"Sensitive But Unclassified" Information and Other Controls: Policy and Options for Scientific and Technical Information

“Sensitive But Unclassified” Information
and Other Controls: Policy and Options
for Scientific and Technical Information
Updated December 29, 2006
Genevieve J. Knezo
Specialist in Science and Technology Policy
Resources, Science, and Industry Division

“Sensitive But Unclassified”Information and Other
Controls: Policy and Options for Scientific and
Technical Information
Providing access to scientific and technical information (S&T) for legitimate
uses while protecting it from potential terrorists poses difficult policy choices.
Federally funded, extramural academic research is to be “classified” if it poses a
security threat; otherwise, it is to be “unrestricted.” Since the September 11, 2001
terrorist attacks, controls increasingly have been placed on some unclassified
research and S&T information, including that used to inform decision making and
citizen oversight. These controls include “sensitive but unclassified” (SBU) labels;
restrictive contract clauses; visa controls; controlled laboratories; and wider legal
restrictions on access to some federal biological, transportation, critical
infrastructure, geospatial, environmental impact, and nuclear information. Some
professional groups have supported voluntary controls on the conduct or publication
of sensitive research. Federal agencies do not have uniform definitions of SBU or
consistent policies to safeguard or release it, raising questions about how to identify
SBU information, especially S&T information; how to keep it from terrorists, while
allowing access for those who need to use it; and how to develop uniform
nondisclosure policies and penalties. On December 16, 2005, President Bush
instructed federal agencies to standardize procedures to designate, mark, and handle
SBU information, and to forward recommendations for government-wide standards
to the Director of National Intelligence (DNI). The Information Sharing
Environment Implementation Plan, sent to Congress in November 2006, reports that
final action will occur during the lst quarter of CY2006.
Following the 2001 terrorist attacks, the Bush Administration issued guidance
that reversed the Clinton Administration’s “presumption of disclosure” approach to
releasing information under Freedom of Information Act (FOIA) and cautioned
agencies to consider withholding SBU information if there was a “sound legal basis”
to do so. Some agencies contend that SBU information is exempt from disclosure
under FOIA, even though such information per se is not exempt under FOIA. The

2002 enactment of the Federal Information Security Management Act (FISMA)

rendered moot the definition of SBU that some agencies had used since the passage
of the Computer Security Act of 1987, which identified sensitive information by
content. FISMA requires agencies to categorize the criticality and sensitivity of all
information according to the security control objectives of confidentiality, integrity,
and availability across a range of risk levels and to use safeguards based on risk of
release. Many federal agencies have not yet fully implemented these new procedures.
During the 109th Congress, P.L. 109-90 and P.L. 109-295 focused on management,
oversight, and appropriate use of the sensitive security information (SSI) category.
Legislative proposals focused on standardizing concepts of “sensitive” information;th
modifying penalties for disclosure; and clarifying FOIA. During the 110 Congress,
additional topics likely to be controversial include limiting the number of persons
who can designate SBU; widening the use of risk-based approaches to control;
centralizing review, handling, and appeals; and evaluating the impact of federal
policies on nongovernmental professional groups’ prepublication review and self-
policing of sensitive research. This report will be updated as necessary.

Introduction to the Issues ...........................................1
Summary of Federal Policies to Classify or Control Scientific and
Technical Information .........................................2
Policies for Classification of Research Information...................3
Controls on Nonclassified Academic and Industrial Research...........4
Export and Visa Controls....................................5
Policies To Control SBU Information..................................9
Introduction to the Term “SBU”.................................10
Computer Security Act Definition of “Sensitive”....................10
SBU in Relation to the Freedom of Information Act..................11
Department of Justice Broadens Interpretation of Exemptions From
FOIA in 2003 and 2004...............................12
SBU Information Policies in the Homeland Security Act, P.L. 107-296,
and Subsequent Presidential Action..........................14
Requirements To Use Mandatory Minimum NIST-Generated Risk Standards
to Protect All Information......................................17
NIST’s Policies, Standards, and Documents........................19
A Formal Risk Analysis Process Is Not Required................22
Nongovernmental Experts’ Recommendations to Use Risk Analysis
to Identify and Control Sensitive Information ..................22
Policies To Protect Specific Types of Sensitive Information Involving Scientific
and Technical Applications.....................................26
Critical Infrastructure Information Controls........................26
Sensitive Security Information Controls: Transportation..............28
Critique of SSI Rules......................................30
Controls on Environmental Impact Information .....................31
Critiques of Controls on Environmental Information.............33
Illustration of Complexity of the Issue: the Nuclear
Regulatory Commission (NRC)..........................35
Controls on Unclassified Biological Research Information.............36
National Science Advisory Board for Biosecurity................38
Views on Adequacy of Biosecurity Protection Policies............39
Issues Dealing with Geospatial Information........................45
The Department of Homeland Security’s SBU Directives.................47
Contentious Issues, Together With Legislative Action and Other Options.....49
Allegations That Some Controls Can Exacerbate Vulnerability and
Stifle Scientific Research and Technological Innovation..........50
Critique of Nondisclosure Requirements...........................53
Legislation Introduced Affecting Disclosure Policies.............54
SBU Information in Relation to FOIA.............................55
Congressional Action, to Clarify FOIA, with Implications for SBU..59

for Sensitive Information ..................................61
Inconsistency in Agencies’ Processes To Identify SBU Information.....62
Activities Relating To Developing a Standard Definition of SBU
Inform at i on .............................................64
GAO Study on SSI........................................66
P.L. 109-90 Requires DHS To Improve Use of SSI Categories and
Report to Congress...................................67
P.L. 109-525 Limits Excessive Use of the SSI Label.............68
Studies and Hearings on SBU During 2006.....................68
Legislation Introduced on “Pseudo-Classification”...................70
Option To Monitor Agency Use of Risk-based Standards for
Sensitive Unclassified Information...........................70
Recommendations to Institute Better Governance of SBU
Information Procedures....................................72
Limit the Number of Persons Who Can Designate SBU...........72
Options To Centralize Policy Control for SBU Information........73
An Appeals Process.......................................74
Other Remaining Issues and Unanswered Questions..................75
Appendix A. Illustrations of Federal Agency Controls on Sensitive
Agencies That Use the Definition of “Sensitive” as Found in the
Computer Security Act (CSA)...............................76
Department of Homeland Security (DHS)......................76
Office of Management and Budget (OMB).....................76
Department of the Army...................................77
National Security Agency..................................77
Centers for Disease Control and Prevention (CDC)..............78
International Boundary and Water Commission (USIBWC)........78
Idaho National Engineering and Environmental Laboratory........79
Agencies That Use FISMA Guidelines or Risk-Based Procedures
to Develop Information Security Policies......................79
Department of Health and Human Services (DHHS).............79
Military Joint Futures Laboratory............................80
Information Sharing and Analysis Centers (ISAC)...............81
Agencies That Mix Use of CSA and FISMA Concepts................81
U.S. Department of Agriculture..............................81
Western Area Power Administration (WAPA)..................82
Agencies That Use Unique Definitions............................83
Department of Defense....................................83
Department of the Army...................................84
Department of Energy.....................................84
Nuclear Regulatory Commission.............................85
Appendix B. Illustrations of Federal Information Systems Created
to Transmit Sensitive But Unclassified Information ..................86
Government Accountability Office (GAO) Inventory.................86
Other Federal Information Systems...............................87
FEDTeDS ...................................................88

“Sensitive But Unclassified”Information and
Other Controls: Policy and Options for
Scientific and Technical Information
Introduction to the Issues
Federal agencies have long confronted the need to balance the release of
information for public use with the need to withhold information that could be used
to threaten privacy or security. The term “sensitive but unclassified” (SBU)
information was used before the terrorist attacks of September 11, 2001, even though
there is no statutory definition for it. Since 9/11 more agencies have started to use
the term “SBU,” or some variant of it, and to implement security systems to identify
and protect nonclassified information whose release might benefit terrorists. Many
questions have been raised about how to design uniform policies and controls for
SBU information. This report focuses on controls for two kinds of scientific and
technical information — information used in research and scientific publication and
information used to serve broader public policy purposes, such as in regulatory
decisionmaking and citizen oversight. Both public and privately controlled
information are included and in some respects, private professional groups’ responses
are being defined by public pressures and decisions.
Two divergent perspectives are discernable. From one perspective, broadening
controls to deny public access to federal SBU information will constrain terrorists,
who might use it to threaten buildings, infrastructure, people, and services. It has
been estimated that “our adversaries derive up to 80% of their intelligence from
open-source information.”1 Another source put this at 90%, referring to information
about local energy infrastructures, water reservoirs, dams, highly enriched uranium
storage sites, and nuclear and gas facilities. Moreover, some say that the potential
for terrorism is heightened if terrorists can aggregate seemingly innocuous bits of
public information.2 Although many agencies have begun to limit public access to
sensitive information, from this perspective, these efforts are inadequate.
In contrast to those who seek to widen controls, another view contends that
inadequate and insufficient sharing of information with the public and among first
responders potentially weakens efforts to protect the nation from terrorist attacks. A
related perspective is that as government policy on sharing information shifts to the

1 In a document issued by the Pacific Northwest National Laboratory, a Department of
Energy affiliated national laboratory, in “F.A.Q. Mozart,” at [http://www.pnl.gov/isrc
/mozart/faq.html ].
2 Greg Griffin, “Program Management Perspective: Sensitive Unclassified Information,” The
Dragon’s Breath, April 2003.

“need to know” rationale that has become more prevalent since the 9/11 terrorist
attacks, the imposition of more controls will deny ordinary citizens information
relating to research, environmental protection, transportation, and so forth that they
need in order to be informed3 and to hold accountable government and industry
decisionmakers. Some say new control policies unduly limit access to information
needed to advance the progress of science and technology and the development of
technologies to counter threats, arguing that if scientific and technical information
needs to be restricted, it should be classified.
This report traces the evolution of SBU-related controls; summarizes actions
taken to protect certain types of scientific and technical information; describes
critiques of some control policies; and summarizes proposals and actions, including
congressional, executive and other initiatives, to clarify these issues and develop
policies that serve various stakeholders. It also raises issues that may warrant further
Summary of Federal Policies to Classify or Control
Scientific and Technical Information
Generally, pursuant to National Security Decision Directive 189 (NSDD-189),
fundamental (basic or applied) research conducted in universities is not to be labeled
“classified” if does not affect national security; it is therefore “unrestricted.”5
Nevertheless, as one commentator noted, “[T]he federal government seems to

3 The Final Report of the National Commission on Terrorist Attacks Upon the United States,
July 22, 2004, (also called The 9/11 Commission Report) encouraged the promotion of a
“need- to-share” culture, as opposed to a “need-to-know” culture of information protection,
focusing on the development of a “trusted information network” to make information more
accessible. (Available at [http://www.9-11commission.gov/report/911Report.pdf].)
4 This report updates CRS Report RL31845, “Sensitive But Unclassified” and Other
Federal Security Controls on Scientific and Technical Information: History and Current
Controversy, by Genevieve J. Knezo, which described the history of governmental controls
on “sensitive unclassified information.”
5 National Security Decision Directive-189 (NSDD-189), titled “National Policy on the
Transfer of Scientific, Technical and Engineering Information” and issued on Sept. 21,
1985, says that if federally funded basic scientific and technical information produced at
colleges, universities and laboratories is to be controlled for national security reasons, it
should be classified. But, “... to the maximum extent possible, the products of fundamental
research remain unrestricted. It is also the policy ... that, where the national security requires
control, the mechanism for control of information generated during Federally funded
fundamental research in science, technology, and engineering at colleges, universities, and
laboratories is classification.” “Fundamental research” is defined as “basic and applied
research in science and engineering, the results of which ordinarily are published and shared
broadly within the scientific community....” This policy is reflected in Executive Order
12958. NSDD-189 is still in effect, as stated in a letter from the National Security Advisor
to the Center for Strategic and International Studies (Issued by National Security Advisor
Condoleezza Rice on November 1, 2001).

possess wide latitude in declaring information, even purely scientific research,
classified or at least sensitive to prevent publication.”6
Policies for Classification of Research Information
If research does compromise national security, it may be classified pursuant to
Executive Order 12958 and Executive Order 13292 — the latter of which expanded
the government’s ability to classify some scientific and technical information to
include information related to “defense against transnational terrorism” (Section 1.4
of Executive Order 13292).7 During 2001 and 2002, the heads of several federal
agencies with substantial research responsibilities, who did not have classification
authority under Executive Order 12958, were given original classification authority.
These included the Secretaries of Health and Human Services8 and of Agriculture,9
the Administrator of the Environmental Protection Agency (EPA),10 and the Director
of the White House Office of Science and Technology Policy (OSTP).11 Also,
pursuant to Executive Order 12958, federally funded researchers at any research-
performing institution, including universities and colleges, are obligated to report to
the government information that they produce that should be classified.12 In addition,

6 Alexander J. Breeding, Sensitive But Unclassified Information: A Threat to Physical
Security, SANS Institute, 2003, p. 24.
7 Executive Order 12958, Apr. 17, 1995 (Federal Register, 60 FR 19825), permitted
classification of “scientific, technological, or economic matters relating to the national
security” (Sec. 1.5). But Section 1.8 (b) prohibited classification of “basic scientific
research information not related to the national security.” Executive Order 13292, Mar. 25,

2003, changed section 1.5 of Executive Order 12958 to permit classification of “scientific,

technological, or economic matters relating to the national security, which includes defense
against transnational terrorism” (Sec. 1.4 (e) of Executive Order 13292, Federal Register,
Mar. 25, 2003). The amendment also added a new category of information, concerning
“weapons of mass destruction,” which may be classified (Sec. 1.4 (h)). The exemption for
basic scientific research not clearly related to national security remains (new Section 1.7).
8 “Order of December 10, 2001 — Designation Under Executive Order 12958, Federal
Register, Dec. 12, 2001, Vol. 66, No. 239, pp. 64345-64347.
9 “Order of September 26, 2002 — Designation Under Executive Order 12958,” Federal
Register, Sept. 30, 2002, Vol. 67, No. 189, pp. 61463-61465.
10 “Order of May 6, 2002 — Designation Under Executive Order 12958,” Federal Register,
May 9, 2002, Vol. 67, No. 90, p. 31109.
11 “Order of September 17, 2003 — Designation Under Executive Order 12958,” Federal
Register, Sept. 17, 2003, Vol. 68, No. 184, p. 55257.
12 “Most government grants for unclassified technical activity specify that if the grantee
believes the results of the work warrant classification, the grantee has the responsibility to
limit the dissemination of that work and to contact the appropriate U.S. government agency
with the authority to classify it. In such extraordinary cases, the initiative to seek
classification rests with the grantee, not the government” (Security Controls on Scientific
Information and the Conduct of Scientific Research: A White Paper of the Commission on
Scientific Communication and National Security, Washington, D.C., Center for Strategic
and International Studies, June 2005, pp. 5-6). For instance, according to section 850 of the
current version of the NSF Grant Policy Manual, NSF-02-151, July 2002, “Some basic

the government may exercise prepublication reviews on some R&D information,13
and by writing into contracts control clauses for SBU or classified information.
Some R&D information is “born classified,” according to the Atomic Energy Act of
1946.14 In addition, pursuant to the Information Security Act of 1951, certain patent
information may be classified if release would harm national security.15
Controls on Nonclassified Academic and Industrial Research
Academic and industrial researchers are also subject to sensitive information
controls for nonclassified information. Some of these are voluntary and self-imposed
by researchers or professional societies and publishers. For instance, in the early
1940s basic physics research in fission was voluntarily withheld from publication by
a leading journal, Physical Review, because of fears that publication of research

12 (...continued)
research information concerning, among other things, scientific, technological or economic
matters relating to the national security or cryptology may require classification. There may
be cases when an NSF grantee originates information during the course of an NSF-supported
project that the grantee believes requires classification under E.O. 12958. In such a case,
the grantee has the responsibility to promptly 1. Submit the information directly to the
government agency with appropriate subject matter interest and classification authority or,
if uncertain as to which agency should receive the information, to the Director of the
Information Security Oversight Office, GSA; 2. Protect the information as though it were
classified until the grantee is informed that the information does not require classification,
but not longer than 30 days after receipt by the agency with subject matter interest or by the
GSA; and 3. Notify the appropriate NSF program Officer.” The authority has to decide
within 30 days whether to classify the information, and if it requires classification, the
“performing organization may wish or need to discontinue the project.” Dissemination of
findings may also be controlled.
13 The federal government exercises “prepublication review” of some privately published
scientific and technical information by current and former employees and contractors who
worked for federal agencies and who had access to classified information. The Defense
Department (DOD) typically includes “prepublication review” clauses in government
contracts for extramural research. These controls are used if classified information was used
in research or when the government seeks to prohibit release of information deemed
sensitive because of the way it is aggregated. Beginning in 1980, all academic cryptography
research is to be submitted on a voluntary basis for pre-publication review to the National
Security Agency. The U.S. government may enter into contracts to purchase exclusive
rights to commercial satellite imagery and may stop the collection and dissemination of
commercial satellite imagery for national security reasons. (For additional information, see
CRS Report RL31845, op. cit. and CSIS, Security Controls on Scientific Information, June

2005, op. cit., pp. 13-14.)

14 See CRS Report RL31845, op. cit.
15 Pursuant to 35 U.S.C. 181-188. See CRS Report RL31845 for additional information.
According to OMBWatch’s report, Secrecy Report Card 2005: Quantitative Indicators of
Secrecy in the Federal Government, a report by Open the Government.Org. Americans for
Less Secrecy, More Democracy, Washington, D.C., 2005, the number of secrecy orders
imposed on new patents rose from 83 in 2001 to 124 in 2004, and the number of secrecy
orders in effect increased from 4,736 in 2001 to 4,885 in 2004 (p. 5) However, it is likely
that most of these were recommended by, and issued to, federal agencies for their own
government-owned technical information.

results would benefit German atomic energy research. After the war ended the
results were published. However, reportedly, foreign scientists, especially Soviet
scientists, deduced that the absence of research publications on the topic meant that
Americans “were pursuing an atomic bomb” and started their own inquiries on this
subject.16 More recently, some researchers have initiated voluntary controls on the
conduct and/or publication of sensitive research in biological sciences fields that
might assist terrorists. (For additional details, see the section below entitled
“Controls on Unclassified Biological Research Information.”) In addition, the
directors of the Department of Homeland Security’s (DHS) six academic centers of
excellence have developed draft guidelines “to control the dissemination of sensitive
information generated by their research”17 — which is in the fields of agricultural,
chemical, biological, nuclear and radiological, cyber terrorism, and the behavioral
aspects of terrorism.
There are also formal government-mandated controls. For instance, pursuant
to sections 3235 and 3295(c) of the National Defense Authorization Act for
FY2000,18 the Department of Energy (DOE) released regulations, effective August
18, 2006, that require all users of DOE computers, including persons who e-mail a
DOE computer, to give the department written permission for investigators to check
any DOE computer accessed by that person for up to three years in the future. The
regulation applies to all information, including classified and sensitive but
unclassified, and other types.19 Reportedly, the required paperwork might prove to
be costly to some researchers.20
The federal government also mandates controls on contract research. For
instance, the issue of federal agency research contracts with universities imposing
prepublication review clauses was addressed in an April 2004 report, Restrictions on
Research Awards: Troublesome Clauses, released by the Association of American
Universities, in cooperation with the Council on Government Relations. It detailed
138 instances of restrictions placed on publications or other prohibitions on foreign
nationals as preconditions for receiving research awards. The report opposed the
practice, recommended that federal agencies adhere to the mandates of NSDD-189,
and concluded that governmental restrictions were not compatible with university
Export and Visa Controls. Export control regulations generally do not
apply to the conduct of fundamental research as long as it is ordinarily published and
shared broadly within the scientific community. However, export control regulations
and International Traffic in Arms Control regulations (ITAR) permit the government

16 Chelsa Wald, “Landmarks: The Physical Review’s Explosive Secret,”Oct. 26, 2004.
17 Yudhijit Bhattacharjee, “Scientific Openness; Should Academics Self-Censor Their
Findings on Terrorism?,” Science, May 19, 2006, 993-994.
18 50 U.S.C. 2425, 2483(c).
19 “Computer Security; Access to Information on Department of Energy Computers and
Computer Systems,” Final Rule, Federal Register, July 19, 2006, pp. 40880-40866.
20 Yudhijit Bhattacharjee, “DOE Tightens Monitoring of Lab Collaborators,” Science, Sept.

1, 2006, p. 1218.

to require licensing for the export, or “deemed export,” of certain scientific and
technical information to specific foreign countries or citizens of those countries
working in the United States21 on university campuses or in industrial laboratories.
During 2004 and 2005, considerable controversy arose22 over the publication of two
Inspector General reports,23 one from the Department of Defense (DOD) and the
other from the Department of Commerce (DOC). They proposed strict adherence to
government interpretations that, even if the research being conducted is fundamental,

21 Both the Export Administration Act (50 U.S.C. App. 2401-2420) (6) and the Arms Export
Control Act (22 U.S.C. 2751-2794) provide authority to control the dissemination to foreign
nationals, both in the United States and abroad, of scientific and technical data related to
items requiring export licenses according to the Export Administration Regulations (EAR)
or the International Traffic in Arms Regulations (ITAR). Both laws give agencies authority
to regulate the export of technical data. ITAR controls the release of defense articles
specified on the U.S. Munitions List (22 CFR 121) and technical data directly related to
them. EAR, among other things, controls the export of dual-use items (items that have both
civilian and military uses) on the Department of Commerce Control List (15 CFR Part 774)
and technical data related to them. The implementing regulations are administered by the
Department of Commerce, which licenses items subject to EAR, and by the Department of
State, which licenses items subject to ITAR and the Munitions List of items. Fundamental
research, but not all activities related to the conduct of such research, is excluded from
ITAR and EAR. ITAR generally treats the disclosure or transfer of technical data to a
foreign national, whether in the United States or abroad, as an export. According to ITAR
regulations, publicly available scientific and technical information and academic exchanges
and information presented at scientific meetings are not treated as controlled technical data.
Nevertheless, there has been considerable ambiguity and confusion regarding these
provisions because of uncertainties about which research projects might not be excluded
because they use space or defense articles, technologies, and defense services on the
Munitions List that is used to identify technologies requiring export licensing. The Export
Administration regulations categorize as “deemed exports” communications both to foreign
nationals about technologies characterized as “sensitive” and to countries identified as
“sensitive” under EAR rules. Under language in a rule issued in March 2002, the State
Department exempted U.S. universities from obtaining ITAR licenses for export of certain
space-based fundamental research information or articles in the public domain to certain
universities and research centers in countries that are members of the North Atlantic Treaty
Organization (NATO), the European Union, and the European Space Agency, or to major
non-NATO allies, such as Japan and Israel. Also to be permitted are exports of certain
services and unclassified technical data for assembly of products into scientific, research,
or experimental satellites. In addition, collaborators in approved countries would have to
guarantee that researchers from non-approved countries were not receiving restricted
information. (For sources and additional information, see CRS Report RL31845, op. cit.)
GAO critiqued the procedures DOC and DOD use to identify and implement export control
decisions in: two recent reports, DOD’s Critical Technologies Lists Rarely Inform Export
Controls and Other Policy Decisions, July 2006, GAO-06-793 and Improvements to
Commerce’s Dual-Use System Needed to Ensure Protection of U.S. Interests in the Post-

9/11 Environment, June 2006, GAO-06-638.

22 “Controls on ‘Deemed Export’ May Threaten Research,” Secrecy News, May 2, 2005.
23 U.S. Department of Commerce, Office of Inspector General, Bureau of Industry and
Security, Deemed Export Controls May Not Stop the Transfer of Sensitive Technology to
Foreign Nationals in the U.S., Final Inspection Report No. OPE-16176, March 2004, 54 p.
Interagency Review of Foreign Nationals Access to Export-Controlled Technology in the
United States, Vol. 1, April 2004, Report D-20004-062, 33 p.

the operation, technical training, installation, maintenance, repair, overhaul, or
refurbishing of commercially available equipment used in the research is a “deemed
export” that requires an export license for certain foreign researchers. This would be
for equipment as common as fermenters and global positioning system (GPS)
locators and would apply to students from China, Russia, India, and other countries
on lists of countries that pose national security threats. In a notice of a proposed rule
published in the Federal Register on March 28, 2005,24 the DOC recommended that
country of birth rather than of citizenship or permanent residence be used as the
criterion for determining nationality for deemed export controls. DOD’s proposed
rules, which would require badging, training, and segregated work areas for eligible
researchers and exclusion of others, were published in July 2005, when the comment
period began.25
Subsequently, some university officials argued that expanded interpretations of
rules for “deemed export” licenses may be unnecessary.26 Other members of the
academic community cite problems in administering use controls, including
ambiguity about identifying which equipment or material in university laboratories
is subject to export controls; discrimination on the basis of nationality; difficulty in
controlling access of students and researchers in university laboratories; time required
to obtain licenses and inflexibility in obtaining licenses;27 modest security benefits;
slowing or preventing important discoveries due to licensing delays; loss of research
talent if students and researchers study in other countries; and reduction in research
at the leading edge of science.
The three presidents of the National Academies [of Science, Engineering, and
the Institute of Medicine] opposed such controls in a letter to DOC Secretary Carlos
M. Guitierrez, June 16, 2005, and made several recommendations, including the
proposal to “[c]lear international students and postdoctoral fellows for access to
controlled equipment when their visas are issued or shortly thereafter so that their
admission to a university academic program is coupled with their access to use of
export controlled equipment.” One policy group recommended an alternative
approach: to require a deemed export license for “transfers of technology to
specifically identified individuals if specific adverse information exists about that

24 “Revision and Clarification of Deemed Export Related Regulatory
Requirements,”Advanced Notice of Proposed Rulemaking, Federal Register, Mar. 28, 2005,
vol. 70, no. 58, pp. 15607-15609.
25 “Defense Federal Acquisition Regulation Supplement: Export-Controlled Information and
Technology, Proposed Rule With Request for Comments, Federal Register, July 12, 2005,
vol. 70, no. 132, p. 39977.
26 Security Controls on Scientific Information, June 2005, op. cit., p. 7.
27 For instance, see rationale detailed in CSIS, Security Controls on Scientific Information,
June 2005, op. cit. pp. 9-12, and American Civil Liberties Union, Science Under Siege: The
Bush Administration’s Assault on Academic Freedom and Scientific Inquiry, Written by
Tania Simoncelli with Jay Stanley, June 2005, 35 p., which also summarizes reports and the
views of the academic community, pp. 9-13.

individual.”28 In a 2005 report prepared at congressional request, a National
Academies panel recommended providing all foreign students and researchers
engaged in fundamental research with access comparable to that provided to U.S.
citizens and permanent residents and to remove “... all technology items (information
and equipment) from the deemed-export technology lists that are available for
purchase on the overseas open market from foreign or US companies or that have
manuals that are available in the public domain, in libraries, over the Internet, or from
manufacturers.”29 The National Foreign Trade Council and other related technology
groups also have opposed these rules.30 Others charge universities would have to pay
“... millions of dollars to inventory sensitive equipment, determine students’
birthplaces and study which foreigners were using which machines.”31
In January 2006, a DOC spokesman said that because of comments received on
the proposed rule, DOC would modify its procedure and base controls not on country
of birth, but on a foreign national’s most recent country of citizenship or permanent
residency.32 DOC also established a committee to examine its rules further.33
Responding to complaints received during the comment period, DOD modified its
proposed rules with a new proposal published on August 14, 200634 that said it
would withdraw the prescriptive identification requirements proposed in July, but
would continue to require researchers to adhere to existing export control rules of the
Commerce and State Departments. Final comments were due by October 13, 2006.
As for other controls to deter terrorism, more governmental scrutiny has been
used to review and issue visas for foreign researchers and students, and more items

28 CSIS, Security Controls on Scientific Information, June 2005, op. cit , p. 12.
29 The National Academies, Rising Above the Gathering Storm: Energizing and Employing
America for a Brighter Economic Future, Executive Summary, 2005, p. 6. See also reports
of NAS workshops in May and Sept. 2005, Eugene Russo, “DoD Export Controls Rule
Should Not Apply to Fundamental Research, Officials Say,” Research Policy Alert, Sept.
23, 2005; “National Academies, Societies Criticize on DoD’s Proposed Export Control
Rule,” Research Policy Alert, Oct. 18, 2005.
30 Danielle Belopotosky, “Techies Challenge Planned Changes On ‘Deemed Exports,’”
Technology Daily, June 24, 2005.
31 Scott Shane. “Universities Say New Rules Could Hurt U.S. Research,” New York Times,
Nov. 26, 2005.
32 Statement of Peter Lichtenbaum, Assistant Secretary of Commerce for Export
Adminstration at a conference at the National Academies at which the author of this report
was present. See also Kelly Field, “Commerce Department Will Drop Some But Not All
Restrictions on Foreign Researchers, Colleges Are Told,” Chronicle of Higher Education,
Jan. 17, 2006. The official announcement is “Revisions and Clarification of Deemed Export
Related Regulatory Requirements,” Federal Register, May 31, 2006, vol. 71, no. 104, pp.


33 Jeffrey Brainard, “Defense Department Shelves Proposal to Increase Restrictions on
Foreign Students,” Chronicle of Higher Education, Aug. 15, 2006.
34 “Defense Federal Acquisition Regulation Supplement; Export-Controlled Information and
Technology (DFARS Case 2004 — D010),” Federal Register, vol. 71, No. 156, Aug. 14,

2006, pp. 46434-46441.

have been placed on the Technology Alert List (TAL), which is now classified. The
State Department uses the TAL to identify academic and technical subjects that are
viewed as sensitive; foreign students proposing to study these subject undergo extra
visa scrutiny under the Visas Mantis program.35 The State Department also has
tightened entry/exit registration of foreign students and scholars and tracks their
activities in an effort to deter terrorism. These actions may have prohibited the entry
of potential terrorists, but some critics allege that they have reduced the number of
foreign students studying science and technology in the United States36 and increased
the number of foreign students studying in other countries.37 This, they say, portends
not only erosion of the U.S. market share of worldwide Higher education, but also
a reduction in the number of new U.S. scientific and technical personnel.38
In 2004, the federal government proposed rules declaring that American
scientists could not collaborate with, and American publishers could not edit works
authored by, scientists in nations that are targets of trade embargoes, including Iran,
Sudan, Libya, Cuba, and North Korea. Most scientific societies opposed these
proposals39 on the grounds that they reduced the intellectual freedom of those in other
countries and hampered international science. Subsequently, the administering
agency, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC),
decided to permit editing and peer review, but continued to prohibit collaboration
between U.S. scholars and researchers in a sanctioned country.40
Policies To Control SBU Information
The history through 2002 of using the label SBU was described in detail in CRS
Report RL31845 and is summarized briefly in this section, which also updates action
through February 15, 2006.

35 Science Under Siege, op. cit., pp. 14-15.
36 Molly Laas, “Senate Science Committee to Consider Easing Immigration For Foreign
Students,” Research Policy Alert, Nov. 21, 2005; Marjorie J. Censer, “Visa Problems May
Damage U.S. Science, Groups Warn,” American Association of University Professors,
Sept./Oct. 2004. See also: U.S. GAO, Border Security: Streamlined Visas Mantis Program
Has Lowered Burden on Foreign Science Students and Scholars, but Further Refinements
Needed, GAO-05-198, Feb. 2005.
37 Science Under Siege, op. cit., pp. 16-20 and Alison Abbott, “Europe Revamps Visa Rules
to Attract World’s Best Minds,” Nature, Oct. 27, 2005. See also American Association of
University Professors, Report by Special Committee on Academic Freedom and National
Security in a Time of Crisis, Nov./Dec. 2003.
38 See, for example, “Difficulties for Foreign Scientists in Coming to the United States,”
Science, July 14, 2006, p. 169.
39 One that did not is the American Institute of Aeronautics and Astronautics. See Yudhijit
Bhattacharjee, “Society Bars Papers From Iranian Authors,” Science, June 17, 2005.
40 Science Under Siege, op. cit., pp. 10-11, and Yudhijit Bhattacharjee, “Scientific
Publishing: Editing No Longer Infringes U.S. Trade Sanctions,” Science, Dec. 24, 2004.

Introduction to the Term “SBU”
Federal agencies began to use the term “SBU” in the 1970s,41 but the term has
never been defined in statutory law. Starting in 1987 and continuing today, when
using the term “sensitive information,” some agencies refer to the definition for
sensitive information that was used in the Computer Security Act of 1987, P.L. 100-
235,42 and to information exempt from disclosure in the Freedom of Information Act
(FOIA)43 and the Privacy Act, as amended.44
Computer Security Act Definition of “Sensitive”
The Computer Security Act of 1987 (CSA) was intended to protect the security
and privacy of sensitive unclassified information in federal computer systems and the
systems themselves. P.L. 100-235 defined the term “sensitive” information as
any information, the loss, misuse, or unauthorized access to or modification of
which could adversely affect the national interest or the conduct of Federal
programs, or the privacy to which individuals are entitled under section 552a of
title 5, United States Code (the Privacy Act), but which has not been specifically
authorized under criteria established by an Executive order or an Act of Congress
to be kept secret in the interest of national defense or foreign policy” (Section 3).
Because P.L. 100-235 applied to “sensitive information” that was not classified,
some say it defined “sensitive but unclassified.” Pursuant to the CSA, federal
agencies were responsible for protecting such “sensitive” information and for
developing plans to secure it “commensurate with the risk and magnitude of the harm
resulting from the loss, misuse, or unauthorized access to or modification of the45
information being protected.” The CSA, among other things, required agencies to
develop security plans for systems containing sensitive information. It authorized the
National Bureau of Standards (NBS), now called the National Institute of Standards
and Technology (NIST), to create a security-oriented standards program. The
definition of “sensitive information” was placed within the section that listed NBS’s
functions, and subsequently NIST became responsible when the agency’s name was
changed in 1988. In 1992, NIST issued guidance giving agencies authority to
implement risk-based procedures to protect sensitive information pursuant to P.L.
100-235. NIST reiterated that “[i]nterpretation of the CSA’s definition of sensitive
is, ultimately, an agency responsibility.” It identified three security goals:
Typically, protecting sensitive information means providing for one or more of
the following: Confidentiality: disclosure of the information must be restricted
to designated parties; Integrity: The information must be protected from errors

41 Interview with CRS specialist Harold Relyea, December 2005.
42 101 Stat. 1724-1730, 40 U.S.C 1441.
43 5 U.S.C. 552, as amended by P.L. 104-231, 110 Stat. 3048.
44 The Privacy Act of 1974, 5 U.S.C. Section 552a , as amended.
45 U.S. Congress, House, Committee on Science and Technology, Computer Security Act of

1987, Report to Accompany H.R. 145, June 11, 1987, pp. 30-31.

or unauthorized modification; Availability: The information must be available46
within some given time frame (i.e., protected against destruction).”[Emphasis
Although it was not mandatory, NIST urged agency information owners to use a risk-
based approach to identify information to be protected and controls needed based on
risk of loss:
The type and amount of protection needed depends on the nature of the
information and the environment in which it is processed. The controls to be
used will depend on the risk and magnitude of the harm resulting from the loss,
misuse, or unauthorized access to or modification of the information contained47
in the system.
SBU in Relation to the Freedom of Information Act
Predating the CSA, the Freedom of Information Act of 1966 (FOIA) was
enacted to ensure public access to certain types of information held by federal
agencies. However, it permits agencies to exempt from public disclosure nine types
of information:
(1) information classified in the interest of national defense or foreign policy,
(2) internal personnel rules and practices of an agency,
(3) information specifically exempted from disclosure by statute,
(4) trade secrets and commercial or financial information obtained from a person
and privileged or confidential,
(5) inter-agency or intra-agency memoranda or letters reflecting predecisional
(6) personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy,
(7) specified types of law enforcement records or information,
(8) financial institution regulation or supervision reports, and48
(9) geological and geophysical information and data concerning wells.

46 National Institute of Standards and Technology, “Advising Users on Computer System
Technology,” CSL Bulletin, Nov. 1992 [http://nsi.org/Library/Compsec/sensitiv.txt].
47 “Advising Users on Computer System Technology,” Nov. 1992, op. cit.
48 5 U.S.C. 552.

The CSA,49 the report accompanying it,50 and NIST guidance51 included explicit
instructions that categorizing information as “sensitive” did not confer authority to
withhold information sought pursuant to Section 552 of Title 5, United States Code
[the Freedom of Information Act]. Nevertheless, as will be discussed below, some
federal agencies say that all information categorized as For Official Use Only
(FOUO) or in related categories is SBU, or that all SBU information may be withheld
under FOIA.
Department of Justice Broadens Interpretation of Exemptions From
FOIA in 2003 and 2004.52 After the terrorist attacks of September 2001, the White
House and the Department of Justice, in a series of administrative actions, expanded
agencies’ ability to withhold SBU information. To prevent potential use of sensitive
information by terrorists, in March 2002, the White House issued the so-called “Card
memo,” which required agencies to examine their information holdings and policies;
withhold information, including “sensitive but unclassified” information; and use
FOIA exemptions if there was a sound legal basis to do so. Attorney General John
Ashcroft’s prior memorandum of October 2001 on this issue was referenced. These
statements modified the previous Administration’s policy, which urged agencies to53

release information if there was no “foreseeable harm” in doing so.
49 According to P.L. 100-235, “Sec. 8. ... Nothing in this Act, or in any amendment made by
this Act, shall be construed (1) to constitute authority to withhold information sought
pursuant to Section 552 of title 5, United States Code; or (2) to authorize any Federal agency
to limit, restrict, regulate, or control the collection, maintenance, disclosure, use, transfer,
or sale of any information (regardless of the medium in which the information may be
maintained) that is (A) privately-owned information; (B) disclosable under section 552 of
title 5, United States Code, or other law requiring or authorizing the public disclosure of
information; or (C) public domain information.”
50 The report accompanying the legislation said specifically, “The designation of information
as sensitive [or as subject to protection] under the Computer Security Act is not a
determination that the information is not subject to public disclosure” (H.Rept. 100-153,
Part I, June 11, 1987).
51 The guidance said, “The Computer Security Act did not alter the Freedom of Information
Act (FOIA); therefore, an agency’s determination of sensitivity under this definition does
not change the status of releaseability under the FOIA” (“Advising Users on Computer
System Technology,” op. cit.)
52 For detailed information, see CRS Report RL31845, op. cit.
53 The White House memo, signed by Chief of Staff Andrew Card, entitled “Action to
Safeguard Information Regarding Weapons of Mass Destruction and other Sensitive
Documents Related to Homeland Security,” Mar. 19, 2002, required agencies to examine
their policies and holdings in accord with accompanying memos issued by the National
Archives and Records Administration’s (NARA) Information Security Oversight Office
(ISOO) and the Department of Justice’s Office of Information and Privacy (OIP). The
purpose was to determine if information should be classified or handled as sensitive but
unclassified information that could be “misused to harm the security of our Nation and the
safety of our people” and report their review to the White House. The accompanying memo
included a section titled “sensitive but unclassified information,”which instructed agencies
to consider all applicable FOIA exemptions before releasing “sensitive information related
to America’s homeland security”(SHSI) (“Safeguarding Information Regarding Weapons

Subsequently in 2003, the Department of Justice (DOJ) issued guidance based
on court decisions that broadened interpretation of exemptions from disclosure under
FOIA.54 It also discussed the new exemption three provision of P.L. 107-296, the
Homeland Security Act of 2002, which protects voluntarily submitted critical
infrastructure information. The Freedom of Information Act Guide, 2004, explained
how an agency’s ability to restrict the release of “sensitive” information via FOIA

53 (...continued)
of Mass Destruction and Other Sensitive Records Related to Homeland Security,”
Memorandum for Departments and Agencies, from Laura L.S. Kimberly, ISOO, NARA, and
Richard L. Huff, and Daniel J. Metcalfe, OIP, Dept. of Justice, “Safeguarding Information
Regarding Weapons of Mass Destruction and Other Sensitive Records Related to Homeland
Security,” Mar. 19, 2002). Agencies were referred to guidance that had been issued by
Attorney General Ashcroft in Oct. 2001 that instructed agencies, when undertaking
discretionary disclosure determinations under FOIA (agencies can make their own
discretionary decisions about whether to disclose information even if it falls within one of
the nine FOIA exemption categories) to consider using broad interpretations of the FOIA
exemptions because of the need for heightened security in the wake of the 9/11 attacks
(“New Attorney General FOIA Memorandum Issued,” FOIA Post, Oct. 15, 2001, including
“Memorandum for Heads of all Federal Departments and Agencies, From: John Ashcroft,
Attorney General, Subject: The Freedom of Information Act, Oct. 15, 2001”). The memo
instructed agencies to interpret FOIA exemption two broadly to permit withholding of a
document that if released would allow circumvention of an agency rule, policy or statute,
thereby impeding the agency in the conduct of its mission. (See U.S. Department of Justice,
Freedom of Information Act Guide and Privacy Act Overview, May 2002, ed., pp. 16-17,
124-127 and CRS Report RL31547, Critical Infrastructure Information Disclosure and
Homeland Security, by John D. Moteff and Gina Marie Stevens.) In the predecessor
memorandum issued by Attorney General Janet Reno in 1993, agencies were encouraged
to release documents, even if the law provided a way to withhold information, if there was
no “foreseeable harm” from doing do.
In 2002 and 2003, the House oversight committee on FOIA, the Committee on
Government Reform, called the Attorney General’s October 2001 memorandum into
question and specifically rejected its standard to allow the withholding of information
sought under FOIA whenever there is merely a “sound legal basis” for doing so. The
committee directed agencies to withhold documents only in those cases when the agency
reasonably foresees that disclosure would be harmful to an interest protected by an
exemption (A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Actthnd
of 1974 to Request Government Records, 107 Cong., 2 sess. H.Rept. 107-371, 2002, p.thst

3; and in a report with the same title, 108 Congress, 1 sess., 2003, H.Rept. 108-172).

54 On June 25, 2003 officials from the DOJ’s Office of Information and Privacy and from
the National Security Council held a closed conference that was summarized on the DOJ
website. (U.S. Department of Justice,”FOIA Officers Conference Held on Homeland
Security,” FOIA Post, July 3, 2003 [http://www.usdoj.gov/oip/foiapost/
2003foiapost25.htm]). Among other things, it reviewed several court cases in 2003 that
allowed agencies to use national security considerations, other than those defined in FOIA
exemption 1, to withhold information of possible use to terrorists. These included one that
allowed the U.S. Customs Service to use exemption 2 to deny information on inspections
of seaport operations (Coastal Delivery Corp. v. U.S. Customs Service, decided Mar.17,
2003, by the U.S. District Court in Los Angeles), and another to allow withholding under
exemption 7 (e) of “inundation maps”that had been compiled as law enforcement records
and showed flood area below Hoover and Glen Canyon dams (Living Rivers, Inc., v. the U.S.
Bureau of Reclamation, Mar. 25, 2003. by the U.S. District Court in Salt Lake City).

would be broadened; and, citing the September 11, 2001, attacks, the passage of P.L.
107-296, and the creation of the Department of Homeland Security (DHS), cautioned
vigilance on releasing “sensitive” information:
These changes have greatly impacted many aspects of the operation of the
federal government, including the administration of the FOIA. Much greater
emphasis is now placed on the protection of information that could expose the
nation’s critical infrastructure, military, government, and citizenry to an
increased risk of attack. As a result of these changes, federal departments and
agencies should carefully consider the sensitivity of any information the
disclosure of which could reasonably be expected to cause national security
The Guide reiterated, however, that use of labels such as SBU, SHSI, and so
forth does not “provide for any protection from disclosure under any [FOIA]
exemption ...” [except for critical infrastructure information (CII), which is protected
by statute]. Nevertheless, the Guide encouraged agencies to exempt from disclosure
information labeled “SHSI” or other nonclassified information that is highly
sensitive, as referenced in the aforementioned court decisions and in Homeland
Security Presidential Directive HSPD-7, issued on December 22, 2003:
[W]hatever the safeguarding label that an agency might (or might not) use for the
information maintained by it that has special sensitivity — e.g., “for official use
only” (FOUO), “restricted data” (a Department of Energy designation), or
“sensitive homeland security information” (SHSI) — whenever predominantly
internal agency records may reveal information the disclosure of which could
reasonably be expected to cause any of the harms described above [to critical
systems, facilities, stockpiles, and other assets], responsible federal officials
should carefully consider the propriety of protecting such information under56
Exemption 2.
SBU Information Policies in the Homeland Security Act, P.L.
107-296, and Subsequent Presidential Action
The Homeland Security Act, P.L. 107-296, signed on November 25, 2002,
defined homeland security information as “any information possessed by a Federal,
State or local agency that (A) relates to the threat of terrorist activity; (B) relates to
the ability to prevent, interdict, or disrupt terrorist activity; (C) would improve the
identification or investigation of a suspected terrorist or terrorist organization; or (D)57
would improve the response to a terrorist act.” The law, among other things,
required agencies to develop information-sharing systems to transmit classified or
unclassified information and to share it with appropriate recipients, including those
at the state and local levels. It also recognized the use of nondisclosure agreements
for sharing sensitive but unclassified information with state and local personnel.

55 FOIA Guide, 2004 Edition, Exemption one, [http://www.usdoj.gov/oip/foi-act.htm].
56 FOIA Guide, 2004 Edition, Exemption Two.
57 6 U.S.C. 482 (f).

Section 892, as amended,58 required the President to “prescribe and implement
procedures” for federal agencies to “identify and safeguard sensitive homeland
security information that is sensitive but unclassified,” [now abbreviated SHSI] and
to prescribe procedures to share this information with other federal agencies and
appropriate state and local personnel (required by section 892 (a) (1) (A)(B) of P.L.
107-296). In Executive Order 13311, July 29, 2003, the President transferred some
of these functions to the Department of Homeland Security Secretary, to be carried
out in consultation with other governmental officials.59 The President is still
mandated to prescribe procedures for federal agencies. Section 893 of the law had
required the President to report to specified congressional committees about
implementation of section 892 and any recommendations for additional measures to
“increase the effectiveness of sharing of information between and among Federal,
State, and local entities.” According to that report60 and other documents,61 in 2004,
DHS was preparing the guidance to identify and protect sensitive but unclassified
SHSI. In its report to Congress, DHS wrote that the procedures it was developing
will provide guidance on identifying SHSI by defining SHSI, establishing
uniform procedures for identifying and marking SHSI, and delineating entities
with which it may be properly shared. The procedures will aid in safeguarding
SHSI by establishing uniform minimum standards for the secure handling of
sensitive information designated as SHSI, in a manner consistent with existing
law. Lastly, the procedures will help to facilitate the sharing of SHSI with
appropriate Federal, state and local users, while also protecting it from
unwarranted public disclosure that could result in reduction of the ability of
Federal, State, and local authorities to protect against threats to our homeland62
The referenced guidance had not been issued as of November 14, 2006, and,
before being made final, was to have been sent to the Office of Management and
Budget for release and a period of public comment.63 In a related development, on
December 16, 2005, the President issued a memorandum to federal agencies,
“Guidelines and Requirements in Support of the Information Sharing Environment,”
that included requiring agencies to standardize procedures “for designating, marking,
and handling SBU information ... across the Federal Government” in order to

58 Amended by Section 316 of the Intelligence Authorization Act for Fiscal Year 2004, P.L.
108-177, Section 316, 117 Stat. 2599, 2610-11 (2003). This section mandates that DHS
develop a training program for state and local officials to, among other things, improve their
ability to identify and report threat information.
59 Executive Order 13311, Federal Register, July 29, 2003, pp. 45149-45150. The President
retained responsibility to “ensure that such procedures apply to all agencies of the Federal
Gove rnme nt....”
60 Report Pursuant to Section 893, not dated but reportedly sent to the committee chairmen
in February 2004, op. cit.
61 U.S. Department of Justice,” FOIA Officers Conference Held on Homeland Security,”
FOIA Post, July 3, 2003, [http://www.usdoj.gov/oip/foiapost/2003foiapost25.htm].
62 Report Pursuant to Section 893, 2004, op. cit., p. 5.
63 Interview with OMB officials, Nov. 10, 2004.

promote both appropriate, consistent safeguarding and sharing of information.64
Within 90 days agencies were to inventory specific SBU information procedures,
determine the authority for each entry, assess the effectiveness of procedures, and
report to the Director of National Intelligence (DNI), who is to provide the results to
the Secretary of Homeland Security and the Attorney General. Within a year, the
DNI in coordination with specific department and agency heads is to submit
recommendations to the President through the DNI for government-wide standards
for all SBU information. The Program Manager for the Information Sharing
Environment is to support executive departments and agencies implementation, as
well as in the development of relevant guidance and training programs for the
standardized SBU procedures.
According to a news report, an interagency group has been working on this
issue. But federal agencies have not yet agreed upon which SBU-related labels to use
and which to give up. Furthermore state and local officials apparently have disagreed
about which labels should be retained. Reportedly, in June 2006, the Department of
Justice and the Department of Homeland Security
... delivered a 36-page report recommending that the group continue its efforts
to settle on a new system. (In a small sign of progress, they also urged agencies
to stop creating new labels, according to one intelligence official.) The White
House concluded that the proposal lacked substance and told the two agencies
to try again, the official said.65
According to Aftergood, the report [which was then pending] “... set forth
principles upon which SBU policy should be based, but stops short of the crucial
task of defining exactly how those principles ought to be implemented,
government officials said. One of those principles is that each type of control on
unclassified information should have a uniform, public and government-wide66
definition so that it is employed the same way by all agencies.”
Testimony on this issue was heard at a hearing held on May 10, 2006. (See
below in the section labeled “Studies and Hearings on SBU During 2006.”)
In November 2006, the Program Manager for the Information Sharing
Environment issued a report entitled, Information Sharing Environment
Implementation Plan. Chapter 10 described creation of an interagency coordinating
committee which plans to issue guidelines and recommendations for SBU
standardization during the lst quarter of CY2007.

64 Information Sharing Guideline 3 [http://www.fas.org/sgp/news/2005/12/wh121605-
65 Siobhan Goirman, “Turf War Hampers War on Terror: Justice, Homeland Security’s
Failure to Agree on semantics Hinders Information Sharing,” Baltimore Sun, July 13, 2006.
66 “Agencies Pursue Standardized Policy for ‘Sensitive’ Info,” Secrecy News, July 12, 2006.

Requirements to Use Mandatory Minimum NIST-
Generated Risk Standards To Protect All
As noted above, the Computer Security Act of 1987 (CSA) authorized the
Department of Commerce’s NBS (and then its successor, NIST) to develop standards
and guidelines for federal agencies to protect sensitive information on federal
computer information systems. The act defined sensitive information that was not
classified. (For a definition, see the section above entitled “Computer Security Act
Definition of Sensitive.”) Under the CSA, agencies could obtain a waiver not to use
the standards.
The CSA provisions were modified with passage of the Federal Information
Security Act of 2002, (FISMA), P.L. 107-347, December 2002.67 While CSA
required the development of standards to protect sensitive information, FISMA
required the development of standards to protect all information, and did not refer to
sensitive information when mandating development of standards. It rewrote the
section of the NIST act that required development of standards for sensitive
information, and had used the CSA definition of “sensitive” information (15 U.S.C.

278g-3). The law replaced aspects of the CSA, including the definition of “sensitive”

information because the definition was considered static and unresponsive to
changing information systems environments.68 FISMA also deleted specific
requirements to inventory information systems that contained sensitive information.69

67 FISMA clarified and changed some provisions of the Government Information Security
Reform Act (GISRA), which was part of the Floyd D. Spence National Defense
Authorization Act of FY2001 (Div. A, Title X, Subtitle G, sec. 1061-1065, P.L. 106-398,
Oct. 30, 2000). While GISRA expanded NIST’s functions regarding developing risk-based
standards, it would have sunseted in 2002 and did not, like FISMA, render moot the
definition of sensitive as used in CSA. See U.S. Congress, House, Committee onth
Government Reform, E-Government Act of 2002. H.Rept. 107-787, Part 1, 107 Congress,nd
2 sess., Nov. 14, 2002, pp. 54-61. Specifically, according to the report, “the purpose of
FISMA is to permanently authorize a government-wide risk-based approach to information
security by eliminating GISRA’s two-year sunset, and to further strengthen Federal
information security by requiring compliance with minimum mandatory management
controls for securing information and information systems, clarifying and strengthening
current management and reporting requirements, and strengthening the role of National
Institute of Standards and Technology (NIST)” (p. 54).
68 This was described in the House Committee on Government Reform report on the
amended version of the bill that was enacted, H.Rept. 107-787, part I, op. cit., describing
section 303 of what eventually became P.L. 107-347.
69 Section 305 of P.L. 107-347 repealed section 6 of the CSA, which required the
identification of systems containing sensitive information and the development of systems
security plans, which, according to the legislative report accompanying the bill that was
enacted, “is unnecessary given the overall scheme and specific requirements for agency risk-
based management of information and information systems supporting agency operations
and assets” (H.Rept. 107-787, pt. 1. p. 87. See also CRS Report RL31057, A Primer on E-
Government; Sectors, Stages, Opportunities, and Challenges of Online Governance, Jeffrey

These actions, in essence, rendered the definition moot. Also, under FISMA,
agencies may no longer obtain a waiver to not use the standards developed by NIST.
Specifically, section 303 of P.L. 107-347 updated NIST’s mission in light of
new understandings relating to information security and required NIST, in
consultation with other agencies, including OMB, the National Security Agency, the
Government Accountability Office (GAO), and the DHS, to develop risk-based
standards to categorize “the criticality and sensitivity of agency information
according to information security control objectives and across a range of risk levels”
and to develop minimum information security requirements for each information
category. Under FISMA, the standards NIST was directed to develop and the
Secretary of Commerce to promulgate, are to be issued by the Director of OMB in
consultation with the Secretary of Homeland Security70 as mandatory minimum
federal information processing standards (FIPS) that agencies and their contractors
must use to protect all nonclassified information and information systems based on
a range of risk levels.71 FISMA is silent on defining “sensitive” or the relationship
between the act and SBU or the sensitive homeland security information referred to
in section 892 of the Homeland Security Act of 2002, P.L. 107-296.
FISMA also clarified management and reporting, strengthened NIST’s role and
responsibilities, and consolidated statutory information security requirements. The
OMB is required by FISMA to authorize formally and accredit each agency’s
nonsecurity information system as established by the information security plan.
(Responsibility for certification of national security information systems is shared
between DOD and the Central Intelligence Agency.) The three security objectives
— confidentiality, integrity, and availability — that NIST has used in previous
guidance are to continue to guide NIST in its development of standards (116 STAT.

69 (...continued)
W. Seifert).
70 OMB, in consultation with the Secretary of Homeland Security, has responsibility under
FISMA to issue the standards and guidelines developed by NIST (40 U.S.C. 11331 (b) (1)
(A)) and promulgated by the Secretary of Commerce. In addition, OMB manages the
federal acquisition regulation (FAR). It is to be updated to include the information security
requirements of FISMA, so that new agency contracts for information systems would reflect
them. (U.S. GAO, Information Security: Improving Oversight of Access to Federal Systems
and Data by Contractors Can Reduce Risk, April 2005, GAO-05-362.p. 3.) See also, U.S.
GAO, Information Security: Weaknesses Persist at Federal Agencies Despite Progress
Made in Implementing Related Statutory Requirements, July 2005, GAO-05-552.
71 Specifically, Title III of FISMA requires, “(b) Minimum requirements for standards and
guidelines. The standards and guidelines required by subsection (a) of this section shall
include, at a minimum — (1) (A) standards to be used by all agencies to categorize all
information and information systems collected or maintained by or on behalf of each agency
based on the objectives of providing appropriate levels of information security according
to a range of risk levels; (B) guidelines recommending the types of information and
information systems to be included in each such category; and (C) minimum information
security requirements for information and information systems in each such category ....”
(U.S. Code, Title 15, Chapter 7, Section 278g-3. Computer standards program, i.e., 15
U.S.C. 278g-3).

2947, P.L. 107-347, title III, paragraph 301), although these concepts were broadened
from the way NIST originally used them in 1992 to read:
The term “information security” means protecting information and information
systems from unauthorized access, use, disclosure, disruption, modification, or
destruction in order to provide — (A) integrity, which means guarding against
improper information modification or destruction and includes ensuring
information nonrepudiation and authenticity; (B) confidentiality, which means
preserving authorized restrictions on access and disclosure, including means for
protecting personal privacy and proprietary information; and (C) availability,
which means ensuring timely and reliable access to and use of information (Sec.

301 of P.L. 107-347).

The law also allows agencies to develop more stringent standards than those
generated by NIST, since it —
preserves the provision in current law (at 40 U.S.C 11331(c) permitting agencies
to use more stringent standards than provided by NIST-developed standards, but
only if those more stringent standards incorporate applicable mandatory NIST
requirements and are otherwise consistent with the risk management policies and
guidelines issued by OMB under 44 U.S.C. 3533.72
NIST’s Policies, Standards, and Documents
The risk analysis procedures and information systems controls specified by
NIST have been developed iteratively, incorporating public comments since the end
of 2002. Several reports constitute the NIST documentation standards and two are
core, that is FIPS Publication 199 and FIPS Publication 200. NIST had anticipated
publishing all documentation by the statutory deadline of December 2005 when73
implementation was to become mandatory, but the final document in the series,
dubbed FIPS Publication 200, was delayed a few months until March 2006.74
Agencies are to use NIST’s guidance documents and risk management procedures
to categorize federal information and information systems and to determine security75
protection levels for them based on level of risk.
The first core document, Federal Information Processing Standards (FIPS) 199,
Standards for Security Categorization of Federal information and Information
Systems, commonly called FIPS 199, issued in final form in February 2004, provides
a common framework, method, and mandatory standards for agencies to use to
identify information to protect (that is not governed by national security controls)

72 Paragraph (a) (3) of section 302, according to H.Rept. 107-787, pt. 1, p. 84.
73 William Jackson, “FISMA Guidance Nearly Complete,” Government Computer News,
Oct. 26, 2005.
74 National Institute of Standards and Technology, Minimum Security Requirements for
Federal Information and Information Systems, Federal Information Processing Standards
Publication, FIPS Pub 200, March 2006.
75 Based in part on Ron Ross, “FISMA Implementation Project; Protecting the Nation’s
Critical Information Infrastructure; An Overview,” Slide Show, Version 1.4.

according to the potential impact of loss. FIPS 199 enables “... agencies to identify
and prioritize their most important information and information systems by defining
the maximum impact a break in confidentiality, integrity, or availability would have
on the agency’s operation, assets, and/or individuals.”76 It establishes a continuum
of “criticality and sensitivity” for information dependent upon agency requirements
and priorities. The potential minimum impact value (low, moderate, or high77) on the
compromise of a security objective is the highest value (i.e., high-water mark) for
security categories for each type of information on the system.78
FIPS Publication 200, Minimum Security Requirements for Federal Information and
Information Systems, the second of the mandatory security standards documents,
specifies minimum security requirements for information and information systems
supporting the federal agencies and a risk-based process for selecting the security
controls necessary to satisfy the minimum security requirements. This standard is
intended to establish minimum levels of due diligence for information security and
to facilitate a more consistent, comparable, and repeatable approach for selecting and
specifying security controls for information systems that meet minimum security

76 Shirley Radack, ITL Bulletin, Mar. 2004, p. 1.
77 “... [L]ow [or limited], moderate [having a serious adverse effect], or high [severe or
catastrophic adverse] impact for the three security objectives of confidentiality, integrity
(including authenticity and non-repudiation), and availability”(Ron S. Ross, Computer
Security Division, NIST, “The New FISMA Standards and Guidelines. Changing the
Dynamic of Information Security for the Federal Government,” [2003], p. 2. For additional
details, see NIST, Standards for Security Categorization of Federal Information and
Information Systems, FIPS Publication 199, Dec. 2003, pp. 1-3).
78 As an example “... A power plant contains a SCADA (supervisory control and data
acquisition) system controlling the distribution of electric power for a large military
installation. The SCADA system contains both real-time sensor data and routine
administrative information. The management at the power plant determines that (I) for the
sensor data being acquired by the SCADA system, there is no potential impact from a loss
of confidentiality, a high potential impact from a loss of integrity, and a high potential
impact from a loss of availability; and (ii) for the administrative information being processed
by the system, there is a low potential impact from a loss of confidentiality, a low potential
impact from a loss of integrity, and a low potential impact from a loss of availability. The
resulting security categories, SC, of these information types are expressed as: SC sensor data
= {(confidentiality, NA),(integrity, HIGH), (availability, HIGH)}, and SC administrative
information = {(confidentiality, LOW), (integrity, LOW), (availability, LOW)}. The
resulting security category of the information system is initially expressed as: SC SCADA
system = {(confidentiality, LOW), (integrity, HIGH), (availability, HIGH)}, representing
the high water mark or maximum potential impact values for each security objective from
the information types resident on the SCADA system. The management at the power plant
chooses to increase the potential impact from a loss of confidentiality from low to moderate
reflecting a more realistic view of the potential impact on the information system should
there be a security breach due to the unauthorized disclosure of system-level information or
processing functions. The final security category of the information system is expressed as:
SC SCADA system = {(confidentiality, MODERATE), (integrity, HIGH), (availability,
HIGH)}.” (FIPS 199.)

NIST Special Publication 800-60, Guide for Mapping Types of Information and
Information Systems, issued in final version in June 2004,79 is intended to help
agencies identify their information types and systems and to assign impact levels for
confidentiality, integrity, and availability for them for a range of risk levels. The
impact levels are based on the security categorization guidelines in FIPS Publication
199.80 Special Publication 800-60 gives agencies explicit guidance on developing
impact standards for each of the three risk categories for all types of information and
information systems handled by federal agencies (based on OMB’s Federal
Enterprise Architecture Program Management Office’s publication, The Business
Reference Model Version 2.0). Agencies are given guidance to determine impact
levels for information in fields such as public health, environmental management,
energy, and general sciences and innovation, including research and development.
Thus the high-water mark, or highest value category for security impact (and thus
minimum security categorization) for both “Scientific and Technical Research and
Innovation Information” and for “Research and Development Information,” is
moderate.81 Examples of minimum security categories for some other types of
information are environmental remediation information, moderate;82 pollution
prevention and control, low;83 and health care services, high.84 Each explanation
describes circumstances, including homeland security and national security-related
implications, that agencies could identify to raise the threshold level of security
controls for each type of information.
When agencies need to evaluate the levels of protection for information, they
are to undertake a risk assessment using threat and vulnerability analysis that
incorporates local conditions and then adjust their security controls using NIST
publication SP 800-30.85 An agency is to identify the minimum information security
requirements (i.e., management, operational, and technical controls) for information
and information systems in each such category as identified in document 800-53, that
is Recommended Security Controls for Federal Information Systems, February 2005.
NIST identified 17 types of security control clusters to guide selection of minimum
security controls (i.e., safeguards and countermeasures) to protect information and
information systems and 154 uniquely identified controls (i.e., management,
operational, and technical security controls) for information and information systems

79 William C. Barker, Volume 1: Guide for Mapping Types of Information and Information
Systems to Security Categories, NIST Special Publication 800-60, Version 2.0, June 2004,
pp. 21-22. William C. Barker and Annabelle Lee, NIST, Information Security, Volume II:
Appendixes to Guide for Mapping Types of information and Information Systems to Security
Categories, June 2004, 295 pages.
80 Barker, Volume 1, NIST Special Publication 800-60, June 2004, op. cit., pp. 21-22.
81 NIST Special Publication 800-60, op. cit., pp. 217-218.
82 NIST Special Publication 800-60, op. cit., pp. 154-155.
83 NIST Special Publication 800-60, op. cit., p. 120.
84 NIST Special Publication 800-60, op. cit., p. 120.
85 Risk Management Guide for Information Technology Systems, Recommendations of the
National Institute of Standards and Technology, by Gary Stoneburner, Alice Goguen, and
Alexis Feringa, NIST, SP 800-30, July 2002.

in each category. These include access control; awareness and training; audit and
accountability; certification, accreditation, and security assessments; configuration
management; contingency planning; identification and authentication; incident
response; maintenance; media protection; physical and environmental protection;
planning; personnel security; risk assessment; systems and services acquisition;
system and communications protection; and system and information integrity.86
A Formal Risk Analysis Process Is Not Required. OMB’s apparent
operative guidance for information security protection, Appendix III of OMB
Circular A-130,87 cautions agencies that they do not need to conduct expensive,
formal risk analyses to fulfill these requirements. Specifically, Appendix III to OMB
Circular A-130 says that OMB
no longer requires the preparation of formal risk analyses. In the past, substantial
resources have been expended doing complex analyses of specific risks to
systems, with limited tangible benefit in terms of improved security for the
systems. Rather than continue to try to precisely measure risk, security efforts
are better served by generally assessing risks and taking actions to manage them.
While formal risk analyses need not be performed, the need to determine
adequate security will require that a risk-based approach be used. This risk
assessment approach should include a consideration of the major factors in risk
management: the value of the system or application, threats, vulnerabilities, and
the effectiveness of current or proposed safeguards. Additional guidance on
effective risk assessment is available in “An Introduction to Computer Security:88
The NIST Handbook” (March 16, 1995).
While NIST recognizes this dictum, it seems that little information is available about
how agencies make decisions to categorize information in response to NIST
Nongovernmental Experts’ Recommendations to Use Risk
Analysis to Identify and Control Sensitive Information
Nongovernmental experts have recommended using various types of risk-based
processes to identify, categorize, and develop controls for sensitive information90
involving science and technology, and other kinds of information control. For

86 NIST, Recommended Security Controls for Federal Information Systems, Special
Publication 800-53, Appendix D and Appendix F.
87 OMB Circular A-130, Appendix III, “Security of Federal Automated Information
Resources,” to “OMB Circular A-130, Transmittal Memorandum #4, Management of
Federal Information Resources (11/28/2000),” requires agencies and their contractors to
maintain programs that provide adequate security for all information collected, processed,
transmitted, stored, or disseminated in general support systems and major applications”
([http:// www.whitehouse.go v/ OMB/ circulars/a130/a 130appendix_iii.html ]).
88 Appendix III, to OMB Circular A-130, 11/28/2000, op.cit.
89 Interviews with officials at NIST and GAO.
90 Horizontal Integration: Broader Access Models for Realizing Information Dominance is

instance, the use of risk analysis figured prominently at the November 21, 2005
meeting of the National Science Advisory Board for Biosecurity (NSABB) in
discussions related to developing criteria for a code of conduct for researchers,
identification of code violations, and development of appropriate consequences. Risk
analysis has also figured in NSABB discussions about developing a process and time
schedule to vet and communicate dual-use research while it is being conducted and
before publication, and about determining the consequences of public release.91 (For
more information about NSABB, see in the section below entitled “National Science
Advisory Board for Biosecurity.”) Others have also proposed using risk-based
models to handle sensitive scientific and technical information. These are discussed
Jacques S. Gansler and William Lucyshyn proposed that criteria be developed,
and that an executive order be issued, that identifies “controlled unclassified security
information (CUSI),” consisting of CII and SHSI, whose improper release by
government or academic/scientific institutions “... could egregiously endanger public
safety.”92 The objective “... for both government-funded and privately-funded
research is to create a culture that frowns on the research, experimentation, and
publication of CUSI, much like the culture that constrains certain experimental
techniques, such as stem-cell research, and restrains others, such as human
cloning.”93 A risk-based process called a “‘Work-Factor’ for Leveraging Dangerous
Information” — the amount of resources needed to use the information for harmful
purposes — would be used to determine risk of release:

90 (...continued)
a report prepared by the Defense Department JASON advisory group for the Under
Secretary for Defense Research and Engineering, Horizontal Integration: Broader Access
Models for Realizing Information Dominance, JASON Program Office, MITRE, JSR-04-
132, Dec. 2004, p. 1. The report focused on the goal of enabling “information dominance
[in] warfare” and concluded that more information should flow directly to military personnel
in the field, who might not always have clearance levels required to handle classified
information or sensitive information, which is “....increasingly defined by the eye of the
beholder”(pp. 4, 24-30). The report recommended using an information system based on
“... transactional risk — that is the chance that any given transaction will be compromised,
rather than on assigning a level of classification to a document based on the potential
damage caused by disclosure” (Shaun Waterman, “Report: Govt Secrecy Hurting War
Fighters,” UPI, Dec. 15, 2004).
91 The archived webcast of the Nov. 21, 2005 meeting is available at
[http://videocast.nih.gov/ram/od112105.ram]. See also, Andrew J. Hawkins, “National
Biosecurity Panel Lays Groundwork for Identifying Dual-Use Research,” Research Policy
Alert, Nov.22, 2005; Andrew J. Hawkins, “Success of Scientist Code of Conduct Hinges On
Education, Biosecurity Board Hears,” Research Policy Alert, Nov.23, 2005; and Eugene
Russo, “Biosecurity Advisory Board Reports Lessons Learned From 1918 Flu Papers, Aims
to Improve Screening Process,” Research Policy Alert, Nov. 23, 2005.
92 Jacques S. Gansler and William Lucyshyn, The Unintended Audience: Balancing
Openness and Secrecy: Crafting an Information Policy for the 21st Century, Center for
Public Policy and Private Enterprise School of Public Policy, University of Maryland, Sept.

2004, pp. 27, 32.

93 The Unintended Audience: Balancing Openness and Secrecy, op. cit., pp. 38-39.

When information that could threaten the public safety is easily accessible —
that is, when the costs of obtaining it are low and the convenience of using it is
relatively high — this “work-factor” for leveraging potentially harmful
information provides a benchmark for determining whether information should
be controlled. While high-level descriptions of and mitigations for vulnerabilities
should be released to inform and alert the public, “push-button” or “cookbook”
instructions on how to do harm are easily identifiable and clearly should be
withheld. The amount of resources, including the number of knowledgeable
personnel, needed to exploit vulnerabilities describes a work-factor, which is a94
good, practical indicator of where disclosure borders on weaponization.
The report recommended that with respect to “public sector information,” a
policy embodying CUSI would “enable the sharing of sensitive materials between
departments and agencies at the federal, state, and local levels, as well as with those
in the private sector with a need to know,”95 and would ensure “... that similar
information produced in different agencies is identified and protected in the same
way” and that FOIA and CUSI guidelines are not in conflict.”96 DHS, it was
recommended, should develop educational programs, government controls, and
voluntary restraints to prevent the disclosure of information that should not be
released.97 Government-defined policy controls should extend to publicly funded
private researchers and DHS, assisted by NSF and NIH and other agencies, should
issue guidance to privately funded researchers. Professional peer reviews would be

94 The Unintended Audience: Balancing Openness and Secrecy, op. cit., pp. 40-42. The
following illustrations were given “[f]or potential low-impact events, the most serious
threats are those that are highly convenient and extremely low cost.... Typically, these
threats cause a high level of disruption and/or annoyance. An example of such a threat
would be contaminating food with bacteria, similar to the 1984 case where members of a
religious cult sprayed salmonella bacteria on salad bars throughout the Oregon region,
causing 751 cases of food poisoning.... For a potential medium-impact event, those threats
that are high in cost and low in convenience warrant the least amount of concern....
Information on agents that when directly applied to fields would decrease crop yield without
completely destroying the harvest might fall into this category. It would be difficult to
deliver such agents, and decreasing the yield for some crops in the United States might
succeed only in reducing the surplus. Nearly all of the threats of a potential high-impact
event should be considered serious, and information related to these threats should be
controlled.... A grey area, where information would have to be carefully evaluated, forms
when costs are high and convenience is low. For example, information on how to create
vaccines for highly-communicable diseases could fall into this category, as the method for
creating vaccines now in use first increases the virulence of normal diseases and then finds
inhibitors to block or antibodies to combat the strongest variants of the diseases. Increasing
controls significantly could slow the development of preventive measures, which, in the end,
might cause more harm than good” (The Unintended Audience: Balancing Openness and
Secrecy, op. cit., pp. 43-44).
95 The Unintended Audience: Balancing Openness and Secrecy, op. cit.,p. ii, p. 33.
96 The Unintended Audience: Balancing Openness and Secrecy, op. cit., p. 33.
97 The Unintended Audience: Balancing Openness and Secrecy, op. cit., p. 44.

conducted before publication of work that might meet criteria for safeguarding.
S p eci fi cal l y, 98
[f]ederally-funded researchers should disclose potential security concerns in their
grant proposals. DHS monitored review panels will assess the security
implications of the work with potentially significant negative impact in
accordance with established guidelines. DHS should lead the effort to develop
model review policies, encouraging non-federally-funded researchers to adopt
them and to submit their work to the government-monitored review panel or an
independent, government-certified review panel. DHS should also train
publishers to conduct reviews just before research is made available to serve as
a safety net after research is already completed, and publishers should implement
a two-tiered publication scheme to restrict detailed content to premium access99
where the credentials of the readers can be verified.
Brian J. Gorman proposed a risk-based alternative approach for prepublication
peer review. He called for a risk-based process called “Due Process Vetting System”
(DPVS) together with “... a Risk Assessment Scale [RAS] and a Least Restrictive
Classification System for the communication, assessment, and disposition of
sensitive life science research in a manner consistent with national security
interests.”100 The aforementioned reports proposed that researchers should self-
evaluate the sensitivity of their work and that self-imposed professional association
or governmental constraints, including classification, be imposed if the information
could be weaponized and if the consequences of its use were high risk, but that such
information should be communicated among those with a “need to know.”101 (This
proposal and others for institutional or governmental bodies to review and approve
biological sciences research plans or publications are discussed below in the section
“Controls on Unclassified Biological Research Information.”)

98 The Unintended Audience: Balancing Openness and Secrecy, op. cit., p. 45.
99 The Unintended Audience: Balancing Openness and Secrecy, op. cit., pp. ii-iii.
100 Brian J. Gorman, “Balancing National Security and Open Science: A Proposal for Due
Process Vetting,” Yale Journal of Law and Technology, 2005, pp. 2, 15.
101 The Unintended Audience: Balancing Openness and Secrecy, op. cit., pp. 39-40. See also
J. Gaudioso and R. M. “A Conceptual Framework for Biosecurity Levels,” BTR 2004:
Unified Science and Technology for Reducing Biological Threats and Countering Terrorism
— Proceedings, Albuquerque, NM, March 18-19, 2004, p. ii. As an illustration:
“Restricting research and development must rely on constraining knowledge rather than
forbidding it. For example, such restrictions would control research into the engineering of
viral factors that introduce animal pathogens into humans but would not prohibit it,
categorically. Production refers to the ways in which information can be weaponized, or
leveraged against the public. As such, production restraints should entail issues similar to
ways of refining anthrax and ways of enriching uranium. Although information about
weapons programs would be classified, scientific “know-how” that may be — as in the case
of bioweapons — only one step away from implementation generally would not be
classified. Employment refers to final-stage delivery. For example, issues of employment
may refer to detailed schematics on the briefcases used in the Tokyo sarin gas attacks or
plans for maximizing the radiological contamination from a “dirty bomb” (Gaudioso and
Salerno, op. cit., Mar. 18-19, 2004, p. 28).

Mobilizing Information to Prevent Terrorism: Accelerating Development of a
Trusted Information Sharing Environment, a report by the Markle Foundation Task
Force on National Security in the Information Age, examined how to reconcile
national security needs with civil liberties requirements.102 It sought to redress
problems with “current classification procedures” that frequently are “ a barrier to
effective information sharing because they overemphasize the risks of inadvertent
disclosure over those of failure to share information.”103 Among other things it
proposed use of a “risk management” approach to classification that balances the
risks of inappropriate disclosure with the risks of failing to share information
Policies To Protect Specific Types of Sensitive
Information Involving Scientific and Technical
Specific laws have been enacted and policies and procedures are in varying
stages of implementation that define and protect sensitive unclassified science- and
technology-related information in such fields as critical infrastructure, transportation,
environmental impacts, biology, geospatial data, and DHS information. These and
criticisms that have been made about them are summarized next.
Critical Infrastructure Information Controls
The need to protect critical infrastructure information is based on the premise
that potential terrorists should not have access to information that might expose
vulnerabilities in, or provide roadmaps to, the nation’s core physical transportation,
water, communication, energy, and related systems, or to major buildings, bridges,
and other major structures. As an example of critical infrastructure vulnerabilities,
Charlie Reeder, Interagency Operations Security Support Staff, DOD, and part of a
Pentagon group that represents the National Security Agency, Central Intelligence
Agency, Federal Bureau of Investigation, DOD, General Services Administration,
and Department of Energy (DOE), is reported to have said that “‘... he’s seen
government websites include maps of installations ... specifications of weapons and
communications systems ... and much more. ... When we publish this information
on the Internet, we might as well fax it directly to our adversaries ...’”104 He also
commented that “‘According to a message sent by Secretary of Defense Donald
Rumsfeld ... an al Qaeda training manual recovered in Afghanistan states ‘using
public sources openly and without resorting to illegal means, it is possible to gather

102 Zoe Baird, James Barksdale, chairmen, Mobilizing Information to Prevent Terrorism:
Accelerating Development of a Trusted Information Sharing Environment, Third Report of
the Markle Foundation Task Force, 2006, Markle Foundation, New York City, 93 p.
103 Markle Foundation, “Markle Task Force on National Security in the Information Age
Releases Third Report, ‘Mobilizing Information to Prevent Terrorism: Accelerating
Development of a Trusted Information Sharing Environment,’ “Press Release, July 13, 2006.
104 Stephen Larsen, “Secure Sensitive Unclassified Information,” Pentagram, Nov. 28, 2003
http://www.dcmilitary.com/army/ pentagram/ 8_47/commentary/ 26442-1.html .

at least 80 percent of information about the enemy.’” Open-source information can
be accessed through Internet sites, job announcements, budget documents, and
newsletters.105 Similarly, a survey by Computerworld noted that “the widespread
availability of sensitive information on corporate websites appears to have been
largely overlooked by IT and security managers....”106 Among the information
available on the Web are “3-D models of the exterior and limited portions of the
interior of the Citigroup headquarters building in Manhattan — one of the sites
especially named in the latest terror advisory issued by the Department of Homeland
Security,” and various similar kinds of information about the building’s structural
design weaknesses.
In part to cope with issues like these, the “Critical Infrastructure Information Act
of 2002,” Title II of P.L. 107-296, prohibits disclosure under FOIA of “critical
infrastructure information” (CII) relating to the security of critical infrastructure and
protected systems submitted to DHS voluntarily by private companies.107 Criminal
penalties for disclosure by employees under this statute include fines, dismissal, or
imprisonment for up to a year (Section 214).108 The statute also provides for the
preemption of state freedom of information laws regarding the public disclosure of
such information if it is shared with a state or local government official in the course
of DHS’s activities.109 The DOD issued a memo on March 25, 2003, that applied
prohibitions like those in P.L. 107-296 to critical infrastructure information
voluntarily submitted to DOD.110 On April 15, 2003, DHS published interim rules
to implement the critical information infrastructure protection provisions of P.L. 107-
296, which would extend the rules to other agencies by requiring them to pass to
DHS similar information that they receive.111 On December 17, 2003, President
Bush issued Homeland Security Presidential Directive 7 (HSPD-7), which among
other things, directed all federal agencies to protect voluntarily submitted information
about critical infrastructure vulnerabilities in line with Title II of P.L. 107-296.

105 Larsen, op. cit.
106 “Too Much Info on Websites,” SAP Info, Sept. 8, 2004.
107 Sections 211-215 of P.L. 107-296, codified as 6 U.S.C. 131-134, define the term “critical
infrastructure information” to mean information not customarily in the public domain and
related to the security of critical infrastructure or protected systems. For rules, see 6 C.F.R.

29.1 and 6 C.F.R. 29.2.

108 For additional analysis, see CRS Report RL31547, op. cit.
109 See also “Homeland Security Law Contains New Exemption 3 Statute,” FOIA Post, Jan.

27, 2003.

110 Memo from H.J. McIntyre on “FOIA Requests for Critical Infrastructure Information,”
described in Steven Aftergood, “DOD on Critical Infrastructure Info,” Secrecy News, Apr.

29, 2003, and “Efforts Made to Expand Critical Infrastructure Information,” OMB Watcher,

May 5, 2002.
111 “6 CFR Part 29, Procedures for Handling Critical Infrastructure Information; Proposed
Rule, Department of Homeland Security,” Federal Register, Apr. 15, 2003, pp.
18523-18529. For additional information, see CRS Report RL30153, Critical
Infrastructures: Background, Policy, and Implementation, by John Moteff.

The DHS published an interim final rule that established the “Protected
Infrastructure Information (PCII) Program,” effective February 18, 2004, with public
comments allowed until May 20, 2004.112 The rules were amended and issued in a
final regulation entitled “Procedures for Handling Protected Critical Infrastructure
Information,” on September 1, 2006.113 The procedures govern the receipt,
validation, handling, storage, marking, and use of critical infrastructure information
voluntarily submitted to the Department of Homeland Security and apply to all
federal, state, local, and tribal government agencies and contractors that have access
to, handle, use, or store critical infrastructure information.
CII information submitted to DHS is not subject to disclosure under FOIA,
under an exemption three category, established pursuant to section 214 of the
Homeland Security Act of 2002,114 if it has not been made public previously.115 The
language in P.L. 107-296 protects only CII submitted to the DHS, but the Department
of Justice reports that in the future, it may be applied to submissions made to other
federal agencies.116 (For additional information, see CRS Report RL33670,
Protection of Security-Related Information, by Gina Marie Stevens and Todd B.
Sensitive Security Information Controls: Transportation
Both the Department of Agriculture (USDA) and the Transportation Security
administration (TSA) use the term”sensitive security information” (SSI). The use of
the term in transportation is discussed in this section.117 The Federal Aviation
Administration (FAA) had been permitted since passage of the Air Transportation
Security Act of 1974118 to issue regulations to protect, and to distribute to those with

112 The implementing regulations are contained in the Code of Federal Regulations (6 CFR
Part 29). See also Department of Homeland Security, “DHS Launches Protected Critical
Infrastructure Information Program to Enhance Homeland Security, Facilitate Information
Sharing,” Press Release, Feb. 18, 2004, and attached information sheet “Protected Critical
Infrastructure Information (PCII) Program.” See the Federal Register, Feb. 20, 2004, pp.
8073-8089. Comments are posted on the DHS website. See also Lucy A. Dalglish and
Gregg P. Leslie, Homefront Confidential: How the War on Terrorism Affects Access to
Information and the Public’s Right to Know, fifth ed., 2004, pp. 70-71.
113 Federal Register, vol. 71, no. 170, Sept. 1, 2006, pp. 52261-52277.
114 6 U.S.C.A. section 133. See the memo on “Critical Infrastructure Information
Regulations Issued by DHS,” FOIA Post, Feb. 27, 2004,
[http://www.usdoj.gov/oip/foiapost/2004foiapost6.htm], Leslie, op. cit., and CRS Report
RL30153, op. cit.
115 DHS press release, Feb. 18, 2004, op. cit.
116 “Critical Infrastructure Information Regulations Issued by DHS,” op. cit. 2004.
117 For a discussion of usage in USDA and TSA, see Appendix A to this report. See also:
Harold C. Relyea, Security Classified and Controlled Information: History, Status, and
Emerging Management Issues, CRS Report RL33494.
118 Air Transportation Security Act of 1974, P.L. 93-366, Section 316, 88 Stat. 409 (1974),
as cited in CRS Report RL32664, Interstate Travel: Constitutional Challenges to the

a “need to know,” sensitive civil aviation security information that was obtained
during security investigations or consisted of research and development information
that would invade privacy, would reveal a trade secret or financial or commercial
information, or would be detrimental to the safety of persons traveling by air. “The
FAA implemented this authority by promulgating regulations, which, among other
things, established a category of information known as Sensitive Security Information
(SSI). In 1997, the Department of Transportation (DOT) definition of SSI included
‘records and information ... obtained or developed during security activities or
research and development activities.’”119 Subsequently, this type of information was
given a statutory basis pursuant to the Aviation and Transportation Security Act, P.L.
107-71, which created the Transportation Security Administration (TSA) and
prohibited disclosure of certain kinds of information relating to transportation if the
disclosure would be detrimental to the safety of passengers in transportation.120 P.L.
107-296 expanded this coverage to include information detrimental to the “security
of transportation.” As the FAA was moved to the TSA, first located in the DOT and
then to the DHS,121 the SSI withholding authority appears to have been expanded to
include “all transportation related activities including air and maritime cargo,
trucking and freight transport, and pipelines.”122 On May 18, 2004, the DOT and
DHS jointly promulgated revised regulations,123 which, “adopt the Homeland
Security Act language as the definition of SSI. In addition, the new regulations
incorporate former SSI provisions, including the sixteen categories of information
and records that constitute SSI.”124 SSI information is defined by statute (49 U.S.C.
section 114 (s)) and an implementing regulation (49 C.F.R. part 1520)125 as
(1) Security programs and contingency plans ... issued, established, required,
received, or approved by DOT or DHS.... (2) Security Directives.... (3)
Information Circulars ... issued by DHS or DOT regarding a threat to aviation or
maritime transportation.... (4) Performance specifications.... (5) Vulnerability
assessments.... (6) Security inspection or investigative information.... (7) Threat

118 (...continued)
Identification Requirement and Other Transportation Security Regulations, by Todd B.
119 According to Tatelman, op. cit., codified at 14 C.F.R. § 191.1 (1997).
120 Created pursuant to the Aviation and Transportation Security Act (ATSA), P.L. 107-71,
section 101 (e)(3), 115 Stat. 597, 603 (2002).
121 For detailed history of the laws and regulations that govern SSI and transportation, see
CRS Report RL32664, op. cit., and CRS Report RL32425, Sensitive Security Information
and Transportation Security: Issues and Congressional Options, by M.A. Sollenberger.
122 CRS Report RL32664, op. cit.
123 See also “Protection of Sensitive Security Information, Transportation Security
Administration (TSA), DHS, and Office of the Secretary of Transportation (OST), DOT.”
Federal Register, May 18, 2004 (v. 69, no. 96), pp. 28066-28086. (DOT, Office of the
Secretary of Transportation, 49 CFR Part 15; Department of Homeland Security,
Transportation Security Administration, 49 CFR Part 1520.)
124 Tatelman, op. cit., pp. 3-4. See the original for footnotes to this quotation.
125 Report Pursuant to Section 893, not dated but reportedly sent to the committee chairmen
in February 2004, p. 5, op. cit.

information.... (8) Security measures.... (9) Security screening information....
(10) Security training materials.... (11) Identifying information of certain
transportation security personnel.... (12) Critical aviation or maritime
infrastructure asset information.... (13) Systems security information... (14)
Confidential business information.... (15) ... Information obtained or developed
in the conduct of research related to aviation or maritime transportation security
activities, where such research is approved, accepted, funded, recommended, or
directed by the DHS or DOT, including research results... (16) Other
This information, like CII information, was also designated as exempt from
disclosure under FOIA (49 U.S.C sec 40119(b) (1)) under exemption 3, which
permits the withholding of information protected by other statutes, has use limitations
for sharing with state or local governments, and imposes criminal penalties on federal126
officers or employees who disclose such information.
Critique of SSI Rules. Terrorists have capitalized on vulnerabilities in
national and foreign transportation systems several times since 2001. Nevertheless,
some critics charge that too much transportation-related information is being
withheld from public access. Many of the criticisms of SSI rules focus on the alleged
consequences of preventing the public from accessing information that might be used
to promote safety or be used in citizen oversight. For instance, some aircraft
personnel and consumer advocates say that TSA’s use of SSI can “muzzle debate of
security initiatives and insulate TSA from criticism.”127 The newsletter OMBWatch
reported that the TSA has denied access to information when “reasonable access to
it could improve safety conditions for communities and workers.”128 Examples
include TSA denying pilots access to information to comply with TSA regulations
to avoid flying near nuclear power plants, disagreeing with TSA’s views that
information on such sites compiled from public data by the Aircraft Owners and
Pilots Association should be labeled SSI and not be made available, and denying the
District of Columbia government access to information to help them determine if
trains carrying chlorine through D.C. should be rerouted. The Coalition of
Journalists for Open Government (CJOG), a group of journalist advocacy
organizations,129 in a filing on July 16, 2004, in response to regulations jointly filed

126 See CRS Report RL32597, Information Sharing for Homeland Security: A Brief
Overview, by Harold C. Relyea and Jeffrey W. Seifert.
127 Secrecy in the Bush Administration, by U.S. House of Representatives, Committee on
Government Reform — Minority Staff Special Investigations Division Prepared for Rep.
Henry A. Waxman, Sept. 14, 2004, p. 54. Tim Starks, “A Fine Mess: TSA’s New
Information Security Rules Leaves Stakeholders Confused,” CQ Homeland Security, July

21, 2004.

128 “Transportation Agency Hides Vital Data ‘Sensitive Security Information,’” OMB Watch,
Apr. 4, 2005.
129 Composed of American Society of Newspaper Editors; Associated Press Managing
Editors; Committee of Concerned Journalists; National Association of Science Writers;
Newspaper Association of America; Reporters Committee for Freedom of the Press;
Radio-Television News Directors Association; Society of Professional Journalists; Society
of Environmental Journalists.

by the Department of Transportation and the Transportation Security
Administration,130 said
[The] ... unrestricted use of the ... (SSI) designation ... will have a seriously
adverse impact on traditional citizen and media oversight of the governance of
our seaports, airports and transit systems.... There appear to be no limits to the
type of information that might be gathered or generated as SSI and then sealed.
Local and state officials, bound by non-disclosure agreements, may be forced to
deny access to records that state law and local ordinance require be made
available to citizens. Information needed by civic activists or organizations to
maintain oversight and challenge local officials on their management of public
facilities may be withheld, even when the information’s relevance to any possible
terrorist threat is at best tenuous. 131
In the same document,132 the CJOG recommended that federal agencies should
preserve public access to what it calls “critical oversight information” (COI) — “any
information a citizen might use to judge whether his or her public servants are
serving well,” information “that speaks to the quality and integrity of their
performance as policy makers, managers or employees of our seaports, airports and
transit systems,” including budget information and details on revenue and spending
and information about personnel and their qualifications, training, and
performance. 133
Various courts have ruled on the interpretation of the SSI regulations.134
Controls on Environmental Impact Information
Controls on environmental impact information are premised on the need to
protect internal agency decision making procedures and to control access to
information that terrorists might use to harm critical infrastructures, deliver services,
or poison the, air, water, and so forth. The actions discussed next represent steps that
have been taken to safeguard public access to environmental information.
The Department of Homeland Security (DHS) expanded its ability to withhold
certain types of environmental impact information that previously was available to

130 See also “Press Coalition Defends Access to “Critical Oversight Info,” Secrecy News,
July 19, 2004.
131 Pete Weitzel, “Comments of the Coalition of Journalists for Open Government (CJOG),
Before The Department of Transportation and the Transportation Security Administration,
In the Matter of Protection of Sensitive Security Information,” RIN 1652 AA08 Docket #
TSA 2003-15569.
132 These comments were made in a filing by CJOG and nine of its member organizations
on July 16, 2004, in response to regulations jointly filed by the DOT and the TSA involving
the designation and disclosure of information designated as Sensitive Security Information.
133 Weitzel, CJOG, op. cit.
134 See, Stevens and Tatelman, CRS Report RL33670, op. cit., pp. 19-26.

the public pursuant to the National Environmental Policy Act (NEPA).135 On June
14, 2004, DHS issued a directive proposing new categorical exclusions to disclosure
requirements under FOIA for assessments of environmental impacts of DHS decision
making and included component DHS agencies in the categorical exclusions
policy.136 The directive specified three levels for projects or grants that might have
environmental impacts: “those affecting national security that are categorically
excluded from coverage under NEPA; those that require DHS agencies to conduct
environmental assessments; and those with the greatest potential to affect natural
resources and the environment, which would require more detailed environmental
impact statements.” Specifically, EPA allows categorical exclusions for “actions that
... do not ... have significant impact on the human environment, and therefore ... do
not require an environmental assessment ... or environmental impact statement....”
(40 C.F.R. 1500-1508.)
Some of the agencies that were transferred to DHS had previously identified
such exclusions. In addition, the directive exempted all DHS agencies
(Transportation Security Administration, Coast Guard, Border Patrol, FEMA and
others) from releasing classified, proprietary, or other information exempt from
disclosure under FOIA, and proposed to exempt critical infrastructure information,
sensitive security information, and other information described in “laws, regulations,
or Executive Orders prohibiting or limiting the release of information.”137 Some say
this could exclude from public view environmental impact statements required by
NEPA. In its Federal Register announcement, DHS said that it would place
protected information prepared for compliance with NEPA into appendix sections
for viewing only by decision makers, but would allow the public to view nonsensitive
portions of the material. However, it added “...if segregation would leave essentially
meaningless material, the DHS elements will withhold the entire NEPA analysis
from the public.” The plan also would allow DHS to categorize some environmental
reviews as “sensitive security information” or “critical infrastructure information”
exempt from public disclosure. The public comment period was for one month and
then was extended to August 16, 2004. DHS held a meeting on October 12, 2004 to
discuss public comments received.138 On April 4, 2006, DHS published a final rule.
On this topic EPA responded to public comments by empaneling a group to examine
release of environmental review information and concluded that it would permit
environmental review information that is not withheld according to statute to be
made accessible to the public pursuant to FOIA.139

135 42 U.S.C. Section 5321 et. seq.
136 DHS, “Proposed Management Directive 5100.1, Environmental Planning Program,”
Federal Register, v. 69, no. 33043- 33066. June 14, 2004.
137 Federal Register, June 14, 2004, op. cit., p. 33063.
138 Management Draft Management Directive 5100.1, Environmental Planning Program
Meeting Minutes, Subject: Draft Environmental Directive for the Department of Homeland
Security (DHS) Meeting: October 12, 2004, at [http://www.dhs.gov/dhspublic/interapp
139 Section “9. Appendix A, Section 6.2, Classified or Protected Information” in
“Department of Homeland Security, Environmental Planning Program, Notice of Final

A 2005 supplemental appropriations bill (H.R. 1268), enacted as P.L. 109-13,140
exempted the DHS from certain legal requirements when physically securing U.S.
borders. Some contend that this may enable DHS to waive environmental protection
laws, among others, relating to border security.141
Critiques of Controls on Environmental Information. Some critics
allege that these types of policies, including SBU information control policies,
conflict with the environmental quality laws of the 1970s and the Emergency
Planning and Community Right-To- Know Act of 1986 (42 U.S.C. 11049). Critics
of regulations limiting access to some critical infrastructure information focus on
their preemption of state and local disclosure laws and the inability of citizens to
obtain information needed to ensure community safety.142 Several environmental
groups have criticized controls on environmental information, saying too much is
being withheld by EPA and DHS pursuant to its DHS environmental directive
released on June 14, 2004. The Natural Resources Defense Council charged that

139 (...continued)
Directive,” Federal Register, vol. 71, no. 64, April 4, 2006, pp. 16790-16820.
140 According to Sec. 102 of P.L. 109-13: “Waiver of Legal Requirements Necessary for
Improvement of Barriers at Borders; Federal Court Review,” Section 102(c) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note) is
amended to read as follows: “... Notwithstanding any other provision of law, the Secretary
of Homeland Security shall have the authority to waive all legal requirements ... [he]
determines necessary to ensure expeditious construction of the barriers and roads under this
section.... Any such decision by the Secretary shall be effective upon being published in the
Federal Register.”
141 “Homeland Security Wins Power to Waive All Law,” OMB Watch, Feb, 2005.
142 Reportedly, once submitted to DHS, “information that is designated CII is not merely
exempt from public disclosure. It can’t be disclosed to any government official except for
national security purposes. Nor can it be used in court. That means a company could tell the
Department of Homeland Security about an eroding chemical storage tank on the bank of
a river, but DHS could not disclose that information to the public or even to the
Environmental Protection Agency. And if there were a spill ... , the information given DHS
couldn’t be subpoenaed in a law suit. No one knows just what that will mean in practice,
but the concern is palpable” (Pete Weitzel, “A Skip Through the Rabbit Hole,” The
American Editor [American Society of Newspaper Editors], May-June-July 2004).
Problems were reported by a community group working with the Project on
Government Oversight (POGO) “to track drinking water supplies contaminated with
perchlorate, a rocket fuel that causes developmental problems in children. After 9/11, the
Army refused to share critical information with the community groups, including maps of
drinking water test wells. What confused community groups the most was the fact that these
maps were already shared publicly — but the Army refused to acknowledge them and
claimed they were ‘sensitive’ information not for public release. The community group
refused to back down and is now suing the Army for information under an environmental
law that gives community groups the right to be informed about toxic chemical threats”
(“Fighting Secrecy — And Winning,” OMB Watch, Feb. 23, 2004. For additional examples
of the issue of SBU in the environmental area, see, Richard Dahl, “Does Secrecy Equal
Security?” Environmental Health Perspectives, Feb. 2004, pp. A104-A107). See also
regarding withholding of flood inundation maps, Gregg Sangillo, “Groups Raise Concerns
About Increased Classification of Documents,” GovExec.com, Oct. 27, 2004.

because the agencies subsumed by DHS make environmentally related decisions
relating to oil spills, border security, flood planning, and chemical plant security, and
so forth, communities should be given an opportunity to evaluate these decisions.143
In addition, some agencies label environmental impact statements as SBU, saying
that they should be released only to those who have a “need to know.” Some
agencies post environmental impact materials on the Internet with blacked-out
markings for what appears to be locational or infrastructure details.144 Other agencies
have published documents and put SBU information into a separate appendix,
available under controlled access. Generally, because of “security sensitivity,” most
DOE environmental assessment documents are not available to the public online but
may be accessible via hardcopy in NEPA reading rooms if the requestor qualifies.145
Other examples have been cited of agencies withholding or controlling information
that, reportedly, prevents informing the public of environmental and other hazards.146
The American Library Association (ALA) proposed that, with respect to
environmental information, DHS should limit “its non-disclosure provision to
information that unambiguously qualifies for withholding under one of the
exemptions provided in the Freedom of Information Act....”147 It contended that the
provision allowing DHS to withhold “essentially meaningless” information not now
subject to exemption from disclosure should be deleted since Congress intended the
public to determine what information is meaningful in the environmental statements.
OMB Watch concurred: “There are no procedures contained in the directive for how
DHS will determine which pieces of environmental analysis to remove if it falls
within an exemption, or how it will determine if the public finds the information

143 National Resources Defense Council, Comments to Proposed Management Directive
5100.1, Environmental Planning Program, July 14, 2004, as cited in Secrecy in the Bush
Administration, op. cit., Sept. 14, 2004, p. 56. See also regarding access to maps locating
perchlorate plumes, “Post 9-11 Secrecy Hits Homer in Aberdeen Maryland,” Release
prepared by the Working Group on Community Right-to-Know, Jan. 29, 2004.
144 See, for instance, U.S. Department of Energy, Environmental Assessment For the
Strategic Petroleum Reserve West Hackberry Facility Raw Water Intake Pipeline
Replacement Cameron and Calcasieu Parishes, Louisiana, DOE/EA-1497
[http://www.eh.doe.gov/nepa/ea/EA1497/EA-1497.pdf] and “NRC Censors Environmental
Impact Statement,”OMB Watch, Jan. 24, 2005.
145 Source: [http://www.eh.doe.gov/nepa/documents.html].
146 See for instance, Lance Gay, “Government Withholds ‘Sensitive-but-Unclassified’
Information,” Scripps Howard News Service, Feb. 2, 2006
[ h t t p : / / www. s h n s .com/shns/g_index2.cfm?action=detail&pk=UNCLAS S IF IE D -0 2 -0 2 -0 6 ] .
147 Emily Sheketoff, American Library Association, Letter “Re: Department of Homeland
Security’s Proposed Management Directive 5100.1, Environmental Planning Program,”
Aug. 16, 2004.
148 “DHS Seeks Exemptions From Public Disclosure Requirements,” OMB Watcher, July
29, 2004. See also,: Mike Ferullo, “Groups Wary of Homeland Security Plan Exemptions
Some Environmental Reviews,” Daily Report for Executives, July 16, 2004, p. A-21.

Illustration of Complexity of the Issue: the Nuclear Regulatory
Commission (NRC). The complexity of balancing access to, and protection of,
information is illustrated by actions taken by the Nuclear Regulatory Commission
(NRC). In August 2004, the agency issued a statement that “certain security
information formerly included in the Reactor Oversight Process will no longer be
publicly available.”149 Its efforts to “scrub “ its website while balancing public access
and information security generated public criticism that NRC withheld information
relevant to the safety of surrounding residents but shared such information with
power companies and industrial lobbying groups. The NRC also allegedly threatened
criminal prosecution for persons who published critiques of two nuclear reactors in
Indian Point, New York, even though the NRC is reported to have said it could not
specify what information was compromised.150 In the fall 2004, some “... news and
watchdog organizations pointed out that some sensitive documents in the [NRC
online] library could be used by terrorists”; the NRC subsequently closed major151
portions of the library and reviewed items it contained.
Representative Edward J. Markey, a senior minority member of the House
Committee on Energy and Commerce, wrote to the NRC, requesting that its inspector
general investigate the agency’s information release policies and, specifically.
concerns about the NRC “improperly restricting access to specific documents that
should be releasable from a security perspective but are nevertheless being withheld
from public release.” 152 He cited the agency’s proposals to widen its definition of
“proprietary information” to withhold more public information and to broaden
restrictions on the dissemination of sensitive information to include emergency
evacuation plans and safety analyses concerning the protection of nuclear materials;
its actions to withhold an unclassified version of an NAS report allegedly because the
NRC disagreed with its findings; and the agencies’ prohibitions on non-industry
representatives attending meetings and having information, even though industrial
representatives were given access. In June 2005, the Nuclear Regulatory
Commission announced it would restore viewing on the web to more than 70,000153
documents, after reviewing them for “sensitive security information.” An NRC

149 “NRC Modifies Availability of Security Information From All Nuclear Plants” NRC
News, Aug. 4, 2004 (No. 04-091).
150 R. Jeffrey Smith, “Nuclear Security Decisions Are Shrouded in Secrecy, Agency
Withholds Unclassified Information,” Washington Post, May 29, 2004, p. A21.
151 “NRC Initiates Additional Security Review of Publicly Available Documents;
Temporarily Suspends Agency’s On-Line Library,” NRC News, Oct. 25, 2004, No. 04-135;
Sean Madigan, “Documents Return to Online Nuclear Regulatory Library After Terror
Review,” CQ Homeland Security, Nov. 17, 2004. These were identified as such things as
floor plans for university laboratories giving the location of equipment that uses nuclear
materials and of storage facilities for them. (See, for example, M. Ahlers, “Blueprints for
Terrorists? Sensitive Nuclear Info Ends Up on NRC Web Site,” CNN.Com at
[ h t t p : / / www.cnn.com/ 2004/ US/ 10/ 19/ t e r r o r .nr c/ i ndex.ht ml ] ) .
152 Letter from Rep. Edward J. Markey to Hubert T. Bell, Inspector General, U.S. Nuclear
Regulatory Commission, Mar. 21, 2005.
153 Sean Madigan, “Nuclear Documents Back Online,” CQ Homeland Security, June 10,

task force concluded that the agency could withhold information that could be
deemed useful to terrorists if the information were not already available to the public
pursuant to its new Sensitive Information Screening Project, but FOIA principles
needed to be followed to withhold information. The task force identified the precise
kinds of information that could be withheld under the various FOIA exemptions.154
Also during this time period, the National Academies released an unclassified
version of a report, that included among its findings that the commission’s security
restrictions on the sharing of information with industry and the public negatively
affected “constructive feedback and cooperation. The committee recommended that
the ... NRC improve the sharing of pertinent information on its security analyses of
spent fuel storage with nuclear power plants operators and system vendors. More
constructive interaction with the public and with independent analysts also could
increase confidence in ... NRC and industry decisions and their actions to reduce the
vulnerability of spent fuel storage to terrorist attacks.”155
Controls on Unclassified Biological Research Information
Traditionally, open communication of biological information fosters the conduct
of research and development. Also, emergency preparedness requires exchange of
information to inform local health officials “... of what agents are being studied in
their jurisdictions so they can prepare for any unlikely future events.”156 However,
some biological information and data could pose a domestic or international security
threat, which has led to federal controls.157 For instance, a 2006 National Academies
report described a variety of biotechnology agents and specific genetic advances that
could be used in research and could increase the potential for biowarfare.158 It also
inventoried some dual-use biological agents and research developments that could

153 (...continued)

2005. For original wording, see “NRC Task Force Report on Public Disclosure of Security-

Related Information,” Nuclear Regulatory Commission, May 18, 2005, approved June 30,

2005. [http://www.fas.org/sgp/othergov/nrc-disc.pdf].

154 “NRC Task Force Report on Public Disclosure of Security-Related Information,” NRC,
May 18, 2005, approved June 30, 2005, originally cited in “NRC Adopts Policy on
Disclosure of Security Information,” Secrecy News, Aug. 16, 2005,
155 “Spent Fuel Stored in Pools at Some U.S. Nuclear Power Plants Potentially at Risk From
Terrorist Attacks; Prompt Measures Needed to Reduce Vulnerabilities,” NAS Press Release,
April 6, 2005. See also”Secrecy Impedes Security, National Academy Says,” Secrecy News,
Apr. 8, 2005; and the NAS report: Safety and Security of Commercial Spent Nuclear Fuel
Storage: Public Report, by Committee on the Safety and Security of Commercial Spent
Nuclear Fuel Storage, National Academy of Sciences Press, 2005.
156 “Laura H. Kahn, “Biodefense Research: Can Secrecy and Safety Coexist?” Biosecurity
and Bioterrorism: Biodefense Strategy, Practice and Science, vol. 3, no. 2, 2004, p. 4.
157 For additional information, see CRS Report RL31695, Balancing Scientific Publication
and National Security Concerns: Issues for Congress, by Dana Shea.
158 Committee on Advances in Technology and the Prevention of Their Applications to Next
Generation Biowarfare Threats, Globalization, Biosecurity, and The Future of the Life
Sciences, National Academies Press, 2006, pp. 39-40.

be used malevolently. For example, “The same reverse genetic technologies that can
be used to develop new vaccines against RNA viruses could also be used to construct
modified viruses, including possibly viruses that express heterologous virulence
factors that result in more lethal disease.”159 Ominously, it observed that
[in] the past, dual-use concerns have focused on pathogens and on the challenges
associated with controlling dangerous pathogens. As already emphasized, this
committee’s deliberations have indicated that the problem will be far broader and
more profound in the future. For example, advances in neurobiology may make
it possible to manipulate behavior and thought processes, while gene expression
technologies just now coming to fruition will make it possible to activate
endogenous molecules in the body — with possibly wide ranging and everlasting
effects. Advances in synthetic biology and nanotechnology will offer similar
rich opportunities for dual use. Nanodevices that may be used to unplug blocked
arteries could instead be employed to interfere with circulatory function.
Advanced drug delivery technologies and pharmacogenomics knowledge could
be used to develop and deliver with greater efficiency new bioweapons, perhaps160
even selectively targeting certain racial or ethnic groups.”
To deal with concerns like these, some types of biological sciences information
have already been controlled and proposals have been made to develop other types
of governmental or nongovernmental systems to control access to information before
research is conducted or in the prepublication phase. These proposals, which are
discussed next, are not without controversy.
The federal government’s regulation requiring the registration of laboratories
that transferred certain “select agents” — organisms and toxins identified by the
Centers for Disease Control and Prevention (CDC) as potentially useful in
bioterrorist activities — began in 1996.161 Registration of laboratories that possess
such agents was mandated by P.L. 107-188, “The Public Health Security and
Bioterrorism Preparedness and Response Act of 2002,” enacted after the 9/11 attacks.
The law requires coordination between the Department of Health and Human
Services (DHHS) and the Department of Agriculture (USDA) to identify and regulate
the use and transfer of such agents that pose a risk to public health, crops or
livestock; registration of all facilities that use such agents; minimum safety
requirements for registered facilities; background screening of persons using such
agents; and a national database of such users. The USA PATRIOT Act, P.L. 107-56
prohibits access to select agents by certain persons, including certain immigrants, and
persons with criminal or drug use history and other factors. Interim final regulations
implementing these laws were issued in December 2002.162

159 Globalization, Biosecurity, and The Future of the Life Sciences, op. cit., p. 53.
160 Globalization, Biosecurity, and The Future of the Life Sciences, op. cit., p. 55.
161 Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (P.L. 104-132).
For further information on this and subsequent activity, see CRS Report RL31719, An
Overview of the U.S. Public Health System in the Context of Emergency Preparedness, by
Sarah A. Lister.
162 The DHHS regulation is codified at 42 CFR Section 73.0, and the USDA regulation at

National Science Advisory Board for Biosecurity. A National Academy
of Sciences (NAS) report, Biotechnology Research in an Age of Terrorism:
Confronting the “Dual Use” Dilemma, published in 2004 and dubbed the “Fink”
report after the committee chairman, called for greater self-regulation by scientists,
use of institutional biosafety committees at academic and research institutions to
monitor research that could possibly aid terrorism, NIH review of certain types of
research reports before they are published, and use of screening criteria in a
prepublication review. Regarding private scientific publishing, the Fink report
largely left it up to journal publishers to make decisions about prepublication review
procedures for articles involving biological agents. The Fink report also urged
creation of a new federal advisory board to guide nongovernmental researchers and
to develop responsibility among scientists to control flows of biodefense information.
But it did not propose governmental control of such research.
In March 2004, the DHHS announced its intent to create a National Science
Advisory Board for Biosecurity (NSABB), which became funded in 2005. It is
managed and staffed by the National Institutes of Health (NIH). The NSABB is
chartered to have 25 voting nongovernmental members with a broad range of
expertise in molecular biology, microbiology, infectious diseases, biosafety, public
health, veterinary medicine, plant health, national security, biodefense, law
enforcement, scientific publishing, and related fields. The NSABB also includes
nonvoting ex officio members from 15 federal agencies and departments. It is
supposed to advise federal departments and agencies regarding oversight of dual-use
nonclassified biological research. The board’s charter also includes work to develop
national policies to communicate and publish sensitive research results, a code of
conduct for life sciences researchers, training programs and materials to educate the
community about biosecurity, and strategies to foster international collaboration to
oversee dual-use life sciences research. NIH aims to use the committee’s guidance
to develop policies to require performer institutions that it funds to use Institutional
Biosafety Committees (IBC), to educate researchers, to issue guidance, and to review
and advise on specific experiments that might be misused or pose a threat to the
public health or national security. Policy guidance will flow from the federal board
to the institutional committees if there is uncertainty or disagreement regarding denial
of an experiment. The NSABB met several times in 2005 and 2006; it will meet next
on January 31 to February 2, 2007.
During its first meeting, the board established five working groups to develop
criteria to identify dual-use research; criteria to communicate results of dual-use
research; a life sciences code of conduct; international perspectives on dual-use
research; and guidance on chemical synthesis of bacterial and viral genomes.163
Some discussants proposed that biologists should be licensed to conduct sensitive
biological research, that codes of conduct would need to be certified, and that
methods of assuring compliance among research institutions would need to be

162 (...continued)

7 CFR Part 331 and 9 CFR Part 121.

163 Janet Coleman, “NSABB Working Groups Will Begin Discussions Soon...,” Research
Policy Alert, July 5, 2005.

developed.164 Some contended that if the scientific community did not develop
methods of monitoring and protecting sensitive research, policy makers might
develop and try to enforce more stringent controls that ultimately might prove to be
unaccept abl e. 165
During the July 2006 meeting, NSABB recommended in draft guidelines
released for public comment that authors, institutional reviewers, and journal editors
conduct a risk-benefit analysis as part of “formal procedures to presecreen the
publication of findings from...dual-use projects” that might be useful to terrorists.166
During its October 25, 2006 meeting,167 which addressed the topic of synthetic
biology, among other things, the Board adopted draft recommendations, published
for comment, that the government “regulate potentially dangerous gene sequences
instead of a list of known pathogens” since the current rules for select agents identify
a finite list of organisms, and do not account for biological entities that can be
synthetically engineered.168 The board “...also wants the government to require
companies to screen orders for synthetic DNA against the genomes of select agents
and to maintain a record of purchase orders. Neither procedure is currently mandated
by law.”169 Topics for subsequent NSABB meetings include developing oversight
plans and implementation processes for these guidelines in academia and in
government. It is likely that some scientists will object to guidelines requiring
prepublication review.170
Views on Adequacy of Biosecurity Protection Policies. Some critics
say existing biosecurity protections are inadequate to prevent terrorists from
obtaining and using biological information and suggest that stronger measures should

164 “Rules of Engagement,” Nature, July 7, 2005, p. 2.
165 Eugene Russo, “New Biosecurity Panel Struggles With Role in Monitoring Sensitive
Research,” Research Policy Alert, July 5, 2005. See also Jeffrey Brainard, “National
Biosecurity Board Holds First Meeting, Ponders Limits on Research,” Chronicle of Higher
Education, July 1, 2005.
166 Yudhijit Bhattacharjee, “Biosecurity: U.S. Panel Calls for Extra Review of Dual-Use
Research,” Science, July 21, 2006, p. 284. The draft guidelines are: National Science
Advisory Board for Biosecurity, NSABB Draft Guidance Documents, July 2006,
[ h t t p ://www.biosecurityboard.gov/p d f / N S A BB%20Draft%20Guidan ce%20Documents.pdf].
They focus on I. Criteria for Identifying Dual Use Research of Concern, II. Tools for the
Responsible Communication of Research with Dual Use Potential, III. Considerations in
Developing a Code of Conduct for Dual Use Research in the Life Sciences.
167 See, [http://www.biosecurityboard.gov/meetings_archive_102506.asp].
168 Yudhijit Bhattacharjee, “Bioterrrorism Agents: U.S. Panel Wants Security Rules Applied
to Genomes, Not Pathogens,” Science, Nov. 3, 2006, p. 743. The draft document is entitled,
NSABB, Addressing Biosecurity Concerns Related to the Synthesis of Select Agents. Draft
Recommendations, Prepared by the Working Group in Synthetic Genomics, 18 p.
169 Bhattacharjee, July 21, 2006, op. cit.
170 Bhattacharjee, July 21, 2006, op. cit. For additional information, see Oversight of
Dual-Use Biological Research: The National Science Advisory Board for Biosecurity, CRS
Report RL33342, by Dana A. Shea.

be taken, such as creation of a network that interacts closely with intelligence and
military agencies to prevent misuse of biological information.171 Related to this, a
2006 National Academies report, concerned about how new developments in the life
sciences coupled with rapidly advancing fields such as nanotechnology and materials
science could prove to threatening, endorsed the free and open change of information
in the life sciences to the maximum extent possible. However, it also recommended,
!creating statutorily an independent advisory group in the security
community to strengthen scientific and technical expertise within
the intelligence and security communities;
!adopting and promoting a “common culture of awareness and a
shared sense of responsibility within the global communities of life
scientists,” including development of codes of ethics; and
!establishing, “... a decentralized, globally distributed network of
informed concerned scientists who have the capacity to recognize
when knowledge or technology is being used inappropriately or with
the intent to cause harm”172 and whose interventions could take the
form of counseling or “... reporting such activity to national
authorities when its appears potentially malevolent in intent.”173
Other shortcomings in current policy have been identified. For instance, the
scope of the DHHS’s NSABB board has been faulted because it does not extend to
privately funded research nor harmonize international standards.174 Others criticize
the select agent rules as inadequate and say federal regulations should be expanded
to prevent unauthorized persons from possessing the DNA components of a select
agent.175 George Church, a genetics professor at Harvard, reportedly “is organizing
a consortium of researchers and academics to push the federal government to license
anyone interested in purchasing DNA segments for agents of bioterror.”176
Similarly, John Steinbruner and colleagues at the Center for International and
Security Studies at Maryland (CISSM), in a 2005 report, advocated mandatory
licensure of researchers and institutions that conduct biodefense research. Three
levels of independent review — at the institutional, national, and international level
— would monitor risks and benefits of research proposals and would issue approval
or disapproval for conduct of researchers and publications.177

171 Russo, July 6, 2005, op. cit
172 Globalization, Biosecurity, and the Future of the Life Sciences, op. cit., p. 8.
173 Globalization, Biosecurity, and the Future of the Life Sciences, op. cit., p. 9.
174 Jennifer Couzin, “U.S. Agencies Unveil Plan for Biosecurity Peer Review,” Science,
Mar. 12, 2004, citing Elisa Harris of the University of Maryland’s Center for International
and Security Studies.
175 Caitlin Harrington, “Lab-Synthesized Diseases Open a New Front in Bioterror War,” CQ
Homeland Security, Aug. 2, 2004.
176 Harrington, op. cit.
177 Eugene Russo, “Biodefense Research Needs Formal Oversight and Licensure - University
of Maryland Report,” Research Policy Alert, Feb. 22, 2006, citing John Steinbruner, et al.,

Nongovernmental professional groups have explored the use of codes of
conduct or self-policing policies178 for research topics and publications. Some
publishers adopted a set of voluntary, risk-based publishing principles, called
“Statement of Scientific Publication and Security,” 2003; but this, reportedly, has
resulted in changes in only very few articles before publication.179 In June 2005, the
American Society for Microbiology drafted a code of ethics for its members and
urged them to report to “appropriate authorities” misuses of microbiology
information.180 The Interacademy Panel on International Issues, consisting of most
of the world’s national science academies, issued a set of principles that urged
scientists to take responsibility to prevent misuse of their work.181 Two researchers,
Margaret A. Somerville of McGill University and Ronald M. Atlas, President of the
American Society for Microbiology, proposed an international code of ethics to
prevent bioterrorism.182 Adherents to the code would refuse to conduct work that

177 (...continued)
Controlling Dangerous Pathogens: A Prototype Protective Oversight System, University of
Maryland, 2005.
178 For a representative list of codes of ethics developed by professional groups, see online
at [http://www.biosecuritycodes.org/codes_archive.htm].
179 Reportedly, the statement of policy was adopted by science journal editors and released
on Feb. 15, 2003, and was published in Science, Nature, and the Proceedings of the National
Academy of Sciences. It is available at [http://www.fas.org/sgp/news/2003/02
/sci021503.html]. For additional information, see CRS Report RL31695, op. cit. It has been
reported that, according to an article published in 2003, “... the American Society of
Microbiology (ASM) flagged two out of fourteen thousand articles as unsuitable for
publication, and both of these papers were likely to be published after changes were
made....(The Unintended Audience: Balancing Openness and Secrecy: Crafting anst
Information Policy for the 21 Century, op. cit., p. 39).
180 Eugene Russo, “Biosecurity Advisory Board Considers Code of Ethics,” Research Policy
Alert, July 6, 2005.
181 Shirley Haley, “Scientists Must Take Responsibility for Preventing Misuse of Their
Work — Interacademy Panel,” Research Policy Alert, Dec. 6, 2005. The document is “IAP
Statement on Biosecurity,” Nov. 7, 2005.
182 Margaret A. Somerville and Ronald M. Atlas, “Ethics: A Weapon to Counter
Bioterrrorism,” Science, Mar. 25, 2005, pp. 1881, 1882. The proposed code is: “In order to
prevent the life sciences from becoming the death sciences through bioterrorism or
biowarfare, all persons and institutions engaged in all aspects of the life sciences must: “1.
Work to ensure that their discoveries and knowledge first do no harm: I) by refusing to
engage in any research that is intended to facilitate, or there is a high probability of its being
used to facilitate bioterrorism or biowarfare, both of which violate the fundamental moral
values of humanity; and ii) by complying with the prohibition of the Biological Weapons
Convention to never, under any circumstances, knowingly or recklessly contribute to the
development, production or acquisition of microbial or other biological agents or toxins,
whatever their origin or method of production, of types or in quantities that cannot be
justified on the basis of their being necessary for prophylactic, protective, therapeutic, or
other peaceful purposes. 2. Work for the ethical and beneficent advancement, development
and use of scientific knowledge. 3. Call to the attention of the public, or the appropriate
persons or bodies, activities, including unethical research, that there are reasonable grounds
to believe are likely to contribute to bioterrorism or biowarfare. 4. Take reasonable care to

could be used in bioterrorism and would seek to restrict access of those they believe
could use information maliciously.
It was noted above in the section on “Nongovernmental Experts’
Recommendations To Use Risk Analysis To Identify and Control Sensitive
Information,” that proposals have been made to instill in researchers a culture that
discourages research that could be used malevolently, that professional peer reviews
should be conducted before publication of work that should be protected, and that the
federal government should define policy controls for these activities. In addition, J.
Gaudioso and R. M. Salerno proposed a biosecurity risk assessment process that
would restrict the use of agents that have the potential to be weaponized and that
could serve as the basis for international standards. This process would involve using
four Biosecurity levels: low, moderate, high, and extreme risk. The
overwhelming majority of pathogens and toxins would fall into the low-risk
category (requiring practices such as locking unattended laboratories and
maintenance of documentation of agents used), and most select agents would be
placed in the moderate-risk category (requiring additional safeguards such as
access controls and personnel checks). The security measures for low-and
moderate-risk categories should pose reasonable costs and largely rely on
existing biosafety measures. Very few agents would be designated high risk
(requiring more stringent security measures and a dedicated Biosecurity officer).
Perhaps only variola major, because it is no longer found in nature would be
considered an extreme risk, requiring the most stringent protections (such as
comprehensive background investigations and an on-site guard force). Higher
security than that currently mandated by federal regulations would only be
applied for those very few agents that represent true weapon threats. Biosecurity
levels should be developed and vetted by experts in biological weapons,
microbiology, security, and public and agricultural health. This would help
federal agencies apply uniform criteria to grantees and could form the basis for183

standardizing biosecurity internationally.
182 (...continued)
assure biosecurity by seeking to allow access to biological agents that could be used as
biological weapons only to individuals who there are reasonable grounds to believe will not
misuse them. 5. Seek to restrict the dissemination of dual-use information and knowledge
to those who need to know in cases where there are reasonable grounds to believe that there
are serious risks that information or knowledge could be readily misused to inflict serious
harm through bioterrorism or biowarfare. 6. Subject research activities to ethics and safety
reviews and monitoring to establish their ethical acceptability: I) to ensure that legitimate
benefits are being sought and that they outweigh the risks and harms; and ii) if human or
animal subjects are involved, to ensure that such involvement is ethical and essential for
carrying out highly important research. 7. Abide by laws and regulations that apply to the
conduct of science unless to do so would be unethical, and recognize a responsibility to
work through relevant societal institutions to change those laws and regulations that are in
conflict with ethics. 8. Recognize all persons’ rights of conscientious objection to
participation in research that they consider ethically or morally objectionable and to refuse
to participate without penalty. 9. Faithfully transmit the duties and obligations embodied
in this code, and the ethical principles upon which it is based to all who are, or may become,
engaged in the conduct of science.”
183 Jennifer Gaudioso and Reynolds M. Salerno, “Biosecurity and Research: Minimizing

Brian J. Gorman proposed a risk-based alternative approach for prepublication
peer review. He called for a risk-based process called “Due Process Vetting System”
(DPVS) together with “... a Risk Assessment Scale [RAS] and a Least Restrictive
Classification System for the communication, assessment, and disposition of
sensitive life science research in a manner consistent with national security
interests.”184 The process would be overseen by a new agency called the Biologic
Regulatory Commission, modeled after the Nuclear Regulatory Commission. The
vetting process would be triggered at the request of an author or peer reviewer if an
article attained a predetermined score on the RAS set by the BRC. “The RAS surveys
opinions of informed reviewers including the author of the article, the author’s
Institutional Review Board or Institutional Biosafety Committee (IBC), and finally
the journal interested in publishing the article.”185 The DPVS would safeguard high-
risk articles by providing the government with a mechanism to identify “potentially
dangerous articles before they reach the presses,”186 would avoid the “deleterious
effects of censorship,”187 and would make articles available only to a “select
academy of biodefense researchers after the authors, the publishing journal and
others, reach a consensus with the government through cooperative vetting of the
article in question.”188 Gorman proposed expanding the academy to a qualified body
of world scientists, an approach he said is superior to the ASM model and ad hoc
approaches undertaken by the majority of U.S. biosciences journals.189
Some scientists disagree with the types of aforementioned restrictions. Existing
controls on “select agents,” reportedly, have caused “ ... many researchers ... to
discontinue or not pursue research on regulated biological agents, rather than
implement the new security regulations and bear the associated financial burden.

183 (...continued)
Adverse Impacts,” Science, Apr. 30, 2004, citing J. Gaudioso and R. M. Salerno, “A
Conceptual Framework for Biosecurity Levels,” BTR 2004: Unified Science and Technology
for Reducing Biological Threats and Countering Terrorism — Proceedings, Albuquerque,
NM, March 18-19, 2004.
184 Brian J. Gorman, “Balancing National Security and Open Science: A Proposal for Due
Process Vetting,” Yale Journal of Law and Technology, 2005, pp. 2, 15.
185 Gorman, op. cit., pp. 28-29. The proposed survey would use a five-level scaling technique
that would generate a risk score. The survey would “...address the degree to which the
prospective article presents danger to human life, livestock, and agriculture on several axes.”
Survey questions would focus on whether the paper would present a risk to society, render
a vaccine ineffective, contribute to increasing resistance to antibiotic or antiviral agents, lead
to increased virulence of a pathogen, increased transmissability of a pathogen, alter the host
range of a pathogen, permit evasion of diagnosis or detection, or contribute to weaponization
of a biological agent (Gorman, pp. 33-34). It would also assess the potential for a
“malevolent actor” to “use the science in question,” the extent of damage from misuse, and
the potential for publication of the material to promote “conversion of benign” already
published articles to more sensitive status (Gorman, pp. 35-37).
186 Gorman, op. cit., pp. 21-22
187 Gorman, op. cit., p. 21.
188 Gorman, op. cit., p. 21.
189 Gorman, op. cit., pp.23, 43.

Reportedly, the CDC expected 817 entities to register under the new select agent rule.
Instead, only 323 facilities are registered with the CDC, which indicated that many
institutions have discontinued their work with select agents.”190 There are also
complaints that U.S. “select agent” rules can hinder cooperation from foreign
scientists who cannot afford security controls and that many foreign laboratories do
not meet the standards for conducting such research demanded by the U.S.
government. As a result, foreign partners, some charge, may be forced to become
“mere sample exporters,” and criminal sanctions might be applied to the U.S. partner
in a foreign collaboration if the foreigner partner’s laboratory does not meet U.S.
research security standards.191 Complaints about the CDC’s “information security”
manual have led to concern by influenza researchers that the CDC is not releasing
databases of virus sequences and other data needed to develop flu vaccines, thereby
potentially damaging the development of public health protections.192
In addition, at the first NSABB meeting, some members suggested that instead
of formal restrictions, ethics education for researchers would suffice to deal with
potential problems.193 Others suggest that controls on biological research information
could constrain the exchange of information needed to develop effective defenses
against dangerous pathogens.194 A National Academies report, Seeking Security;
Pathogens, Open Access and Genomic Data Bases, published in 2004, that had been
requested by the National Science Foundation and the Central Intelligence Agency,
concluded that there should be no change in current policies that allow scientists and
the public unrestricted access to genome data on microbial pathogens. Access, it
concluded, improves the nation’s ability to fight both bioterrorism and naturally
occurring infectious diseases.195 Open access to raw sequence data is unlikely to help
bioterrorists develop weapons, and preventing distribution of such information could
hurt research to prevent bioterrorism and emerging diseases such as severe acute
respiratory syndrome (SARS). Genomic information about most dangerous
pathogens is already available, it said, and if the government wants to restrict
distribution of information in the future, such information should be classified. The
report concluded that security against bioterrorism would be achieved best by
policies that facilitate, not limit, the free flow of this information. In May 2005, the
DHHS attempted to prevent the National Academy of Sciences from publishing an
article in the Proceedings of the National Academy of Sciences on how the U.S. milk
supply could be tainted with botulism and control measures to prevent it. The

190 See Gaudioso and Salerno, “Biosecurity and Research: Minimizing Adverse Impacts,”
Science, Apr. 30, 2004, op. cit. See also CRS Report RL31719. op. cit.
191 Richard Stone, “Select Agents: Heightened Security or Neocolonial Science?,” Science,
Dec,. 24, 2004.
192 Rebecca Carr, “CDC Locks Up Flu Data,” The Atlanta Journal-Constitution, Oct. 3,


193 “Rules of Engagement,” op. cit.
194 Laura Donohue (fellow at the Center for International Security and Co-operation),
“Censoring Science Won’t Make Us Any Safer, The Washington Post, June 26, 2005, p. B05
195 The report is Seeking Security: Pathogens, Open Access, and Genome Databases. Cited
in David Malakoff, “Report Upholds Public Access to Genetic Codes,” Science, Sept. 17,


Academy published it on the grounds that the benefits of publishing the paper giving
biodefense guidance outweighed any threats.196
Other nations and international scientific groups have addressed this issue. For
instance, reportedly a December 13, 2004 paper issued jointly by the United
Kingdom’s Royal Society and the Wellcome Trust urged caution on government
intervention. The joint paper said “government should ask scientific societies and
funding institutions to take more responsibility for vetting and preventing the
dissemination of risky technical details. The paper suggested that grant review forms
could include a check box for bioterror issues to ensure that they are considered.”197
Also, at a meeting in June 2005 in Geneva, life scientists from several countries
sought to develop a code of conduct. Biosafety in life sciences research was also a
topic of discussion at an Organization for Economic Cooperation and Development
(OECD) International “futures” program meeting in September 2004, and the
National Academies held an International Forum on Biosecurity in Como, in March
2005 to discuss convergence on codes of conduct and oversight of biosecurity
research. 198
Issues Dealing with Geospatial Information
There is considerable controversy about providing access to certain types of
geospatial information, including satellite imagery and maps depicting ordinary
geographic features, buildings, sensitive facilities, hazardous materials storage
facilities, and so forth.
Supporting more open access to such information, in March 2004, the RAND
Corporation released a study recommending that the federal government should not
remove geospatial information such as maps and imagery from public availability
because much of it is not current enough to meet terrorists’ needs, terrorists can
obtain such information from other sources, and the public benefits from access to
much federal geospatial information. Instead, it recommended that the federal
government develop an analytical process to assess the potential homeland security
sensitivity of specific publicly available geospatial information using three filters:
usefulness, uniqueness, and societal benefits and costs.199 Subsequently, in June
2005, the Homeland Security Group of the Federal Geographic Data Committee, an

18-member federal interagency group that coordinates geospatial data, issued for

196 Kelly Field, “Federal Officials Ask National Academy of Sciences Not to Publish Paper
on Bioterrorism,” Chronicle of Higher Education, June 6, 2005; Richard Monastersky and
David Glenn, “National Academy of Sciences Publishes Paper that U.S. Calls ‘Road Map
for Terrorists,’” Chronicle of Higher Education, July 8, 2005.
197 Eliot Marshall, “Biodefense: Experts Warn Against Censoring Basic Science,” Science,
Dec. 17, 2004.
198 Janet Coleman, “Dual Use International Dialogue Hampered by Lack of Recognition of
Biosecurity Risk,” Research Policy Alert, July 11, 2005.
199 John C. Baker, et al., Mapping the Risks: Assessing the Homeland Security Implications
of Publicly Available Geospatial Information, Prepared for the National Geospatial-
Intelligence Agency, RAND National Defense Research Institute, 2004, pp. xvii-xxxiv.

consideration interim200 and then final guidelines for public, private, and nonprofit
organizations that originate and publicly disseminate geospatial data.201 The
guidelines seek to balance “security risks and the benefits of geospatial data
dissemination” and suggest how organizations can use risk-based procedures to
provide access to data while protecting sensitive information. The group observed
that safeguarding is justified only for data that contain sensitive information that is
difficult to observe and not available from open sources, that are the unique source
of the sensitive information, and for which the security risk outweighs the societal
benefit of dissemination. Two options were offered to handle sensitive data before
public release — changing it to remove or modify the sensitive information by
summarizing it, blurring details, and so forth; or restricting the data but maintaining
it in original form and making it available to those who need it, such as first
responders. 202
Congressional action in 2004 tightened controls on some geospatial information.
Section 914 of P.L. 108-375, the Defense Authorization Act FY2005, signed on
October 28, 2004, authorized a new FOIA exemption three category permitting the
withholding from public disclosure of land remote sensing information prohibited
from sale to nongovernment or government-approved customers for reasons of
national security and under license as described by the Land Remote Sensing Policy
Act of 1992, (15 U.S.C. Section 5601 et seq.). Such information may not be
exempted from disclosure to Congress; information disclosed to state or local
government may not be made available to the public; and agencies are required to
protect such information from disclosure. On November 18, 2004, the DOD’s
National Geospatial Intelligence Agency (NGA) announced that for security reasons,
as well as for reasons of potential intellectual property rights violations for
information gathered commercially in other countries, it would “... remove its Flight
Information Publications (FLIP), Digital Aeronautical Flight Information File
(DAFIF), and related aeronautical safety of navigation digital and hardcopy
publications from public sale and distribution.”203 After the review of comments was

200 “Guidelines for Providing Appropriate Access to Geospatial Data in Response to Security
Concern,” Sept. 7, 2004, available at [http://www.fgdc.gov/policyandplanning
201 U.S. Geological Survey, Federal Geographic Data Committee, Final Guidelines for
Providing Appropriate Access to Geospatial Data in Response to Security Concerns, June

2005. Available at [http://www.fgdc.gov].

202 Final Guidelines for Providing Appropriate Access to Geospatial Data in Response to
Security Concerns, op. cit., pp. 1-2.
203 The agency’s notice of rulemaking said it sought to accomplish the following objectives:
“safeguarding the integrity of Department of Defense (DOD) aeronautical navigation data
currently available on the public Internet; preventing unfettered access to air facility data
by those intending harm to the United States, its interests or allies; upholding terms of
bi-lateral geospatial data-sharing agreements; avoiding competition with commercial
interests; and avoiding intellectual property/copyright disputes with foreign agencies that
provide host-nation aeronautical data” (National Geospatial-Intelligence Agency (NGA),
Department of Defense, “Modification to Announcement of Intent To Initiate the Process
To Remove Aeronautical Information From Public Sale and Distribution,” Federal Register,

completed in November 2005,204 the agency implemented its plan. However, its
rationale for removal of information focused exclusively on the intellectual property
rights issue, not the security dimensions.205
In contrast to restraining information, legislation has been introduced to expand
use and applications of federal remote sensing data. During the 109th Congress, H.R.

426, “Remote Sensing Applications Act of 2005,” reported favorably on June 27,

2005 (H.Rept. 109-157), would, among other things, direct the Administrator of the
National Aeronautics and Space Administration (NASA) to establish a program of
grants for pilot projects to explore the integrated use of sources of remote sensing and
other geospatial information to address state, local, regional, and tribal agency needs.
It requires the Administrator, when awarding grants, to give preference to specified
types of projects. The bill did not contain language constraining use of data. No
further action occurred.
The Department of Homeland Security’s SBU
The DHS issued an internal management directive (MD 11042) on
“Safeguarding Sensitive But Unclassified (For Official Use Only) Information” on
May 11, 2004, to safeguard SBU information within DHS. Such information would
be labeled For Official Use Only (FOUO)206 and would be defined “to identify
unclassified information of a sensitive nature, not otherwise categorized by statute
or regulation the unauthorized disclosure of which could adversely impact a person’s
privacy or welfare, the conduct of Federal programs, or other programs or operations
essential to the national interest.” Portions of the memorandum generated
considerable opposition because of its mandatory and punitive employee and
contractor nondisclosure requirements. In January 2005, the controversial
requirements were replaced with requirements to educate employees in security
practices, and the document was reissued as MD 11042.1.207 Contractors are still

203 (...continued)
Dec. 17, 2004, vol. 69, no 242, pp. 75517-75518).
204 See the release at [http://www.nga.mil/NGASiteContent/StaticFiles/OCR/nga0509.pdf].
205 “The National Geospatial-Intelligence Agency To Go Forward with Proposal to Remove
Aeronautical Data from Public Access Release,” NGA press release no. 05-17, Nov. 29,

2005, [http://www.fas.org/sgp/news/2005/11/nga112905.html].

206 DHS, Safeguarding Sensitive But Unclassified (For Official Use Only) Information,
MD11042, May 11, 2004, available at http://www.dhs.gov/interweb/assetlibrary
207 In Aug. 2004, DHS promulgated requirements for its employees and contractors to sign
a nondisclosure agreement to handle and protect PCII, SSI and other “other SBU”
nonclassified information. Among its provisions, it stated that penalties for violation could
include “administrative, disciplinary, civil, or criminal action,” and that signing the
nondisclosure agreement also allows the government “to conduct inspections, at any time
or place, for the purpose of ensuring compliance” (DHS Non-disclosure Agreement, DHS

required to sign nondisclosure agreements, and DHS employees and contractors are
still subject to administrative or disciplinary action for violating the policies.208
The directive identified several types of control labels that could be SBU,
including FOUO, CII, and SSI and so forth and 11 types of sensitive unclassified
information that can be designated for official use only (FOUO) — a type of SBU —
by any DHS employee, consultant, or contractor. The list includes one clearly
identifiable technology-related item, which conceivably might include the results of
DHS-sponsored or conducted scientific research and development:
(k) Developing or current technology, the release of which could hinder the
objectives of DHS, compromise a technological advantage or countermeasure,
cause a denial of service, or provide an adversary with sufficient information to209

clone, counterfeit, or circumvent a process or system.
207 (...continued)
Form 11000-6 (08-04). Some federal employee unions criticized the requirement saying that
it duplicated regulations that protect certain types of information, (“Homeland Security,”
Washington Post, editorial, Dec. 3, 2004, p. A26), that it imposed criminal prosecution for
disclosing information that is to be made available under FOIA, that it infringed on of free-
speech rights (Eileen Sullivan, “Searchers and Gag Orders: Homeland Security’s
Unprecedented Campaign Cloaks Unclassified Info,” FederalTimes.com, Dec. 6, 2004), and
that it would allow “... officials to suppress and cover up evidence of their own misconduct
or malfeasance by stamping documents ‘for official use only....’”Sullivan, op. cit.) It was
reported that congressional staffers had been asked, and refused, to sign such statements on
the grounds that they need to oversee the agency (Chris Strohm, “Homeland Security
Reverses Secrecy Policy But Protests Persist,” Gov Exec.com, Jan. 12, 2005).
208 Regulations for DHS contractors to sign nondisclosure agreements for access to sensitive
but unclassified information appear in DHS’s Supplement to the Federal Acquisition
Regulation (FAR), sec. 3037.103-71, “Conditional Access to Sensitive But Unclassified
Information.” It was reported that DHS required participants in an unclassified workshop
it sponsored at Booz Allen Hamilton on “Anticipating the Unanticipated,” “to consider
novel weapons and tactics that might be employed by terrorists,” to sign a nondisclosure
agreement (Steven Aftergood, “More Non-disclosure Agreements for Unclassified Info,”
Secrecy News, Dec.1, 2004). See also Chris Strohm, “Homeland Security Reverses Secrecy
Policy But Protests Persist,” Gov Exec.com, Jan. 12, 2005; “Homeland Security Officials
End Workers’ Pledge of Secrecy,” Technology Daily, AM Edition, Jan. 13, 2005;
“Homeland Security,” Washington Post, editorial, Dec. 3, 2004, p. A26.
209 The other items in the list are (a) information of the type that may be exempt from
disclosure per 5 U.S.C. 552, Freedom of Information Act, and its amendments; (b)
information exempt from disclosure per 5 U.S.C. 552a, Privacy Act; (c) information within
the international and domestic banking and financial communities protected by statute,
treaty, or other agreements; (d) other international and domestic information protected by
statute, treaty, regulation or other agreements; (e) information that could be sold for profit;
(f) information that could result in physical risk to personnel; (g) DHS information
technology (IT) internal systems data revealing infrastructure; (h) systems security data
revealing the security posture of the system; (I) reviews or reports illustrating or disclosing
facility infrastructure or security vulnerabilities; and (j) information that could constitute an
indicator of U.S. government intentions, capabilities, operations, or activities or otherwise
threaten operations security (MD 11042 Issue Date: 5/11/2004, Revised as MD 10042.1,
Jan. 2005, op. cit., available at [http://www.fas.org/sgp/othergov/dhs-sbu-rev.pdf]).

P.L. 107-296 specified that, if “practicable,” DHS’s research is to be
unclassified, but the Presidential signing statement may have mitigated this
provision.210 It remains to be seen how this SBU regulation will affect information
generated by DHS-funded research and development grants and contracts, and what
the response will be of universities that conduct research for DHS under its academic
centers of excellence programs.
Access to the information covered by the DHS SBU directive is on a “need-to-
know” basis, and information can be shared with cleared homeland security
personnel at state and local levels. The directive said the use of the FOUO
designation did not automatically exempt information from disclosure under FOIA
but “[i]nformation requested by the public under a FOIA request must still be
reviewed on a case-by-case basis.” The information would retain the FOUO
designation until the originator or other officials determine otherwise. Procedures
to protect and disseminate such information outside of DHS were spelled out,
including requirements for secure storage and suggestions for encrypted Internet and
telephone communications. Some other agencies also require employees to sign
nondisclosure agreements in order to protect SBU information.211 (See below in the
section labeled “Critique of Nondisclosure Requirements.”)
Contentious Issues, Together With Legislative
Action and Other Options
The need to balance security and access poses a dilemma for policymakers that
was captured in the text of a joint report prepared in December 2004 by the Heritage
Foundation and Center for Strategic and International Studies. The report noted that
“[I]t is necessary to strike the right balances in sharing information with or
withholding information from the public. Policies that are either overly neglectful
or overzealous ill serve efforts to enhance homeland security.”212 Some critics

210 Section 306(a) of P.L. 107-296 provides that “to the greatest extent practicable, research
conducted or supported by the ... DHS shall be unclassified.” However, “President Bush’s
signing statement ... states that the executive branch will ‘construe and carry out’ this
section, and other provisions of the law, including those addressing information analysis and
infrastructure protection, ‘in a manner consistent with the President’s constitutional and
statutory authorities to control access to and protect classified information, intelligence
sources and methods, sensitive law enforcement information, and information the disclosure
of which could otherwise harm the foreign relations or national security of the United
States.’” From [http://www.whitehouse.gov/news/releases/2002/11/print/20021125-
10.html], as] cited in U.S. Library of Congress, Federal Research Division, Laws and
Regulations Governing the Protection of Sensitive But Unclassified Information. A Report
Prepared ... Under an Interagency Agreement with the NASA Office of Inspector General.
Project Manager: Alice R. Buchalter, Sept. 2004, p. 8.
211 Eileen Sullivan, “Searches and Gag Orders: Homeland Security’s Unprecedented
Campaign Cloaks Unclassified Info,” Federal Times, Dec. 6, 2004, “Homeland Secrecy,”
Washington Post, Dec. 3, 2004, p. A26.
212 James Jay Carafano and David Heyman, DHS 2.0: Rethinking the Department of

contend that many government-instituted controls on sensitive information, or on
scientific and technical information, may be unwarranted. For instance, OMB Watch,
an interest group newsletter that advocates more access to information, maintains an
inventory and website that lists information that federal and state agencies have
removed from public access for security reasons.213 In March 2005, Steven
Aftergood, the editor of Secrecy News, published online by the Federation of
American Scientists, catalogued information deleted, sometimes, he contends,
inappropriately, from government files or to which public access has been denied.
This information includes unclassified technical reports from the Los Alamos
National Laboratory, 30- to 50-year old historical records at the National Archives,
orbits of Earth satellites, aeronautical maps, and data previously available from the
National Geospatial Intelligence Agency.214
Some of the critiques of information control policies in specific scientific and
technical arenas have already been described in this report. In addition, a number of
criticisms have been made that cut across sensitive information controls broadly and
may influence decisions about balancing security and access to sensitive unclassified
information. These criticisms, which are discussed next, focus on allegations that
some controls can exacerbate vulnerability or stifle scientific research and
technological innovation; vagaries in nondisclosure requirements; the relationship of
SBU to FOIA; inconsistency in agencies’ definitions of and processes to identify
SBU information; developing a standard definition of SBU information; monitoring
agency use of risk-based standards for SBU; and recommendations for better
governance of SBU information procedures. These sections also identify legislation
that has been introduced and action Congress has taken on some of these issues.
Allegations That Some Controls Can Exacerbate Vulnerability
and Stifle Scientific Research and Technological Innovation
Sensitive information controls may protect vulnerable buildings and public
services from terrorist threats, but some critics allege that preventing access to such
information can exacerbate vulnerabilities and stifle the development of innovations
to enhance protection. According to one critic,
A large sign in New York City, indicating the location of a natural pipeline was
taken down after a website posted a photograph of the sign.... Although federal
regulations require that the location of natural gas lines be made as obvious as
possible to the public for safety reasons, the company that owns the pipeline
asserted that local laws allowed the sign’s removal. ... The regulations requiring
that natural gas pipelines be clearly marked were established to prevent
accidental rupture that often causes injuries an deaths to residents, contractors,

212 (...continued)
Homeland Security, Heritage Foundation Special Report SR-02, Dec. 13, 2004, pp. 20-21.
213 Available at [http://www.ombwatch.org/article/articleview/213#agency].
214 Steven Aftergood, “The Age of Missing Information,” Mar. 17, 2005, available at

and energy responders. Ironically, removing such information puts the public in215
greater danger of lethal accidents.
Some say that protections on information access and dissemination are
especially burdensome to scientific research and academic research and that the
scientific community’s potential to generate knowledge and innovations to assist in
combating terrorism could be compromised by overzealous information security216
controls. For instance, “[t]errorists will obtain knowledge,” one critic emphasized.
“Our best option is to blunt their efforts to exploit it. Keeping scientists from sharing
information damages our ability to respond to terrorism and to natural disease, which
is more likely and just as devastating. Our best hope to head off both threats may217
well be to stay one step ahead.”
On October 18, 2002, the three presidents of the National Academies issued a
statement that sought to balance security and openness in disseminating scientific
information. It summarized the policy dilemma by saying that “restrictions are
clearly needed to safeguard strategic secrets; but openness also is needed to
accelerate the progress of technical knowledge and enhance the nation’s
understanding of potential threats.” The statement encouraged the government to
reiterate government policy that basic scientific research should not be classified, that
nonclassified research reporting should not be restricted, and that vague and poorly
defined categories of research information, such as sensitive but unclassified, should
not be used. “The inevitable effect is to stifle scientific creativity and to weaken
national security.” The statement outlined “action points” for both government and
professional societies to consider when developing a dialogue about procedures to
safeguard scientific and technical information that could possibly be of use to
potential terrorists. An American Civil Liberties Union (ACLU) report addressing
governmental restrictions on science, observed that “[t]he ‘sensitive but unclassified’
and equivalent categories that effectively bar public access to information must be218
eliminated. All information should either be properly classified or unrestricted.”
Similarly, the American Association of University Professors recommended, “We
should resist or seek to repeal efforts to regulate unduly, or to make secret, the results
of lawful research projects under novel uses of the “sensitive but unclassified”219
rubric.” The National Academies held a workshop on this subject early in 2003,
in cooperation with the Center for Strategic and International Studies. Subsequently,
the CSIS and the Academies established a “Roundtable on Scientific Communication
and National Security,” a working group composed of scientific and security leaders
that will hold continuing discussions to try to develop a workable publications policy.
(For additional information, see the aforementioned CRS Report RL31845.) The
National Academies also have a separate Committee on Scientific Communication

215 “Security Measures Invoked to End Safety Measures,” OMB Watch, Sept. 7, 2004.
216 Donohue, op. cit., p. B05.
217 Donohue, op. cit., p. B05.
218 ACLU, Science Under Siege, op. cit., p. 32.
219 Academic Freedom and National Security in a Time of Crisis, American Association of
University Professors Special Committee on Academic Freedom and National Security in
a Time of Crisis, Oct. 2003.

and National Security (CSCANS), whose purpose is to clarify “the national interest
with regard to these issues, and inform the policy debate on the relationship between
science and national security.”220 The Academy also established a Committee on a
“New University-Government Partnership for Science and Security,” to hold regional
that will 1) bring together faculty and research administrators, government
officials from research and national security agencies, and congressional
members; and 2) focus on a. restrictive clauses in federal contracts and
grants; b. dissemination of scientific information; c. sensitive but
unclassified information; and d. the management of biological agents in 221
academic research.
A legal author argued that including SBU information clauses in contracts is
“constitutionally suspect,” especially with regard to university-conducted research
that is supported as an essential public good. Use of the term SBU raises “... the
possibility of government censorship of private speech ... the primary danger222
addressed by the Free Speech Clause,” and imposes “... a prior restraint on private
speech,”223 even though there may not be enough of a threshold level of national
security danger to overcome the right to free speech. These considerations,
... suggest ... that SBU secrecy controls that reach into university discourse pose
a particular danger because of the special role of the university in promoting
innovation and expression outside of government control and because, with
respect to scientific information in particular, the university has a special role in
conducting research for the purpose of expansion and dissemination of
knowledge. Although the government shapes expression on university campuses
in many ways, the expectation is that expression not identified as the
Government’s will be unconstrained. The special role of the university thus must224
weigh in the constitutional balance.
According to this author, government may have a legitimate constitutional right to
protect SBU information in contracts, if there is sufficient national security reason,
if uniform definitions linked to specific levels of national security danger are used,
if there are review procedures, and if the method used to control information is the
least restrictive necessary to fulfill the government’s legitimate interests.225
Some say that placing controls on unclassified information could negatively
affect governmental relations with the private sector and procurement for information
technology and other contracts. New ideas for information security technologies,

220 From [http://www7.nationalacademies.org/rscans/].
221 Available at [http://www8.nationalacademies.org/cp/projectview.aspx?key=177.].
222 Leslie Gielow Jacobs, “A Troubling Equation in Contracts for Government Funded
Scientific Research: ‘Sensitive But Unclassified’ = Secret But Unconstitutional,” Journal
of National Security Law and Policy, 2005, p. 127.
223 Jacobs, op. cit., p. 128.
224 Jacobs, op.cit., p. 156.
225 Jacobs, op. cit., pp. 157-159.

including hard technology, software and biotech-related products, often come from
overseas, as do bids for contracts to handle sensitive agency information.
Reportedly, foreign vendors will have trouble complying with contracts that need to
meet information security standards. It has been reported that requests for proposals
(RFPs) coming from the Defense Security Services involving data processing for its
SBU information say that employees of potential vendors need to be U.S. citizens,
with background checks. DHS and DOT procurement rules involving sensitive
information specify background checks for prime or subcontractors and that
nondisclosure forms have to be signed.226
There is also the view that scientists who voluntarily agree to pre-research and
prepublication reviews of research articles could harm a university’s ability to
conduct fundamental research involving foreigners as permitted by National Security
Decision Directive-189 (NSDD-189) and related regulations. (For additional
information, see a previous section of this report entitled “Summary of Federal
Policies to Classify or Control Scientific and Technical Information.” According to
Robert Hardy of the nonprofit Council on Governmental Relations
... by placing restrictions on publishing ... the [Department of Homeland
Security-funded centers of excellence] could risk losing the privileges that
universities enjoy because they do fundamental research — defined a work
whose results are ‘published and shared broadly within the scientific
community.’ One important privilege is being able to involve foreign nationals227
in any research project without obtaining a government license.
Critique of Nondisclosure Requirements
A number of agencies require employees, contractors, and users of sensitive
information to sign nondisclosure agreements or impose penalties for disclosing SBU
and related information. Some critics contend that language relating to penalties is
often vague, varies from agency to agency, and that some agencies’ mandatory
nondisclosure provisions and associated penalties for disclosure might weaken
federal employee rights and whisteblower protections. Some agencies’ policies are
illustrated in Appendix A, elsewhere in this report, and in other reports.228 For
example, nondisclosure agreements are authorized in P.L. 107-296 relating to sharing
of SHSI with state and local government personnel (sec. 892) and for handling SSI
(sec. 1601). Section 214 of the law allows penalties consisting of imprisonment,
fines, administrative penalties or dismal from employment for employees of DOT
and DHS who inappropriately share CII information. DHS Management Directive

226 Alison Diana, “Law Expert Marcia Madsen on the Government IT Goldmine,”
Technewsworld, Mar. 5, 2004.
227 Yudhijit Bhattacharjee, “Scientific Openness,” Should Academies Self-censor Their
Findings on Terrorism,” Science, May 19, 2006, p. 994.
228 For example, see, CRS Report RL33494, op. cit; National Security Archive, Pseudo-
Secrets” A Freedom of Information Act Audit of the U.S. Government’s Policies on Sensitive
Unclassified Information, Washington, Mar. 2006, and GAO, Information Sharing, The
Federal Government Needs to Establish Policies and Processes for Sharing Terrorism-
Related and Sensitive but Unclassified Information, April 2006, GAO Report GAO-06-385.

11042.1 prescribes penalties consisting of administrative or disciplinary actions for
DHS employees and contractors for disclosing SBU information. DHHS has
nondisclosure provisions and penalties for disclosure of select agent information and
other sensitive information, as does the CDC for SBU information and the USDA,
for sensitive information. The Department of the Treasury requires that certain
bidders sign nondisclosure agreements for SBU information.229 The Department of
Energy (DOE) and the Nuclear Regulatory Commission (NRC) may penalize
unauthorized release of certain types of SBU information and unclassified nuclear
information. In addition, users of federal SBU information exchange systems are
subject to nondisclosure provisions and usually are required to have clearances to
view such information. (For details, see Appendix B to this report.) The General
Services Administration attaches to business solicitations detailed explanation of
how its bidding documents will be available only to authorized firms that have
completed forms allowing them access to “sensitive but unclassified” bidding
information. Such firms need to complete a document attesting that they will
undertake reasonable care, and limit dissemination to authorized users who have a230
“need to know.”
Penalties for disclosing SBU information can be more punitive than for
disclosing classified information according to J. William Leonard, the director of the
Information Security Oversight Office, (ISOO) at the NARA:
For example, should a Federal employee disclose certain unclassified
information - specifically Critical Infrastructure Information - in an unauthorized
manner, that individual now is subject to criminal sanctions under Section 214(f)
of the Homeland Security Act. At the same time, an unauthorized disclosure of
certain types of classified information by that same employee would not
necessarily be subject to criminal sanctions. The reason for such disparity is not231
readily apparent.
The Project on Government Oversight, a watchdog group, criticized the revised
DHS employee nondisclosure policy released in January 2005, saying it is “still
problematic” because DHS “... prevents employees from disclosing information that232
is available to the public under the Freedom of Information Act [FOIA].”
Legislation Introduced Affecting Disclosure Policies. Legislation was
introduced which may be responsive to some of these concerns. During the 109th
Congress, S. 494, “The Federal Employee Protection of Disclosures Act,” which was
reported without amendment on May 25, 2005 (S.Rept. 109-72), would among other
things protect any federal employee who lawfully discloses evidence of waste, abuse
or mismanagement, including disclosure of classified information if made to

229 For example, Department of the Treasury, “Solicitation TIRNO-04-R-00001, Conditional
Access to Sensitive but Unclassified Information Non-disclosure Agreement,” [for a
Treasury Communications Enterprise (TCE) procurement].
230 See, for example “Z — Chiller Replacement, Christie and Federal Bldg., Huntington,
WV,” FPO Daily, May 22, 2003.
231 Leonard, June 12, 2003, op. cit.
232 Strohm, Jan. 12, 2005, op. cit.

Members of Congress or staff authorized to receive it. It also would authorize the
Merit Systems Protection Board to review charges for retaliation for whistleblowing;
require all agency nondisclosure forms to contain language preserving the right of
federal employees to disclose certain information, and amend the Homeland Security
Act of 2002 to allow federal employees to disclose independently obtained critical
infrastructure information for specified whistleblower purposes. The House version
of the “Federal Employee Protection of Disclosures Act,” H.R. 1317, was amended
and reported on June 29, 2006, by the House Committee on Government Reform
(H.Rept. 109-544, pt. 1), and then referred to the House Committee on Armed
Services and the House Committee on Homeland Security on September. 11, 2006.
This proposal and a related bill, H.R. 3097, would protect any federal employee who
lawfully discloses what he or she believes is credible evidence of waste, abuse, or
gross mismanagement, without restriction as to time, place, form, motive, context,
or prior disclosure. Exempt under H.R. 1317, would be information held by such
agencies as the Federal Bureau of Investigation, the Central Intelligence Agency, the
Defense Intelligence Agency, the National Geospatial-Intelligence Agency, and the
National Security Agency.
S. 888, introduced on April 21, 2005, “Homeland Security Information
Guidance and Training Act of 2005,” and referred to the Committee on Homeland
Security and Governmental Affairs, would require DHS, among other things, to
establish best practices for state and local governments in making determinations
about public disclosure and sharing among emergency management personnel of
sensitive nonfederal homeland security information and to provide training based on
a best practices curriculum. No further action has occurred.
SBU Information in Relation to FOIA
Agencies differ about whether or not SBU information is automatically exempt
from disclosure under FOIA. This contentious policy issue has been addressed in
existing law, Department of Justice (DOJ)documents, congressional hearings, and in
statements issued by the American Bar Association, among others. Contrasting
differences in interpretation characterize this issue. As noted, the CSA specified it
“was not to be construed to constitute authority to withhold information sought
pursuant to the FOIA, or to authorize any federal agency to limit, restrict, regulate,
or control, among other actions, the disclosure, use, transfer, or sale of any
information disclosable under the FOIA....”233 According to the DOJ’s Freedom of
Information Act Guide, May 2004, SBU and SHSI are not to be exempt from
disclosure under FOIA, except for CII (which is protected pursuant to P.L. 107-296)
and other kinds of sensitive information protected by statute — which now includes
SSI (pursuant to P.L. 107-296), some land remote sensing geospatial information
(pursuant to P.L. 108-375), and some information controlled by the Nuclear
Regulatory Commission. As Relyea and Seifert conclude “[i]t seems unlikely,
however, that ‘sensitive but unclassified’ homeland security information, per se,

233 101 Stat. 1730: 40 U.S.C. paragraph 759 note, subsequently repealed in 1996, 110 Stat.

680, As cited in Relyea and Seifert, op. cit., p. 19.

could be protected from disclosure pursuant to the FOIA because it does not appear
to fall clearly within any of that statute’s exemptions.”234
Nevertheless, there is ambiguity. For instance, as described above, the DOJ
Freedom of Information Act Guide describes broad court interpretations that may
permit justifiable withholding of sensitive information under FOIA.235 Also, the
Administration has issued instructions to agencies to attempt to use FOIA to protect
information if release would harm homeland security. The Card memo, discussed
earlier and which guides agencies on handling of SBU information, referred to the
Attorney General’s memo of October 2001, which instructed agencies, when making
discretionary decisions to determine if information is exempt from disclosure under
a FOIA exemption, to withhold information if it is legal to do so. It emphasized that
agencies should to try to withhold sensitive information under FOIA to protect the
nation from terrorist threat, and said that the Department of Justice would support
agency determinations.
Agencies also differ on how requests to release information under FOIA will be
handled. Illustrations of the variety in federal agencies’ proposed or existing policies
are given in Appendix A and are outlined here. The Nuclear Regulatory
Commission (NRC) issued proposed rules in February 2005 for “Safeguards
Information” (SGI) — unclassified sensitive information deemed too sensitive for
public release, which it said should be withheld from public access and released only236
to those with a “need to know” even though it was not classified. In 2005
guidance, CDC said its SBU information is information that is exempt from237
disclosure under FOIA. This was modified in 2006 to require that if a request is
received for a document marked SBU, it should be reviewed to determine if it

234 Relyea and Seifert, op. cit., p. 20.
235 According to the DOJ Freedom of Information Act Guide, May 2004, SHSI and SBU are
not automatically to be classified pursuant to Executive Order 12958 and “[t]erms such as
‘SHSI’ and ‘SBU’ describe broad types of potentially sensitive information that might not
even fall within any of the FOIA exemptions....” See the discussion on exemption one.
Furthermore, use of these labels does not provide protection from disclosure under any
exemption. When discussing exemption two, the Guide reviewed the ability to withhold CII
data under exception 3 and exemption 2’s protections for such homeland security-related
information as agency vulnerability assessments and evacuations of CII. It noted that
“[s]ince September 11, 2001, all courts that have considered nonclassified but nonetheless
highly sensitive information, such as container-inspection data from a particular port ... or
maps of the downstream flooding consequences of dam failure ... have justifiably
determined — either under exception 2, or, upon a finding of a law enforcement connection
... under exemptions 7 (e) or 7 (f) — that such information must be protected from
disclosure.....” The same discussion noted that under exemption two, agency officials
should protect internal agency records that could cause harm.
236 As authority, it cited section 147 of the Atomic Energy Act of 1954 as amended and
specifically, 10 CFR 2.390. For additional information about the NRC process, see
Appendix A to this report.
237 See Appendix A to this report. The source is Sensitive Information Protection Manual,
attached to a directive. “Sensitive But Unclassified Information,” Manual Guide-Information
Security CDC-02, July 22, 2005, not paginated, see about p.3, 8, 10. First reported in “CDC
Issues Policy on Sensitive But Unclassified Info,” Secrecy News, Aug. 2, 2005.

qualifies for an exemption under FOIA and withholding.238 DHS’s management
directive 11042.1 on SBU said all information identified as SBU should be labeled
FOUO and would include any information that might adversely affect the national
interest or the conduct of federal programs; information so labeled and requested
under FOIA would be released only on a case-by-case basis, will not be distributed
to unauthorized persons, and should be protected and disseminated only to those with
a “need to know.” The DHS draft directive on categorical exemptions for
environmental impact information, dated June 14, 2004, proposed exclusion for
disclosure under FOIA. Some parts of DOD automatically exempt SBU information
from FOIA. Thus, according to the Defense Security Service, “[t]he term sensitive
unclassified information as used here is an informal designation applicable to all
those types and forms of information that, by law or regulation, require some form
of protection but are outside the formal system for classifying national security
information. As a general rule, all such information may be exempt from release to
the public under the Freedom of Information Act.”239 Other parts of DOD use the
FOUO designation only for documents already exempt from FOIA.240
DOE equates SBU and OUO, requiring that information be exempt under one
of FOIA exemptions two through nine, and exempts all SBU information, which it
calls OUO, from disclosure under FOIA, except that it says it will be made available
to those with a “need to know” for their jobs.241 The Federal Energy Regulatory
Commission (FERC) issued a final rule outlining access procedures to critical energy
infrastructure information (CEII), an SBU category it uses only for information that
is exempt from disclosure under FOIA but that it makes available to those with a
“need to know.” A congressional witness criticized this policy:
The most glaring problem with FERC’s policy is that it is based on the
assumption that this information is exempt from disclosure under FOIA.
However, FERC’s claims are based not on any court-accepted interpretation of
FOIA, but on the Justice Department’s potpourri of possible exemptions. ...The
other problem is that FERC wanted to continued to share this information during
its proceedings, requiring it to create a non-FOIA process of disclosure to those
parties with a ‘need to know,’ which required parties to sign a nondisclosure

238 CDC, Sensitive But Unclassified, February 2006, as posted at
[http://www.fas.org/sgp/othergov/cdc-sbu-2006.html], by Steven Aftergood, Secrecy News,
Feb. 27, 2006.
239 Defense Security Service, Employees Guide to Security Responsibilities, “Protecting
Sensitive Unclassified Information,” http://www.dss.mil/search-
240 “Background on Sensitive But Unclassified Information,” OMB Watch,
[http://www.ombwatch.org/ article/archive /238?T opicID=2].
241 See Appendix A. Source: DOE, “Commission on Science and Security in the 21st
Century, DOE accompanied by Recommendations, June 20, 2002. The statement referenced
a DOE document Subject: Identifying and Protecting Official Use Only Information, DOE
Order M 471.3-1, Apr. 9, 2003 (which is current through Apr.2007).

agreement. It is difficult to see how information that was previously public could242
become non-public based solely on agency regulations.
Reportedly in 2006, controversy arose between Connecticut’s State Attorney
General and FERC about the state’s attempt to access information regarding a
proposed Liquified Natural Gas (LNG) plant. The state sought information to review
design and safety considerations and to determine whether building the plant would
endanger the health and safety of state residents. Reportedly, FERC says the
information is not publicly releasable because it is critical energy infrastructure
information (CEII), a category of “sensitive but unclassified,” which it says is not
releasable under FOIA.243
According to the USDA, its SBU information, some of which it calls SSI
information, is releasable under FOIA, but that it will process FOIA requests in
accord with the instructions in the Attorney General’s 2001 memo which instructs
agencies to protect the release of sensitive information under FOIA and to be
cognizant especially of exemptions two, three, four and seven.244
As indicated above, some agencies require a form of clearance for persons to see
SBU information or a determination that they have a “need to know,” which could
imply exemption from public disclosure.245 Thomas S. Blanton, Director of the
George Washington University National Security Archive, testified at the March 2,
2005 hearing that use of the term SBU thwarts the intent of FOIA and almost forces
government bureaucrats to withhold such information:
We have heard from officials at the Department of Justice that these new pseudo
classifications are simply guidance for safeguarding information, and do not
change the standards under the Freedom of Information Act. But such a claim
turns out to be mere semantics: In every case, the new secrecy stamps tell
government bureaucrats “don’t risk it”; in every case, the new labels signal “find
a reason to withhold.” In another TSA response to an Archive FOIA request, the
agency released a document labeled “Sensitive But Unclassified” across the top,
and completely blacked out the full text, including the section labeled
“background” - which by definition should have segregable factual information
in it. The document briefed Homeland Security Secretary Tom Ridge on an
upcoming meeting with the Pakistani Foreign Minister, but evidently officials
could not identify any national security harm from release of the briefing, and
fell back on the new tools of SBU, together with the much-abused “deliberative246

process” exemption to the Freedom of Information Act.
242 Testimony by Harry Hammitt before the House Subcommittee on National Security,
Emerging Threats and international Relations, Mar. 2, 2005, p. 7.
243 “Sensitive But Unclassified Info: You Can’t Have It. Why? Because They Say So.” OMB
Watch, Feb. 22, 2006.
244 See Appendix A.
245 See Appendix A.
246 Available at [http://www.gwu.edu/~nsarchiv/news/20050302/index.htm].

Congressional Action, to Clarify FOIA, with Implications for SBU.
On February 13, 2006, the American Bar Association House of Delegates adopted247
a recommendation, accompanied by a background report, that “urges the Attorney
General of the United States to issue a memorandum to Freedom of Information Act
(FOIA) officials at federal agencies clarifying that the designation of agency records
as ‘sensitive but unclassified’ cannot be a basis for withholding agency documents
from release.” The recommendation also called for establishing a standard policy for
“ ... designating information as “sensitive but unclassified; ... the internal handling
of such information; ...taking into account the sensitive nature of such information;
and ... ensuring the release of such information unless exempt under FOIA.”
Legislative action has been taken to clarify the relationship of some SBU
information to FOIA. For instance, as noted above, in 2004, Congress tightened
controls on some geospatial information by creating a new FOIA exemption three
category to permit the withholding of some land remote sensing data (Sec. 914 of
P.L. 108-375). In contrast, during the 109th Congress, H.R. 426, reported out of
committee on June 27, 2005, would expand the applicability and use of remote
sensing and other geospatial information to address state, local, regional, and tribal
agency needs. No further action has occurred.
Additional legislation related to these subjects in the 109th Congress included
S. 622, the “Restoration of Freedom of Information Act of 2005.” It would have
amended P.L. 107-296, the Homeland Security Act of 2002, by limiting voluntarily
submitted critical infrastructure information provisions in the law that create new
exemptions from FOIA; by modifying the FOIA exemption to information submitted
as CII records to prevent all CII information submitted by industry from being
categorized broadly as an agency record subject to withholding under FOIA; by
allowing records to be shared within and between government agencies; by
decriminalizing actions of legitimate whistleblowers who might use such
information; and by not restricting congressional use or disclosure of voluntarily
submitted critical infrastructure information. No action was taken on the bill, which
was referred to the Committee on the Judiciary.
Senator John Cornyn, Chairman of the Senate Judiciary Subcommittee on the
Constitution, Civil Rights, and Property Rights, addressed the alleged lack of
oversight of FOIA and possible over-classification and over-withholding of federal248
information. Subsequently, the Senate Judiciary Committee’s Subcommittee on
Terrorism, Technology, and Homeland Security held a hearing on March 15, 2005
on this topic and on S. 394, the “Openness in Government and Freedom of
Information: Examining the Open Government Act of 2005.” The bill was reported
out of the Senate Judiciary Committee favorably without amendment on September
21, 2006. Among other things, it would amend FOIA with respect to oversight of
requests for information and stricter enforcement of a 20-day deadline to respond to
FOIA requests for release of information. It would also have increased oversight of

247 Available at [http://www.fas.org/sgp/news/2006/02/aba-sbu.pdf].
248 John Cornyn, “Ensuring the Consent of the Governed: America’s Commitment to
Freedom of Information and Openness in Government,” LBJ Journal of Public Affairs, Fall

2004, pp. 7-10.

DHS’s handling of critical infrastructure information submitted by private
corporations. A related house bill is H.R. 867, reported amended by a subcommittee
to the House Committee on Government Reform on September 27, 2006.
S. 589, the “Faster FOIA Act of 2005,” would have strengthened FOIA by
creating an advisory commission tasked with proposing ways to reduce delays in
responding to FOIA requests and would ensure the efficient and equitable
administration of FOIA throughout the federal government. It was reported favorably
without written report and approved by the Senate Judiciary Committee on March 17,
2005. The House companion, H.R. 1620 was referred to the House Committee on
Government Operations. No further action occurred in the House or the Senate.
During the 109th Congress, S. 1181 required that any future legislation to
establish a new exemption to FOIA must be stated explicitly within the text of the
bill. Specifically, any future attempt to create a new so-called “(b)(3) exemption” to
FOIA must specifically cite that section of FOIA. The bill set congressional intent
that documents should be available to the public under FOIA unless Congress
explicitly creates an exception. It would have prohibited applying the FOIA to
matters specifically exempted from disclosure by a statute (other than open meetings
under the Government in the Sunshine Act) enacted after July 1, 2005, that
specifically cite this Act and either: (1) requires that the matters be withheld from the
public in such a manner as to leave no discretion on the issue; or (2) establishes
particular criteria for withholding or refers to particular types of matters to be
withheld. The Senate approved the bill on June 24, 2005; subsequently, it was
referred to the House Committee on Government Reform.
S. 1873, the “Biodefense and Pandemic Vaccine and Drug Development Act of

2005,” introduced in the 109th Congress, would have “prepare[ed] and strengthen[ed]

the biodefenses of the United States against deliberate, accidental, and natural
outbreaks of illness” and would establish a new Biomedical Advanced Research and
Development Agency (BARDA), whose activities and information would be
categorically exempt from disclosure under the Freedom of Information Act (FOIA).
The bill was reported amended without written report by the Senate Committee on
Health, Education, Labor, and Pensions, on October 25. There has been opposition
to such blanket exemption because reportedly, no other federal agency has such
universal exemption from FOIA.249
A revised bill, S. 2564, introduced on Aril 6, 2006, would have modified the
FOIA to permit release of information unless the Secretary of Homeland Security
determines disclosure of scientific or technical data created or obtained while doing
countermeasures R&D might “ ... reveal vulnerabilities of existing medical or public
health defenses against biological, chemical, nuclear, or radiological threats” (Sec.

319L(e)(1)(A).) The House companion bill, H.R. 5533, which also included this

249 Eugene Russo, “Biodefense Bill Flawed, Says American Society For Microbiology, Other
Critics,” Research Policy Alert, Nov. 9, 2005; “Senate Bill Would Increase Biodefense
Secrecy,” at [http://www.fas.org/irp/congress/2005_cr/s1873.html],
[http://pogoblog.typepad.com/pogo/2005/10/bioshielding_in.html], and
[ ht t p: / / www.ar ms cont r ol cent e r .or g/ ar chi ves/ 002155.php] .

provision, passed the House on September 26, 2006 (H.Rept. 109-656). Questions
surrounding precise definitions of the vague term “vulnerabilities” have not been
resolved. 250
Federal Information Systems and Automated Identification
Processes Used for Sensitive Information
Recognition of federal agency use of the category SBU is illustrated by the need,
often mentioned in GAO reports, for agencies to share sensitive information251
especially relating to homeland security, and the fact that agencies are developing
implementation policies and information systems to control and transmit this
category of information among those with a need to know it. In addition, some
agencies have begun to develop encrypted or protected federal information systems
to transmit SBU information to persons who have received approval from an
originator or other form of clearance to use them, including first responders, who
usually need to sign nondisclosure statements and could be punished for violations
of transmittal to third parties. (For additional information, see Appendix B on
“Illustrations of Federal Information Systems Created to Transmit Sensitive But
Unclassified Information Systems.”)252
In addition, some agencies are using visualization analysis or other automated
processes to identify and control sensitive information. For instance, the Idaho
National Laboratory, sponsored by DOE in cooperation with Pacific Northwest
National Laboratory, reportedly has developed an automated system, a software
program called Mozart, that automates identification of sensitive information on a
website by “...using advanced intelligence analysis algorithms, [and] provides a
report that can be used to determine if there is sufficient information on a site’s
Internet web pages to compromise sensitive, proprietary, or classified activities or
support adversarial targeting of individuals and programs.”253 As another example,
the Department of Energy contracted with a research group at the University of
Nevada, Las Vegas, to develop and install on 3,000 computers a program called the
“Homeland Security Classifier.” It reads and sorts electronic text documents “by

250 See for additional information, Project BioShield, by Frank Gottron, CRS Report
251 See, for instance, GAO, High-Risk Series, An Update, Jan. 2005, GAO-05-207, pp. 15-20,
which addresses why the federal government needs to share homeland security information
and to standardize policies. See also Tim Starks and Zack Phillips, “Washington and
Critical Industries Still Feeling Their Way Toward a System to Share Security Data,”
CQHomeland Security, Dec. 14, 2004.
252 See also CRS Report RL32597, op. cit.
253 Greg Griffin, “Program Management Perspective: Sensitive Unclassified Information,”
The Dragon’s Breath, April 2003. See also [http://wwww.pnl.gov/isrc/mozart.faq.html]. See
also, a document issued by the Pacific Northwest National Laboratory, a Department of
Energy affiliated national laboratory, in “F.A.Q. Mozart,” at
[http://www.pnl.gov/isrc/mozart/faq.html ].

applying the same rules used by human classifiers” to identify sensitive nonclassified
information, or to categorize a document as releasable.254
Inconsistency in Agencies’ Processes To Identify SBU
Federal agencies use a variety of different concepts of SBU information and
methods to restrict public access to it. Labels include such terms as FOUO, SSI,
SHSI, CEII, OUO, “limited official use” (LOU), “law enforcement sensitive,” and
“controlled unclassified information.” A CDC manual identifies at least 14 such
labels that federal agencies use, and other inventories contain 50 or more such255
As illustrated by the descriptions in Appendix A, while some agencies use the
FISMA-mandated processes to categorize information and implement information
security protections based on the level of risk associated with unauthorized access,
some agencies continue to use a definition of “sensitive” that is based on the CSA
definition, which leads to identification and implementation policies that are based
on type or content of information or threat. For instance, the Department of
Homeland Security, in its SBU management directive 11042.1, included the
Computer Security Act and its definition of “sensitive” as the first item under the
heading “Policy and Procedures” that govern the directive, but said “ ... with the
exception of certain types of information protected by statute, specific, standard
criteria and terminology defining the types of information warranting designation as
‘sensitive information’ does not exist within the federal Government. Such
designations are left to the discretion of each individual agency.”256
The OMB still refers to the concept of “sensitive” as it appears in the CSA in
its guidance for information security, Appendix III, “Security of Federal Automated
Information Resources,” of OMB Circular A-130, Transmittal Memorandum #4,
Management of Federal Information Resources, which is dated November 28, 2000,
but is identified on the OMB website as the current circular.257 It says that “[t]he

254 Cate Weeks, “Finding Needles in the Haystack,” UNLV Magazine, Summer 2004.
255 Sensitive Information Protection Manual, attached to the directive. “Sensitive But
Unclassified Information,” Manual Guide-Information Security CDC-02, as first reported
in “CDC Issues Policy on Sensitive But Unclassified Info,” Secrecy News, Aug. 2, 2005.
A private group identified about 50 such categories. See, Secrecy Report Card 2005,
Quantitative Indicators of Secrecy in the Federal Government, op. cit., pp. 9-10. See also
Sara E. Kelley, “A Selected Bibliography on ‘Sensitive But Unclassified’ and Similarly
Designated Information Held by the Federal Government,” Dec. 17, 2005, at
[http://www.llrx.com/features/sbu.htm]. Another author says there is evidence of the federal
use of over 60 federal SBU terms: Laura Gordon-Murnane, “Shhh!!: Keeping Current on
Government Secrecy,” Searcher, Jan. 2006.
256 MD 11042.1, op. cit., pp. 3-5.
257 The appendix establishes “a minimum set of controls to be included in Federal automated
information security programs; assigns Federal agency responsibilities for the security of
automated information; and links agency automated information security programs and

Appendix ... incorporates requirements of the Computer Security Act of 1987 ... and
responsibilities assigned in applicable national security directives.” This circular
may be confusing because, while it acknowledges the need for agencies to use
broader NIST risk-based procedures and guidance to provide information security for
all information,258 it does not mention the FISMA Act or the specific concepts it
embodied. The Appendix continues, at times, to refer to the narrower CSA concept
of sensitive information that was rendered moot with passage of FISMA. For
instance, it continues to refer to the CSA’s requirements for agencies to protect
computer systems containing sensitive information, and for the Secretary of
Commerce to “develop and issue appropriate standards and guidances for the security
of sensitive information in federal computer systems.”259
In a somewhat obscure document — a “note” of July 3, 2003 — the OMB gave
specific guidance to agency Chief Information Officers to use FISMA processes.260
The attached sheets, entitled “Certification and Accreditation — What An Agency
Can Do Now,” refer to FISMA and certain pertinent NIST publications and say “The
need for determining the sensitivity of the information (risk level) as it relates to
high, medium, and low needs for the confidentiality, integrity, and availability of the
data ... are required in NIST SP 80-18 and must be part of the system security
plan.”261 It also referred agencies to a then forthcoming document, NIST SP 800-37,
and other documents that it instructed agencies to use. It admonished that “FISMA
requires assessments of the risk and magnitude of harm that could result from the
unauthorized access, use, disclosure, disruption, modification or destruction of
information and information systems that support the operations and assets of the

257 (...continued)
agency management control systems established in accordance with OMB Circular No. A-


258 The Circular says, “The focus of [previous bulletins] was on identifying and securing
both general support systems and applications which contained sensitive information. The
Appendix requires the establishment of security controls in all general support systems,
under the presumption that all contain some sensitive information, and focuses extra security
controls on a limited number of particularly high-risk or major applications”(Section B.
Descriptive information). On the same page it says “The Computer Security Act requires
that security plans be developed for all federal computer systems that contain sensitive
information. Given the expansion of distributed processing since passage of the Act, the
presumption in the Appendix is that all general support systems contain some sensitive
information which requires protection to assure its integrity, availability, or confidentiality,
and therefore all systems require security plans.”
259 Appendix III to OMB Circular A-130.
260 “Note to Agency Chief Information Officers on “Guidance on Certification and
Accreditation,” from Mark Forman, administrator, OMB Office of E-Government and IT,
July 3, 2003.
261 Attachment to Note, July 3, 2003, op. cit., p.2.
262 Attachment to Note, July 3, 2003, op. cit., p. 3.

Among other major federal agencies, the Department of the Army and DOD
appear to base some major concepts of SBU on the CSA definition of “sensitive”
information that is not classified. DHHS clearly appears to use a FISMA-based risk
process; USDA uses a mixed FISMA and CSA approach; agencies that use their own
definitions include DOE, NRC, DOD, NRC, and FERC. (For an illustration of the
definitions and procedures agencies use to define SBU information and processes to
control it, see Appendix A, “Illustrations of Federal Agency Controls on Sensitive
In formation.”)
Activities Relating To Developing a Standard Definition of
SBU Information
Critics have often decried the proliferation of SBU concepts and the resulting
differences in implementation policies — which make it difficult for researchers,
agency staff who label and protect information, and public users to know what
information is, or is to be, labeled SBU. For instance, Representative Henry A.
Waxman, ranking Minority Member of the House Committee on Government
Reform, in a March 1, 2005 letter to the Chairman of the Committee’s Subcommittee
on National Security, Emerging Threats, and International Relations, criticized the
increasing proliferation of “pseudoclassification” categories like SBU and the fact
that not all documents marked SBU would be legitimate threats to national security
if released.263 During a hearing held on March 2, 2005, on “Emerging Threats:
Overclassification and Pseudoclassification,” he remarked that the term SBU was
used inappropriately to withhold information from the public who need to know it
or to prevent the public from seeing inaccurate or politically embarrassing
documents.264 The DHS, he contended, used the SBU designation to withhold the
identity of the ombudsman that the public is supposed to contact about airline
complaints.265 Mr. Waxman concluded in his letter to the chairman, which was made
part of the hearing record, that “... the executive branch is creating new categories of
‘sensitive but unclassified’ information that ... lack a statutory basis, and there is no
federal entity monitoring their use.”266 Another witness at the March 2005 hearing
testified that “[t]hese ill-defined categories — be they ‘sensitive but unclassified,’
‘sensitive security information,’ or some form of ‘critical infrastructure information’
— almost always do more harm than good. They ... are based on ... an antithetical
proposition in our democracy — that, when in doubt, always favor secrecy over

263 Rep. Henry Waxman letter to Hon. Christopher Shays, Chairman of the Subcommittee,
Mar. 1, 2005. See also Rebecca Carr, “Government Secrecy Grows With Use of New
Stamps,” The Oxford Press News, Mar. 3, 2005.
264 Testimony of Rep. Henry Waxman, Emerging Threats: Overclassification and Pseudo-
Classification, Hearing before the Subcommittee on National Security, Emerging Threats,
and International Relations of the House Committee on Government Reform, Mar. 2, 2005,th

109 Congress, lst session.

265 Waxman, testimony, Mar. 2, 2005, op. cit.
266 Waxman, letter to Hon. Christopher Shays, Mar. 1, 2005, op. cit., p. 12.
267 According to testimony by Harry Hammitt before the House Subcommittee on National

Dr. Ron Ross, a principal author of NIST’s security standards mandated by
FISMA, commented that there are
dozens of different definitions of “sensitive unclassified information” across the
federal government. Originators, or information owners, have discretion in
identifying, marking, controlling, protecting, and releasing sensitive unclassified
information resulting in: uneven and inconsistent protection of information
assets; varying degrees of risk resulting from different release criteria; and
inability to share information across organizational boundaries with confidence268
and trust.
William J. Leonard, the director of the Information Security Oversight Office
(ISOO) at the National Archives and Records Administration (NARA), which
conducts periodic inspections and reviews classification and declassification plans,
criticized the “... lack of common understanding of what exactly sensitive269
information is, how to identify it, and how and when to protect it.” He emphasized
that the federal government needs a reasonable policy to share or withhold
information and “in many instances, ‘sensitive but unclassified’ is a label without
meaning that is misused by officials who lack the proper ‘training, background or270
understanding’ to decide what to withhold.” He is reported to have said “The DHS
policy ‘creates an environment exactly opposite ... [from] what we’re trying to do in271
the name of information sharing.... It creates an environment of uncertainty.’”
Workers in government agencies are confronted with a proliferation of many SBU
protection “regimes” and “... will prefer to err on the side of caution, or withholding
information, out of confusion and/or a fear of getting in trouble.”272 According to
... a water works operator may submit a report of anomalous activity involving
the water authority. Standing by itself, that information may appear innocuous;
however, it may be a critical link, for example, to a public health official dealing
with his or her own anomaly. That public health official should be able to access
and become aware of that information from the waterworks operator without a

267 (...continued)
Security, Emerging Threats, and International Relations, Mar. 2, 2005, p. 8.
268 Ron Ross, “Protecting Controlled Unclassified Information, A Strategy for Effectively
Applying the Provisions of FISMA, Presentation to the Joint Futures Laboratory,” [2005],
p. 11.
269 William J. Leonard, “Speech to Classification Managers,” June 2004, “Challenges to
Information Sharing and Protections Post 9/11,” In Special Report: Government Security
Panel Report at http://www.cip.umd.edu/special/govsecpanel_report_29july04.htm.
270 R. Jeffrey Smith, May 29, 2004, op. cit.
271 “DHS Non-Disclosure Agreements Stir Concern,” Secrecy News, Dec. 6, 2004, citing
Eileen Sullivan, “Searches and Gag Orders: Homeland Security’s Unprecedented Campaign
Cloaks Unclassified Info,” Federal Times, Dec. 6, 2004. See also “Homeland Secrecy,”
Washington Post, Dec. 3, 2004, p. A26.
272 “Challenges to Information Sharing and Protections Post 9/11,” In Special Report:
Government Security Panel Report at http://www.cip.umd.edu/special/govsecpanel_report
_29july04.htm. (J. William Leonard, Statement.)

supposedly omniscient authority in the middle making singular decisions as to
who should receive the information and who should not. The essence of
information sharing is that the entity on the “edge” should be in a position to273
receive the same information as those at the “center.
He wrote that consistent standards require a common lexicon, a common
governmental authority responsible to “revalidate and synchronize the various
existing regimes controlling unclassified information,”274 and “... a simplified
framework that can serve as a template for the identification, control and protection
of unclassified information whose dissemination is controlled.” Among its potential
benefits, such a framework would have “great specificity with respect to what
information is covered and what is not covered [and] limits on who could designate
information as controlled. It would allow discretion to not use controls “even if the
information is eligible.” It would have “[b]uilt-in criteria that must be satisfied in
order to place controls on dissemination,” recognize due-diligence standards about
handling and protecting information, a fixed time duration for control, and an appeal275
As noted above, the ABA House of Delegates adopted a resolution on February
13, 2006, that among other things called for establishment of a standard policy to
designate, handle, and release such information except if it is exempt under FOIA.
Recognition of the need for basic standardization of homeland security-related,
sensitive, unclassified information was made by Congress when it enacted section
892 of P.L. 107-296, which mandated Presidential issuance of guidance to define
procedures to protect sensitive but unclassified homeland security information.
Guidelines have not been issued as of the publication date of this report. Also, as
already noted in this report, in December 2005, the President issued instructions to
federal agencies to inventory all their SBU information, the authorities invoked to
label it SBU, and practices used to protect it, with the objective of generating uniform
government-wide standards and procedures for designating, marking, and handling
SBU information. In addition, Congress has already addressed certain aspects of how
to define SBU information, and additional proposals are under consideration.
GAO Study on SSI. During the 108th Congress, responding to a request by
Representative David Obey and Representative Martin Olav Sabo, the GAO assessed
the DHS’s use of the concept of sensitive security information (SSI) — specifically
the procedures to categorize information as SSI, procedures to remove the SSI label,
review procedures to check the appropriateness of the SSI designation; and
organizational functions relating to taking SSI actions.276 The Members of Congress

273 “Information Sharing and Protection: A Seamless Framework or Patchwork Quilt?”
Remarks at the National Classification Management Society’s Annual Training Seminar,
June 12, 2003, available at the website of U.S. National Archives and Records
274 Leonard, June 12, 2003, op. cit.
275 Leonard, June 12, 2003, op. cit.
276 “Audit of Sensitive Security Information Requested,” OMB Watch, Sept. 21, 2004,

were concerned about why information that had already been released to the public,
or seemingly nonsensitive information such as government telephone directories, was
given the label SSI and about how the TSA distinguished between information that
needs to be protected and information the public needs for its own safety. According
to Congressman Sabo, “GAO found that TSA has no internal control procedures for
SSI designation, and that potentially every TSA employee can stamp something
‘SSI.’”277 The final report was issued as Transportation Security Administration:
Clear Policies and Oversight Need for Designation of Sensitive Security Information,
GAO-05-677, June 2005.
P.L. 109-90 Requires DHS To Improve Use of SSI Categories and
Report to Congress. In 2005, Congress enacted legislation, based on language
originating in the House and offered by Mr. Sabo as an amendment to the DHS
FY2006 appropriations bill, “to clarify ‘SSI’ policy and procedures including which
staff may appropriately have designation authority.” According to the Conference
Report, H.Rept. 109-241, “... because of insufficient management controls,
information that should be in the public domain may be unnecessarily withheld from
public scrutiny....”278 Section 537 on “Sensitive Security Information” of the
enactment, P.L. 109-90, requires the DHS Secretary to ensure that there is an official
within each appropriate office with clear authority to “designate documents as SSI
and to provide clear guidance as to what is SSI material and what is not.” It noted
that a limited number of appointed officials pursuant to 49 CFR 1520.5(b(1)-(16))
have authority to designate such information. Section 537 also required the Secretary
to report to the Appropriations “... Committees not later than December 31, 2005 on
“(1) Department-wide policies for designating, coordinating and marking documents
as SSI; (2) Department-wide auditing and accountability procedures for documents
designated and marked as SSI; (3) the total number of SSI coordinators within the
Department; and (4) the total number of staff authorized to designate SSI documents
within the Department.” Also, by January 31, 2006, the Secretary of Homeland
Security was to report to the Appropriations committees the titles of all documents
that were designated by DHS as SSI in their entirety between October 1, 2005 and
December 31, 2005, and for each year thereafter. About 1,000 items were so279
identified for the three-month period. The Secretary is also charged with providing
examples of DHS guidance on designation of the 16 SSI markings that will “serve
as the primary basis and authority for the marking of DHS information as SSI by
covered persons” (Sec. 537).

276 (...continued)
[http://www.ombwatch.org/article/articleprint/2409/-1/83]. See also Steven Aftergood,
Secrecy News, June 11, 2004 and Sept. 23, 2004.
277 Office of Rep. Sabo, “Sabo Amendment Addresses Abuse of ‘SSI’ Designation Within
the DHS,” press release, May 10, 2005.
278 U.S. Congress, Committee of Conference, Making Appropriations for the Department
of Homeland Security for the Fiscal Year Ending September 30, 2006, and for Otherth
Purposes, 109 Congress, lst sess., [On H.R. 2360], H.Rept. 109-241, Sept. 2005, p. 37.
279 “DHS Lists ‘Sensitive Security Information’ Titles, Secrecy News, Sept. 7, 2006. The
report is available at:[http://www.fas.org/sgp/othergov/dhs/ssi-titles.pdf].

A report prepared by the DHS Under Secretary for Management and sent to
Representative Sabo on January 3, 2006, responded to items 1 and 2 by referring to
DHS Management Directive 11056, dated December 16, 2005, which establishes
DHS’s policy for SSI. The report provided factual data in response to items 3 and

4. 280

P.L. 109-525 Limits Excessive Use of the SSI Label. Section 525 of
P.L. 109-295, the FY2007 DHS appropriations law, limits excessive use of the SSI
labeling category especially by the TSA by requiring review of information labeled
as SSI if a document so labeled is requested to be released. It also requires SSI that
is three years old and falls outside of certain TSA-related SSI categories to be
released unless the DHS Secretary identifies why it should not be released. The law
also mandates that DHS provide compliance reports to the two appropriations
committees and that GAO prepare a report on implementation of these requirements.
It permits access to SSI information for civil court proceedings.
Studies and Hearings on SBU During 2006. In March 2006, GAO
released Information Sharing, The Federal Government Needs to Establish Policies
and Processes for Sharing Terrorism-related and Sensitive but Unclassified
Information,281 in response to a request made by Representative Tom Davis,
Chairman, House Committee on Government Reform; Representative Todd Platt,
Chairman, House Committee on Government Reform, Subcommittee on Government
Management, Finance and Accountability; Representative Christopher Shays, House
Committee on Government Reform, Subcommittee on National Security, Emerging
Threats, and International Relations; and Senator Susan Collins, Chairman, Senate
Committee on Homeland Security and Governmental Affairs. The GAO inventoried
how 26 federal agencies handled SBU information in response to requests. It
assessed agency use of such information control terms as SBU, FOUO, LOU, law
defense controlled unclassified information, and others. The study concluded that
The agencies that GAO reviewed are using 56 different sensitive but unclassified
designations (16 of which belong to one agency) to protect information that they
deem critical to their missions — for example, sensitive law or drug enforcement
information or controlled nuclear information. For most designations there are
no governmentwide policies or procedures that describe the basis on which an
agency should assign a given designation and ensure that it will be used
consistently from one agency to another. Without such policies, each agency
determines what designations and associated policies to apply to the sensitive
information it develops or shares. More than half the agencies reported
challenges in sharing such information. Finally, most of the agencies GAO
reviewed have no policies for determining who and how many employees should
have authority to make sensitive but unclassified designations, providing them
training on how to make these designations, or performing periodic reviews to
determine how well their practices are working. The lack of such recommended
internal controls increases the risk that the designations will be misapplied. This

280 See http://www://www.pogo.org/p/government/go-060901-0911.html.
281 GAO-06-385.

could result in either unnecessarily restricting materials that could be shared or282
inadvertently releasing materials that should be restricted.
To correct this situation, GAO recommended that “... the Director of National
Intelligence (DNI) assess progress, address barriers, and propose changes, and that
OMB work with agencies on policies, procedures, and controls to help achieve more
Similarly, the George Washington University-affiliated National Security
Archive released a survey of the SBU Information labeling practices of 37 agencies,
showing that eight used 10 control markings based on statutory authority and 24 used284

28 markings that derived form internal policies, procedures or practices.

In another report, entitled Managing Sensitive Information: Departments of
Energy and Defense Policies and Oversight Could Be Improved,285 GAO made a
series of recommendations for DOD staff to designate the FOIA exemptions on
which an FOUO designation is based, that both agencies clarify appropriate use of
the OUO or FOUO designation so, for example, to not conceal “agency
mismanagement, that both agencies improve training and oversight for staff286
responsible for making such designations. These findings and others were
discussed at a hearing held on March 14, 2006 by the House Subcommittee on
National Security, Emerging Threats, and International Relations of the Committee
on Government Reform.287
At a hearing held on May 10, 2006 before the House Homeland Security
Intelligence Subcommittee, Thomas McNamara, program manager for the
Information Sharing Environment, who reports to the Director of National
Intelligence, testified that executive agencies used more than 60 categories to label
sensitive information and that there are no government-wide definitions or
procedures to designate such information. His office is tasked with establishing
standardized polices and processes to share terrorist-related information and to

282 “Information Sharing, The Federal Government needs to Establish Policies and Processes
for Sharing Terrorism-Related and Sensitive but Unclassified Information,” GAO Highlights
[ h t t p : / / www.ga o.gov/ c gi -b i n / get r p t ? GAO-06-385] .
283 Highlights for GAO-06-385, Ibid.
284 National Security Archive, Pseudo-Secrets” A Freedom of Information Act Audit of the
U.,S. Government’s Policies on Sensitive Unclassified Information, Washington, Mar. 2006.
285 GAO, Managing Sensitive Information: Departments of Energy and Defense Policies and
Oversight Could Be Improved, GAO-06-369, March 2006.
286 GAO-06-369, p. 12.
287 Press release, House Committee on Government Reform, Subcommittee National
Security, Emerging Threats, and International Relations, Hearing on “Drowning in a Sea
of Faux Secrets: Policies on Handling of Classified and Sensitive Information,”Mar
14, 2006. See hearing on Drowning in a Sea of Faux Secrets: Policies on Handling of
Classified and Sensitive Information. The hearing is Serial No. 109-167, available at
[http://www.house.gov/ reform].

recommend standardized procedures to handle SBU.288 He described actions taken
by his office to respond to the President’s December 16, 2005 memo to agencies
regarding information sharing and development of standards for SBU information.
Legislation Introduced on “Pseudo-Classification”
H.R. 2331, the “Restore Open Government Act of 2005,” was introduced in the
109th Congress. It is similar to H.R. 5073 of the 108th Congress and called for an end
to the use of SBU and FOUO and related terms289 without defining them. Among
other things, it would have revoked the Ashcroft and the Card memos released in
2001 and would seek to curtail excessive classification. It directed the Archivist of
the United States to (1) report on the use of pseudo-classification designations; and
(2) promulgate regulations banning unnecessary pseudo-classification designations
and standards for withholding nonclassified information. It would have restored
presumption of disclosure under FOIA, facilitate public access to critical
infrastructure information, address alleged excessive over-classification, and make
it easier to challenge agencies that are accused of improperly withholding
information. The bill was referred to two committees, House Government Reform
and House Homeland Security. No action was taken on the bill.
The Executive Branch Reform Act of 2006, H.R. 5112, a bipartisan bill was
introduced jointly on April 27, 2006, by Representative Tom Davis and
Representative Henry Waxman, It was reported by the House Committee on
Government Reform (H.Rept. 109-445). It directed agencies to submit to the
Archivist of the United States and specified congressional committees a report
describing the use of “pseudo” classification designations. The Archivist would have
been mandated to develop recommendations to improve access to information that
would ban “pseudo” classification designations that are not defined by federal statute
or elective order except if needed.
Option To Monitor Agency Use of Risk-based Standards for
Sensitive Unclassified Information
As noted above, some agencies appear to have lagged in implementing
procedures as prescribed in FISMA to protect information, including sensitive

288 Strohm, Chris, “Congress Urged to Help Make More ‘Sensitive’ Information Public,”
GovExec.com, May 11, 2006. For testimony, see, “Building on the Information Sharing
Environment: Addressing Challenges of Implementation, “By Ambassador Thomas E.
McNamara before the Subcommittee on Intelligence, Information Sharing, and Terrorism
Risk Assessment, House Committee on Homeland Security, May 10, 2006. Available at
[http://www.fas.org/irp/congress/2006_hr/051006mcnamara]. For further information, see
CRS Report RL33494 pp. 11, 12.
289 According to section 5 of the bill, “‘pseudo-classification designations’ means
information control designations, including ‘sensitive but unclassified’ and ‘for official use
only,’ that are not defined by Federal statute, or by an Executive order relating to the
classification of national security information, but that are used to manage, direct, or route
Government information, or control the accessibility of Government information, regardless
of its form or format.”

information, with controls based on risk of release.290 Some may ask, why have they
not complied yet? Agencies may not know that the CSA “sensitive information”
definition was rendered moot, especially because major agencies, including OMB
and DHS, still reference CSA and use the term in various documents and guidances.
The CSA definition may be easy to use since it is broad and has been used for almost

20 years. It is possible that some agencies may not be fully aware that the E-

Government Act extends to handling of all types of information, including what they
categorize as SBU or sensitive information. Slow compliance with the FISMA
guidance may also be due to the facts that it took several years for NIST to prepare
and release the volumes in its FIPS series and for agencies to accept and adjust
procedures to adopt the risk-based NIST information control procedures. These
procedures may be more difficult to implement that traditional information control
procedures that apply labels based on the content of information. Also, according
to GAO, Inspector General reports, and testimony in various congressional hearings,
many agencies have not yet formally incorporated an overall risk management
program into their information security policies because they are slow to implement
the legislative mandates or are finding it too expensive to comply with the mandates
of the E-Government Act.291
Some information handlers may be wary of the NIST processes because they
believe that risk-based standards prescribed by NIST are too loose for their
circumstances, the threats, and the potentially malevolent uses of information
confronting their agency. They may believe that the use of such standards would
permit the release of sensitive information that should be protected or that risk-based
analysis may not be rigorous enough.292 Also, agencies may be aware of NIST risk-
based standards, but may choose to use other procedures since the law allows
agencies to use more stringent procedures to protect information if, in their
determination, agencies recognize the NIST standards as mandatory minium
Despite the fact that OMB does not require formal, detailed risk analyses to be
conducted, some agencies may not be eager to comply with FISMA, because they
might believe that risk-based analyses might be expensive to conduct, or might lead
to categorizing a lot of information (whose impact levels might be mixed for the
three categories of confidentiality, accessability, and integrity) at the highest level of
impact or risk (for any one of the three impacts). Although this might lessen the cost

290 For example, see U.S. GAO, Information Security, Department of Health and Human
Services Needs to Fully Implement Its Program, February 2006, GAO-06-267; see also,
Information Security, Federal Agencies Show Mixed Progress in Implementing Statutory
Requirements, Statement of Gregory C. Wilshusen, Mar. 16, 2006, GAO-06-527T.
291 FISMA is Title III of the E-Government Act. See Benton Ives-Halperin, “Effectiveness
of Cybersecurity Law Questioned,” CQ Homeland Security, Nov. 15, 2005.
292 For a discussion of the purported limitations with respect to computer security, see
Benton Halperin, “Risk-Based Analysis Might Not Work in Electronic World, Experts Say,”
CQ Homeland Security, Nov. 23, 2005.

of protection (or raise it), it might also require protecting some information which
does not need to be safeguarded at such a stringent level.293
Two oversight issues are suggested by these observations. One is to monitor
federal agency compliance with FISMA, especially the use of NIST-generated, risk-
based standards and information protection procedures to identify and protect all
information, including sensitive unclassified information. Another is that in light of
the potential confusion resulting from the language of Appendix III to OMB Circular
A-130 regarding the basis of agency information security responsibilities, Congress
may seek to oversee updating of the appendix document.
Recommendations to Institute Better Governance of SBU
Information Procedures
A number of recommendations have been made relating to improving
procedures used to administer SBU controls. It is possible that some of these issues
may be addressed by the executive branch pursuant to the President’s memo of
December 16, 2005.
Limit the Number of Persons Who Can Designate SBU. As noted
above, especially in the comments of ISSO Director Leonard and others, many
governmental officials can stamp a document SBU. It was reported that although a
limited number of government personnel (estimated at more than 4,000)294 can stamp
classified documents “top secret” (which can be declassified after review according
to a regular schedule, or whose classification can be appealed), many more
employees can stamp documents SBU (whose designation is not on a schedule to be
reviewed or changed and for which there are no appeal process.) Specific comments
in this regard were made about DHS’s SBU policies:
the new FOUO information policy is actually more far-reaching than national
security classification policy. Thus, classified information can only be generated
by officials who have been authorized by the President, either directly or
indirectly by delegation. But any DHS employee or contractor can designate
information a FOUO if it falls within eleven broad categories. Moreover,
managers and supervisors can also designate additional information as FOUO
even if it falls outside of those categories. Further, the classification system
provide for an oversight mechanisms through the Information Security Oversight295
Office. No provision for oversight of the new FOUO policy is included.
One option for policymakers may be to consider limiting the number of persons who
can designate information as SBU. This option might have other consequences. It
could force agencies to develop formal systems to categorize SBU information, with

293 Conversation with Ron Ross, NIST, Feb. 2005.
294 Paul McMasters, “Your Right to Know,” Star — Telegram.com, Mar. 13, 2005.
295 “Dept of Homeland Security Tightens Grip on Unclassified Info,” Secrecy News, June
11, 2004). See also comments of Aftergood and others in “Challenges to Information
Sharing and Protections Post 9/11,” In Special Report: Government Security Panel Report,
ht t p: / / www.ci p.umd.edu/ speci al / govsecpanel _r epor t _29j ul y04.ht m.

the designation responsibility limited to a few selected individuals, similar to national
security information “classification” procedures. Such a development could also
legitimize SBU designation as a formal classification category and cause added
expense to agencies.
Options To Centralize Policy Control for SBU Information. The
President’s December 16, 2005 memo appears to have centralized the development
of SBU policies in the Director of National Intelligence (DNI), who is to develop
policy “in coordination with the Secretaries of State, the Treasury, Defense,
Commerce, Energy, Homeland Security, Health and Human Services, and the
Attorney General and in consultation with all others heads of relevant executive
departments and agencies....”296 Control by the DNI may imply the development of
SBU information control policies that may be more restrictive than some critics
would prefer.297
There have been proposals to establish a central authority elsewhere in the
federal government to develop policy and guidelines for SBU information — such
as in OMB, the NARA’s Information Security Oversight Office (ISOO), the
Interagency Security Classification Appeals Panel (ISCAP), or within the judicial
system. For instance, a report released in December 2004 by the Heritage Foundation
and the Center for Strategic and International Studies concluded that centralization,
perhaps in OMB, could assist in inventorying which information might be sensitive
and in developing standardized policies:
To date, there has been no systematic review of what government information
that is now or was formerly in the public domain could be used as a “terrorist
roadmap,” the likelihood of such a threat, the role that such information would
play in terrorists’ preparation (including possibilities of alternative sources of the
same information), and the countervailing public safety and other benefits of
providing different types of information. Furthermore, no authority is clearly
designated to make these evaluations at a national policy level. Current
evaluations are conducted at the departmental level at best or on an ad hoc, office
by-office basis. Nor has DHS provided any leadership or guidance to the private
sector about how the private sector might develop voluntary standards for
making decisions about its own disclosures of sensitive information, even
without governmental restrictions. For government decisions, there is no single
designated authority — in the Office of Management and Budget or elsewhere
— for determining the overall policy interests and objectives of information
distribution, including common baseline standards to help weigh the benefits and
risks of providing the public with specific types of information, regardless of
which agencies possess the information. Such a single authority might act as the

296 Guideline 3 of “Guidelines and Requirements in Support of the Information Sharing
Environment,” Memorandum for the Heads of Executive Departments and Agencies, White
House press release, Dec. 16, 2005, op. cit.
297 While the DNI is to coordinate classified information programs, the function reportedly
will include coordinating efficient sharing of information across the government. See Lance
Gay, “Government Withholds ‘Sensitive-but-Unclassified’ Information,” Scripps Howard
News Service, Feb. 2, 2006.

overall reviewer of agencies’ public disclosure policies and their implementation
of these policies....298
Similarly, Steven Aftergood, editor of Secrecy News, was reported to have
observed that federal agency actions that declare SBU information exempt from
FOIA may need better policy guidance and that [i]t may ultimately require judicial
action or congressional intervention to define clearer standards for what may be299
withheld and what must be disclosed.” A 2004 Federation of American Scientists’
report concluded that oversight of SBU information designations and policy might
benefit from coverage in ISOO or ISCAP. It recommended that
[t]he President could direct the ISOO to expand its portfolio to encompass such
sensitive but unclassified information, though to be effective this would require
an infusion of new personnel and resources to an organization that is stretched
thin. Similarly, the President could task ISCAP to receive and evaluate
challenges to controls that have been imposed on unclassified information, in
addition to its current oversight of classified information. To avoid diluting or
diverting the efforts of these existing entities, it may be preferable to devise a
new organization or interagency panel that can tackle controls on unclassified
information, while bolstering the work already being performed on oversight of300
classified information.
An Appeals Process. The need for an appeals process for SBU information
has been stressed by critics who allege that the SBU labeling system is more
restrictive than federal national security information classification systems. For
instance, in testimony, Hammitt contended that “... remedies to challenge the
designation of such information must be made available. Requesters must not be
forced to go to court as their only alternative. Instead, a process akin to mandatory
declassification review should be instituted.” He also argued, “Along these same
lines, time limits for protection should be considered and implemented. Sensitive
information may well be sensitive for a period of time and lose its sensitivity
thereafter. Once information is no longer sensitive it should be made publicly
available. [The National Archives usually declassifies most material after 25 years,
except for nuclear-related information.].”301 Gansler and Lucyshyn recommended that
the National Archives and Records Administration develop and administer an appeals
process to allow individual decisions about release of information on a case-by-case

298 Carafano and Heyman, pp. 20-21.
299 Joe Fitzgerald and Antonia Badway, “Government Secrecy In the Age of
Information,”Biodefense Quarterly, Summer 2003, p. 2.
300 Flying Blind: The Rise, Fall, and Possible Resurrection of Science Policy Advice in the
US, Federation of American Scientists, 2004, by Henry Kelly, Ivan Oelrich, Steven
Aftergood, Benn H. Tannenbaum, pp. 63-64.
301 Harry Hammitt in testimony before the House Subcommittee on National Security,
Emerging Threats and International Relations, Mar. 2, 2005, p. 8-9.
302 The Unintended Audience: Balancing Openness and Secrecy, op. cit., p. iii.

Other Remaining Issues and Unanswered Questions
Policymakers may encounter some remaining unanswered questions. For
example, is communication between the intelligence community and the scientific
community good enough to enable researchers to identify information that should be
protected to prevent terrorists from gaining knowledge to harm the United States?
Do SBU controls constitute another type of classification system? Just how much
scientific and technical information is being withheld under various SBU
designations and how has such withholding affected the conduct of research and
development and the use of scientific and technical information in policymaking?
Should special considerations be given to allow access to scientific and technical
information, especially that produced by universities, since the academic sector has
a unique role as a generator of knowledge as a public good and as a significant
“engine” of industrial innovation? Will DHS’s SBU controls on “developing
technology or current technology” affect information generated by DHS-funded
research and development grants and contracts? Can risk-based procedures be used
effectively to control access to, and dissemination of, scientific and technical
information, and can they effectively balance access and control? Would the use of
risk-based procedures generate control procedures different from those used in
existing SBU information control systems? What is the cost (administrative and
financial) of SBU information control regimes, the actions needed to implement
them, and to safeguard SBU information indefinitely? Would there be a significant
difference in cost-effectiveness calculations for implementing risk-based analysis
procedures versus some of the currently used SBU procedures? Should there be
monitoring of the use and effects on scientific communication of governmental and
private sector voluntary information control procedures? Who should conduct such
The President, the Congress, and the scientific community have initiated steps
to answer some of these questions. The ongoing activities — to inventory agency
activities, to oversee agency policies and procedures, to clarify terminology, and to
develop professional groups’ codes of conduct and voluntary control procedures —
may foster practices that are compatible with the continuous growth of scientific
knowledge and dynamics in the emergence of new threats. Competing stakeholder
demands will continue to confront Congress and the executive branch as policies are
refined to balance security and access to scientific information.

Appendix A. Illustrations of Federal Agency
Controls on Sensitive Information
The following information illustrates how agencies define SBU information and
the procedures they use to control it.303 Because agency policies are difficult to
obtain, the information in this section is meant to be illustrative and is limited to what
is readily accessible. It divides agency descriptions into four categories: (1) Agencies
that use the definition of “sensitive”as found in the Computer Security Act; (2)
Agencies that use FISMA guidelines or risk-based procedures to develop information
security policies; (3) Agencies that mix use of SBU and FISMA concepts; and (4)
Agencies that use unique definitions.
Agencies That Use the Definition of “Sensitive” as Found in
the Computer Security Act (CSA)
Some agencies use the CSA definition of sensitive, which identifies information
based on its content, not on the risk of release.
Department of Homeland Security (DHS). The Department of Homeland
Security in a management directive applicable within the agency, released first in
2004 and then revised in January 2005, cited the CSA, P.L. 100-235, and repeated
the law’s now rescinded definition of “sensitive information” as the first element of
policy guiding the directive. It does not necessarily endorse use of this definition but
says that “specific, standard criteria and terminology defining the types of
information warranting designation as ‘sensitive information’ does not exist within
the federal government. Such designations are left to the discretion of each individual
Office of Management and Budget (OMB). Appendix III, “Security of
Federal Automated Information Resources,” of OMB Circular A-130, Transmittal
Memorandum #4, Management of Federal Information Resources, which is dated
November 28, 2000, but is identified on the OMB website in November 2005 as the
current circular, references the CSA, but not the FISMA Act. The appendix
establishes “a minimum set of controls to be included in Federal automated
information security programs; assigns Federal agency responsibilities for the
security of automated information; and links agency automated information security
programs and agency management control systems established in accordance with
OMB Circular No. A-123.” Its guidance could lead to confusion because while it
acknowledges the need to use NIST-generated risk-based procedures to protect all
kinds of information (not only sensitive information), it says that “[t]he Appendix ...
incorporates requirements of the Computer Security Act of 1987 (P.L. 100-235) and

303 See also, GAO-06-385, op. cit., Relyea, CRS Report RL33494, op. cit., and National
Security Archive, Pseudo-Secrets” A Freedom of Information Act Audit of the U.,S.
Government’s Policies on Sensitive Unclassified Information, op. cit.
304 MD11042.1, p. 3.

responsibilities assigned in applicable national security directives”305 It continues to
use the term “sensitive” and references CSA’s requirements for agencies to protect
computer systems containing sensitive information and the Secretary of Commerce’s
responsibilities to promulgate standards to protect sensitive information. Guidance
issued to a limited CIO readership makes explicit reference to NIST’s post-FISMA
responsibilities and for agencies to use mandatory, risk-based security standards
issued by NIST.
Department of the Army. The Department of the Army uses the term
“Controlled Unclassified Information (CUI) Not Subject to Public Disclosure” as
including the “categories of ‘for official use only,’ ‘sensitive but unclassified,’ which
formerly was called ‘limited official use,’ ‘sea sensitive information,’ ‘DOD
unclassified controlled nuclear information,’ and ‘sensitive information’ as defined
in the Computer Security Act of 1987.”306 CUI “ ... includes U.S. information that
is determined to be exempt from public disclosure in accordance with DOD
Directives 5230.25 and 5400.7 or that is subject to export controls in accordance with
the International Traffic in Arms Regulation or the Export Administration
Regulation.” For example:
These types of information include but are not limited to: patent secrecy data,
confidential medical records, inter-and intra-agency memoranda that are
deliberative in nature, certain data compiled for law enforcement purposes, data
obtained from a company on a confidential basis employee personal data,
internal rules and practices of a government agency that, if released would
circumvent agency policy and impede the agency in the conduct of its mission;307
and finally technical controlled unclassified information.
National Security Agency. In a 2003 document that appears to still be
active, the National Security Agency used the CSA definition to define the term
“sensitive information” as “information, the loss, misuse, or unauthorized access to
or modification of, that could adversely affect the national interest or the conduct of
federal programs, or the privacy to which individuals are entitled under 5 U.S.C.
Section 552a (the Privacy Act), but that has not been specifically authorized under
criteria established by an Executive Order or an Act of Congress to be kept classified
in the interest of national defense or foreign policy.” Expanding this definition, it
said “(Systems that are not national security systems, but contain sensitive
information, are to be protected in accordance with the requirements of the Computer
Security Act of 1987 (P.L. 100-235).)”308

305 Appendix III, “Security of Federal Automated Information Resources,” to “OMB Circular
A-130, Transmittal Memorandum #4, Management of Federal Information Resources
(11/28/2000),” op. cit.
306 “Controlled Unclassified Information (CUI)” powerpoint slide show, produced by
Department of the Army, nondated, available at [http://www.fas.org/sgp/othergov/dod].
307 “Controlled Unclassified Information (CUI)” powerpoint slide show, op. cit.,
308 National Security Agency, Committee on National Security Systems, National
Information Assurance (IA) Glossary, CNSS Instruction No. 4009, Revised May 2003, pp.

55-56 [http://www.nstissc.gov/Assets/pdf/4009.pdf].

Centers for Disease Control and Prevention (CDC). CDC’s 2005
policy on SBU information was issued in an information security manual on July 22,309
2005. Applicable to all employees and contractors, the manual covers information
“sensitive enough to require protection from public disclosure — for one or more
reasons outlined under the exemptions of the Freedom of Information Act, but may
not otherwise be designated as national security information.” It identified and
defined categories of “sensitive but unclassified” information, including one labeled
“Computer Security Act Sensitive Information” which it defined as in the CSA,
which it cited as the source. The other categories of information CDC defined as
SBU include “Contractor Access Restricted Information,” “Controlled Unclassified
Information,” “DEA Sensitive,” “Department of State Sensitive But Unclassified,”
“DOE Official Use Only,” “Export Controlled Information (or material),” “For
Official Use Only,” “GSA Sensitive But Unclassified Building Information,” “Law
Enforcement Sensitive,” “Operations Security Protected Information,” “Privacy Act
Protected Information,” “Select Agent Sensitive Information,” and “Unclassified
Controlled Nuclear Information.” All CDC information has to be reviewed for
security and approved before release; relevant information will be protected and
encrypted for electronic transmittal, and some aggregated information may qualify
as SBU. Violations of the policy may result in civil or criminal action. Healthcare
information and public health data and statistics would not be “potentially sensitive.”
This policy was modified in 2006 to require that if a request is received for a
document marked SBU, it should be reviewed to determine whether it qualifies for310
an exemption under FOIA and withholding from release.
International Boundary and Water Commission (USIBWC). The U.S.
section of the International Boundary and Water Commission between the United
States and Mexico issued a directive on July 8, 2005, that establishes a policy of
“sensitive information protection.” Sensitive information is defined similar to, but
more broadly than, the definition used in the CSA as
unclassified information of a sensitive nature not otherwise categorized by
federal statute or regulation and the unauthorized disclosure, loss, or misuse of
which could adversely impact on the following; a persons’ privacy or welfare;
the conduct of federal programs; or the conduct of other programs or operations
essential to the national interest.311
Among the types of information to be treated as sensitive are information
exempt from disclosure under FOIA and the Privacy Act, information technology
information, and USIBWC internal security measures, including emergency
management plans, physical security plans and reports that disclose facility
infrastructure or security vulnerabilities, continuity of operations plans, risk

309 Sensitive Information Protection Manual, attached to the directive. “Sensitive But
Unclassified Information,” Manual Guide-Information Security CDC-02, as first reported
in “CDC Issues Policy on Sensitive But Unclassified Info,” Secrecy News, Aug. 2, 2005.
310 CDC, Sensitive But Unclassified, February 2006, posted at
[http://www.fas.org/sgp/othergov/cdc-sbu-2006.html], by Steven Aftergood, Secrecy News,
Feb. 27, 2006.
311 Sensitive Information Protection Manual, p. 1, attached to the directive.

management plans, and accreditation and recertification documentation.312 Such
information is to be released only to those who have a “need to know”, protections
are required for storage and transmittal, and penalties are imposed for disclosure,
including suspension and removal.
Idaho National Engineering and Environmental Laboratory. The
Idaho National Engineering and Environmental Laboratory, funded by the
Department of Energy (DOE), said in 2003 that DOE in its 1995 safeguards and
security glossary defined “sensitive” substantially similar to the way it is defined in
the CSA. It then offered a definition that is broader than the one in the CSA:
Information for which disclosure, loss, misuse, alteration, or destruction could
adversely affect national security or government interests. National security
interests are those unclassified matters that relate to the national defense or
foreign relations of the U.S. government. Governmental interests are those
related, but not limited to the wide range of government or government-derived
economic, human, financial, industrial, agriculture, technological, and law
enforcement information, as well as the privacy or confidentiality of personal or
commercial propriety information provided the U.S. government by its313
Agencies That Use FISMA Guidelines or Risk-Based
Procedures to Develop Information Security Policies
Some agencies use clearly identified risk-based or FISMA-derived guidelines
to develop information security policies.
Department of Health and Human Services (DHHS). DHHS’s policy
guidance, entitled Information Security Program Policy, December 15, 2004,314 and
its Information Security Program Handbook, November 12, 2004, contain policy
and implementation plans that appear to conform with the NIST guidance documents.
They specify that sensitive information that is not subject to national security controls
should be protected by a process that includes risk assessments that incorporate threat
and vulnerability analyses and development of security programs according to the
level of risk involved. The authorities cited for these actions do not refer specifically
to homeland security guidance materials, but instead to FISMA, the Clinger-Cohen
Act, the Information Technology Management Reform Act (Division E of P.L. 104-
106), and OMB Circular A-130.315 DHHS said it also incorporates the requirements
specified in relevant executive orders, Homeland Security Presidential Directives,
NIST Special Publications, and so forth. In the DHHS documents, implementation
procedures include background checks for accessibility to sensitive information,
nondisclosure agreements, protection and encryption procedures, and so forth. These
documents apply to information systems, including hardware, software, and data on

312 Manual, op. cit., p. 3.
313 Griffin, Apr. 2003, op. cit.
314 HHS IRM Policy 2004-002.001.
315 HHS IRM Policy 2004-002.001, pp. 1, 2.

them of any sensitivity or classification.316 Use of these concepts replaces the use of
the term “sensitive” and of the CSA concepts, which DHHS appears to have halted
in 2004.317
Military Joint Futures Laboratory. The Military Joint Futures Laboratory
of the U.S. Joint Forces Command is conducting a study of implementation of SBU
information policies and procedures in military programs. Pursuant to DOD
guidance, “All DOD unclassified information must be reviewed before it is released318
to the public or to foreign governments and international organizations.” That
which is not released in accordance with national laws, policies, and regulations of319
the originating country shall be stamped FOUO and access control and protection
procedures applied. These kinds of information include, but are not limited to, For
Official Use Only, Law Enforcement Sensitive, Sensitive But Unclassified, Limited
Official Use Only, and Limited Distribution.320 According an information security
analyst, “controlled unclassified information” (CUI) lacks a clear definition, policy
guidance, or central authority to develop and mandate control policies. Only the
originator of the information can authorize disclosure or release. He suggests using
NIST documents and guidance to identify CUI and to conduct threat and321
vulnerability analysis for information.

316 Information Security Program: Information Security Program Handbook, Nov. 12, 2004,
pp. 1, 32, and Information Security Program: Information Security Program Policy, Dec.

15, 2004, p. 1.

317 DHHS still referred to the Computer Security Act in its now superceded 2005 update of
its Automated Information Systems Security Programs Handbook to note that sensitive
unclassified agency information should be given the security-level designation “high
sensitivity” (the two lower are “low” and “moderate”) and should use the next highest level
of “high and national security interests” if the loss of it could adversely affect national
security interests. DHHS is also developing a new Automated Information Technology
Security Program to “document and evaluate the existence and reliability of the Automated
Information System Security Program at selected operating divisions. This program helps
to protect information resources in compliance with the Computer Security Act of 1987 and
the directives of OMB and the National Institute of Standards and Technology.” It used the
CSA definition of sensitive in DHHS Automated Information Systems Security Program
Handbook, available at [http://wwwoirm.nih.gov/policy/aissp.html#OverviewII]. This
handbook was superceded by the 2004 documents identified in the text above. Reference
to protection of information resources in compliance with the CSA and use of the term
“sensitive” appears to have ceased after last used in HHS/OG Fiscal Year 2005 Work Plan
— Department-wide, p. 5, http://oig.hhs.gov/publications/docs/workplan/2005
318 “Information Security Challenge for J9 Marking Controlled Unclassified Information
(CUI), [Slide show], by Bob Craig, INFOSEC Policy Analyst Briefing to the Joint Concept
Development Pathway, as of Mar. 18, 2005.
319 Craig, Slides, Mar. 18, 2005.
320 Appendix 3: “Controlled Unclassified Information,” of Interim Information Security
Guidance, Apr. 16, 2004, on changes to DOD Regulation 5200.1-R, Jan. 1997.
321 Interviews of Robert Craig, January and March 2005 and Craig, Slides, Mar. 18, 2005.

Information Sharing and Analysis Centers (ISAC). ISACs are private
organizations that collect, distribute, analyze, and share sensitive information
regarding threats, vulnerabilities, alerts and best practices to protect national critical
infrastructures in fields such as chemistry, electricity, energy, financial services,
healthcare, information technology, public transit, surface transportation,
telecommunications, and water, physical, and cyber security critical infrastructures.322
They were established in response to Presidential Directive 63, 1998, which
mandated that the public and private sectors share information about physical and
cyber security threats and vulnerabilities to help protect U.S. critical infrastructures.
The directive was updated by Homeland Security Presidential Directive 7 in 2003.
The ISAC information sharing process developed a categorization scheme for
unclassified government data, as well as data originating from ISAC members,
“based upon level of sensitivity.” Vetting of the data is to address four levels. The
most restrictive is “Privileged Information/Restricted Use (Level 3) - Information that
should only be distributed to individuals who must act, analyze, or make decisions
based on the data. Distribute only to individuals with Level 3 Background check.
This should include Government ‘Sensitive But Unclassified’ information and323
similar very close-hold information.” A level 3 background check “[r]equires 10
years of history immediately prior to the background check. Includes felony checks
from all jurisdictions in which subject readied during period. Includes scan of
additional databases, and personal interviews. Requires recertification every three324
Agencies That Mix Use of CSA and FISMA Concepts
Agencies that use mixed models of the CSA definition and risk-based guidelines
include USDA and a DOE-affiliated agency.
U.S. Department of Agriculture. The Department of Agriculture (USDA)
promulgated regulations requiring its constituent agencies to issue criteria and
directives to identify “sensitive security information,” defined as unclassified
information that if publicly disclosed could be expected to have a “harmful impact
on the security of person, place, or property.” Among the science and technology-
related “USDA SSI possibilities” it identified “building vulnerabilities, ... select
agent pathogen locations, ... USDA computer infrastructure details, rural
development management control review that reveal vulnerabilities, ... the ARS
report Strategic Research Targets to Potential American Livestock and Poultry from
Biological Threat Agents, ... security assessment of USDA Non-BSL-03 laboratories,325
[and] local pathogen inventories for USDA non-BSL-3 laboratories....” Such
information should be identified and protected after an informal “... risk analysis and
determination to identify potential threats and appropriate vulnerabilities to SSI in

322 “Vetting and Trust for Communications Among ISACs and Government Entities,” ISAC
Council White Paper, Jan. 31, 2004, pp. 5, 6, 8.
323 “Vetting and Trust for Communications Among ISACs....,” pp. 5-6.
324 “Vetting and Trust for Communications Among ISACs....,” p. 6.
325 Slide show, “USDA Sensitive Security Information, DR3440-2, April 2004.”

their custody.” 326 Only those who have a “need to know” are to have access to SSI.
Need-to-know determinations are to be made by an authorized holder of SSI who
attests that a prospective recipient requires access to perform or assist in a lawful and
authorized governmental function. Information designated “SSI” should be protected
no longer than 10 years, unless a designating official determines otherwise. SSI
information is releasable under FOIA, but requests for such information should be
processed in accord with the October 10, 2001 Attorney General’s memorandum and
should consider use of FOIA exemptions two, three, four, and seven.327
On February 17, 2005, USDA promulgated a protection policy for SBU
information, which is different from SSI because it “contains information that is not
security-related but is still sensitive in terms of its risk of exposure.”328 This
information is to be protected and encrypted for transmittal in accord with OMB
Circular A-130 and NIST guidance, some of which is specified. All employees and
contractors with a “need to know” must sign a nondisclosure agreement and are
subject to penalties of noncompliance. Information may be processed for FOIA
claims, but it should be considered for protection in light of the Attorney General’s
memorandum. SBU is defined as in CSA, but without identifying the source as the
CSA. 329
Western Area Power Administration (WAPA). The Western Area Power
Administration, (WAPA), an entity of the U.S. Department of Energy,330 issued
guidance for handling sensitive information that it said conforms with Department
of Energy policy.331 “OUO information,” it declared, “must ... be unclassified; could
be used to damage government, commercial or private interests; [and] be exempt

326 “USDA, “Departmental Regulation Number: 3440-002 Subject: Control and Protection
of “Sensitive Security Information,” at [http://www.fas.org/sgp/othergov/usda3440-02].
Although risk analysis is required, no reference was made to using NIST-promulgated
security standards or methodology to determine risk level and security level.
327 Regulation 3440-002, op. cit.
328 “Sensitive But Unclassified (SBU) Information Protection,” Chapter 10, Part 2, DM

3550-002, Feb. 17, 2005.

329 “Conditional Access to USDA Sensitive but Unclassified Information,” Nondisclosure
Agreement. Attached to DM 3550-002.
330 According to WAPA, “Western Area Power Administration markets and delivers reliable,
cost-based hydroelectric power and related services within a 15-state region of the central
and western U.S. We’re one of four power marketing administrations within the U.S.
Department of Energy whose role is to market and transmit electricity from multi-use water
projects. Our transmission system carries electricity from 55 hydropower plants operated
by the Bureau of Reclamation, U.S. Army Corps of Engineers and the International
Boundary and Water Commission.” Available at [http://www.wapa.gov/about/default.htm].
331 This was identified as “WAPA P 471.1, “Identifying and Protecting Official Use Only
Information,” that states Western’s intent to follow DOE Order 471.3, “Identification and
Protection of Official Use Only Information”(Susan DeBelle, “ ‘Official Use’ Info Requires
Special Care,” Closed Circuit, May 28, 2004, vol. 26, no. 11,
[ h t t p : / / www.wapa.gov/ n ewsr oom/ cct / 2004/ ma y28/ 26no114.ht m] ) .

from disclosure under the Freedom of Information Act.”332 All such documents must
be marked and protected as directed “in the DOE Manual for Identifying and
Protecting Official Use Only Information.”333 Even information releasable under
FOIA should be protected if it is sensitive (such as “total flow on a specified
grouping of transmission lines maps and environmental impact statements that were
previously posted on the Internet.”) Specifically, for such information, it
recommends posting “ a summary of the information on the Internet; or provid[ing]
information that will enable a reader to request a copy of the document. This will
give you an opportunity to determine whether or not the requester has a legitimate
need for the material.”334 Protections should be applied to information that meets
certain criteria, including the technology-related dimensions of whether it contains
“details about critical operating facilities, systems or vulnerabilities”; could have
questionable impacts if “it inadvertently reached an unintended audience”; could
provide”details concerning physical or cyber security measures”; could be
“dangerous if it were used in conjunction with other publicly available information”;
could be used “to target Western staff, facilities or operations”; or could “increase the
attractiveness of a critical infrastructure asset as a target.”335
Agencies That Use Unique Definitions
Some agencies have developed their own definitions of sensitive information
that do not reference either the CSA or NIST-based standards.
Department of Defense. DOD uses the following definition for SBU: For
“[a]ccess within the Department of Defense, the criteria for allowing access to SBU
information are the same as those used for FOUO information, except that
information received from the Department of State marked SBU shall not be
provided to any person who is not a U.S. citizen without the approval of the
Department of State activity that originated the information.”336 “For official use
only” information is for unclassified information and “is applied to information that
may be exempt under one or more of the other eight exemptions [to FOIA, the first337
exception is for classified information].” However, marking it FOUO does not
automatically qualify it for an exemption from FOIA. Access is granted to those with

332 DeBelle, op. cit.
333 The manual expires Apr. 9, 2007, according to
[http://ornl.gov/doe/doe_oro_dmg/doectrlfrms.htm]. It is not readily available to permit
review if it contains definitions of sensitive.
334 DeBelle, op.cit.
335 DeBelle, op. cit.
336 “Interim Guidance on Safeguarding and Controlled Unclassified Information,” Attached
to Interim Information Security Guidance,” from Stephen A. Cambone, Undersecretary of
Defense, Memo for Secretaries of the Military Departments, et al., Apr. 16, 2004, p. 6.
337 Attachment to Cambone, op. cit., p. 2.

a need for such access, and such information should be stored in locked files and
unauthorized disclosure will be punished by “appropriate disciplinary action.”338
Department of the Army. The Department of the Army uses the term
“Technical controlled unclassified information,” pursuant to P.L. 98-94, for data
“that disclose critical technology with military or space applications. This includes
any blueprint, drawing, plan, instruction, computer software and documentation, or
other technical information that can be used or be adapted to design, engineer,
produce, manufacture, operate, repair, overhaul, or reproduce any military or space
equipment or technology concerning such equipment.”339
Department of Energy. The DOE uses the term “official use only” for
“sensitive” information that is unclassified. As one of its responses to the
recommendations of the Commission on Science and Security in the 21st century, the
DOE said it prepared “...a new Official Use Only (OUO) Information Order
[completed in June 2002 and current through April 2007], aimed at addressing the
issue of ‘Sensitive, But Unclassified Information’ through the establishment of three
information types (classified, unclassified and Official Use Only.)”340 “To be
identified as OUO, information must be unclassified; have the potential to damage
governmental, commercial, or private interests if disseminated to persons who do not
need to know the information to perform their jobs or other DOE-authorized
activities” and fall under at least one of FOIA exemptions two through nine, Access
to documents marked OUO is limited to persons who need it to perform their jobs or
other DOE-authorized activities. Documents need to be protected as described in
DOE M 471.3-1, and administrative penalties may be imposed on DOE employees
for improperly marking or releasing a OUO document. These provisions are
applicable to all DOE elements and contractors.341 An official with DOE’s
Safeguards and Security Policy staff interpreted DOE’s rules with respect to SBU
science and technology information, which, he said, encompasses such things as
“facilities, personnel, programs, materials, security, safety assessment,
vulnerabilities, and the sensitive subjects list.”342 Officials charged with categorizing
information are to take the following “considerations” into account when deciding
if information is sensitive: “suitability — what does it do for the person,
organization, Department; sensitivity — how can it be used by an adversary?; risk

338 Attachment to Cambone, op. cit., pp. 3-4.
339 “Controlled Unclassified Information (CUI)” powerpoint slide show, produced by
Department of the Army, op. cit.
340 DOE, “Commission on Science and Security in the 21st Century, DOE accompanied by
Recommendations,” June 20, 2002. The statement referenced the DOE document Subject:
Identifying and Protecting Official Use Only Information, DOE Order M 471.3-1, Apr. 9,

2003 (which is current through Apr. 2007).

341 See also “Subject: Identifying and Protecting Official Use Only Information,” DOE Order
O 471.3, Apr. 9, 2003. See also “Identifying and Protecting Official Use Only Information,”
pp. 4, 6 in DOE Information Classification and Control Policy Communique, Feb. 2004.
342 Ray Holmer, “Sensitive Information on the Web, an Information Security Perspective,”
STIP Meeting May 1, 2003.

— what are the chances of an adversary using the information?; consequences —
what could happen if an adversary used the information?”343
DOE also maintains a Sensitive Subjects List, used largely by affiliated national
laboratories, that identifies sensitive information deemed significant to U.S. national
security. It is an internal DOE list to be used to identify fields that require a U.S.
export license for a foreign national. Topics included relate to nuclear weapons and
nuclear fuel cycle, rockets, missiles, and delivery systems; conventional arms and
other defense-related technology; chemical and biological weapons; advanced
scientific computers and software; and business sensitive (proprietary) information.344
Nuclear Regulatory Commission. The Nuclear Regulatory Commission
issued rules for “Safeguards Information” (SGI) — that is, unclassified sensitive
information deemed too sensitive for public release. The proposed rule, issued in
February 2005, said that SGI needs to be protected from unauthorized disclosure
under section 147 of the Atomic Energy Act of 1954 as amended. The proposed rule
expanded the scope of information included and made more rigorous standards and
requirements for background checks and fingerprinting for those who have a “need345
to know” to see the information. The definition was promulgated in a release
issued on May 11, 2005: “While SGI is considered to be sensitive unclassified
information, its handling and protection more closely resemble the handling of
classified confidential information than other sensitive unclassified information.”346
“Sensitive unclassified information,” according to NRC,
is generally not publicly available and encompasses a wide variety of categories
(e.g., personnel privacy, attorney-client privilege, confidential source, etc.).
Information about a licensee’s or applicant’s physical protection or material
control and accounting program for special nuclear material not otherwise
designated as Safeguards Information or classified as National Security
Information or Restricted Data is required by 10 CFR 2.390 to be protected in the
same manner as commercial or financial information, i.e., they are exempt from347
public disclosure.
Federal Energy Regulatory Commission. The Federal Energy
Regulatory Commission (FERC) issued a final rule outlining access procedures to
critical energy infrastructure information (CEII), an SBU category it uses. CEII is
technical information submitted from companies and utilities during regulatory
proceedings. Before September 11, 2001 most of this information was made public.

343 Holmer, op.cit.
344 DOE Sensitive Subjects List (revised June 2001), available at
[ h t t p : / / www.l l n l . go v/ expcon/ SSL.pdf ] .
345 Nuclear Regulatory Commission, “Protection of Safeguards Information,” Proposed
Rule, Federal Register, Feb. 11, 1005, pp. 7196-7217, cited in “NRC Proposes New Rule
on Unclassified Safeguards Info,” Secrecy News, Feb. 11, 2005,
[ h t t p : / / www.f a s.or g/ sgp/ news/ 2005/ 02/ f r 021105.ht ml ] .
346 NRC “Information Security,” May 11, 2005, available at
[http://www.nrc.gov/ what-we-do/safeguards/info-security.html #safe].
347 “Information Security,” May 11, 2005.

FERC’s position is that CEII includes only information that is exempt from
disclosure under FOIA. It also said it developed a process to allow requests to be
made for information that is not already publicly available under FOIA, but also will
keep sensitive infrastructure information out of the public domain in order to help
deter terrorist attacks. The rule noted that the FOIA exemptions most likely to apply
to CEII are exemptions two, four, and seven.348
Appendix B. Illustrations of Federal Information
Systems Created to Transmit Sensitive But
Unclassified Information
Federal agencies have started to develop information systems to share SBU
information and data among themselves and with state and local first responders.
Some of these were mandated by statute. The major legal authorities include the
Homeland Security Information Sharing Act, section 892 of P.L. 107-296, which
required the development of information sharing procedures for certain types of
homeland security information; Homeland Security Presidential Directive (HSPD-7),
which required DHS to produce a national infrastructure protection plan summarizing
initiatives to share information among public and private sectors; the issuance in
August 2004 of executive orders to strengthen terrorism information sharing
standards,349 establishment of a National Counterterrorism Center;350 as well as
passage in December 2004 of the Intelligence Reform and Terrorism Prevention Act
of 2004, P.L. 108-458, which required the establishment of an information-sharing
environment (ISE) and ISE council to exchange terrorism information among pubic
and private entities.
Government Accountability Office (GAO) Inventory
The GAO reported to Congress in September 2004351 that its survey showed that
nine federal agencies352 had developed 34 networks to share information in support
of homeland security functions. These include networks such as DHS’s Critical
Infrastructure Warning Information Network (CWIN). Five agencies, DHS, DOD,
DOJ, State, and Treasury managed 18 networks (17 operational and one in
development) for SBU information. (SBU “is a generic term used to describe
unclassified information that is (1) not required by law to be made available to the

348 “Federal Energy Regulatory Commission, Critical Energy Infrastructure Information,”
Feb. 21, 2003. Federal Register, Mar. 3, 2003, vol. 68, no. 41, pp. 9857-9873. For
secondary analysis, see [http://www.openthegovernment.org/article/articleview/50/1/16].
349 E.O. 13356, “Strengthening the Sharing of Terrorism Information to Protect Americans,”
Aug. 27, 2004.
350 E.O. 13354, “National Counterterrorism Center,” Aug. 27, 2004.
351 Government Accountability Office, Information Technology: Major Federal Networks
That Support Homeland Security Functions, Sept. 2004, GAO-04-375.
352 Departments of Agriculture, Defense, Energy, Health and Human Services, Homeland
Security, Justice, State, Treasury, and the Environmental Protection Agency, pp. 50-51.

public, and (2) sufficiently sensitive to restrict access from public disclosure, but not
sensitive enough to warrant a classified designation.”353) Of these, 11 were networks
that shared information internally only within an agency, 2 were networks that shared
information only with other federal agencies, and 5 networks shared information with
state and local government agencies or the private sector.354
Most of the systems permit information dissemination on a “need-to-know”
basis. GAO catalogued many of these requirements and responses in its report High
Risk Series: An Update, released in January 2005.355 See also the aforementioned
CRS Report RL32597.
Other Federal Information Systems
Since the GAO inventory, additional information systems have been identified
that exchange SBU information.356 For instance, DHS is developing a “Homeland
Security Information Network” that will utilize the Joint Regional Information
Exchange to share SBU and classified information with state and local personnel and
the private sector. It was reported in February 2004 that there were about 1,000
users.357 Other networks over which SBU information exchange occurs include the
“Unclassified but Sensitive Internet Protocol Router Network,” a government
network between DOD users;358 and the “Terrorist Threat Integration Center (TTIC)
TTIC Online system,” a DHS information network for disseminating classified
domestic and international terrorist information from 14 U.S. government agencies,
which is “being updated to support collaboration and information sharing at varying
levels, from Top Secret to Sensitive But Unclassified.”359 There is also the “Multi-
State Anti-Terrorism Information Exchange” (MATRIX), a regional system covering

13 states, including Alabama, Connecticut, Florida, Georgia, Kentucky, Louisiana,

Michigan, New York, Oregon, Pennsylvania, South Carolina, Ohio, and Utah, which
exchanges “sensitive terrorism-related information among members of the law
enforcement community.”360

353 Information Technology: Major Federal Networks, op, cit., p. 12.
354 Information Technology: Major Federal Networks, op. cit., p. 31.
355 GAO 05-207, op. cit., pp. 15-20.
356 For additional details on these types of information sharing systems, see Relyea and
Seifert, op. cit.
357 “Homeland Security Information Network to Expand Collaboration, Connectivity for
State and Major Cities,” DHS press release, Feb. 24, 2004.
358 Discussing an Inspector General Report on this topic:
[ h t t p : / / www.st or mi ngme di a.us/ 76/ 7615/ A761583.ht ml ] .
359 Statement for the Record of John O. Brennan, Director Terrorist Threat Integration
Center on “The Homeland Security Advisory System: Improving Preparedness Through
Effective Warning before the House Select Committee on Homeland Security,” Feb. 4,


360 “State of Georgia Homeland Security Bulletin on MATRIX,” Aug. 1, 2003, Georgia’s
Homeland Security Bulletin No. 20-03.

The Federal Bureau of Investigation in the Justice Department uses a system
called “Law Enforcement Online (LEO), a virtual private network that reaches
federal, state, and law enforcement agencies at the Sensitive but Unclassified (SBU)
level.”361 It also “has secure connectivity to the Regional Information Sharing
Systems network (riss.net).” Reportedly, LEO has about 30,000 users, including
state and local law enforcement members. “LEO makes finished FBI intelligence
products available, including Intelligence Assessments resulting from analysis of
criminal, cyber, and terrorism intelligence.” The system also provides access to
“Intelligence Information Reports” at the Law Enforcement Sensitive classification
level. “[t]he FBI posted the requirements document on LEO, which provided state
and local law enforcement a shared view of the terrorist threat and the information
needed in every priority area.” Reportedly, “The FBI will use an enhanced LEO as
the primary channel for sensitive but unclassified communications with other federal,
state and local agencies. LEO and the DHS Joint Regional Information Exchange
System (JRIES) will also be interoperable.”
DHS also launched a system in April 2004 for “state and local emergency
officials across the country ... [to] ... trade preparedness tips, training ideas and best
practices right from their desks on the Lessons Learned Information Sharing system,
LLIS....”362 Reportedly, emergency officials will have to complete an online
authorization process to view the site, whose content “must meet DHS standards for
‘sensitive, but unclassified information....’”
In addition to these networks, the federal government created FEDTeDS, the
Federal Technical Data Solution. It is a way to transmit and disseminate security-
sensitive or sensitive but unclassified acquisition material related to solicitations
found in FedBizOpps.gov [http://www.fedbizopps.gov].363 It is a collaborative effort
among agencies, led by DOD, the Coast Guard, and the Integrated Acquisition
Environment (IAE) eGovernment initiative under the President’s Management
Agenda. Vendors are to use this system to prepare sensitive information in bids or
proposals. Such information can include specifications, drawing and plans for
federal installations, schedules, procedures, and so forth. More than 90 federal
agencies are reported to disseminate SBU acquisitions-related materials during the

361 Statement of Maureen A. Baginski, Executive Assistant Director, Intelligence, Federal
Bureau of Investigation, before the House of Representatives Select Committee on
Homeland Security, Aug. 17, 2004.
362 Caitlin Harrington, “DHS Launching Web Page for Emergency Officials to Trade Tips,”
Congressional Quarterly Homeland Security, May 15, 2004.
363 According to Federal Technical Data Solution (FEDTeDS), sensitive data with respect
to the solicitation phase of procurement via the Internet includes “information related to
operations, weapons systems and plans, transit authority, structures, individuals and services
essential to the security and management of a facility, including telecommunications,
electrical power, building facility structure layout, Gas and oil storage/transportation, water
supply, emergency services, and the continuity of operations” (“Federal Technical Data
Solution (FedTeDS) Providing Federal Agencies a System to Safeguard ‘Sensitive But
Unclassified’ Acquisition Information,” IAE Bulletin, No. 4, July 17, 2003).

solicitation phase of procurement via the Internet; this system serves approved users.
It became operational on February 19, 2003.364
Section 1016 (b) of P.L. 108-458, the National Intelligence Reform Act (S.
2845, H.Rept 108-796), the intelligence overhaul bill responsive to the 9/11
commission report, called for development of an “information sharing environment”
that would link information systems and allow users to share information between
agencies, between levels of government, and with the private sector. It also
mandated a principal officer and executive committee to create rules and regulations
to implement the information sharing environment. Reportedly, DHS’s Homeland
Security Advisory Council plans on releasing a report that calls for more information
exchanges from federal to state, local, and private sectors, and vice versa.365
The aforementioned GAO High Risk Series Report concluded that despite these
kinds of efforts, “a great deal of work remains ... to improve homeland security
information sharing, including establishing clear goals, objectives, and expectations
for the many participants in information-sharing efforts; and consolidated,
standardizing, and enhancing federal structures, policies, and capabilities for the
analysis and dissemination of information.”366

364 Lisa Cliff, “E-Gov Corner: FedTeDS (Federal Technical Data Solutions),” Federal
Acquisition, July 2003, and “Federal Technical Data Solution (FedTeDS) Providing Federal
Agencies a System to Safeguard ‘Sensitive But Unclassified’ Acquisition Information,” IAE
Bulletin No. 4, July 17, 2003. See also “Business Opportunities,” Homeland Security
IntelWatch, Mar. 11, 2004, p. 1.
365 Joe Fiorill, “U.S. Panel Seeks Broad Information-Sharing Changes to Improve
Antiterrorism Efforts,” NTI, Global Security Newswire, Dec. 13, 2004.
366 GAO 05-207, op. cit., p. 20.