Rules and Statutes Relevant to Safeguarding Classified Materials

Rules and Statutes Relevant to Safeguarding Classified Materials

February 3, 2023
Rules and Statutes Relevant to Safeguarding Classified
Materials
The discovery of classified documents at the homes,
employees who are leaving agency service cannot remove
offices, or other facilities used by Presidents and former
classified information from an agency’s control or direct
Presidents and Vice Presidents has spurred Department of
that the information be declassified for the purpose of
Justice investigations. These discoveries may also raise
removing it from agency control. Officers and employees of
questions regarding the effectiveness of the policies or
the United States, as well as other individuals specified in
procedures for protecting and accounting for materials
the order, shall be subject to appropriate sanctions if they,
classified for reasons of national security. This In Focus
among other things, knowingly, willfully, or negligently
describes current rules for safeguarding such classified
“disclose to unauthorized persons information properly
materials and the remedial actions prescribed upon the
classified” or “contravene any other provision of th[e]
discovery of a potential breach.
order.”
Executive Order 13,526
Agency heads, for their part, are required to take
The current standards for classifying, safeguarding, and
“appropriate and prompt corrective action when a violation
declassifying information were last amended on December
or infraction . . . occurs” and must notify the Information
29, 2009, by Executive Order 13,526, 75 Fed. Reg. 707.
Security Oversight Office (ISOO) in the event of a
Under these standards, the President, Vice President,
disclosure to an unauthorized person. The executive order
agency heads designated by the President, and any other
defines a “violation” to include “any knowing, willful, or
officials delegated authority by the President, Vice
negligent action that could reasonably be expected to result
President, or agency head may classify certain types of
in an unauthorized disclosure of classified information,”
information upon a determination that its unauthorized
and defines an “infraction” as any “knowing, willful, or
disclosure could reasonably be expected to damage national
negligent action contrary to the requirements of this order
security. The level of classification and the requirements for
or its implementing directives that does not constitute a
safeguarding such information vary according to the
‘violation.’” The ISOO Director is required to notify the
severity of damage the original classification authority
agency head or appropriate official upon determination that
determines would result from its unauthorized disclosure.
a violation has occurred in order that corrective action may
The executive order defines “damage to the national
be taken, including administrative sanctions against the
security” as “harm to the national defense or foreign
offending official or employee.
relations of the United States from the unauthorized
disclosure of information, taking into consideration such
ISOO Regulations
aspects of the information as the sensitivity, value, utility,
The ISOO—an office within the National Archives and
and provenance of that information.”
Records Administration—is charged with overseeing
compliance with the standards for classification and
Under the executive order, information may be classified as
protection of classified information under 32 C.F.R. pt.
“Top Secret” if its unauthorized disclosure could
2001. These regulations provide that “authorized persons”
reasonably be expected to cause “exceptionally grave
are responsible for protecting classified information from
damage to the national security.” The standard for a
persons without authorized access to that information. This
classification level of “Secret” is that its unauthorized
procedure includes securing the classified information in
disclosure could reasonably be expected to cause “serious
approved equipment or facilities whenever it is not under
damage to the national security,” and classification as
the direct control of an authorized person. Furthermore,
“Confidential” is applied if the unauthorized disclosure
authorized persons are responsible for “[m]eeting
could reasonably be expected to cause “damage to the
safeguarding requirements prescribed by the agency head.”
national security.” The original classifying officer must
identify or describe the specific danger potentially
Storing Classified Materials
presented by the information’s disclosure. Agency heads
In general, classified materials must be stored in security
are required to “establish controls to ensure that classified
containers or open storage areas approved by the General
information is used, processed, stored, reproduced,
Service Administration. Supplemental controls, such as
transmitted, and destroyed under conditions that provide
inspections and intrusion detection systems, are required for
adequate protection and prevent access by unauthorized
storing Top Secret and Secret information. Additional
persons.”
safeguarding requirements apply to materials that pertain to
special access programs (SAP) and Sensitive
Executive Order 13,526 further mandates that “classified
Compartmented Information (SCI).
information may not be removed from official premises
without proper authorization.” In addition, officials or
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Rules and Statutes Relevant to Safeguarding Classified Materials
Transmitting Classified Materials
of information or in specific situations. The Espionage Act,
Classified information physically transmitted outside of
18 U.S.C. §§ 793-798, prohibits transmittal of national
government facilities must be protected by two layers, both
defense information with the relevant intent or state of
of which are designed to provide reasonable evidence of
mind. For example, § 798 criminalizes the knowing and
tampering and to conceal the material. Couriers and other
willful disclosure of such information. The Espionage Act
authorized persons are required to “ensure that the
also prohibits those who are not entitled to access national
information remains under their constant and continuous
security information from willfully retaining it and failing
protection” and to make “direct point-to-point delivery.”
to deliver it to the officer or employee of the United States
entitled to receive it. Maximum penalties for violating these
Reporting Instances of Lost, Compromised, or
provisions range in severity from fines and imprisonment
Disclosed Information
for one year to the death penalty.
Under governing regulations, any person who “has
knowledge that classified information has been or may have
There are other statutes that prohibit the unlawful removal
been lost, possibly compromised or disclosed to an
or retention of government documents that apply to
unauthorized person” is required to report the
classified material. For example, 18 U.S.C. § 1924 prohibits
circumstances immediately to the official designated for
“an officer, employee, contractor, or consultant of the
this purpose. The agency head then conducts an
United States” in possession of documents or materials
investigation or inquiry into any loss, possible compromise,
containing classified information from “knowingly
or unauthorized disclosure of classified information to
remov[ing] such documents or materials without authority
determine appropriate corrective action and to assess the
and with the intent to retain such documents or materials at
damage to national security. The agency head or senior
an unauthorized location.” Under this provision, an
agency official shall also notify ISOO when such a
individual can be fined or imprisoned for up to five years.
violation occurs in the event the breach: (1) is reported to
18 U.S.C. § 641 prohibits the theft or conversion of
congressional oversight committees in the Legislative
government property, regardless of its classification. 18
branch; (2) may attract significant public attention;
U.S.C. § 2071 generally prohibits, among other things,
(3) involves large amounts of classified information; or
“willfully and unlawfully conceal[ing], remov[ing],
(4) reveals a potential systemic weakness in classification,
mutilat[ing], obliterat[ing], or destroy[ing] . . . any record,. .
safeguarding, or declassification policy or practices. In
. paper, or document” that is “filed or deposited with any
“[c]ases involving information originated by a foreign
clerk or officer of any court of the United States, or in any
government or another U.S. government agency,” the
public office, or with any judicial or public officer of the
department or agency in which the compromise occurred
United States.”
must also advise the foreign government or U.S.
government agency that originated the compromised
For more information relating to the classification,
information of the circumstances and findings that affect
protection, and declassification of national security
the originator’s information or interests. If the loss, possible
information, as well as enforcement of these requirements,
compromise, or unauthorized disclosure of classified
see CRS Report RS21900, The Protection of Classified
information involves a possible criminal violation and
Information: The Legal Framework, by Jennifer K. Elsea.
prosecution is contemplated, agency heads must ensure
coordination with the Department of Justice and the legal
Jennifer K. Elsea, Legislative Attorney
counsel of the agency where the individual believed to be
Andreas Kuersten, Legislative Attorney
responsible is assigned or employed.
IF12318
Criminal Penalties
There are several statutory provisions that address the
protection of classified information, but only certain types

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Rules and Statutes Relevant to Safeguarding Classified Materials

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