Congress creates conundrum: What's 'sensitive'?

In its rush to straighten out security problems at Energy Department nuclear labs last year, Congress ended up creating more confusion for contractors who work for the agency, according to a recent DOE memo.

Section 3147 of the National Defense Authorization Act for fiscal 2000 included a provision penalizing Energy contractors who violate any rules "relating to the safeguarding or security of restricted data or other classified or sensitive information."

Under the law, DOE contractors can be fined up to $100,000 for releasing such data. But one small hitch was discovered after the new regulations were approved- legally, there is no such thing as "sensitive information."

In effect, Congress created a new classification category.

The department has received a number of inquiries from contractors concerning the implementation of the provision, according to a Jan. 5 memo from DOE general counsel Mary Anne Sullivan. To keep things fair, DOE won't impose any penalties until new regulations are issued that define the term "sensitive information," the memo said.

Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, said the muddled provision is a "good illustration of the excess zeal that overcame Congress last year" while it tried to improve security at the Energy Department.

"This is sloppy legislating. You don't impose severe penalties for an action without describing that action with some precision," Aftergood said.

Sensitive information may not need to be classified, he said. For example, information about alarm systems at DOE nuclear weapons labs isn't classified, because it needs to be shared with emergency response personnel. But it's also not something you would want to disclose to potential enemies, Aftergood said.

DOE already has a classification for such information regarding nuclear weapons called "unclassified controlled nuclear information." Penalties already exist for disclosure of such information. But the new provisions will likely include different types of information, Aftergood said.

While the term "sensitive information" is used by the Defense Department and appears in the Computer Security Act, it does not appear in the Atomic Energy Act where the new amendment is placed.

Until new regulations are issued that define "sensitive," DOE contractors will likely err on the side of caution, Aftergood said.

"To be on the safe side, the contractors are likely to withhold more, rather than less, information. It becomes a problem in terms of cost-effective security and accountability to the public because information gets withheld indiscriminately," he said.

According to Sullivan's memo, a process is underway to develop regulations regarding the new law.