Born secret (also born classified) is a legal doctrine in the

United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...

under which certain information is automatically classified from the moment it is created, regardless of the author or location. Scholars describe born‑secret provisions as unique in U.S. law because they criminalize discussion of information that is already publicly available. The rule originated in statutes covering the design, production, and use of

nuclear weapons A nuclear weapon is an explosive device that derives its destructive force from nuclear reactions, either nuclear fission, fission (fission or atomic bomb) or a combination of fission and nuclear fusion, fusion reactions (thermonuclear weap ...

, though it can also encompass other nuclear ideas and related technologies. The

United States Department of Energy The United States Department of Energy (DOE) is an executive department of the U.S. federal government that oversees U.S. national energy policy and energy production, the research and development of nuclear power, the military's nuclear w ...

has called the doctrine “very controversial.”

History

Historically, the born-secret concept applied to any data related to nuclear technologies, whether or not the specific technology was developed by the

United States government The Federal Government of the United States of America (U.S. federal government or U.S. government) is the Federation#Federal governments, national government of the United States. The U.S. federal government is composed of three distinct ...

or by other parties. Howard Morland, writing in '' Cardozo Law Review'', compared the doctrine to a permanent gag order on nuclear ideas and concepts. The idea is rooted in the

Atomic Energy Act of 1946 The Atomic Energy Act of 1946 (McMahon Act) determined how the United States would control and manage the nuclear technology it had jointly developed with its World War II allies, the United Kingdom and Canada. Most significantly, the Act ru ...

, which declared that all information about

nuclear weapon A nuclear weapon is an explosive device that derives its destructive force from nuclear reactions, either fission (fission or atomic bomb) or a combination of fission and fusion reactions (thermonuclear weapon), producing a nuclear exp ...

s and

nuclear energy Nuclear energy may refer to: *Nuclear power, the use of sustained nuclear fission or nuclear fusion to generate heat and electricity *Nuclear binding energy, the energy needed to fuse or split a nucleus of an atom *Nuclear potential energy, the pot ...

was “ Restricted Data” (RD) until officially declassified. In the 1954 revision, the

United States Atomic Energy Commission The United States Atomic Energy Commission (AEC) was an agency of the United States government established after World War II by the U.S. Congress to foster and control the peacetime development of atomic science and technology. President Harry ...

gained authority to declassify entire categories of information. The policy assumed that nuclear information could be so vital to

national security National security, or national defence (national defense in American English), is the security and Defence (military), defence of a sovereign state, including its Citizenship, citizens, economy, and institutions, which is regarded as a duty of ...

that it required classification even before formal evaluation. The 1954 act defined RD as:

scientists working on nuclear matters have historically held Q clearance, required for access to top secret, restricted data, and other national security information. In 2006, the

(DOE) itself called the born-secret doctrine “very controversial.” Writing for the Department, Nick Prospero cited concerns about constitutionality, the stifling of scientific progress. Prospero also noted long-standing public pressure for open access to health, safety, and environmental data—issues stretching back to the DOE’s predecessors, the

and the

Energy Research and Development Administration The United States Energy Research and Development Administration (ERDA) was a United States government organization formed from the split of the United States Atomic Energy Commission, Atomic Energy Commission (AEC) in 1975. It assumed the functi ...

Legality and challenges

The constitutionality of categorically classifying information at the moment of its creation remains untested in U.S. courts. The legality of the “born secret” doctrine was directly challenged in a 1979

freedom of the press Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic Media (communication), media, especially publication, published materials, shoul ...

case, '' United States v. The Progressive''. In that case, the magazine ''

The Progressive ''The Progressive'' is a left-leaning American magazine and website covering politics and culture. Founded in 1909 by U.S. senator Robert M. La Follette Sr. and co-edited with his wife Belle Case La Follette, it was originally called ''La Foll ...

'' attempted to publish an account of the so-called “secret of the

hydrogen bomb A thermonuclear weapon, fusion weapon or hydrogen bomb (H-bomb) is a second-generation nuclear weapon design. Its greater sophistication affords it vastly greater destructive power than first-generation nuclear bombs, a more compact size, a lo ...

”—the Teller–Ulam design—created entirely from unclassified sources. Many analysts predicted that the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...

would, if it heard the case, strike down the born‑secret clause as an unconstitutional restraint on speech. However, the government dropped the case as moot before it was resolved. The born‑secret doctrine is reported as the only area of United States law in which discussion of information already in the

public sphere The public sphere () is an area in social relation, social life where individuals can come together to freely discuss and identify societal problems, and through that discussion, Social influence, influence political action. A "Public" is "of or c ...

is illegal. Writing for the ''Cardozo Law Review'', Aviam Soifer argues that classification can even apply retroactively to the original conception—or “germination”—of an idea. In ''Security Classification of Information, Volume 1'', Arvin Quist notes that the concept is unique to nuclear ''restricted data'', but has been extended in principle to

cryptography Cryptography, or cryptology (from "hidden, secret"; and ''graphein'', "to write", or ''-logy, -logia'', "study", respectively), is the practice and study of techniques for secure communication in the presence of Adversary (cryptography), ...

by the

National Security Agency The National Security Agency (NSA) is an intelligence agency of the United States Department of Defense, under the authority of the director of national intelligence (DNI). The NSA is responsible for global monitoring, collection, and proces ...

(NSA). However, the NSA pursued this not through legislation but through voluntary agreements with stakeholders. Quist further observes—citing ''

Federal Register The ''Federal Register'' (FR or sometimes Fed. Reg.) is the government gazette, official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. It is published every wee ...

'' notices in 1967 and 1972—that one narrow “loophole” exists: In the early years of the American nuclear program, scientists expressed fear of unintentionally violating the Atomic Energy Act. Because declassifications were rare, researchers often could not tell what they were allowed to publish or even discuss. Recommendations therefore urged the Atomic Energy Commission to “publish explicit and detailed catalogues of types of data not included in the restricted category,” so that those working with nuclear matters would no longer face “the intolerable fear that publication of every research finding is a violation of the

.”

Risks to media coverage of nuclear incidents

Aryeh Neier Aryeh Neier (born April 22, 1937) is an American human rights activist who co-founded Human Rights Watch, served as the inaugural president of George Soros's Open Society Institute philanthropy network from 1993 to 2012, directed the New York ...

, writing in 1980 for the ''

Index on Censorship Index on Censorship is an organisation campaigning for freedom of expression. It produces a quarterly magazine of the same name from London. It is directed by the non-profit-making Writers and Scholars International, Ltd (WSI) in association wit ...

'' essay ''USA: Born classified'', warned that the born-secret doctrine could be invoked to suppress reporting on nuclear accidents and contamination. He cited three notable cases: repeated fires and releases of

plutonium Plutonium is a chemical element; it has symbol Pu and atomic number 94. It is a silvery-gray actinide metal that tarnishes when exposed to air, and forms a dull coating when oxidized. The element normally exhibits six allotropes and four ...

at the Rocky Flats Plant near

Denver Denver ( ) is a List of municipalities in Colorado#Consolidated city and county, consolidated city and county, the List of capitals in the United States, capital and List of municipalities in Colorado, most populous city of the U.S. state of ...

Colorado Colorado is a U.S. state, state in the Western United States. It is one of the Mountain states, sharing the Four Corners region with Arizona, New Mexico, and Utah. It is also bordered by Wyoming to the north, Nebraska to the northeast, Kansas ...

; the 1961 Goldsboro B-52 crash, in which a

United States Air Force The United States Air Force (USAF) is the Air force, air service branch of the United States Department of Defense. It is one of the six United States Armed Forces and one of the eight uniformed services of the United States. Tracing its ori ...

Boeing B-52 Stratofortress The Boeing B-52 Stratofortress is an American long-range, subsonic aircraft, subsonic, jet-powered strategic bomber. The B-52 was designed and built by Boeing, which has continued to provide support and upgrades. It has been operated by the ...

came down near Goldsboro, North Carolina, leaving a single Mark 39 nuclear bomb “one safety” from

detonation Detonation () is a type of combustion involving a supersonic exothermic front accelerating through a medium that eventually drives a shock front propagating directly in front of it. Detonations propagate supersonically through shock waves with ...

; and the

1966 Palomares B-52 crash The Palomares incident occurred on 17 January 1966, when a United States Air Force Boeing B-52 Stratofortress#Variants, B-52G bomber collided with a Boeing KC-135 Stratotanker, KC-135 tanker during Aerial refueling, mid-air refueling at over th ...

over Palomares, Spain, where a mid-air collision dropped four B28FI Mod 2 Y1

thermonuclear Nuclear fusion is a reaction in which two or more atomic nuclei combine to form a larger nuclei, nuclei/neutron by-products. The difference in mass between the reactants and products is manifested as either the release or absorption of ener ...

bombs. All four weapons fell to earth. Three of the bombs were recovered on land near the fishing village of Palomares in the municipality of Cuevas del Almanzora, where the conventional explosives in two warheads detonated on impact, contaminating roughly with plutonium. The fourth bomb was located intact on the floor of the

Mediterranean Sea The Mediterranean Sea ( ) is a sea connected to the Atlantic Ocean, surrounded by the Mediterranean basin and almost completely enclosed by land: on the east by the Levant in West Asia, on the north by Anatolia in West Asia and Southern Eur ...

after an 80-day search. Neier noted that the editors of ''

'' cited these incidents when challenging the born-secret doctrine in '' United States v. Progressive, Inc.''.

John Aristotle Phillips

In 1976, Princeton University undergraduate John Aristotle Phillips designed, on paper, a nuclear weapon to demonstrate how easily such technology might be acquired by American adversaries, earning the media nickname "the A-Bomb Kid". Although his design relied solely on publicly available information, the completed work was made classified and was therefore illegal to disseminate in the United States. Phillips reflected:

References

{{Reflist, refs= {{cite book, last=Wellerstein, first=Alex, title=Restricted Data: The History of Nuclear Secrecy in the United States, publisher=

University of Chicago Press The University of Chicago Press is the university press of the University of Chicago, a Private university, private research university in Chicago, Illinois. It is the largest and one of the oldest university presses in the United States. It pu ...

, edition=First, date=April 9, 2021, isbn=978-0226020419, asin=B08SL9YB5B, language=English {{Cite web, date=2022-08-18, title=Can Trump Just Declare Nuclear Secrets Unclassified?, last1=Wellerstein, first1=Alex , url=https://www.lawfaremedia.org/article/can-trump-just-declare-nuclear-secrets-unclassified, access-date=2024-08-31, url-status=live, website= Lawfare, archive-url=https://web.archive.org/web/20230830100909/https://www.lawfaremedia.org/article/can-trump-just-declare-nuclear-secrets-unclassified, archive-date=2023-08-30 {{cite book, first=Arvin, last=Quist, title=Security Classification of Information: Vol. 1. Introduction, History, and Adverse Impacts, publisher=Oak Ridge National Laboratory, chapter 3, "Classification of Information--An Overview", year=2002, chapter=3, url=https://sgp.fas.org/library/quist2/chap_3.html, archive-url=https://web.archive.org/web/20211204194005/https://sgp.fas.org/library/quist2/chap_3.html, archive-date=2021-12-04 {{cite book, first=Arvin, last=Quist, title=Security Classification of Information: Vol. 1. Introduction, History, and Adverse Impacts, chapter 4, "Classification Under The Atomic Energy Act", publisher=Oak Ridge National Laboratory, year=2002, chapter=4, url=http://www.fas.org/sgp/library/quist/index.html, archive-url=https://web.archive.org/web/20210922002323/https://sgp.fas.org/library/quist/chap_4.pdf, archive-date=2021-09-22 {{cite book, author1=Alexander De Volpi , author2=Jerry Marsh , author3=Ted Postol , author4=George Stanford , name-list-style=amp , title=Born secret: the H-bomb, the Progressive case and national security, location=New York , publisher=Pergamon Press, year=1981, isbn=0-08-025995-2 {{Cite journal, author=Howard Morland, authorlink=Howard Morland, title=Born Secret, journal= Cardozo Law Review, date= March 2005, pages= 1401–1408, url=http://www.fas.org/sgp/eprint/cardozo.pdf, archive-url=https://web.archive.org/web/20060512093228/http://www.fas.org/sgp/eprint/cardozo.pdf, archive-date=2006-05-12 {{Cite journal, date=2024, title=Born Classified, Born Free: An Essay for Henry Schwarzschild, authorlink=Aviam Soifer, last1=Soifer , first1=Aviam , url=https://scholarspace.manoa.hawaii.edu/items/b96e474f-064e-4056-94d7-92aad943651b, access-date=2024-08-20, url-status=live, journal=Cardozo Law Review, volume=19 , archive-url=https://web.archive.org/web/20240901234656/https://scholarspace.manoa.hawaii.edu/server/api/core/bitstreams/a030766b-5534-40b1-883a-c0d93546358c/content, archive-date=2024-09-01, pages=16, quote=The Born Classified rationale could apply from the moment of the germination of these ideas and could even be applied retroactively. In fact, the Progressive litigation exemplified this point. The decision by Government officials to label a publication as a national security risk moved the dispute outside the usual legal rules and beyond the ken of regular judicial processes. {{Cite web, date=2003-07-01, title=1960s "Nth Country Experiment" Foreshadows Today's Concerns Over the Ease of Nuclear Proliferation, last1=William, first1=Burr , url=https://nsarchive2.gwu.edu/news/20030701/, access-date=2024-08-31, url-status=live, website= National Security Archive, archive-url=https://web.archive.org/web/20170824225631/http://nsarchive2.gwu.edu/news/20030701/, archive-date=2017-08-24 {{Cite journal, author=Aryeh Neier, authorlink=Aryeh Neier, title=USA: 'Born classified', journal=

, date= February 1980, volume=9 , pages= 51–54, doi=10.1080/03064228008533026 , url=https://journals.sagepub.com/doi/abs/10.1080/03064228008533026, archive-url=https://web.archive.org/web/20240902164502/https://journals.sagepub.com/doi/pdf/10.1080/03064228008533026, archive-date=2024-09-02 {{Cite report, title=SC-DR-66-397 B-51/KC-135 Collision near Palomares, Spain (U), author=S V Asselin, publisher= Sandia National Labs, date=August 1966 {{Cite book, first=Randall C. , last=Maydew , title=America's Lost H-Bomb: Palomares, Spain, 1966 , publisher=Sunflower University Press , isbn=978-0-89745-214-4 , year=1997 {{Cite magazine , last=Long , first=Tony , date=17 January 2008 , url=https://www.wired.com/science/discoveries/news/2008/01/dayintech_0117 , title=Jan. 17, 1966: H-Bombs Rain Down on a Spanish Fishing Village , magazine=WIRED , access-date=16 February 2008 , archive-date=3 December 2008 , archive-url=https://web.archive.org/web/20081203112702/http://www.wired.com/science/discoveries/news/2008/01/dayintech_0117 , url-status=live {{cite book, first=Sissela, last=Bok, title=Secrets. On the Ethics of Concealment and Revelation, publisher= Pantheon Books, year=1982, page=166 {{cite journal, journal=

, title=Restricted Data, Notice of Proposed Rule Making, pages=20868–20880, author=((Atomic Energy Commission)), volume=32, issue=250, date=28 November 1967 {{Federal Register, 32, 20869 {{cite journal, journal=

, title=Novel Methods of Isotope Separation, Procedures for Reports on Research, pages=15393, author=((Atomic Energy Commission)), volume=32, issue=148, date=1 August 1972 {{Federal Register, 37, 15393 {{cite book, author1=J. R. Newman , author2=B. S. Miller , name-list-style=amp , title=The Control of Atomic Energy, location=New York , publisher=McGraw-Hill Book Company, Inc., year=1948, page=220 {{Cite web, date=February 2006, title="Born Classified" - The Phrase That Won't Die, last1=Prospero, first1=Nick , url=https://www.energy.gov/sites/prod/files/hss/Classification/news/CommuniQue200602.pdf, access-date=2024-08-31, url-status=live, website=

, archive-url=https://web.archive.org/web/20170201032849/https://www.energy.gov/sites/prod/files/hss/Classification/news/CommuniQue200602.pdf, archive-date=2017-02-01 {{Cite magazine , last=Long , first=Tony , date=2008-01-17 , title=Jan. 17, 1966: H-Bombs Rain Down on a Spanish Fishing Village , url=https://www.wired.com/science/discoveries/news/2008/01/dayintech_0117 , url-status=dead , archive-url=https://web.archive.org/web/20100217225800/http://www.wired.com/science/discoveries/news/2008/01/dayintech_0117 , archive-date=2010-02-17 , access-date=2025-06-16 , magazine=WIRED {{cite news , first=Charles , last=Peterson , date=1977-05-08 , title=John Aristotle Phillips: The A-Bomb Kid , newspaper= Youngstown Vindicator , url=https://news.google.com/newspapers?id=VmNIAAAAIBAJ&pg=4125,4295139&dq=john-aristotle-phillips+kid&hl=en , access-date=July 24, 2011 , via=

Google News Google News is a news aggregator service developed by Google. It presents a continuous flow of links to articles organized from thousands of publishers and magazines. Google News is available as an app on Android, iOS, and the Web. Google ...

, archive-url=https://web.archive.org/web/20220702041340/https://news.google.com/newspapers?id=VmNIAAAAIBAJ&pg=4125,4295139&dq=john-aristotle-phillips+kid&hl=en, archive-date=2022-07-02 {{cite news , url=http://www.villagevoice.com/news/the-a-bomb-kid-6437234 , title=The A-Bomb Kid , first=Paul , last=Collins , newspaper=

The Village Voice ''The Village Voice'' is an American news and culture publication based in Greenwich Village, New York City, known for being the country's first Alternative newspaper, alternative newsweekly. Founded in 1955 by Dan Wolf (publisher), Dan Wolf, ...

, date=2003-12-16, archive-url=https://web.archive.org/web/20231031152116/https://www.villagevoice.com/the-a-bomb-kid/, archive-date=2023-10-31

External links