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Federal Prosecutors Tempt the Streisand Effect 100

Posted by timothy
from the don't-think-of-a-classified-pink-elephant dept.
decora writes "As the case of NSA IT guru Thomas Andrews Drake nears trial, the fur has been flying between the defense and prosecution lawyers. Earlier this week the judge ordered the sealing of a defense motion because the government claimed it contained classified information. The problem? The document had been sitting on the Federation of American Scientists website for several days. Another problem: the document is marked 'Unclassified' in big bold letters at the top of the page."
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Federal Prosecutors Tempt the Streisand Effect

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  • The NSA could not “classify” the records as FOUO and cannot “downgrade” them to “unclassified” because they are already unclassified. “Information cannot be classified and FOUO at the same time,”

    As the original article suggests, this just highlights the silly classification system of the government.

    • Re:Furthermore... (Score:5, Informative)

      by dwillden (521345) on Friday March 25, 2011 @08:25AM (#35610428) Homepage
      No it doesn't. FOUO is a handling Caveat not a Classification. It's not a caveat applicable to classified material because their handling is by default different and restrictive. The document is marked unclassified because it is an unclassified document used/created in an environment where classified materials are extensively used or created, thus it needs to be clearly marked so as to not get it confused with or mixed in with classified materials. The information also meets one or more of the requirements for exemption from FOIA requests, thus the FOUO handling Caveat is applied, which mainly means that FAS shouldn't have gotten it in the first place.
      • by cyberfin (1454265)
        I stand corrected in the original intention of my comment if in fact this is true. However I stand by my use of the word "silly" as the direct effect of the FOUO handling caveat is that it becomes classified [thefreedictionary.com].

        Don't get me wrong; there is a system and it's being used. I'm just saying the system is silly IMHO.
        • by dwillden (521345)
          Not really, The penalties for leaking or mishandling truly classified information are severe. The penalties for mishandling FOUO are a slap on the wrist and don't do it again. FOUO is primarily to limit access to personal identification information, the most common use is to protect ID theft info such as Birthdates and SSN's and the like, Medical and legal records records are additional classes of exemptions that would be marked FOUO. It doesn't seem like there is a difference, and based on pure dictiona
      • By DOD definition http://www.dtic.mil/whs/directives/corres/pdf/520001r.pdf [dtic.mil] FOUO documents can't be classified.

    • It's not silly at all. The prosecutors were just dumb to not know the rules. The NSA properly marked the document as UNCLASSIFIED//FOUO then the dumbass attorneys wanted to say "it's classified!" when it clearly isn't, since FOUO is a handling instruction (not a classification) that is used for unclassified information only.

      The point of FOUO is to exempt information from Freedom of Information Act. It doesn't meet the standards for the lowest classification of CONFIDENTIAL, but deserves shielding from pub

    • I tried reading the link article about the whatever it was prize, and fell asleep about two paragraphs in. Can someone provide a link to something that explains his significance? Something that is to the point. Something that doesn't ramble on about his grade school or who changed his diapers?
  • by rwv (1636355) on Friday March 25, 2011 @07:25AM (#35609938) Homepage Journal
    My knee-jerk reaction would be that somebody not familiar with the technical details may have marked this incorrectly and then posted it. Just because the top of the page says unclassified doesn't mean an honest mistake couldn't have occurred to cause it to get labeled incorrectly. If wouldn't surprise me if they are trying to protect one individual number within that document with the new (more protective) classification.
    • by QID (60884)

      Exactly, just because it's public information doesn't make it unclassified--and all of the fines and punishments still apply. That's why all sorts of businesses banned people from going to WikiLeaks, they don't want to wind up with classified data on their systems and all of a sudden your whole network is suddenly classified, and you can imagine what a shitstorm that turns into. It's also possible that the "Unclassified" label on the documents is incorrect; people make mistakes, after all.

      • by TheCarp (96830)

        Sounds like the sort of thing you want top spread far and wide then. When stupid regulations that have no hope of ever achieving their intended effect are enforced, they deserve to be shown for how ineffectual and ridiculous they are. It is peoples duty to spread such documents as far and wide as possible whenever they come about.

      • by jank1887 (815982) on Friday March 25, 2011 @08:49AM (#35610744)

        Putting classified info on an unclassified network doesn't make your network classified. It puts you in violation of proper classified material storage, and is referred to as a classified spillage. The network should be protected (taken offline) and cleaned. But it doesn't become classified any more than a filing cabinet at your desk would become classified if you put a classified report in it.

        Also, the combination of certain Unclassified pieces of information could render the information classified. So putting two unclassified reports together, or portions thereof, could make the overall report sensitive enough that is should be classified. Sometimes people cut and paste then skip the security review because both items were previously declared unclassified. It would be silly if they were both 'Unclassified, Public Release Approved' if simple combination of two public documents could change that. But that's what proper security review is for, to identify things that shouldn't be public release approved. Could be that's what happened here, and on later review they're realizing it shouldn't have been declared (if it was properly declared) Unclassified.

        • by naasking (94116)

          Rather, I think the opposite should happen: once classified material becomes public, it should automatically become unclassified. You cannot put a genie back in a bottle, and trying beat it back in by punishing otherwise law-abiding citizens is plain stupid.

      • Repeat after me: classifications aren't derived from the content of the document, rather, from the methods used to acquire the information in the document.

        • by Jumperalex (185007) on Friday March 25, 2011 @10:09AM (#35611734)

          Repeat after me: you are wrong. Content can most certainly determine classification with no regard to the method. Troop movements (dates, locations) aren't classified because of the source, but because if the enemy knows the info they can act. What you are thinking about is intelligence data which is *typically* classified due to the source because it might give the enemy clues about how to prevent further intel gathering. But sometimes, the over riding concern still is letting the enemy know that we know it at all, and not how we know it. Other things like weaknesses in weapon systems, Tactics Techniques and Procedurs (TTP) are also classified because of the content and not some "method of acquisition".

        • In case you didn't accept Jumperalex's explanation, you are wrong.

          Classification is based on the threat posed by the acquisition of the information by a hostile entity.

          Sometimes, otherwise non-sensitive information received from a particular source may be classified if it could expose the source.

          E.g., if there's a concern that Tidbit A would only be known to Alice and Bob, we cannot let Alice know that we know---because she will know that Bob leaked. So even if Tidbit A doesn't merit a higher classification

          • Yes, you are correct. I got ahead of myself and was thinking of compartmentalized classifications. The caveats are what protect the "means and methods", not the classification levels (but certain caveats also make the classification automatically set to SECRET or TOP SECRET).

            • by Lord_Byron (13168)

              I'm sorry, but you still don't quite have it. Classified Sources And Methods Information (SAMI) can be protected as Sensitive Compartmented Information (SCI) or any other Special Access Program (SAP). These types of information are marked with a compartment name. However, per DCID 6/5 [fas.org] there is also non-SCI SAMI, which is marked with a label that controls dissemination but does not require SCI or SAP access. This marking is similar to other caveats like PROPIN (proprietary information) or RELROK (Releasa

    • by thaylin (555395)
      What about when it is marked unclassified not once, but twice, each page for 6 pages.. That is 12 times someone "accidentally" marked it unclassified?
      • Since the marking is always applied twice per page, one at the top and one at the bottom, someone who applied the wrong classification to the document would of course do so twice per page so that argument doesn't really hold water as far as determining whether they made a mistake or not. A student who reached the wrong conclusion on a test in his work, and the bubbles in that wrong answer again on an answer key, doesn't suddenly make his answer correct by writing it twice.
      • by rwv (1636355)

        Well... classification markings usually lead towards being a "shotgun surgery" afterthought that's required for certain documents. If your shotgun is loaded with Unclassified bullets, then everything will come out Unclassified when you pull the trigger. If you don't know that you need to retrieve your Classified bullets from the Information Security department, you'll be prone to make a mistake. At the same time, there's pressure to keep things at the least restrictive classification level possible (beca

        • "At the same time, there's pressure to keep things at the least restrictive classification level possible (because managing classified material is burdensome and (hence) expensive)."

          That is the official policy. The reality is the opposite. Pournelle's Iron Law of Bureaucracy [jerrypournelle.com] would explain why there is more pressure to classify stuff than leave it unclassified. After all that will protect and expand the bureaucracy. The fact that FOUO exists and is used on everything now proves the point; Now we classify u
      • by jank1887 (815982)

        that's a MS Word default header/footer. Still a single action of applying the wrong classification.

      • Every page inside of a document is marked top and bottom with the highest classification level of that individual page (and actually each paragraph within the page). So either nothing is classified on THAT page (most likely the case), or these 6 pages come from a higher classified document (also most likely the case).

        Why people "contribute" to slashdot and have no idea what they are talking about confounds me to this day.

    • I can see how a classified document might get a FOUO marking, but if the document has UNCLASSIFIED across the top of the pages, it is extremely unlikely that is a mistake. Everyone I know who works with classified information is extremely careful about that.
      • by stewbacca (1033764) on Friday March 25, 2011 @09:16AM (#35611094)

        I can see how a classified document might get a FOUO marking...

        Well you'd be wrong. Only unclassified documents can get FOUO. Classified information, by definition, is exempt from the Freedom of Information Act so FOUO would never occur with classified info.

        http://www.dtic.mil/whs/directives/corres/pdf/520001r.pdf [dtic.mil]

        Paragraph AP3.2 -- AP3.2.1.1. "For Official Use Only (FOUO)" is a designation that is applied to unclassified information that may be exempt from mandatory release to the public under the Freedom of Information Act (FOIA)...

        • by Eevee (535658)
          Well, you are equally wrong. While it may be true that a properly marked classified document would never have FOUO, we're dealing with people. And people do things out of force of habit. Or they don't proofread what they've done. So I can easily see someone tacking FOUO on the end of the classification string just because they do it all the time. Or doing a replace on UNCLASSIFIED instead of on UNCLASSIFIED//FOUO, resulting in a mangled classification string.
          • Except most classifications are applied via computer programs that won't let you apply invalid classification combinations. Sure, human error comes into play, but the only human error here is the prosecution erroneously saying that the FOUO document is classified, when no FOUO documents are classified. They in fact are all unclassified so the prosecution just looks like they don't know what they are talking about. And they don't, because every low level Private in intel learns classification guidelines in

      • by smelch (1988698)
        And nobody ever drops a baby either. Never.
    • This power has been abused severely by the executive over the last 10 years or so. There are plenty of cases were "national security" roadblocks are thrown up just to hamper the other side of a court case. About 5 years or so ago, Bush retroactively *reclassified* lots of documents [google.com] that had been declassified by Clinton. But, some of them were already in the public record. It turned out that much of the effort was about saving people from embarrassment for horribly wrong decisions or predictions ("oh, th

  • by Anonymous Coward

    I'm in Canada. I have downloaded the document. I await the black helicopters...

  • by Anonymous Coward

    please move along

  • by UncHellMatt (790153) on Friday March 25, 2011 @08:05AM (#35610198)
    They're tempted to have a big nose and be immensely popular with homosexuals?

    /me ducks
  • because the government claimed it contained classified information

    If I were the defense attorney, I'd be drafting a subpoena right now for the federal staffers who wrote up the document(s) to have them answer three questions:

    1) Is this the document you wrote: yes or no.
    2) Are these the same classification markings you applied to it: yes or no.
    3) Has this document been otherwise tampered with since it left a secure federal facility: yes or no.

    If the answers are yes, yes and no respectively, all that'd be lef

  • by braeldiil (1349569) on Friday March 25, 2011 @08:33AM (#35610536)

    It doesn't appear the government has asserted the document is classified - that's a term of art meaning that the release of the data would compromise national security in some way. Instead, they've declared that the data was marked For Official Use Only, which means the data is unclassified, but not for wide dissemination.

    Let's break it down. We have classified information, which is data that, if released, would affect the national security. This determination is made by the President or directly appointed representatives only - I think Deputy Secretary of the Army/Navy/whatever is the lowest level with classification authority. Everyone else is merely applying the policies as determined by the originating authority. So I, as a low-level contractor, cannot unilaterally decide to classify a piece of information. Instead, I apply a predetermined set of rules (does it come from system A or mention topic B) to data I sort, and mark it appropriately.

    For classified data, there are three broad groupings - Confidential, Secret, and Top Secret. Secret has a subcategory of NoForn - not to be shared with foreign governments. Top Secret has a bazillion "code-word" subcategories - my favorite was Cosmic Top Secret.

    There is also a category of unclassifed information that should not be in wide release. This is information that would not impact national security, but should still be controlled. The classic example is Personally Identifiable Information (PII). Leaking your address and social wouldn't impact national security, and neither would leaking your medical records or job evaluations. But I think we'd all agree this information should be kept out of the public eye, so it's marked FOUO. Not classified, but still not for dissemination.

    The other category of FOUO information tends to be operational details for a command. This would include unit movements, detailed meeting schedules, specific evaluation criteria, etc. The stuff that, in a corporation, would be tagged Company Propriatary.

    Finally, there is unclassified information that is treated as classified. This is generally any build media used for classified systems. The media itself isn't classified - it's straight from the vender. But once we have it, we treat it as if it's classified at the level of the system it was used to build. That way, no one can modify the unclassified source material without already having access to the classifed data.

    • by Hatta (162192) on Friday March 25, 2011 @09:10AM (#35611010) Journal

      It doesn't appear the government has asserted the document is classified - that's a term of art meaning that the release of the data would compromise national security in some way.

      By "compromise national security" you mean "embarrass the US government", right?

      • by c++0xFF (1758032)

        Spoken like someone who has never had access to classified data.

        Why do some people insist that the only reason documents get classified is to cover something up? Oh yeah -- because that's what tends to get leaked and that's what Hollywood likes to use in their scripts.

        If you ever get a security clearance, you'll realize just how absurd these sorts of statements are.

        • by AK Marc (707885)
          The vast majority of classified documents are "embarrassing" as in the communications released recently. There were problems with the security of many people caused by those leaks. However, none of those people were in the US (stretching it, you could assert that there could be some Americans in those foreign locations, but that isn't national security to protect every person, just the nation).

          Things which are actual national security have timeliness. Troop movements aren't a national security issue aft
  • Why do people keep treating freedom and security as being in conflict?

    This is America. Security is the defense of freedom.

    There have been many governments in history, and still are today, where liberty has been extinguished. They were and are not safe to live under.

    • When bad guys have infiltrated and control the MIC and DOJ, then the alleged defense of freedom actually becomes an attack.

      Most people are not paying enough attention to notice.

  • Barbra Streisand is sueing anyone who uses the term "Streisand Effect".

  • by stewbacca (1033764) on Friday March 25, 2011 @09:32AM (#35611314)

    So much wrong in the summary and all the linked stories. I expect more from slashdot.

    First, FOUO is a handling instruction, not a classification. There are only 4 classification levels (unclassified, confidential, secret, top secret), and there are hundreds of handling instructions and classification combinations. FOUO, however, can only be used with UNCLASSIFIED, and merely exempts unclassified information from Freedom of Information Act.

    Second, the individual pages of that letter is marked UNCLASSIFIED//FOUO top and bottom, but that is only the highest classification of the particular single page in question. If these pages are in a larger document with higher classifications, they indeed take on the highest classification of the overall document. We don't know, because the title page with the classification authority is not present. My guess is that it comes from a document of higher classification.

    Finally, the analyst is guilty of leaking information that has handling instructions of FOUO--information that is not to be disseminated to the public. This means he is not authorized to release this information. It's a security violation. Not as severe as leaking classified information, but still a violation.

  • Just more douchebaggery, obfuscation and flimflamization on the part of lawyers.

    And redundant.

    Lawyers.

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