thatf tao Jedarel Salts for Criminalcl facta and that it cite Cn
the cenetitetioara. problem, Jcdgs ?raah stated that tha Gorin case had reju-ctei the theory that the espionage statute suffered frsa vagueness. Ey inplicc-eisa, he ccrcinuad, the Coa-ln ones alio "sustadaid the validity of the statuts egainnt cay identical ea"guresatsnder the SisKhince the court's decision van primarily coucruad vitb vhether the stttats eet up definite enough standards of
. v. Sosaacerg,.
eview cf the law on di.itovery in Vv&sral Co-arts,CTaivicn for the Record; Subject:Duces
APPflOVtO FOR FtELLASL OAK1
guilt toeltaswagnd -aao
- dtf.ac.at or asat exactly he vas me statute nj alio valid ardor the Tint 'rirnSn il^haiincd that "cbe cerraani cation to avH.th the national deflnw
nhs area
aa^ndaaat protected free epsiah."
lafiis^lt: the evidence of Juliusactory, the opinion stated that itonaectaa with tha aaxioaa?
Offense. s prcedaity fu<e, it acted,an important Korld
' the device iteelfVtrcSly
that it vas secret, and equivocally shon that itconnectad with the national defense."
After petitions for eertdorari and roteariM vara denied bv the
grwead tnat tacir sentences vera irposad in vislatio; of the Coasxitution or tho lava cf the United States.^ After^ecring oral argument, Judse 3yaa ruled that it vas ocwi^iSi^^S'that petitioners were entitled to no relief aidnstcrtSTtueV fact vaS raised vhichearing Cn soverel02and ioter^tatior.*that theire Mt aaiae because OBIof anfornaticn classified asoica tney were charged vita havirg conspired to tranaaitas so generally kneva that traaaait-Xns it "as act fort-deWit
SKST**' did St agrae^litir; JeSe ^
decision Vner. itly statede Goveraainthid
or tao secraay off tU
inforaiitaon unliv-fally t -7
i- its faots a* iTbe completely
States v.GcS.r. un_tad States v. Eoeerierg, SOPdir. ms>.
BFPRQViO FORATIUI07M1
^ ^'C ofart tiet
SZac
fcetr.y; - intent.K ruffice oo scova thaio'
intent ca^id for fcy ta. trsaaoa danaa cf th* Ccr^rtioa; Si , fr4 "vita tic cr-neei_rdl deaooir of tlie
Ar'"ls Co:art ht* vith^J
tft* Suprcrj Court in the
pcti-odci for rehearing vhich ucj deniad,V3
gavlgioja of*
a&nolaa rare ernfrorbed withebntne-co
incline tho arenas,he diff-^ioaclictraats -der tain. t iv-va
oa-oral in JSoB^
tioa dca:ga
ifp -iacat or racoon to believe" -lhat iaforaaticn^
be cood -co tn- injury of tha United State* or to the mtot&Ku of a
iafcr.aj.tiw vi^ti to the rationalch inforaatiau,bl'-'ic^atkiiavV" that
a-usei to tha injury of toe
f^wJ* fwaisa nation, Sae cotton aUo
i^aaticn rel,ting to the
Specifically, thefoilcsirs ai*>
e <nancta po prcride that xh* offonnei teaca-'led' ind) cad (a) atoll tot tato4cf cf
H cation thatatenta to bel ^ acuirec cy clrooctb)(c) allies to* (d) cad
o,
,.
at: of Fionas, lavs
Jmafcs to tt. Attorney Ceneral,, frco tt. Secrettiy cf Var.
BPFRDlflDFOR BEILBSE DATE-RUG
fn- 2' J*aW be amended to- include clauses to provide
se-Penalize cay individual forreport ucss of any dosuzsatitiag lawfully ia
: -
Ina-eea Ststaa. Also toe.nalcy for tho"possession ofriting.
eeryn foreign ospio; entrance into ch.
to require the registration ja of or has received iartrv.ctionor sabotage izraadisteJy vpou
nond tha Federal Co-aa^caticos Acto nsrssit tae use ia evidence of irjTcratica oat linedv-telephono, radio, cableired ctaruaicatdoaa/ "
'6. ad Chapterof,, whichnalty fee-oi violation of regulationre respiting the pratccti^cr eacurit* ci vessels, hErsors, porta or vaterfrout facilities by otrihdag cat f this chapter thich providea for tho ter-inatioa of the statute six tenths after the cassation of hcstilitias la the placet
iceelaag-oe vCaatttae" vas considered by theGeneral Counsel,JSf?, iaal ^ttsr did act aid
'J-;- aaar security problemy the iat-lli-caea
- of. Cede aa
*oilCws!
fo) of
cent? cede tiva, or in
UU4 w
or net uorears aud ray, ia tho discretion of too court, ta fiasi act aero.
f tro or acre person; ceaoairo -is violate tha -revisions of aa-concus cat, tra or thvaa of tCic title, coilr rro of each.arouas acta any act ta offer;act of tha conspiracy,f 'parties to suah conrpiracy shall bo punished as ia -aid aocticas a the case of tha doing of tho act tho cictralishraas cr ' h_ch is taa object of cuah ccucpiracy. Scoeat as chovo provided. co=spii-vcics -to ccaaait Offences under this title shall ha pusishad as pro--aa;aby -ection tbir ty-saves- of -iaa Act to codify, revise,aeud taa penal acrs of tha KiitoJ States approved March fourth, nineteena aad nine.
froposed for subrission to Coapr^cc for the It provided that-
ad vha divuipes it, etc., ha veravciha "classified iai'oraatioa"
cor-struias the phrase to rearce-re-ated '
fee- purpoaes cf national securityoed toata such sesSttCttT
Se^^C= thelTorettay of
CIA, ana _eurtcn, cugpostsd that on tha- basis of thooa.
be used concsrsi^ "stent or
infarction" n^
txvaUdate tae bill oocauaa, si::a, thecUtaificition vas anists^e
to vl:ther
cs.tain notions violated tha statute.
cssttci bill deaii- vith eipioaago lav
r^au of the Paiges for
sss^lss"^ laticn his
* had ori-ina-oad ia the cuaaneresult
APPROVED HJP, RELEASE1
- _
S *rc^-
c. .a-ttap,c* tint:
physical
- vyed :a;
proposed ceatudzaati; tsf provisions csacvraiug lactations of td to van-rant full discussicn tad era not, cocti'cvcsrsir.l. It-is, hc-evar, epptvee: pros soutiass underpiortgecar.&aSy foundtha rocuir*;sout that raaoca to baliava, ca tha part ofct easily susceptible cf proof. At pa
a -caoasiacA icsp-thaj hcaha. -co secticsirs riist or iafcra.atioa sslca orhe isparteuria arc oocoexxttS* history of uiblirg hloofi acst isatntent,hese claaests are Sirtratn Eton*
COi
urposac
to -jjji. sor ccrsiaat ca the
f tha hill ccacarn thsnselves withspionage la-rs. =
;- ciosa .. - . .
iajia aeasares vhich would serve tova ao cement to aake concerning tha" art sats a: tc fas bast technical la- =
S?*'Coaact-tae oa aatioaal
flPPHOVtaFOHRUUSi DATE: US ?M1
l, totvw/ tiwt pleceaosi patoMw ofrc-aat sictuta, -Mcahaj alreadyarcl tlnso,artial nsaagr. It vauida*oforcble if tho entire Sos' Act could bo rav__od cud recodified,taerperieuccaad iftw the var, co veil en tha oanortacooa of thaor thaii- facial faoa-ata Act. -his could boot _ beulyartoaoive study by ca iator^-ar-ooutal couanart-e. la vioar cf tha highly controversial ccture ci taeec loom cad their irc-ot uroa civil rights, it udghttvere talorf caaaut csauerav =cheol"fneii5.f. It chculf. ciso iBOlfato ether persons of pra-oalaeato mold bo fa-oo of tho cgaoial pleading of theso Gsvoruaoothiae vould be colled traoa toho lava. Cain io, cfocs XQaga pa-ogee's, aul, until oc_pl.tci, caisl cirppori -the presentoal^ iaaofor aa they relate to eiosuaiag the pa-eeeat -apioircjo Act. 31
,aatzjes vara iuoct^ors.tcd into the JnteWsl Sa^urily Act of aypOideo coaaaiodf vTitley dividing into cubcivioicaa,r_torics cui stations, aodhere ante-rial orfor uw la (aa*r are tho eub-eot.ef h or-to tfca list ofonib-aaatica (c) cpplies, -aahiagd) applicable onlycaccess, or control is calra-fcl, aalaing(f) ,
ad appliaaccs as veil cs to doeuasaos,. cma providing by cubnectioaeparate parity foraey to violate cay provisions cf section
eva ooaomod vith-:cwrAto .,
of lUfeass, aflb-art A. .lovett, discuossaV
vt lity of sponsoring Is-slatieatg criainal cciica svaiastaa dieneaiaate cannifieifully, incluainsab-inhao tc be pubiishsi suchhai lojijlitloa along tha liaea cf the 'Iff aha cf tao 5oala:uld be heli^ul cad hehat decretoryaad cttaaptoi to draft such legislatica with the aid cf Una: Leva.5^
hotter tol_srStents,iractor, Liglolativoof toe.
K:raa^araaa to voha G. Jbaaaaji 'f^uty Genei-al Ccuasel,at ofAssistant Sacr.-taryoane, doted it Cotcbor
5-latbor to th* AttoraeyTcn the Secretary cf Scfaaso,cabar.
an Cosloi-e,a. . .
AFPflOVIO FBH RELEASE DATE AUG 7M1
The Justice ^cp-rteaat had airsadyrast deal ofnd it ru reportjily tbo epiniea of th* Depart-aat that the "Itv ccataiuait*hcri^ for tha ^rosacnt'oit'-- thsy preyed c
faoft oill to ayad tha lav ss a. ta sto-.ec.tha tha sanctions cud:uata
?"Cff"" =ot acta upon ty.
Cnaader tLc espicrapa lavs vhichuaa act fur; tha. lavaiec.uata hat than there vaspv,_at frca vhich tha ia:isteuea oa prosecutionvotao offcases vara couuitta, oocausa,solated frcaof/ oustieo supar.-iT.ioa, cr-being secainsly little le'euathere-outside ucruul Justice iields of cadaver, aad sccotlaealahs-ty caito iupc^-'at Goveruraat officials, there just viato push for
, KB^iU,
i for any person willfully to disclose
tocuprasc erabliehcd the Cccaaission ca Gcverauatseuiy statutes, Laiecutivo Orders, regulation- prcsraos aadprotection cf the uatioaal security, it also vas daiaa.la chaapes. ffiWCcausUsipu's study vasoa^oss oaection onvhica it van rcacpuitcd that tha CoverauantOf.oeuycadae cf citxisaca.iuf Croatia, is thainxaaout.ea for tho violation of the espioai-ge leas.?? niutlicrinad disclosure withoutCcaetission rccosseaded: "Bfcat Ccuprasa-'ea-ct
WTi?oso whatever, inforattioo
frf??fi5*tancviup or haying reA&OBCbli grounds
to oeUeve, auca iafceauataca to ten been so classified."^
1
Theffice of General Ccancal frca tiua to tine has studied
rn. pecific prooiea has
lcy.esoraeriwis difficult or .
easitivity of tha iafonatlon uhich
his ccaectioa, cxpariace-haa
- ^provisioas of the espioae-e
.
5-Cc.anission oa Caveruetauteport..
59Id. at elSP. See also draft aaa-ndnena,.
I
flPPROWQHRRElEASE MT( KUfiJIII
1. istoaSarrttortU Application of the.
Suggested teuaoaaat -to,s foliceu: .hishall apply:
.to all .acts vvsich cr* cffeaoas uadar this charier easa cocai-ted vifola -the ainlr.-lty aad saritineu.on of tas liattec Ctaiej aad ca the high saw,s Of the aatloaallty
to all acts salon are effaasea under this chaptertha Salted States sad its-^tiir-cr eisovhere is the
to ZM
laitcfi States,ennant resident aliens aad cliens wjo have rsnoniced .their dllegiaaco to their icraer coautry cad btve civs- their cllesieaco to the United'
f the iSpioaaga Chapter. solution: statutevplyln* to
is aaection eight begin an folic/.:
iVJrillftilly ccaraunicates,or otheniaa calces available to an unauehcri-dcr publishes any classified infomatioa
(l)
Chere uould foliar e, de scrip tier, cf IraToraatica which would ba de^-oea co cover (iaeelligaace; ^
'abraata to Molestssolution.
tiiiticacl section -iolMftUa tcclassified.
rr,ection are acstly eolicital
^ila^^fe"
ammo fir must
Another prctl en is via* typ* of threats Should be* Orehi'oited -threats cadefficials, Cfovw&aaut offiAltii, or anybody?
tstuto.vculd bo.
It ui_at huva ta*of di-aearepir-ut et thocf cry varatrp of aa ia^es-ine, relecee ccViufoeuanica. fe the other band,tatute vculd prc-Tide ana -taction vhich vould man aa ajaatwice before ha eAtasptci to hleohril tha .'seacy isto vrltinp offebts, etc.
end perhapsseful one, votid aa t. statutoryiiixr to that found in tha Clayion .uvtitrur; Act,SC It TOUld canala Sfio Ccvxratab uo revest tha courtuuv-caneAct. She rcasonies supaortiu- title cpprcnih is than support of th* Clayton Act.
i' --
She desiro to ?ra/oat tha criue ana ita subeecueatrcas rash better accomplished by enjoiainj it rather -tutu paaalssi-sp the act after it has bean ccr.plcted. Thealty ia tliaoey cot bo DOerly co effectiveco an function.
T3rouis in psat as '"
fury peraoa, fira, corporation, cr associationcatatlii to sua for and have injunctive relief iacf tao baitei States iatviup iurisCictionor
-atutruat lavs, includinga, lo^aTTlQ ca.
Itootle, based ca this veald be nay creative in this field, taeis hcv'brcaiovareps cf types of infaroatica should ha. a can eit/rr -avane it gaacral and refer to aaafaaaatiaa bsariui on the arsenal defease as inita all tha autin-ant problsus of proof, cr vc can attsnpt to find va.-ds an, paraaea vhich tould coi'or our -articularn thaWao vay that the OZZft statute covers USA's prchloti.
Boliei-iation to Ccsatt Sspionase.
d^luticn. Add'a nav section to thehapter (fitle Id,a follov3i
Any person vho sclicits or incites or enieavcrs to parsuade cno-aovparson to ccrait any Off ease under this chapter orr dcas any tit preparatory to tha cotuisalon cf an offense under this chapter, shili be.
rovide for auaitiva Mastres ^JFicr publishing leaned security information.
Ca
legislationhdad by the
-Vof theecurity
^atatu'bas directed
to overcoaa atart of the
f prosecutias vithoat cenpr^siagc^-oa
could be draf
-. --
d_tc_oa_r*auo
2.'s_srs__.
-vo otoero e;
iaat aaycae vho has violatad or is about to violat
APPROVED FOR RELEASE
cay acts retetSas ta tha protection cf confidential iafceaxtionj* jrcvacica that eapicaas* law* apply ta exited states nationals and alien fee acjs of espionage against the United Ststes wherever eoratittsd.
rhnent ofia has had ths revision of the sapiens
Xaillisn ?
aGgers. wrote tae Spaahar of the House as follows!
fbsgtea*united States Coda, is entitled
caap-tacr "shadioppiy uithia the sttticMgr and aardtitaa Jurisdiction
n tha aish seas or on navigable watara within tha territorial jarieddction of fOKeisa so/ereians.
Secaase ospioussa knars as saepraphieal beendaries,States atlltJEtsy and civilian neracnael are distributed about tha cjloha, and bsoaasa it is unreasonable toability ta protect itsalf ac-aicst acts cftho basis cf ths place where eusd acts are oosaitted of Justice raeeatiends the repeal of, of this -section, chapterll be givenyithia taeitcihat aati which are direaaly injurious to thenay be perpetrated without regard to locale ire puaiehabcoaa-ittsd by eitiasns either at fccae or abroad. Sspionsteaa
tie- would appreciate tha apprapriate reference of this * "
She azreau of thehas advised that there is no objecticr-vo tae sttai.;iien ofovaaendatiea.bi
She Ccaaittse on tho Judiciary approved the bill with the foilcuiav. Ovatvaant:
. e limitation upon the applied an cf eastingto cats cccritted either in the united States, oa'th*ortr.iaaritiu; ;
baited States has prevented prosecution cf acts ofagainst tha 'Jhitsd States iaountries. has found no-justification foriaitatisa. that it is imperative that the lavs of
taia hatioa protest it frca. acts of eepisnape ceataitted abroad ao wall en at hose.
^aeuse of Haprc-eatativos Sepsrth'Co&wse, 2e
APPROVED FOR REILBSE OATEAUG
c
f: - '- .
teaode, ino vhleh bo la first br&
jb1
by ti
; L .
orU
prior toiit. The
cSta-Co^ss. passsd th. Zousa fefta th. SktJ
Assistant teurol1
APPROVED FOR RELEASE OATEAUG
July6
F CIVIL AND EQUITABLE REMEDIES IN PROTECTING GOVERNMENT SECRETS
THE PROBLEM: The problem of protecting official Government secret* end related material, within our freesociety bedrocked as it is on the Constitution with itsBill of Rights, lias long plagued the intelligence community. Title IS of the United States Code provides ample legal sanctions following proven acts of espionage, sabotage and unlawful disclosure of classified information; however, with the exception of thepowers granted the Atomic Energy Commission und-n-here is currently no trucly effective legal weapon, in use, whereby CIA or the intelligence community can protector related information from disclosure from within, even given evidence to the effect thatisclosure is contemplated by an employee or ex-employee. While over the years much discussion, study and negotiation have been given the matter (especially on the USIBo trucly effective legal authority has been uncovered, nor is preventive legislation likely to be forthcoming, given the present political climate and the reluctance of Congress to interest itself in espionage legislationeriod of progress and prosperity.
A SOLUTION: It is within this framework then, that the present study has beentudy to determine whether or not the CIA and perhaps the intelligence community can help clone this gap through other existing means. Use of existing tort lawto industrial espionage and trade secrets, combined with the attendant usage of ancillary prohibitive covenants in open legally
IUWIWQFIRHIUASI DAT!1
nation. Lie contracts of employment, hu-trooOdd by lhe atamVrd injunctive powers granted the Olfltrlct Court undo*ailed Ctntea Federal iuiles of Civil "'roccduro, fbilo C5 naoy act an tha fulcrum woho uco of tho to civil remedies, actionable contrasts of employment and injunctions is at beet complex, and r. clear divicicn cr thoifficult of enpLrmr.tion.ertain order bolng _ecc__ary to tho proper under-stonding of the underlying basic for the use of these legal wc.vjor.s, tho matter will be presented la the follov/in- ordar. there bcia-nccoscr.rily somaupUcaUor. in presentation:n overallation cr tho law of torts no it applies to inductopionajjo aad mo protoctton of ladoctrioi end trade secrets (Save,
-hero being Utile or no Covori't^ienL procedenco for such actions wo ct roly on the law oo it le bailed to commercialaving shown the legal protection new afforded iuduatrial or tradeU then develop the area ol law aa it pertains to the use cf employment contracts coraninlasoemcuto prohibiting tho uco o: industrial secret* during and cahsc^ucni tond p) va will chow tliat there ia much precedent relative to tho normal ucc of injunctive procedures in enforcing andrade or Industrial socrats, whether orontract of employment by tho employer aad employee oulsto, and that those io oven greater praconent for granting injunctions whore the publicn our case the national security, ia involved. Thin will complete thef cho basic legalt is herein envisioned, Attacivmeuts ia tho form of basic ioduotrlal contracts and termination agreements now in commercial uco togcthar vrltli copies oi" proposed ccr.trr.sts tad terminal, agreements whiche implemented by rj. . or other interested ceaspoaeutfl cf tho intelligence community areSao a, e, C. l. Sand f.
uj.UTION; In additloa to aU of thoauat-;oa ralativouturo lognl measure will fellow]hereby. sivoa tho necessary legislation, nar cthor bancfitc might be denied him should he ha found la violation of his contract of employment.
crr.rcrs as applied,
rade secret may co;icict or any formula, pattern,
uriimoFiMuuiE
DATE1
trade secrets by the courts the ov/ncr on the basic that
i. OriginnUy, protection was granted to
trade secretroperty rifht. 1
Now, however, the confidential relationship oxiatlns between employer and omploygc is Ccncrally concidored to bo tho primary source cf Ao Mr. Justice Holmes Stated:
The starUn* point for the present matter io not - property or duo process of law, but that the defendant , stood in confidential relatione with tho plaintiffs, or one of them. Theseven place to hooiiliiiy,o first thins to ba mode euro at is thai tho defendant ohall not fraudulently abuao the effect reposed in him. It is the usual incident of cojJldcntial relations. IT there is anyia the fact that he knew tha plaintiffs* secrets, he must tako the burden with the cood.2
a.iuc, the csccaco cf tlie action io the breach of faith, and, therefore, ii in of no importance that the defendant could have rained access to the trade sec ret by legitimate means if hohe various deetriaal labels uncd to protect, however, aro of little Ircportcneo as long ns the courts realise the value of trade secrets and -Ive thorn thisat this protection io limited, cince it is uacucc-tioaably lawful to Sain ponce osier,competitor's untatcatod product by proper means and. through inapectlon and
1. .Footnotes begin onIP.
dotorminins tho existence of trade occvctc, the courts generally look at secrecy and various technicalho Courts have not found absolute secrecy to be oficcatial and have usually cade.-a
UPRIVtO Fll
MTiUlllll
some fores oX qualifiedho plaintiff has voluntarily disclo.od theor if tha feeta Involved on the subject of public'g. ornowledge In the trade then any ry_rotection dieaaeenra.
The court- have also taken into consideration thewhich tho information may bo part of the employee1-nad ^aowlodfio, which tho employer eaaaet proven* bin 7ho problem ban bee, well stated in the case ox"Products Co.. Perliag.
t She law of trado cccrcts is a
result of balancing two Opafllctla- elements essential CO our society. There- iotolicy favoring free com*
, pat-ttoa; an employee ta* entitled to use the skill aadf his trade or pWeeeloa which he has learned In the course of hlo aaaployraoatj for the benefit of himself and the public, if hotontractual or fiduciary obli-fsftloa In doing On the other hand, in order to promote tua progress of scitrco and tho useful arte, tho law provides certain protections to aa originator. Among those pretoctioaa arc tha patent and copyright statutes and tho law of tortsunfair competition. Tho law protecting trade -oerotfl ic another protection.
Xbaa, tho rule la -imply that tho forceer -moloyec can use the skills and knowiedga ho loomed dorlnn the employment, but hooty not to use the trado SCcrots of bio formerhe rule is'forv;ard; tho difficulty occurs in its application when the formerkills and knowledge are closely interwoven with thetree, secrets. 1
COXTPACTSAD5AR5ho lavight of property in trade secrets.s ouch property lo3co its only value if the eecrot is disclosed, any one who acquires knowledge thereofonfidential capacity, as that of an employ co, io undor an obligation, which -quiry will enforce, not to
R1
tUrhe secret or use is for his oivn advantage even ifalios ao cypress contract this effect.
cocearily follows from the recognition of property in trade secret- that caress contracts which prohibit their disclosure by tl.occ entrusted wish kaowlcdgo ox them are valid and may be as broad as ia necessary to protect the owner from injury by theof tho cocrci or its competitive use. Especially, contracts by employees may restrain them from disclosingheirnd the ownerccrci on celling it, maypromise not to cemjatfa by mrking use of the process him-cclf or divulging it to othcro.ndeed, tho saloecret process aa such carrlee with it tho implied obligation not to disclose it to others.17
i: secrete, the names of customers,
all such things, which in sound philosophical language are denominated objective lmov/lcdgc--thcco may not boawaycrva-.it; thoy arc his master's property,iters is no rule of public interest whichransfer of then* afp-inat tho master's will being restrained. Cti the etheran'sis skill, Ms dexterity, hlo manual or mentalthoseinch in eound phiioaop'.dcal language arc not objective, batthey may and they ought not be be relinquishedorvc^is; theynot hisroperty; they arc his owney arc himself. There is ao public interest which compels tho rendering of those things dormant or sterile or unavailing; on the contrary, ihn right to use and to cemand hiso advantageous to every citinoa, and may be highly so for tho country
athe importer.
conceded, est ii will not solve all difficulties ariaing front restrictive covcncaelo by employees. The objectivec/aor.tly no entwined with .ao sujjectivo, thatractical matter, a
cannot
use a: suojoctivc skill in c-
_,OTKion wish mo iormcrmg objective knowledge gair.sd In his old employment. ase all circumstances must bo considered, andesaava andardship ia therebyovenant ear-no-oa to protect the employer's buaincso should be enforced ever, though the employee is thereby deprived of everting his sub;tc:ivc fi^iUarticular direction. V
O
APPROVED FOR RELEASE
*
JOiniv^iiiian wr,
C OI e
tt7Tnaint wbEtaer cm employeronation o,grcc cf oven purely subtly- -A-
Cv;ercicca ill
ari>i3tor the cticrciso or then no1th Ms eld employer, the-
na ;ao American. .
COT
ypical lustrationhiUcu om-ioyc"
Vfh-aa employer's secrets iotaMiai-.^
Co. v. Technical T
any
0
-I _
w_ lr
of plaintiff corporation'stothout plaintiff'sconcent and not to enter corapctitivo employment for cue year after leaving plaintiff's employ. Eeycr war. oao of tho most capablengineers Minnesota Ivliajng andad. Hehad ncccoo to the precious information vhlch had mads 3iffcand masking topes the undisputed market leaders. For this reason Technicalompetitor, found it orrpodaant to hire him. In the coarse ofaswAm-respecting Beyer's change
jnist4 Cucsticas" for which-.vat to secureswcra before leaving for his new employment. his fact which proved to ho tho "comb-hell" which Incurcd plaintiff's rosovory. Ca resigning his pooition atcr toldhat heorhaper company whichoompetitorCs. esult ol thisid not uncover the conspiracy until its success was reflected in oaf's impaired marlcot position. There can be no doubt hi cr.soa such an this that tho employee is aware chat ho isreach ofnderecrecy agreement to ce.v. >cte.
greca-.er.'; not
pyeocntparmanenfre -von alatootaKo--i= h"rade secret haa boon n^Ily takon. The cou-sho.v. shown themacivoo
o
APPROVED fOR RELEASE1
to io not permitted
' ule, most clearly enunciated bv the
so modify injunctionsort when the latter novo attempted to chow changed conditions justifying such2,> Vhifl Judicial attinndo ^buwu It/iolf on ouw side of theover the remedy to hi granted cgc-iiiat one who Illegally acquires saidrado eccrot which, before trial, becomes avail ' to tho public. c rale, originating with Hhcllmar Prods. Co. v. AUcn-Cuallcy Co.2i* and A. O. Smith Corp. v. Petroleumorkc5 is that the proper remedy inasear mar. eat injunction against further use ci the ooerot, That tho injunction, taking of feet aftertho wrongful taker r. privilege ia justified on tho ground to comp'.aia.ee end Circuit in Co.,is
awardompetitive head
advantage continues even after tho secret in made public, the second Circuit Indicated fat Cchroycr v. Casco Prods.hat anight icsueeriod sufficient to put the wrongful taker hackosition of competitive equality with those who first learned of the secret when it became public. This view is sharedew ether federal.
Tho use of normal federal injunctive procedureslcitlef tha United States Cado is feasible and there is much case lawhe use of the Injunctive weapon in protecting tha public interest generally. Cao ef the earliest cases in this area, in rohs at al, United CtetOS Supremo Court.L.j, enjoined Dobs from preventing the flcv/ cf railas baiug against the public interest. Tho Federal Districtn its era tight and as an ancillary aid to Govcrm'anat agsr.alas, has the pewee so grant injunctive relic, to makeemedy at law or to prevent undue harm or Injury to tho public Interact, Itound, proposition of law that tha powerovernment ngcaay to seek injunctivef not astprccsly provided by statute, may be
nPPRDlrtDFOFI RElEftSE DATE RUG
implied. WentIndia Fruit aad Steamoaip Company,tr.lv. Scr.tr.-iln Lines,hich tho United St'm-liimo Commission Lr.tcrv or. cdarty plair.tifi in an action to enjoin the steamship compiuiy from putting into efieot late reductionsdecisions in the caseheho District Court, in tho absence of any statutory provision,emporary injunction. In the caseiling v. , ia the ebaoneetatutory provision, the court granted an injunction to taoge and flour AdcoindCtratorage order of the Administrator issued unrlor rr.ir LaborAct. In tho case of Bowles, the Priceficclcc Administration, v.nc.ho court said:
he essence of equity jurisdiction hue betaower of the Chancellor to do equity and to mcrld each decree to tho necessities of the particular ca.se. PucnibiUiy, rasher than rigidity, has dietbguished it. Tha qualities cf mercy and practicality have made equity the Instrument for nice adjustments and reconciliation between tho public interest end private needs, Hecfct Co. v. BoaAos, supra, andesult they may, and frequently do, go much farther to give relief in furtherance of the public interest than they ereto go whtn enly private interests are involved. Virginia Ry. Co. v. System Federation Mo., it S..- Tho court hoc bread powers to rentrainhich are of the sunt type orn unlawful acts which tho court lias found to have bean com-ntitsed or whoso commission Ia the future, unless enjoined, may fairly be anticed from, thoconduct ir. the past. Nationalela Lions Hoard, v. abrprocfl Publishing,.; Local lo7 v. United.,.,. lid.
. O. R, R, Co. v. Brotherhood cf Ry. Zi.4 L.ndOU Co. v. United.1 S.,.Ann.
APPROVED FOR
Wnfoi-feita
hia coulddoneby contract, or under legislationsuch contracts andhen thv force cf lav.
Acta oh moats: . TAD A. mployavsot Agreement ' TAB D. Do-?otvt BmploysaoBfi Termination Agreementpace Sciences, Inc. Employ mont Proposed CIA Contract of I'mployment Agreement AG 2. Alternate Proposed CIA Contract of Zmj.loy.ne.it Agreement
'.A3 F. Proposod CIA Termination Agreement
o
bpprowo for release date-uib ini
footnotes
1. Pcabsdy v. Norfolk.abor v.
, 2. . duPontoarjl Powder Co. v. Macctasia. SSarkocnc. v.evices.F.,D.; Carter.D.,. "
Cos,Frankcv..d; Sparryorp. v...; Meed Cki Co, v. Kara Ski.. QeoTATEMSNT,hich sets out liability for userade secret without permission.
i-tlcin. The Technical Trado Scare;. n. 20 Thedo score: la both greater and less Sinn that afforded to a. potent. The tradorojection ic greater because it ic not limitedfcsad number of yearn aad does not require tho strict f. patent standards for novelty aad invention. Trado secret Protection io loss tbaa that affordedatent in that actual secrecy andin tho method of pro caring theo bothto therade secret, orp. cf America v. Pocnoo4 F.O.,.Oh For tho rntionalc behSadthe protection cf both trade secrets aad patents, eco RJIOTXTSUSNT,
Tabor v.8 K.3 K.t See Smith v. Dramhich cites it2ASt UKF-MS COh^ZTlTICK
DATE: AUG
omracatwith. approval io Syxoid..t
roeJca downnto roan ahzheo which the information, is haowa outside thohe arctont to which it is !caowa fey the employee- end others involved In thehe crtcrtmceturae token tothe secrecy of thahe value of ihe Information te tbe buctaoco andompetitors; (j) tho amount of effort or money appendedts development; (o) tha ease or difficulty with which others could properly actpiiro or duplicate tho inferec llanos v..9itm- EI.LIG, TIIADS SICCIV-YSv
commentMinnesota Mining 2eCo. v. Tcehaical Taps.Sup.. which retiredto bo ouch that there would ho difficulty ir. othersthe iuforcaption. co Aero io ir..r/caUr: Osrp. o;,.,.
atkaalradnets v. Polymer "Atrado Secrotr, however, dees not abandonrctimited publicestrictedpace Aero Products Co. v. It.viin-id.. Id at
he situation isWo*ttd in thoaPest dc
Nc-aoaraCo. v. American Poiaah ft Chomical. 2d
Dot. '" '
'
. court fully roeojminos that thisase of *
treat social and industrial ; the cuhotantial and co-ifiietinrj; policies at play this the protection of employers' rights ir. their era's secrets on the enc bead, versus tho right of tha Individual to crrploit hio talents, use mattersralnd pursue |hlswithouti-rancorior
APPROVED FOR RElEdSf. OATEAUG
on the other. Tho lev/utt.
vthijhei.
dlcaa >tasi:ior, -cr; to
;
possible and sMjf
an ta :ibc his Imo-.vloili'e :is hnowi-
Vho "Lntovcots" involvedas easy to str.te as
thoy arc difficult to protect, particularly in the fact oi tho cvor-incrcachi'if presoivi cay tcehaolojy.
Alieno..,
vlrt-ioc v..J. The court inrxlcd to separate the two when it. Supp.;
iV'io;,
choiBfcalc effectXeaa environment and
their iatoJleotnai
-vu.cnoocrci oiioh the defendantslira without breaching their
i See Sooito,
SftsJ-(bjS-
- If
APPROVED FOR1
,' eddArt*fachra'cn Sprlsgfillcd Corp. v.P0CCAcitingii.)iV.'cttarnum,4r.pplld)h'o)tafact<urtn'g candy for over counter'etMno v. Hudson Coali5Ci.aD Pa) (cupci'lmposition ciupon contract withclauses but not conforming toert,- ; Coasnar Prodi. Corp. v.?V; (eiCiag6 (f) sadmerican Ph:cclsior Laundry Co. v.3 {cirtaaS (bl).
Courts oi* equity will enforce contracts made by employees set to divulge trade secrets or use ouch knowledge to their own use and profit. Julius KyraanCo. v.olocitingert,,uoted In Adolph Cottacbo, Inc. v. American Verting Corp.,.
9 AC2d$ing Co. Jeucncl Co. v. 3Hutch
una*
aiploymcae in, or -sic of, red estate6nwoed Pood Cociting,YS,ynch v.,.,BSda,acria Calorific Co.rra,Lien v. rTortkwooternquoting^;dcitingomrade.0
ci v.
ontracts, : ', :
RPPROVED fOR
DATE-AUG
SCO alee Arthur Murray CcnOO Zl^CiO', Ir.e. v. Witter,
at. Cocarocue,',.
Sc- Ceoocsa Lender. Telecomontracts,ert3rhin ttrtejftvl-wtfnac.,Civ9 {ftitin* Host.0 CD).
general knowl-
edge precluded claim of trad2
IS. Kcrold v. Harold China,T.. C. A. v.,; Clucol Mfg. Co. v.K; Simmons Kdw. Co. v. Vcibel,,rc. St. Hep.
.
Seedo Kcwwva Powder Co. v.,,Jlca-Cunlley Co. v. Shollraar Prod.; IdoCiary v. Idhheard,; cstd Nature ci Trade Carcase and. Tho pTins^plcsgovarrdnig trade ecarcia avo op-plieablo not only to scsa-utacnefacturc eat to unpublished literary dramatic andorh. See I* card ci" Trade v. Christie Grain,,..i.-L. : S., the coast said:etail dialer has ths nnrpicstlor.vd right toli,v;ev reasonsiof, and may do so baaauco hu ihinhsealer is actingl-ly in trying toie trade. ao -aidr.rton, epeahmg -or the coast ir. Grenada Lam. Co. v.., 'when the plaintiffs inmi la-rao that nof them will triads with any prcducar orlor who ahull callone-amor *within tho trade rraigo et any ciu,other casa is presented. Ar. acthan dene fey- ayubile wrong whoa dene by canny acting in ceneorn, iw it titer, takes on tho formcaaplracy, era. may be prohibited or purdah ad,o re rail: *co hurtfcU to the public or to tho individual against whom tic concerted action ia directed.
APPROVED FOR RELEASE DATEAUG
hhrcri whoreor CMoIwrivsra forblddss bystatute, it is otill possible for tho buyer to refuse to daal with tho sjllor who supplies she buyer's competitor. Federal Trado Ccrnvt. v. Rayaaead Bros. -Clark,.,.,.
foo Voices,HJ.
. Miles hied. Co. v. Pari:ous.,.,.; Villas' Seas Co. v.pthorowCorp. v. Soanar Stool1 F.; Ailca-Cuailoy Co. v. ChcUaaar Productsorrisoa v.irclooor.ratus Co. v.
v.yro
;
rvcycr.vir.or
tkop.by breach
ood Co. v.ic jalap2 J.tein Co.rod. v. Coloy,.3 App tSaidas Co. v.
y t: Kcafuxaaith*.*
/,A3; Cheis'siakv.
mfrwu ursulas!
oati Miami
26. Simmons .Yedioino Co. v. Simoaono, Gl;o. v. Coss Col*dietumh Thuea v. Bwrayarbi..o,^ R., 00
s Vood -v..
. 7H; Toec v.,,. 9t.,m. Ct., Ifnehcr-hcimcr v..
cfntrelo. v. Pullman's Tattoo Car.1 S.lckoryv. Welch,; Radium riomoCias Co. ; Sreaaor v... V. Soarv. HI*awlgorato?al Stock FauHiry rood9
. l.. - #
orris v. Sac-;V,., par Lord Shaw.ay,Chapia,U Ap?two ycrr roctriotioavcm^ Unitod States and Canada
19. Eastman Kodak Co. v.Jaa. Y.,orn. L,. Cut ooPadnc. v..c restraint was held to as oasccsaave, and was dsalarod to bo invalid.
Former employes bad right to aoa his fleaaraltaf former employer's crrpia-cd patoat toypo bona sortiu-or rabsetprsat employer. Illchloy v
moat to provw .
would aotaatcd. cClelland,
rutoioy Eoanilcbj,
Fact that employeo -aLacdsrioacc ia employ.
s not fL'ausd fnif
Ci
MTtMIIIII
|
pre-adcting tndo cacruta wore acty employer, but cUctaict nu engaged in reueinofandormulae ufproduct:)curse of which chemiMired technical haowladgaiasicntfrfg wish aa Lnpliod pledge of eesSdenccnot to aria a. end absent errpress covenant chemiet wouldi-lag hia knowledge iii developing Idoatloal forr.winanew employ or.iting
Two-year rccaricUenr.-arar.ee salesman Usrdted to sit: countries bold reason*ble ami enforceable, redo ratedmplement c;ndoraon,een '
351 .
rive-yeardo restrl-ticaupon an employeeagency woe held voaeonablo and enforceable. Booahoc
. hereintho court cold, "Itlaw's function to maintain a'runf eaabio balance in this area.
This 'r_,aires ue to recogaisa that there isiling asby an csc-enrplcyeo aa well as ay ar. uarcasoaablo by aahe circumstances of eachill
; be carof-aaly sarailatood to datarnslne whether i; XaUa within or without tha boundary of or-fnreaabillty.
to.Becker Cogo y. . Coo Cocafbrt Spring Corporation, v. Burr; Grace v. Orkdaarn-inating Co,-
Yet: Civ9 (citing tru).
21. isc.Sup..
ariant of. ciiu^tien is Carternc. v.
V/r'"Vl'""loUv0
iaeaia ease of employes di -loyaltylsh iliacoh it upon him:eh:l; out his oa-pla/cr's competitor. In thatadled research aeiaatist,or plaintiff. Carter Products, on tho developmentruehleoo shaving lather, brand namehile Carter's
5k
atered into
between E. I. DO MKTCUR3 ANDoracaufco ofcoCodc ataaswia
(heroiaafler called
WnCCUAS, in its business. Employer he* developed and use* commercially valuableand ^technical information one. to guildlo^iauto interests ofecessary for Employer to protect certain of ihu information oilhor by patent! or byt or confidential;
tha aforesaid information is vital to the success of Employer's business and VMnlnjoi Throujh fafo activities may become Mounted thonwfcfc, and may contribute there-to either through invcniicns, discoveries,r mtmnToo.
NOW. TxaRBcrj. ia consideration of and as par: of tho torn* of employment ofbyafO or salary and for audi least* of Una as tho employment shall continue,aad as fellows:
L Unless Employee shaU first secure Employer's written eonont, Employs* shall not c'hdese or use at any lima either during or subwcuaaL to said rrnipVymint, any secret or eon-ncentisl bubrraadon of Employer of which Employee beco:oas informed during said employment, vrhothor or not dovolopod by Employes, except as nqutrad ir. Employee's duties lo Employer.
mployee shall disclose prompdy to Employer or its liniiTnii any end all bvrsntiooi
discoveries andoonoohrod or made by Employee during tha period of employe-'
and related to tha business or activities of Employer, and assijns and jyaa* to ass;3r. all hh interest dMCOfia tor its nominea; whenever requested to do so bymployee sl-.all execute, applications, sssigrmionU or other insurumtnts which Employer shall OOOn necessary to apply for and obtainatent Of thaes or anyountry or to protect otherwise Employer's interests wwh Thaso obligauoas shall ccnttnua beyond tha tomrfrnffai of employraant wtna respect io IrwraMTou, discoveries ana improvements con-OoM or mod* by Employee during the period of employment, and shall be binding uponassigns, executors.orsepresentatives.
S. Upon termination of said. Employee shall prompdy dehver to Employer ta drawings,aauals, letters, nous, nownooko, reports, and all other materialsr coor.dsr.ual nature relating to. Employer's business aad which aw ir. the poooio-sicn or under tho control of Employee.
EN8ho parties have signed this ogroszasat in duplicate as of the data written above.
- DU PONT DE NEMOURS AMD
Dztv.
VAvnzss:
ftPfHOVIDHIIRtUASl DATE AUG mi
&sployM cwttnet that ho huPont da Nomouri
and Ccr.ipa-iy nilir.ls.il ether rattan rilMCsoi oraataofcibltny'6 auiiacsa which wireiccscssioa or underjltr/mopJ AfMmans nott any tima any wext or conaccaah', information of uiaCoatpany'a.
-
EMPLOYEE SocCil Security Xo,:
. DU PONT D3 NEMOUSS AND
/ dM/LWUBaVfBIVlOHBBuifcU ^*
e Macaachuaetta, This ISth day of..C2crpcstttoa cf tha State cica-lcd the-
sr called tha
Ir. ccr.iidara-.lor. Of aad as part ci tha terms ci tha emplcymani cr continuation of ca.ploy.aeat (as the casa rsay boj oi tao Employee by thet Is screed as follows:
1.
coacaivcf
;st
tployer, thedd hs disdesad promptly to tho'Employer and shall ho the sola cadproperty ol the Employer or itshenever requested so to do, bv tha Employer, tho Employee (at the sola expensa of the Employer) shall execute any and ell applications, assignments cad othsr Instruments which tha Smolcyar shall dacm necessary in crda- to apply for end obl-in Letters Potent of the United States end tcretcr. countriesaid inventions, discoveries, cr improvements and ln order to assign and convey to the Employer orrr.inca ths sola end exclusiveitle and interestheroin. Thesehall continue beyond theof the ported of employment with respect to Inventions, discoveries cr improve-meats conceived or made by the Employee during the period of said employment and shall ha binding upon his hairs, assigns, executors, aebninistrators cr other legal representatives.
Excap: as rec air ad in his duties to the Employer, the Eaployeo shall notse at any time, either during or subsequent to tho scid employment, cny secret or confidanticl .tucrmation of the Employer (whether or net dovelossd by tha tm-ployce) cnlass he shall first secure the Employer's writ-ton censer.:.
Thai all papers end records of every kind, relating in any way to the activities or business of the Employer which shall atime coma into the possession oi tha Employes -hail he theand exclusive prcperiy cf the Employer and shall ha surrcr.-eereamptcyer upon termination cf tho Employee's employment cr at any otherime as tha implcyor may raquast.
That the Employee will devote ai: of his working time and bast ef.crts to tha oushtess cf tha Employer during hisy thsnd to refrain fromn other employment with other employers durtnc the term of this agreement, except with the consent ir. writing of ths Employer.
he parties have signed this ograornant fn duplicate as of tae aata written
.SPACE SCIENCES,
r
Employs;
I1ULSE OATl UIG7M1
NTRA1.AC-SNCV
This contract entered Lutecr
boiwccr:
AGUkCY, ta Agency oftcd Suwjnd
flcfin after celled "Smployte"). ' <
a its mission ol coordinating the ir.teHi-once BCtivtsIofl of the eovoral Gc.verarr.r- Agencies and Departments and ia ths interest of tho nationalZmployor nae.roaoarched developed and utilised valuable technical and nontechnical information aad, to guare the interests of Employer and of tho United States of America, it is accessary dor ahns-.oycr to protest certain of this information either by patent, copyright or by holding saidsecret or confidential; aad
hs aibrosald informatics in vitaluccess of tae fhv.-leycr and to the rational eaaurlly. andoyee through his acV dtiss and official assignatcntr may becomeay eeatrlbuto thereto either through research, invention, discovery, improvement, activity, operation or otherwise;
aEasyoru:, ondition of the aa-^loymca: cf the Employee, and ia COneidoraSiog cf all salaries and other benefits received by tho Employee by virtue of hie employment with thethe abroloyao agrees nevsr to publish, serialise, record, or prometa by photograph {qiaherr mcvia*') or in toy other way dlsssa-daate, without tho prior approval of tho Employer, any nea-torinle, cf whatever hind, based uper. his ctrperisaec as anf the Employer. Tho Employes further agrees than tha Judgmout of tho IPmpioyor shall bo final in determining whether or not any matori;
proposed to be disseminated by the Employee rolaiivo to bis employment with tho Employer in any way endangers the national security cr thoho 3mployor. lurthcr, ebonld any pa oh dissemination osou? hi violation of this contract, tho Employee hereby assigns nil right, title and interest together with any royalties and/or remunerations cf nay nature which may enure to the Employes by Vistee of said breasli to ths Employer. Should any litigation of any hindlae cut ofiolation tho Employee hereby confesses judgment in favor of tho Employer. This obligation shall conliaao beyond tho termination of osaploymant and shall be binding upon Employee's assigns, ce:usutore, ndminist.-ators and other legal representatives.
Upon termination cf said bmploymcnt, for anyshall promptly deliver to Employer all drawings,manuals, lettors, notes, note bo dee, reports andall oshcr materials of any nature- relating to Employer'sand which aro in the posacesicn or under the ccatroi of
IK WITNESS WKSSSOF, the parties have signed this agreement in duplicato aso date written cr typed ia above
Employee
-
CSICTSAL INTSLUGEXCE AG3XCV
Contracting Officer
rmmoriRRUusi
OAH UIG/M1
with aaaploycr and which
tod o; bycf hiswith Employer, farther, dbotLtd tale contract he Violated, dusaito thisc-raoat to tho contrary,, rrjhsa and any and all other vassamctioxto the StaployoQ enough ouch broach ore horoby aad wfchocB question assigned to she Employer. Fuvchar should ray litigation arise outatters too Smployoo horobv confesses judgment hi favor cf tho 2hr.ployor.
Employee shall aissloco jrea-.piiy to Employer or Its nomineead all Invcntioac, discoveries, IraprOvcmontfl aador idea of say Hadadc'possihlo by Employ-oc'o employment by Employer. The Employes agraes to nssi-'a "all his ir.ts.-ott therein to Employer or itscasver rerooctod to do so by Employer. Employee shall or.ccutcadlications assignments or cthor lactrcraoats which Employer shall deemto apply forbtain Lcttoro Patent, Copyrights orny information, invention, publication, movie, recordinghose obligations shall ccuthmc beyond ths torminaf cni'iloy-mcat with rcop-oe: to all information, invention,aovic recording and other basscmaaatcd material of wbatovor ebiractor mads by Jasplayce durm3 tho psricd of employment, ando binding upon Eraployoo's assigns, ouoeutoro, edailnictratora and otherroproso. iutivoo.
Upon tcrmfnatUn, for any reason, of said employment. Employes shall prcm::tly deliver to Emplcyor allaps, oiuc, mto, manuals, loticrs, notes, actobocha, reports and nay and all Sthos materials of any aaturs rclathvj to ICnv-loyar'a bur.mcsonichn tho possession or under the control cfpioyco.
tho pourtics have sijr.ee;uplioatc aa of tao date written or typed in above.
Employee
Contrasting Cf.'iccv
flPPHOVtOFORRILIASl DATE1
T
CENTRAL SroST.iLIOSHCB AGZNGV
ic^ ^rsssoot
Zmpioyco certifies Octzzo tho Ccr.;roI fatol'Jccceo Agoscy nil Agor-cy drariags, blueprints, inaaaals, lcttcro, notes,porto, bub* any cad all other raalorialfl acquired by him Is tha coarse c: and becsuso o.at with tha Controlany, whotaor Score; ia naturerwi-awere la Mo posEiceiox or unoer hie control. loyca foraxaOZyis oriainsl signed Contract oferebyto conTor.n. toontract ir. eech cud. every particular, end agraoa coco OJtin not to use or to divcljo ct anytime or for any -ascn, wttfeeetc:;ic cnaaaas c* the-aSclU^oaooior.ry, any Informftinn, Secret or otherwise, whicl came lata bio poseec sion duriag can course or one. because of hie ow.-ployxaanS -iththe Central Intelligence Agaaoy.
Witaoae
WPRIWD FIRRLLUSf1
AEC EXPERIENCE WITH THE USE OFDATA IN CRIMINAL PROCEEDINGS
Restricted Dataategory relating to information concerning, among otherhe design,and utilisation of atomic weapona and the production of special nuclear material. Tho category was created by Sectiunf the Atomic Energy Act ofand is defined in Section. of the Atomic Energy Act.4s:
ll data conrornlng (I) design, manufacture or utilization of atomicheof special nuclear material,he use of special nuclear material in tbe production of energy, but shall not include data declassified or removed from tho Restricted Data category pursuant to
Unlawful disclosure or receipt of Restricted Data is subject to severe criminal penalties,t2 U. S. C.1 et seq.
The principal AEC experience with the use of Restricted Data is criminal proceedings occurred in the atomic bomb espionage cases, United States v. Julius Rosenberg, etCA.ried. N. Y. In these cases which involved Julius and Ethel Rosenberg, Harry Gold, Morton SobeU, and David Greenglass, the AEC was shown the proposed original indictment. Then the proposed original indictment was made more specific aad was again shown to AEC so that it could propose deletion of any statements of security interest.
In the trial itself the problem of the use of Restricted Data arose in connection with certain Governmentolving the description and operation of the Nagasaki-type bomb and the testimony of David Greenglass regarding one exhibit. These exhibits constituted Restricted Data within the meaning cf Sectionf the Atomic Energy Act
AfTRIYlD FIRRLLUSf1
.The use of this evidence was essential to the successful prosecution of the Government's case. Before the Rosenberg trial, the Department of Justice requeued that the Commission consider declassifying this Restricted Data contained in Greenglnsn' confession st> that the confession could be used in the trial. Tho Commission agreed to this request with the following reservations!
Although the AECgreed to the public disclosure at the trial of certain information which wes needed in the successful prosecution of the case, we have not officially declassified this data. Its actual use at the trial would operateeclassification but we arc anxious that no inference be drawn that anything has been released ether than the specific information actually used at the trial.
It is also requested that drawings, sketches, orintroduced as evidence at the trial not be made available to the public insofar as possible. Wc suggest that these drawings,ot be blown up so as to make them subjectng reproduced by the public in attendance at the trial.
Several exhibits were declassified and were admitted into evidence along with Greenglass' testimony in regard to one of thorn. After hearing both counsel in regard to this exhibit and the related testimony. Judge Kaufman ordered, in the interest of national defense, that the court room should be cleared, and the exhibit and testimony concerning it be impounded. Greenglass1 testimony was given in the presence of the court, counsel, defendants, jury and newsmen only. Tho exhibit was made available only to the court, counsel, defendants and jury. This introduction into evidence of the exhibit and the testimony thereon operatedeclassification of the document, although similar information in other documents ia still classified. The exhibit and the teslimony thereon wereby Judge Kaufman, not because they were classified, but because be felt that their roleaso would not be in the best interests of National Security.
ELEASE OATtAUG
In Untied States v. Union Carbide and Carbon, criminal action8 in U.. ofriminal antitrust proceeding, the problem of the use of Restricted Data was encountered. In this instance its use was in aid of the defendants, Accused of conspiring to monopolize the vanadium market in the Colorado plateau area and to fix vanadium prices3. The defense was to be that some, if not all, of the actions complained ol were takenesult of the atomic bomb project urging the defendants to carry on the work for it in World War II.
In this case, an indictment handed down6 was changedriminal informationnd the case was tried
The defendants from the outset contended that security would prevent theirefense to the indictment. The Commission advised that, in their opinion, no serious security problems were involved but
stated that it was prepared to cooperate with the parlies with respect to procedures for security review of evidence and would consider applications for security clearance of all counsel to permit access to classified information in possession of the Government which might
be required hi preparing andefense of the case. Arrangements were subsequently made for the security clearance of counsel on both sides, secretarial employees, the District Court personnel and for the establishment of facilities for the storage of classified documents. At the request of the Department of Justice and thearge number of classified documents were reviewed and declassified by AEC. All material up to, but not subsequent to, the criminal information was made available. Declassification was continued up to the time of trial.
General Leslie Groves, Chief of the World Wartomic bomb projoct was the first witness called by dofensc. Afterquestions, the defense demanded release of thein order to prove its case.onference with counsel, the judge ruled the evidence to be inadmissible on the grounds of relevancy. AEClassification officer throughout the trial.
June,1
APPRimQ FOR RELEASE OATEAUG
September, 0
STATUTES UTILIZED IN PROTECTING STATE SECRETS
IS
rovides; that any unauthorized person, who, for tho purpose of obtaining information respecting the national defense with intent or reason to believe that such information is to be used to the injury of the United States or to the advantageoreign nation,
{a) Copies or attempts to copy
or attempts to receive
ttempts to transmit
such information shall be fined not morer imprisoned for moreen years or both. Additionally, ISrovides that any person having lawful possession of such information, and who through gross negligence permits the same to be removed, or having knowledge of such an unauthorized removal fails to report the same, shall be fined and/or imprisoned as set forth above.
Cases:
, rehearing denied..,.
U.S. v.8 F..
U.S. v.., affirmed. Ed., rehearing deniedt... Ed.
U.S. v., certiorari denied,
QH REUASEUG
rovides that whoever, with intent or reason to believe that it is to be used to ths injury of the United Statas or to the advantageoreign government, transmits or attempts toto any such foreign governmentepresentative thereof, any document or related material pertaining to the national defense shall be punished by death or by imprisonmenterm of years or for life. lso provides that whoever, in time of war, with the intent that the samo be communicated to the enemy, attempts to elicit information regarding United States military matters shall be punished as set forth above, or whoever conspires to violate this section and one or more such persons do any act to effect the object of the conspiracy, they shall be punished as provided above.
Cases:
U.S. v.., certiorari denied,.ehearing denied.., rehearing deniedotion. Ed.
U.S. v,ortiorarl denied,d.
U.S. v..,. L. R.ertiorari denied.,.
rovides that whoever knowingly and willfully communicates or otherwise makes available to an unauthorized person, or publisher, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government any classified information relating toor communications intelligence shall be fined not morer imprisoned not more than ten years or both.
Case:
United States v. Joseph Sidney Petersen.riminalan'5.
AFPRimD FOR RELEASE OATEAUG
IS1
1 provides that whoever willfully and unlawfully conceals, removes, mutilates or destroys or attempts to do so, or who with such intent takes or carries away any document or other thing filed or deposited withlerk or officer of any court of the United States or in any public office shall bo fined not more thanor imprisoned not mora than throe years or both. Or,having custody of such document or thing willfully andconceals, removes, destroys or falsifies such document or thing shall be punished as set forth above.
Case:
U.S. v. Coplon,.oplon.,.., certiorari denied...
0
0 provides that whenever in the judgment of the Atomic Energy Commission any person has engaged or is ah^ut to engago In any acts or practices which constitute or williolation of any provision of the Atomic Energy Acts amended, or any regulation or order issued thereunder, the Attorney General on behalf of the United States may make application to tlie appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such proviuion, andhowing by the Commission that such person has engaged or is about to engage in Any such acts orermanent or temporary injunction,order, or other order may be granted.
)
)hat it shall be unlawful for any officer or employee of the United States or of any department or agency thereof, or of any corporation the stock of which is owned in whole or Jr. major part by the United States or any department
RrPRDVID FOPi RElEASf DATE-RUG
or agency thereof, to communicate in any manner or by anyo any other person whom such officer or employee knows or has reason to believe to be an agent or representative of any foreign government or an officer or member of any Communist organisation, any informationind which shall have been classified by the President (or by the head of any such department, agency orwith the approval of the President) as affecting the security of the United States, knowing or having reason to know that suchhas been so classified, unless such officer or employee shall have been specifically authorized by the President, or by the head of the department, agency or corporation by which this officer or employee is employed, to make such disclosure of such information. )enaltyine or ten years in prison or bothiolation of
Case:
Scarbeck... certiorari deniedt.. d.
52
5, the Kiaa Act, was originally passed4 and was subsequently amended 1 sets forth the definitions to be used, 2 provides for the barring ofor annuities following conviction under certain criminal statutes (including but not limited to the espionagend45 provide for the loss of annuities or retirement for refusal to testify or produce records and for false statements or the coucsnlment of facts in employment applications. The rest of the soctions, runningerely provide for tho implementation of the Act. The Act has never been found to be unconstitutional.
With regard to5. making false statements or concealment ofmployment applications, the United States Court of Claims on5 in the case of Garrort v. Uniteded.. ummary judgmentormer post office employee to recover annuities. The Court held that the former employee, who had been discharged on account of reasonable ground for belief of disloyalty, was entitled to a
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trial-type hearing tn proceedings to terminate Mb annuity righta on the ground that he had made false statements and had concealed material facts relating to his affiliation with the Communist Party. The Court further heldederal Agency cannot, withoutcross-examination and confrontation of adverse witnesses, take detrimental actionerson's substantial interest on loyalty or security grounds, unless, at least, the Congress or the President has expressly authorized lessor procedure.
In effect then, the Court bas held that where thereubstantial (monetary) interest, the Government employee cannot be denied his annuity or retirement without being firstrial-type hearing.
APFRIYtD FIR RELEASE OATlAUG Jill
September,6
THE TOT TEN' DOCTRINE: UR CASES ENUNCIATING THE RULE THAT PUBLIC POLICY FOK3IDS LITIGATION" OF MATTERS ALLEGEDLY ARISING OUT OF "SECRET SERVICES" FOR THE GOVERNMENT.
6 the United States Supreme Court enunciated the doctrine
that the very existenceontract for secret services (spying) was
secret and that public policy precluded any action for the enforcement
ofotiiract. Totten v. U.)
.1 Ct. of Cls.. Justice Field stated io cogent part:
The service stipulated by the contractecret service; the information sought was to b* obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed. Both employer and agent must have understood thai the lips of the other were to bescaled respecting the relation of either to the matter. This condition of tha engagement was implied from the nature of the employment, and ia implied In all secret employments of the Government in time of war, or upon matters affecting our foreign relations,isclosure of the service might compromise or embarrass our Government in its public duties, or endanger the person or injure the character of the agent. If upon contracts ofature an action against the Government could be maintained in the Court of Claims, whenever an agent should deem himself entitled to greater or different compensation than that awarded io him, the whole service in any case, and the manner of Us discharge, with the dctai Is of dealings with individuals and officers, might be exposed, to the serious detriment of the public. ecret service, with liability to publicity in this way, would be impossible; and, as such services arc sometimes indispensable to the Government, Us agents in those services must look for their compensation to the contingent fund of tho department employing them, and to such allowance from it as those who dispense that fund may award. The secrecy which such contracts impose precludes any action for their enforcement. The publicity produced by an action would itselfreachontract of that kind, and thusecovery.
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FOR REliASE DAH1
6hree cased similar to the Totten case were dismissed by the Court of Claims in reliance wholly or in part on the Totten doctrine. These are: Allen v.)t.eArnaud v. U.,.., affirmingt.nd Tuckert...
In dismissing the claim of Allen, the Court of Claims held that lt had no jurisdiction tolaim that had been rejected by the War Department and was also barred by the Statute ofhowever, another roawun given for dismissal was that, under Totten, the claim being for servicespy was such thatof it was against public policy. While the Court of ClaimsDeArnaud's case because it came within the ruling of Totten, the Supreme Court (which affirmed the dismissal) limited its opinion to the narrow points that payment and the Statute of Limitations both barred the claim. The services of both Allen and DeArnoud had been performed under contract wilh General Fremont; in the most recent case, that of Tucker v.hi- secret services, as in tho Totten Cats, allegedly were performed under contract with the President of the United States. Tucker's claim was dismissed solely on reliance upon Totten.
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In the following cases, none of which involves "secret
he Totten doctrine has been cited with approval for tho
testimonial privilege of the government, or an agency thereof, to
prevent the disclosure of confidential communications which, on
grounds of public policy, it is entitled to resist:
Foltz v. Moore McCormack Lines,.reene v.1 Halpernd 36
jencks.. Ed.7 S.7
Krumin v... L. R.. Capitol FishU.S. CA. 5th Cir)
Pollen v. Ford Instrument).ollen S. Isherwood)t. . v.S3 S.,imonsen v. Darth el,perandeo v. Milk Driversairy Employees Local Union
) rehearing) Ticon Corporation v. Emersonhonograph Corsoration
. Y.. Y. S.
Timken Roller Bearing Cp^XJ.)RDSDCND
Ohio E, D.
U.S. v. Certain Parcels of Land et al, USDC SD Cal. Cen)
See also:
n Privileged Communications
8 Wigmore Evidence, 3rda. State and Official
Secrets atovernmental privilege against disclosure oi official information
ir. Federal cases.t soq.
"Constitutional Law: The People's Right to Know" by Thomas C. Hennings, Jr. (US Senator fromournal Vol.
Original document.
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