David L. Sobel
Electronic Privacy Information Center
House Committee on Government Reform
Subcommittee on Government Management, Information and Technology
Hearing on H.R. 4246, the Cyber Security Information Act
June 22, 2000
Mr. Chairman and Members of the Subcommittee:
Thank you for providing me with the opportunity to appear before the Subcommittee to address H.R. 4246, the Cyber Security Information Act. The Electronic Privacy Information Center (EPIC) makes frequent use of the Freedom of Information Act (FOIA) to obtain information from the government about a wide range of policy issues, including consumer privacy, electronic surveillance, encryption controls and Internet content regulation. We firmly believe that public disclosure of this information improves government oversight and accountability. It also helps ensure that the public is fully informed about the activities of government. I have personally been involved with FOIA issues for almost twenty years and have handled information requests on behalf of a wide range of requesters. In 1982, I assisted in the preparation of a publication titled Former Secrets, which documented 500 instances in which information released under the FOIA served the public interest. I am convinced that an updated version of that book today would yield thousands of examples of the benefits we all derive from the public access law that has served as a model for other nations around the world.
EPIC and other members of the FOIA requester community have, for many years, voiced concerns about various proposals to create broad, wholesale exemptions from the Act's public disclosure provisions. Most recently, EPIC has joined with other right-to-know advocates, including scientific, journalistic, library and civil liberties organizations, in questioning the need for a new FOIA exemption, such as the one contained in H.R. 4246, for information relating to the protection of critical infrastructures. We collectively believe this exemption approach is fundamentally inconsistent with the basic premise of the FOIA, which, as the Supreme Court has recognized, is "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."1 To accomplish that end, "[d]isclosure, not secrecy, is the dominant objective of the Act."2
It is clear that, as we enter a new century and move further into the electronic age, the federal government increasingly will focus on the protection of critical infrastructures. It is equally apparent that government policy in this emerging field will become a matter of increased public interest and debate. EPIC has monitored developments in this area since the creation of the President's Commission on Critical Infrastructure Protection (PCCIP) in July 1997. After the Commission issued its report, EPIC published an analysis of the PCCIP's proposals (Critical Infrastructure Protection and the Endangerment of Civil Liberties3) which identified a number of Commission recommendations that could threaten privacy, extend the reach of federal law enforcement agencies, limit mechanisms for government accountability and increase the level of information classification and secrecy. While reasonable observers can disagree over the advantages or disadvantages of the PCCIP's proposals, or the more recent initiatives contained in the Administration's National Plan for Information Systems Protection, I believe we can all agree that critical infrastructure protection raises significant public policy issues that deserve full and informed public discussion.
Public disclosure of relevant information has already helped to shape the scope of Administration policy on critical infrastructure protection. An initial draft of the National Plan called for the creation of the Federal Intrusion Detection Network (FIDNET) which, as originally proposed, would have subjected private sector computer networks to a potentially invasive monitoring system administered by the Federal Bureau of Investigation. After media accounts of the proposal were published, negative public reaction resulted in a modified FIDNET proposal, one that will be limited to government computer networks and operated by the General Services Administration. Even as modified, the FIDNET initiative raises significant legal issues; last year, EPIC released a government memorandum, obtained under the Freedom of Information Act, which indicated that the Department of Justice was aware that the proposal could violate federal wiretap laws. Other records we obtained under FOIA showed that the government plans to use credit card records and telephone toll records as part of the FIDNET system. It is this experience that leads us to question the wisdom of removing information concerning critical infrastructure protection from public view.
Increasingly, government activity in this area will be conducted in cooperation with the private sector and, accordingly, will involve extensive sharing of information between the private sector and government. H.R. 4246 contemplates an automatic, wholesale exemption from the FOIA for "any cyber security statements or other such information provided by a party in response to a special cyber security data gathering request." Given the breadth of the bill's definitions of "critical infrastructure" and "cyber security," I believe the proposed exemption would hide from the public essential information about critically important -- and potentially controversial -- government activities undertaken in partnership with the private sector. It could also adversely impact the public's right to know about unsafe practices engaged in by the private operators of nuclear power plants, water systems, chemical plants, oil refineries, and other facilities that can pose risks to public health and safety. In short, critical infrastructure protection is an issue of concern not just for the government and industry, but also for the public -- particularly the local communities in which these facilities are located.
If the history of the FOIA is any guide, the proposed exemption is likely to result in years of litigation as the courts are called upon to interpret its scope. The potential for protracted litigation brings me to what I believe is the most critical point for the Subcommittee to consider, which is the need for the proposed critical infrastructure exemption. FOIA caselaw developed over the past 25 years makes it clear that existing exemptions contained in the Act provide adequate protection against harmful disclosures of the type of information we are discussing. For example, information concerning the software vulnerabilities of classified computer systems used by the government and by defense contractors is already exempt under FOIA Exemption 1. Most significantly, Exemption 4, which protects against disclosures of trade secrets and confidential information, also provides extensive protection from harmful disclosures. Because I believe that Exemption 4 extends to virtually all of the material that properly could be withheld from disclosure, I would like to discuss briefly the caselaw that has developed in that area.
For information to come within the scope of Exemption 4, it must be shown that the information is (A) a trade secret, or (B) information which is (1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential. 4 The latter category of information (commercial information that is privileged or confidential) is directly relevant to the issue before the Subcommittee. Commercial or financial information is deemed to be confidential "if disclosure of the information is likely to have either of the following effects: (1) to impair the government's ability to obtain the necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained."5 My understanding is that H.R. 4246 seeks to ensure that the government is able to obtain critical infrastructure information from the private sector on a voluntary basis, a concern which comes within the purview of Exemption 4's "impairment" prong. The courts have liberally construed "impairment," finding that where information is voluntarily submitted to a government agency, it is exempt from disclosure if the submitter can show that it does not customarily release the information to the public.6 In essence, the courts defer to the wishes of the private sector submitter and protect the confidentiality of information that the submitter does not itself make public.
In addition to the protections for private sector submitters contained in FOIA Exemption 4 and the relevant caselaw, agency regulations seek to ensure that protected data is not improperly disclosed. Under the provisions of Executive Order 12600 (Predisclosure Notification Procedures for Confidential Commercial Information) issued by President Reagan in 1987, each federal agency is required to establish procedures to notify submitters of records "that arguably contain material exempt from release under Exemption 4" when the material is requested under the FOIA and the agency determines that disclosure might be required. The submitter is then provided an opportunity to submit objections to the proposed release. The protections available to private sector submitters do not end there; if the agency determines to release data over the objections of the submitter, the courts will entertain a "reverse FOIA" suit to consider the confidentiality rights of the submitter.7
In light of the substantial protections against harmful disclosure provided by FOIA Exemption 4 and the caselaw interpreting it, I believe that any private sector reticence to share important data with the government grows out of a misperception of existing law. Indeed, the myth of inadequate protection for such information could become a self-fulfilling prophecy if these misperceptions are not corrected. Rather than amending current law in an effort to address misperceived deficiencies, federal efforts should be directed toward educating and reassuring the private sector as to the broad confidentiality protections provided by the FOIA. Failure to do so will merely inaugurate a new generation of protracted litigation in an area that has already consumed considerable judicial resources, while creating new and unnecessary barriers to public access.
In summary, the Freedom of Information Act has worked extremely well over the last 25 years, ensuring public access to important information while protecting against specific harms that could result from certain disclosures. After monitoring the development of critical infrastructure protection policy for the last several years, I have heard no scenario put forth that would result in the detrimental disclosure of information under the current provisions of the FOIA. Overly broad new exemptions could, however, adversely impact the public's right to oversee important and far-reaching governmental functions. I urge the Subcommittee and the Congress to preserve the public's fundamental right to know.
Mr. Sobel has a longstanding interest in civil liberties and information access issues and has written and lectured on these issues frequently since 1981. He was formerly counsel to the National Security Archive, and his FOIA clients have included Coretta Scott King, former Ambassador Kenneth Rush, the Nation magazine and ABC News.
Mr. Sobel is a graduate of the University of Michigan and the University of Florida College of Law. He is a member of the Bars of Florida, the District of Columbia, the U.S. Supreme Court and several federal Courts of Appeals.
1. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
2. Department of the Air Force v. Rose, 425 U.S. 352 (1976).
4. Getman v. NLRB, 450 F.2d 670, 673 (D.C. Cir. 1971), stay denied, 404 U.S. 1204 (1971).
5. National Parks and Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).
6. Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871 (D.C. Cir. 1992) (en banc), cert. denied, 113 S.Ct. 1579 (1993).
7. See GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375 (1980).
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