§798. Disclosure of classified information'

(2) Whoever knowingly and willfully communicates, furnishes, transmits, or. otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety cr interest of the United States or for the bereit of any foreign government to the detrimen of the United States any classified information

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or applicance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the process of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes

Shall be fined not more than $10,000 or inprisoned not more than ten years, or both.

(b) As used in subsection (a) of this sectionThe term "classified information" means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dis semination or distribution;

The terms "code," "cipher," and "cryptographic system" include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;

The term "foreign government" includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States; The term "communication intelligence" means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;

The term "unauthorized person" means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.

(c) Nothing in this section shall prohibit the furnishing, upon lawful demand, of information to any regularly constituted committee of the Senate or House of Representatives of the United States of America, or joint committee thereof.

requesters who argue that against the background of

what

.9 now further disclosures cannot be deemed harmful.

It is somewhat paradoxical, in ay view, that Congress 1as recognized the special sensitivity of communications Anelligence information to the extent of providing

protection under the espionage laws 13 .s.c. Section

33. more rigorous than for most other kinds of classified material. Yet at the same time, under the Freedom of

Information Act, NSA is called upon repeatedly to litigate the same question and to bear the burden of proving that Communications intelligence information is fragile and

requires protection.

733.

The present state of the law leaves

it open to the courts to reject in the FCIA context the judgment that Congress has reached under 13 U.S.C. Section Moreover, current trends in the development of POTA litigation make no provision for the unusual sensitivity of communications intelligence information and thus raise the risk that the process of litigation itself will render nugatory the protection sought to be obtained by withholding communications intelligence information from disclosure.

Mr. SILVER. Thank you very much.

The volume of requests that we receive and the cost of processing those requests is only a small fraction of those that Mr. Carlucci described to you in the case of the CIA. And we cannot complain, at least so far that the volume or the burden on the Agency in purely fiscal and logistical terms is excessive. There is, of course, an essential difference between these two acts. Under the Freedom of Information Act, any of the Agency's records is subject to a request for inspection by any person, be he a citizen, a permanent resident alien, or a foreigner. While we have the nine statutory exemptions, which cover basically all of our classified information and certain additional information about the Agency and its operations, the FOIA nonetheless requires us to conduct a reasonable search responsive to a request, even though we may know at the outset that the documents we will find will be exempt from disclosure. It places on the Agency the burden of justifying the withholding of any documents that it may find.

Under the Privacy Act, requests may be made only by citizens and permanent resident aliens, only for records concerning the requesting party, and only for records that are located in a system of records as defined under the act. In very general terms, that is a system in which the records are retrievable by name or by some personal indentifier. Because of the restricted scope, the Privacy Act has presented very few problems to the Agency in comparison with the FOIA.

Within NSA, our systems of records under the Privacy Act include personnel, security, administrative, medical, and similar records. They do not include any intelligence records as such. Our intelligence records are not filed in files or dossiers by names of individuals or organizations, and consequently, in our view, are not within a system of records subject to the Privacy Act.

The costs, as I indicated before, of administering the act have not yet become a matter of concern. In calendar 1978, the cost to the Agency of administering the FOIA was about $524,000. Now, this is the direct personnel cost of searching. It does not include the cost to the Government of defending the various FOIA cases in which we were defendant. The number of requests processed was 704. That was about a one-third increase over the previous calendar year. In 1978, the cost of administering the Privacy Act was about $125,000, an increase of approximately 12 percent over the previous year. There was an 88percent increase in the number of requests. The number, however, was still quite small.

I might note that of the FOIA requests that we receive, about 75 percent are in the first person category, where the requester seeks information that the Agency may have about himself, and this is, for reasons I will describe shortly, a category that gives the Agency very serious problems in responding.

When we receive a request under either of the acts, the staff, the Agency policy staff, which is responsible for handling initial decisions, forwards a copy of the request to each organization within the Agency that is likely to have files that may contain responsive material. In the case of the Privacy Act, these generally are the military and civilian personnel organizations, the security organization, the medical center. In the case of the Freedom of Information Act, it

would be any component of the Agency that, based on the expert judgment of the policy staff, is likely to have files containing information that is responsive.

A considerable amount of effort goes in to locating files. Very little of what is located is ever disclosed. The vast bulk of our records, outside of the personnel systems of records, contain intelligence information or information about NSA and its activities that would be harmful to the national security if disclosed. That information is withheld. The releases of information that we have made, except for a small amount of declassification of World War II communications intelligence material that was deemed no longer to require classification, are almost always in cases of Privacy Act requests for records about usually an agency employee or a disappointed applicant for employment.

There are two principal statutory bases on which NSA withholds records containing intelligence information or information about the Agency from release. The first is the exemption for information that is specifically authorized under criteria established by an executive order to be kept secret in the interests of national defense or foreign policy, and which is in fact properly classified pursuant to the executive order. This is the so-called (b)(1) exemption to the Freedom of Information Act, also referred to sometimes as the "national security exemption."

A second statutory basis for exemption is information that is specifically exempted from disclosure by statute under section (b)(3) of the Freedom of Information Act. The principal (b)(3) statute on which we rely is Public Law 86-36, which provides, in part, that no law shall be construed to require the disclosure of the organization or any function of the National Security Agency, of any information with respect to the activities thereof, or the names, titles, salaries or number of persons employed by such agency. Additional statutory basis under the (b) (3) exemption is found in 18 U.S.C. 798, which is a criminal statute making it a crime to engage in unauthorized disclosure of communications intelligence information, and section 403 (d) (3) of the National Security Act, which provides that the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods.

Even though, as I said earlier, the administrative burden and expense of applying the Freedom of Information Act are not yet problems for the Agency-and I say not yet because we are experiencing an upward trend in FOIA requests, and if this continues we could run into the kinds of problems that other agencies have described to you or will be describing to you-although these are not problems of that order of severity, in my view the operation of the act does pose a serious problem for the Agency. The act is having and is likely to have an adverse effect on our ability to protect sensitive intelligence source and method information, the disclosure of which could have serious detrimental consequences on NSA's ability to carry out its mission.

It would be an exaggeration to say that the FOIA to date has caused any irreparable disclosure of sensitive information. However, the evolution of the kinds of requests that we are getting, and the litigation in which we have been involved, coupled with the course that the law is