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A 1946 "Restricted Data" stamp on an Atomic Energy Commission document.
One of the Mk 39 nuclear weapons at Goldsboro, largely intact, with its parachute still attached.
The Rocky Flats Plant, which released plutonium into the environment.

Born secret (also born classified) is a legal doctrine in the United States under which certain information is automatically classified from the moment it is created, regardless of the author or location. Scholars describe born‑secret provisions as unique in U.S. law because they criminalize discussion of information that is already publicly available.

The rule originated in statutes covering the design, production, and use of nuclear weapons, though it can also encompass other nuclear ideas and related technologies. The United States Department of Energy has called the doctrine “very controversial."

History

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Historically, the born-secret concept applied to any data related to nuclear technologies, whether or not the specific technology was developed by the United States government or by other parties.[1] Howard Morland, writing in Cardozo Law Review, compared the doctrine to a permanent gag order on nuclear ideas and concepts.[2]

The idea is rooted in the Atomic Energy Act of 1946, which declared that all information about nuclear weapons and nuclear energy was “Restricted Data" (RD) until officially declassified. In the 1954 revision, the United States Atomic Energy Commission gained authority to declassify entire categories of information. The policy assumed that nuclear information could be so vital to national security that it required classification even before formal evaluation. The 1954 act defined RD as:

All data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 2162 of this title.[3]

United States government scientists working on nuclear weapons design have held Q clearance, to access Restricted Data.[4][3]

In 2006, the United States Department of Energy (DOE) itself called the born-secret doctrine “very controversial."[5] Writing for the Department, Nick Prospero cited concerns about constitutionality, the stifling of scientific progress.[5] Prospero also noted long-standing public pressure for open access to health, safety, and environmental data—issues stretching back to the DOE’s predecessors, the United States Atomic Energy Commission and the Energy Research and Development Administration.[5]

Legality and challenges

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The constitutionality of categorically classifying information at the moment of its creation remains untested in U.S. courts.[3]

The legality of the “born secret" doctrine was directly challenged in a 1979 freedom of the press case, United States v. The Progressive.[2] In that case, the magazine The Progressive attempted to publish an account of the so-called “secret of the hydrogen bomb"—the Teller–Ulam design—created entirely from unclassified sources.[2] Many analysts predicted that the United States Supreme Court would, if it heard the case, strike down the born‑secret clause as an unconstitutional restraint on speech.[2] However, the government dropped the case as moot before it was resolved.[6]

The born‑secret doctrine is reported as the only area of United States law in which discussion of information already in the public sphere is illegal.[2] Writing for the Cardozo Law Review, Aviam Soifer argues that classification can even apply retroactively to the original conception—or “germination"—of an idea.[7] In Security Classification of Information, Volume 1, Arvin Quist notes that the concept is unique to nuclear restricted data, but has been extended in principle to cryptography by the National Security Agency (NSA).[3] However, the NSA pursued this not through legislation but through voluntary agreements with stakeholders.[8]

Quist further observes—citing Federal Register notices in 1967 and 1972—that one narrow “loophole" exists:

According to current DOE procedures, research and development on methods of isotope separation other than gaseous diffusion or gas centrifuge can be carried out on an unclassified basis until that research shows a “reasonable potential for the separation of practical quantities of special nuclear material." Thus, this area of atomic‑energy information is not “born classified" but is classified only when it reaches “adolescence."[3]

In the early years of the American nuclear program, scientists expressed fear of unintentionally violating the Atomic Energy Act.[9] Because declassifications were rare, researchers often could not tell what they were allowed to publish or even discuss.[9] Recommendations therefore urged the Atomic Energy Commission to “publish explicit and detailed catalogues of types of data not included in the restricted category," so that those working with nuclear matters would no longer face “the intolerable fear that publication of every research finding is a violation of the Atomic Energy Act of 1946."[9][10]

Risks to media coverage of nuclear incidents

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Aryeh Neier, writing in 1980 for the Index on Censorship essay USA: Born classified, warned that the born-secret doctrine could be invoked to suppress reporting on nuclear accidents and contamination.[11] As examples of incidents he believed were inadequately reported due to secrecy, Neier cited: plutonium releases at the Rocky Flats Plant near Denver, Colorado; the 1961 Goldsboro B-52 crash in North Carolina; and the 1966 Palomares B-52 crash in Spain, where a mid-air collision dropped thermonuclear weapons.[11]

At Palomares, four weapons fell to earth.[12] Three of the bombs were recovered on land near the fishing village of Palomares in the municipality of Cuevas del Almanzora, where the conventional explosives in two warheads detonated on impact, contaminating roughly 0.77 sq mi (2 km2) with plutonium.[12] The fourth bomb was located intact on the floor of the Mediterranean Sea after an 80-day search.[12] Neier noted that the editors of The Progressive cited these incidents when challenging the born-secret doctrine in United States v. Progressive, Inc..[11]

John Aristotle Phillips

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In 1976, Princeton University undergraduate John Aristotle Phillips designed, on paper, a nuclear weapon to demonstrate how easily such technology might be acquired by American adversaries.[13] Although his design relied solely on publicly available information, the completed work was made classified and was therefore illegal to disseminate in the United States.[14] Phillips reflected:

Suppose an average—or below-average in my case—physics student at a university could design a workable atomic bomb on paper. That would prove the point dramatically and show the federal government that stronger safeguards have to be placed on the manufacturing and use of plutonium. In short, if I could design a bomb, almost any intelligent person could.[15]

See also

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References

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Public Domain This article incorporates public domain material from websites or documents of the United States government.

  1. ^ Wellerstein, Alex (August 18, 2022). "Can Trump Just Declare Nuclear Secrets Unclassified?". Lawfare. Archived from the original on August 30, 2023. Retrieved August 31, 2024. Over the years, the 'all data' part would be taken very literally: All data relating to atomic weapons, irrespective of who discovered or invented it, or whether they worked for the U.S. government or not, would be covered.
  2. ^ a b c d e Howard Morland (March 2005). "Born Secret" (PDF). Cardozo Law Review: 1401–1408. Archived from the original (PDF) on May 12, 2006.
  3. ^ a b c d e Quist, Arvin (2002). "4". Security Classification of Information: Vol. 1. Introduction, History, and Adverse Impacts, chapter 4, "Classification Under The Atomic Energy Act" (PDF). Oak Ridge National Laboratory. Archived from the original on September 22, 2021.
  4. ^ William, Burr (July 1, 2003). "1960s "Nth Country Experiment" Foreshadows Today's Concerns Over the Ease of Nuclear Proliferation". National Security Archive. Archived from the original on August 24, 2017. Retrieved August 31, 2024. The two scientists received "Q" clearances for nuclear weapons design information because any information that they developed on nuclear design would, under the law, be considered secret and "born classified."
  5. ^ a b c Prospero, Nick (February 2006). ""Born Classified" - The Phrase That Won't Die" (PDF). United States Department of Energy. Archived (PDF) from the original on February 1, 2017. Retrieved August 31, 2024.
  6. ^ Entin, Jonathan L. (1980). "United States v. Progressive, Inc.: The Faustian Bargain and the First Amendment". Northwestern University Law Review. 75 (3): 541. ISSN 0029-3571. Archived from the original on May 14, 2018. The government moved to dismiss the case as moot after the Madison (Wis.) Press Connection published an article containing the same basic information by Charles Hansen; a California computer programmer, on September l6, 1979.
  7. ^ Soifer, Aviam (2024). "Born Classified, Born Free: An Essay for Henry Schwarzschild". Cardozo Law Review. 19: 16. Archived from the original on September 1, 2024. Retrieved August 20, 2024. The Born Classified rationale could apply from the moment of the germination of these ideas and could even be applied retroactively. In fact, the Progressive litigation exemplified this point. The decision by Government officials to label a publication as a national security risk moved the dispute outside the usual legal rules and beyond the ken of regular judicial processes.
  8. ^ Corrigan-Gibbs, Henry (2014). "Keeping Secrets". Archived from the original on November 10, 2018. Even if Inman could get a bill through Congress, Hellman said, the First Amendment would make it difficult to prevent researchers from speaking publicly about their work. If they didn't publish their papers, "they'll give 100 talks before they submit it for publication." As a sort of last-ditch effort at compromise, Inman organized a voluntary system of prepublication review for cryptography research papers. A number of other scientific journals have attempted a similar system in recent years.
  9. ^ a b c Quist, Arvin (2002). "3". Security Classification of Information: Vol. 1. Introduction, History, and Adverse Impacts. Oak Ridge National Laboratory, chapter 3, "Classification of Information--An Overview". Archived from the original on December 4, 2021.
  10. ^ J. R. Newman & B. S. Miller (1948). The Control of Atomic Energy. New York: McGraw-Hill Book Company, Inc. p. 220. But to dispel doubts and to relieve physicists of the intolerable fear that publication of every research finding is a violation of the Act, the Commission will be well advised to publish explicit and detailed catalogues of types of data not included in the restricted category.
  11. ^ a b c Aryeh Neier (February 1980). "USA: 'Born classified'". Index on Censorship. 9: 51–54. doi:10.1080/03064228008533026. Archived from the original on September 2, 2024.
  12. ^ a b c Long, Tony (January 17, 2008). "Jan. 17, 1966: H-Bombs Rain Down on a Spanish Fishing Village". WIRED. Archived from the original on December 3, 2008. Retrieved February 16, 2008. A U.S. Air Force B-52 bomber collides with its refueling tanker jet in mid-air over the Spanish coast. Its four hydrogen bombs fall to earth near the fishing village of Palomares. The bomber collided with the KC-135 tanker at 31,000 feet. Exploding fuel completely destroyed the tanker, killing all four crew members. The B-52 broke apart, spilling its payload -- four Type B28RI hydrogen bombs equipped with 1.45-megaton warheads. Three hit the ground near Palomares while the fourth fell into the Mediterranean Sea.
  13. ^ Peterson, Charles (May 8, 1977). "John Aristotle Phillips: The A-Bomb Kid". Youngstown Vindicator. Archived from the original on July 2, 2022. Retrieved July 24, 2011 – via Google News.
  14. ^ Collins, Paul (December 16, 2003). "The A-Bomb Kid". The Village Voice. Archived from the original on October 31, 2023.
  15. ^ Wellerstein, Alex (April 9, 2021). Restricted Data: The History of Nuclear Secrecy in the United States (First ed.). University of Chicago Press. ASIN B08SL9YB5B. ISBN 978-0226020419.
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