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Homeland Security Act criminalizes leaks of business information

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    NMU         WASHINGTON, D.C.         Freedom of Information         Nov 19, 2002    

Homeland Security Act criminalizes leaks of business information

  • Congress, which refused this term to criminalize leaks of classified information, set criminal penalties of fines and imprisonment for persons who disclose critical infrastructure information that businesses want kept secret.

The Senate today defeated by 52 to 47 a last-ditch effort by Democrats to block passage of a Homeland Security Act that Sen. Patrick Leahy (D-Vt.) called the “most severe weakening of the Freedom of Information Act in its 36-year history.”

It will criminalize agency disclosures of information without consent of the businesses who gave it to them. Ironically, Congress rejected an effort in this congress to criminalize leaks of actual classified information but called for criminal penalties for leaks of business information. Congress did order a task force to study leaks of classified material, but that group, headed by Attorney General John Ashcroft, determined in late October that there was no need for criminal penalties.

The new act will give the new Department of Homeland Security broad powers to receive information from corporations about weaknesses in the “critical infrastructure” and to make that information automatically exempt from the FOI Act.

Companies that share information with the government not only gained the promise that the government will keep critical infrastructure information secret, they also gained immunity from civil liability if the information reveals wrongdoing and immunity from antitrust suits for sharing the information with the government and each other.

Senator Leahy, a long-time advocate of the FOI Act and chairman of the Senate Judiciary Committee, warned after the House of Representatives passed the measure that the overly broad FOI Act exemption would “encourage government complicity with private firms to keep secret information about critical infrastructure vulnerabilities, reduce the incentive to fix the problems and end up hurting rather than helping our national security.” Leahy said that “In the end, more secrecy may undermine rather than foster security.”

In later statements he said, for example, that if a company submits information that its factory is leaching arsenic in ground water, “that information no longer could be used in a civil or criminal proceeding brought by local authorities or by the neighbors who were harmed by drinking the water.”

Senators Tom Daschle (D-S.D.) and Joseph Lieberman (D-Conn.) tried to waylay the bill with an amendment. It did not include a revision of the FOI secrecy provisions but would have blocked other provisions, including one that exempts the homeland security agency from openness and other requirements of the Federal Advisory Committee Act. That amendment was rejected.

Public interest groups, including the Reporters Committee for Freedom of the Press, which urged senators to accept the Daschle-Lieberman amendment, had hoped that the amendment would buy time to discuss the more serious FOI issues.

The House passed an earlier and similar homeland security measure in late July but the Senate had seemed on course to reject the FOI provisions of that bill. Of the measure that passed the Senate, Leahy said, “Behind closed doors they jettisoned a bi-partisan compromise on a responsible FOIA exemption and replaced it with a big business wish list gussied up in security garb.”

Sen. Robert Bennett (R-Utah), a proponent of protecting critical infrastructure information, worked out a compromise with Sen. Leahy and Sen. Carl Levin (D-Mich.) that would have provided limited protections. That measure would have protected only information about weaknesses in the critical infrastructure that was voluntarily submitted to the proposed Department of Homeland Security. The compromise was also included in a later Senate bill.

Bennett had vowed to support the compromise, but he voted with all Republicans except John McCain (D-Ariz.) to support the latest bill, which includes the strong confidentiality measure.

The bill also removes any advisory committees the agency will rely on from the openness and other requirements of the Federal Advisory Committee Act.

Congress has tried for five years to pass a bill requiring confidential treatment of critical infrastructure information but public interest groups, particularly environmental and press groups, lobbied against its passage, claiming that disclosures that could actually cause harm were already protected by exemptions.

One FOI Act exemption protects business information that could cause competitive harm or discourage businesses from providing voluntary information. Another protects against disclosure of information that could allow others to circumvent the law. Also an executive order issued by President Ronald Reagan required all agencies to adopt rules for notifying businesses when information they submitted is requested under the FOI Act.

(H.R. 5710) RD

© 2002 The Reporters Committee for Freedom of the Press

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