Holding the Government Accountable

Don't Let Review of Classified Information Safeguards Infringe on Rights

POGO and other good government advocates are urging the Office of Management and Budget (OMB) to be careful about infringing upon the constitutional rights of employees as it moves forward with a review of procedures to safeguard classified information.

The Obama Administration first ordered agencies to assemble teams to assess their handling of classified information back in November, following WikiLeaks' disclosure of around a quarter million State Department documents. OMB followed up with additional guidance on January 3, which included a list of questions to help agencies conduct their assessments. The agency assessments are due today, but as the good government groups wrote in a letter to OMB Director Jack Lew this afternoon, there are some concerns about the guidance issued by OMB:

For the most part, the guidelines focus appropriately on actual safeguarding policies and practices and oversight measures. Those parts of the review that address personnel security, however, should focus on standards-based and publicly-reviewed rules for personnel security practices.

Some of the suggested steps, however, are not narrowly tailored to the security review’s purpose, and may intrude upon protected First Amendment rights. In addition, focusing agency attention on such inquiries could divert agency resources from actions needed to actually improve information security.

For example, one question included in the January 3 OMB memo suggests that agencies should monitor employees' pre- and post-employment activities on websites like WikiLeaks. "Surely pre- and post-employment actions cannot be considered job-related activities that can or should be monitored by government agencies absent probable cause and a judicially-authorized warrant," the groups wrote.

Another question appears to suggest that agencies should consider requiring employees to report any contact with the media, regardless of an employee's access to classified information. As the groups points out in the letter, "Adopting this policy across the board in such agencies would unnecessarily clamp down on the ability of federal employees to openly discuss and explain how the agency is fulfilling its duties to the public."

Last but not least, the groups raised a concern that OMB may be opening the door to profiling employees. "Some of the suggested questions would permit targeting of employees who have complained of discrimination, waste, fraud, abuse or illegality within the agency or may simply be unhappy with their agency or supervisor," the groups wrote. "Those profiles might then be used as a pretext to investigate, fire or otherwise retaliate against employees who don't fall in line or who expose waste, fraud, and abuse to others inside and outside the government."

To be fair, this review of safeguards on classified information is, overall, a logical and healthy reaction to the WikiLeaks disclosures. But it's important that the not-so-subtle suggestions listed above don't lead to policies that curtail individual rights of employees or otherwise hamper efforts to fight waste, fraud, and abuse.

Find a statement by Patrice McDermott, Director of OpenTheGovernment.org, the coalition that helped organize the letter, here.