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Homeland Security proposes broad infrastructure secrecy rules

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  1. Freedom of Information

    NMU         WASHINGTON, D.C.         Freedom of Information    

Homeland Security proposes broad infrastructure secrecy rules

  • Proposed regulations to carry out the critical infrastructure information requirements of the Homeland Security Act extended the secrecy of the act beyond the Department of Homeland Security and would require other federal agencies to submit CII information to DHS.

April 17, 2003 — The Department of Homeland Security Tuesday published proposed rules to protect critical infrastructure information, suggesting a significant expansion of the scope of secrecy required by the Homeland Security Act passed in November 2002.

The proposals, to protect information that might reveal vulnerabilities, which could be exploited by terrorists, implement controversial provisions of the new law. The law promises confidentiality to businesses who will voluntarily give the government information about the critical infrastructure and how well it is protected. Under the law, persons who leak that information face criminal penalties and removal from office.

The law itself covers only information submitted to the Department of Homeland Security. However, the proposed rules require other federal agencies that receive critical infrastructure information from businesses to pass it on to DHS, where it will become subject to the law even if it is returned to the agencies that received it in the first place.

In July 2002, before the Homeland Security Act was passed, the U.S. House voted on a proposed amendment by Tom Davis (R-Va.) that would make all federal agencies, not just the DHS, subject to the infrastructure provisions, but it was voted down.

In its April 15 Federal Register notice, DHS states that, although the law specifically defines what will be considered as critical infrastructure information, it will rely upon the discretion of the submitter as to whether the information meets the act’s definition. Submitters may have a vested interest in having information they submit be defined as CII because if wrongdoing is revealed by the information, the act provides them immunity from prosecution.

DHS will accept public comments on the proposed rules through June 15.

The CII provisions have been controversial since their introduction. A bipartisan group of senators tried to offer less stringent and categorical measures for protecting it before passage of the law.

In March, Sen. Patrick Leahy (D-Vt.), a longtime advocate for freedom of information issues, and several other senators introduced the “Restore FOI” Act to amend the Homeland Law. Their bill would protect actual communications about the vulnerability of critical infrastructures but narrow significantly the range of secrecy protected by law and curb the criminal penalties for disclosure.

(Procedures for Handling Critical Infrastructure Information; Proposed Rule) RD

© 2003 The Reporters Committee for Freedom of the Press

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