Less Access to Less Information - Legislation

Sensitive Homeland Security Information

The law that created the Department of Homeland Security included a provision that required the federal government to safeguard and share "homeland security information" with government officials, public health professionals, firefighters and others in order to respond to a terrorist attack.

Title VIII of the Homeland Security Act, the “Homeland Security Information Sharing Act,” authorizes the creation of a new and expansive system intended to facilitate the sharing of “sensitive homeland security information” (SHSI) among federal agencies, state and local governments, and law enforcement. According to the Act, a loosely-defined category of information, “Sensitive But Unclassified” (SBU), is to be expanded to cover SHSI. The concept of SBU has been around for quite a while, but each different agency that uses it applies a different meaning. The Act created a sub-branch (SHSI) that is intended to be used to restrict general access to government information relating to “terrorism,” or that a “terrorist” or “terrorist organization” could use to carry out a “terrorist activity.” None of these terror-related categories are defined in the Act. The USA PATRIOT Act has some definitions of these categories; they are, unfortunately, circular (e.g., a terrorist is someone who commits a terrorist act). Nor is “sensitive” defined.

The result is that virtually any type of information conceivably related to terrorism-which, under certain circumstances, is virtually any type of information-could be swept out of public access. Examples include the local sheriff’s duty roster, the rusty spans of a railroad bridge, sports schedules, environmental information, water supply information, much of the information routinely put out by many government agencies.

A complicated system -- at the heart of which are Non-Disclosure Agreements (NDAs) -- is pointed to in the Act. It will regulate how information gets into the system-and how (and if) it could get out of the system-and what people have to do to get it and use it. Because of the complexity of the system, and the potential expanse of information and persons covered, the risks are extremely high that the public will be excluded even when they need the information-and even medical personnel and others on the front line may not be able to get it on a timely basis. The statute dictates that SHSI be controlled so that delivery of information can be restricted “to specified subgroups by geographic location, type of organization, position of a recipient within an organization, or a recipient’s need to know such information.” Because SHSI is not classified, it is not subject to declassification. It is SHSI until the federal agency that designated it as SHSI removes that status.

Joint letter to Secretary Tom Ridge (27 August 2003) (pdf)

Critical Infrastructure Information Protection  

On November 22, 2002, Congress passed H.R. 5005, the Homeland Security Act of 2002 to create a Department of Homeland Security. It was signed into law (Public Law 107-296) by President Bush on November 25th. The law includes a provision (Sec. 204) that will create a broad exemption from the Freedom of Information Act: "Information provided voluntarily by non-Federal entities or individuals that relates to infrastructure vulnerabilities or other vulnerabilities to terrorism and is or has been in the possession of the Department shall not be subject to section 552 of title 5, United States Code" (the Freedom of Information Act).

Other provisions will:

  1. allow the private sector, on its own say-so, to designate a very broad array of voluntarily-submitted information as prohibited from disclosure under this law;
  2. prevent the public, other federal agencies, state and local officials from access to a wide range of information about risks and vulnerabilities in "infrastructures"- including computer-related systems, physical plants and structures, and emergency services;
  3. give immunity from civil litigation for such voluntarily-disclosed information; and
  4. criminalize disclosure of such information.

On June 16, 2003, the Washington Office submitted comments (pdf) on behalf of ALA on the proposed implementation by the Department of Homeland Security of the critical infrastructure information protection provisions of the Homeland Security Act.

A broad coalition opposes weakening the Freedom of Information Act. Groups opposing new secrecy provision include library organizations, environmental groups, civil liberties groups, open-government groups, and press organizations. They include:

  • American Association of Law Libraries
  • American Library Association
  • American Society of Newspaper Editors
  • Association of Research Libraries
  • Center for Democracy and Technology
  • Electronic Privacy Information Center
  • Environmental Defense
  • National Environmental Trust
  • National Newspaper Association
  • Natural Resources Defense Council
  • Newspaper Association of America
  • OMB Watch
  • Radio-Television News Directors Association
  • Reporters Committee for Freedom of the Press
  • The Society of Professional Journalists
  • U.S. Public Interest Research Group

OMB Watch has posted all the comments received by DHS at http://www.ombwatch.org/article/articleview/1774/1/18/


Leaks Criminalization (Official Secrets Act)  

This provision was part of the Intelligence Authorization Act for Fiscal Year 2001. The entire bill was vetoed by President Clinton in November 2000 because of this provision. In 2001, the primary proponent of this provision, Senator Richard Shelby, indicated his intention to attach it to the 2002 Intelligence Authorization Act.

To date, no new provisions have been introduced. This is largely due to the apparent success of ongoing, non-public discussions among representatives of the publishing community and representatives of the federal national security infrastructure. These discussions grew out of the previous successful efforts by the public interest coalition, including ALA, working in conjunction with press organizations to stop the legislation in 2001.

Go to the  OMB Watch web site to learn more about the "Official Secrets Act."


Presidential Records

On March 27, 2003, Rep. Doug Ose (R-CA) introduced H R 1493, "To revoke an Executive Order relating to procedures for the consideration of claims of constitutionally based privilege against disclosure of Presidential records.” ALA is working with other groups to secure co-sponsors for the bill.

On July 31, 2003, Senators Jeff Bingaman (D-NM) and Bob Graham (D-FL) introduced the Senate companion bill, S. 1517.

See also: Administration Actions, click on "Executive Orders"