A Troubling Equation in Contracts for Government Funded Scientific Research: ‘Sensitive but Unclassified’= Secret but Unconstitutional

Abstract

This Article addresses the constitutionality of the “sensitive but unclassified” (SBU) clauses that the federal government requires in contracts with scientists. General free speech principles, as well as those addressed specifically to secrecy clauses and speech-limiting conditions on government programs, indicate that the current SBU secrecy clause intrudes too far on the free speech right. Its problematic features are its imprecise definitions, its authorization of enforcement by prepublication review, and the fact that it is not part of a system that links protected information to a clear national security danger. Recent changes in the security environment may permit the government to impose secrecy requirements on some amount of “sensitive” information, even though it is not contained within the formal classification system. A balance of the government's national security interest with the free speech right must determine the extent of this protection. At a minimum, a constitutional system to protect SBU information must include features that resemble those of the classification system that are designed to protect the free speech right. These include precise definitions of types of SBU information tied to a definite national security interest, procedures to ensure that particular information is properly categorized and kept secret, and selective and limited use of prepublication review. These features provide the beginning of what must be an ongoing adjustment in the balance between secrecy and openness with respect to government funded scientific research.

Keywords: Constitution, First Amendment, Free Speech, Sensitive but Unclassified, SBU, Government Contracts, Scientists