Holland, Geoff --- "Science or Security: The Future of the Free Flow of Scientific Information in the Age of Terror" [2005] JlLawInfoSci 3; (2005) 16 Journal of Law, Information and Science 51
[∗] Geoff Holland is a barrister and lecturer at the University of Technology, Sydney in the Faculty of Law, teaching and researching in constitutional, media and IP law, with a research focus on freedom of speech. He was a member of the Editorial Board of the UTS Law Review, 2003-2006, and was Co-Editor of Volume 5 of the Review, "The Public Right to Know". He is currently a member of the Review's Academic Advisory Committee, and is a member of the board of Public Space: The Journal of Law and Social Justice.
[1] Restrictions on persuasive speech have been explored by other authors and are not within the scope of this paper.
[2] Scientific research is also subject to limitations on the availability of biological and chemical agents used for research purposes. For example, see USA PATRIOT Act 18 USC s 175(c); The Public Health Security and Bioterrorism Preparedness and Response Act Pub. Law No. 107-188, 116 Stat. 593 (2002). In Australia, similar restrictions are found, inter alia, in the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth), the Criminal Code Act 1995 (Cth), and the Patents Act 1990 (Cth).
[3] Restrictions on the free flow of informing speech are imposed out of commercial considerations. However, this paper analyses restrictions imposed directly by government or as a response to government concerns over national security. Resnick considers three distinct reasons for private corporations to impose restrictions on sponsored research: Intellectual property rights; trade secrets; and data adverse to company interests. See Resnik, David B, ‘Some Recent Challenges to Openness and Freedom in Scientific Publication’, Michiel Korthals and Robert J Bogers, eds, Proceedings of the Frontis workshop on Ethics for Life Scientists, Wageningen, The Netherlands 18-21 May 2003, Chapter 6a, Wageningen UR Frontis Series, available at http://library.wur. nl/frontis/ethics/06a_resnik.pdf, accessed November 3, 2006.
[4] Garrett, L, Scientists Advocate Greater Security, Newsday. October 14, 2001.
[5] Eg. New Zealand, Canada, UK, USA. In contrast with these nations, where freedom of speech receives some degree of constitutional protection, free speech in Australia is merely a residual right. That is, the freedom to speak exists only to the extent that it is not restricted by operation of the common law or statute. This is modified to a degree by the implied constitutional freedom to discuss matters of political and governmental concern, as recognised by the High Court. See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, [1997] HCA 25; Coleman v Power (2004) 220 CLR 1; [2004] HCA 39.
[6] This includes censorship of hate speech, politically motivated speech and offensive speech.
[7] Developments in cryptography have also been subject to international agreements, such as The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, requiring legislative restrictions on the export of proscribed forms of information. However, in recent years legislative restrictions on the dissemination of research into cryptography have also been imposed to prevent the circumvention of Digital Rights Management technologies. See the Digital Millennium Copyright Act 1998 (Cth).
[8] Restrictions on speech having defence or security implications were first introduced by the United Kingdom during the Crimean War in the late 19th century. In August 1889, the Official Secrets Act was passed by Parliament, imposing prohibitions on the disseminating information about British military facilities, warships, and weapons. In 1911 the scope of the Act was broadened to give the government full discretion over what information would be considered secret or confidential. Arvin S Quist, Security Classification of Information, Volume 1. ‘Introduction, History, and Adverse Impacts’, at 21 available at http://fas.org/sgp/library/quist/chap_2.html, accessed February 15 2007. See also Andrew Patterson, Jr., “CONFIDENTIAL”--The Beginning of Defense-Information Marking, Sterling Chemistry Laboratory, Yale University, New Haven, Conn., unpublished manuscript, April 30, 1980, at 6, cited in Quist, above.
[9] Ericson, Timothy L., ‘Presidential address to Society of American Archivists’, 68th Annual Meeting, Boston, August 5, 2004. The published version appeared in the American Archivist, Vol. 68 (Spring/Summer 2005), pp 18-52., available at http://www.archivists.org/governance/presidential/ericson.asp, accessed October 22, 2006.
[10] Section 1. See 18 USC Ch 37 s 793. Additional prohibitions on the disclosure of information created by the government are to be found in 50 USC, s 421, prohibiting the disclosure of the identity of covert intelligence personnel.
[11] Trading with the Enemy Act of October 6, 1917, Ch. 106, §10(i), 40 Stat. 422. Prior to this statute, the Commissioner of Patents had the discretionary power to refuse the granting of patents on the basis of ‘national interest’. See Quist, above n 8 at 22.
[12] Ibid.
[13] Quist, above n 8 at 22.
[14] Ibid
[15] 35 United State Code (USC) – Patents, Part II - Patentability Of Inventions And Grant Of Patents, Chapter 17, s181.
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Federation of American Scientists Project on Government Secrecy, result of Freedom of Information application to the U.S. Patents and Trade Office, October 2006, available at
http://www.fas.org/sgp/ othergov/invention/stats.pdf, accessed February 18, 2007.
[22] 42 USC 2011, Chapter 12. See also James C Goodale, ‘Born Classified’ – The ‘Progressive’ Magazine Case, New York Law Journal, March 23, 1979, Page 1, Column 1.
[23] This included ‘all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy.’ See Atomic Energy Act 1954, ch. 1073, § 11(r). See also Goodale, above n 22.
[24] Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, § 323, 110 Stat. 1214, 1255 (1996).
[25] 50 USC Sections 1701-1707.
[26] Science and Security in the Post-9/11 Environment, Scientific Publication Policies, The American Association for the Advancement of Science, available at http://www.aaas.org/spp/post911/publishing/, accessed 2 Nov 2006.
[27] International Emergency Economic Powers Act, United States Code Title 50, Chapter 35, s. 1705.
[28] Above, n 26.
[29] Ibid. Also see Jean Kugamai and William Sweet, U.S. Treasury Department Issues Free Press Ruling, Spectrum Online. 12 April 2004, available at http://www.spectrum.ieee.org/apr04/inthisissue.
[30] For an analysis of official secrecy in Australian information policy see G Terrill , Secrecy & Openness: The Federal Government From Menzies To Whitlam & Beyond, Melbourne University Press, Melbourne, 2000.
[31] An informal, non-enforceable arrangement between the Commonwealth and the media, based on the UK’s DA Notice system, operates to restrict the publication of certain information. D notices are issued to the media by the Defence, Press and Broadcasting Committee on subjects which are considered to have a bearing on Australia’s defence or national security. Four D Notices are considered operative, including a prohibition on the disclosure of information about the Australian Security Intelligence Service or its employees. However, the Defence Press and Broadcasting Committee has not met since 1982 and attempts by the Keating Government to revive the Committee did not proceed. See Dr Pauline Sadler, The D-Notice System, at http://www.presscouncil.org.au/pcsite/apcnews/may00/dnote.html, accessed March 14, 2007. Additionally, prohibitions on the disclosure of information about the Australian Security Intelligence Organisation or its employees are to be found in section 18 of the Australian Security Intelligence Organisation Act 1979 (Cth).
[32] Patents Act 1990 (Cth), Section 151.
[33] Section 4 of the Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) defines associated technology as:
any document that contains information (other than information that is lawfully available, whether within Australia or outside Australia and whether for a price or free of charge, to the public or a section of the public):
(a) that is applicable primarily to the design, production, operation, testing or use of:
(i) equipment or plant for:
(A) the enrichment of nuclear material;
(B) the reprocessing of irradiated nuclear material;
or
(C) the production of heavy water; or
(ii) nuclear weapons or other nuclear explosive devices; or
(b) to which a prescribed international agreement applies and that is of a kind declared by the Minister, in writing, to be information to which this definition applies; and includes any photograph, model or other thing from which such information may be obtained or deduced.
[34] Preamble to the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995.
[35] Section 173 (1) Patents Act 1990. This section also enables the prohibition of access to micro-organisms deposited for a patent application. Information subject of a prohibition or restriction order under this section is exempt from the provisions of the Freedom of Information Act 1982 (Cth). See Schedule 3, FOI Act.
[36] Section 174 Patents Act 1990.
[37] Section 173 (2) Patents Act 1990.
[38] Information provided November 9 2006 by Jackie Carroll, Assistant Director, Ministerial Support, Research & Projects, IP Australia, contactable at Jacqueline.Carroll@ipaustralia.gov.au. Historical and statistical data about the number of patent applications that have had a prohibition order placed on them is not generally available. However, to give some context to these figures, in the year July 1993 – June 1994 20,000 patent applications were lodged in Australia. By the year July 2004 – June 2005 that figure had increased to over 32,000.
[39] Laura K Donohue, ‘Terrorist Speech and the Future of Free Expression’ (2005) 27:1 Cardozo Law Review 272.
[40] Peter J Westwick, In the Beginning: The Origins of Nuclear Secrecy, Bulletin of the Atomic Scientists, Vol 56, (Nov/Dec 2000), pp 43-49.
[41] Dana A Shea, Balancing Scientific Publication and National Security Concerns: Issues for Congress, Congressional Research service, Washington, 2003 at 6.
[42] Ibid at 7.
[43] National Security Decision Directive 189, issued September 29, 1985 by President Ronald Reagan.
[44] Ibid.
[45] Published by the American Society for Microbiology.
[46] Ronald J. Jackson et al., ‘Expression of a Mouse Interleukin-4 by a Recombinant EctromeliaVirus Suppresses Cytolytic Lymphocyte Responses and Overcomes Genetic Resistance to Mousepox’, 75 Journal of Virology 1205 (2001).
[47] Resnik, above n 3.
[48] Donohue, above n 39.
[49] Ibid.
[50] Proceedings of the National Academy of Sciences, June 25, 2002, vol. 99 No. 13, 8808-8813 available at http://www.pnas.org/cgi/reprint/99/13/ 8808?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=1&andorexacttitle=and&andorexacttitleabs=and&fulltext=smallpox&andorexactfulltext=and&searchid=1&FIRSTINDEX=0&sortspec=relevance&resourcetype=HWCIT, accessed November 2 2006.
[51] Richard Monastersky, ‘Publish and Perish? As the nation fights terrorists, scientists weigh the risks of releasing sensitive information’, Research and Publishing, The Chronicle of Higher Education, October 11, 2002 available at http://chronicle.com/weekly/v49/i07/07a01601. htm, accessed November 1 2006.
[52] Ibid.
[53] Ibid. See also House Resolution 514. 2002. 107th Congress, Introduced by Rep. Dave Weldon, July 26, 2002.
[54] Jennifer Couzin, ‘Bioterrorism: A Call for Restraint on Biological Data’, Science, 297 (5582), 2 August 2002, 749 – 751.
[55] Representing the National Academies of Science, Engineering and Medicine and the National Research Council. The National Academies acts as advisor to the government on matters of science, engineering, and medicine.
[56] Academic Freedom and National Security in a Time of Crisis, Academe, Washington, Nov/Dec 2003,Vol. 89, Iss. 6, at 34.
[57] Ibid; also see Kelly Field, ‘Federal Officials Ask Journal Not to Publish Bioterrorism Paper’, Chronicle of Higher Education, July 17 2005, 11.
[58] Journal Editors and Authors Group, Proceedings of the National Academy of Sciences, Vol 100, 1464.
[59] Monastersky, above n 51 at 8.
[60] Criminal Code (Cth) s 80.2(5)-(6).
[61] For example, of 23 scholarly scientific journals published by the CSIRO, 14 were in the fields of plant and environmental biology or marine biology.
[62] This is evidenced by the fact that the Australian mousepox research was published in the Journal of Virology in the U.S., even though it was the result of a cooperative research project between the Australian National University and the CSIRO. This is likely to be attributed to the greater reach of internationally published journals and the greater prestige typically attributed to internationally published journals.
[63] The NHMRC & AVCC represent major institutional research bodies, including universities. The ARC is the major distributor of government funding of research in Australia.
[64] Information provided November 7 2006 by Ros Engledow, Assistant Director – Coordination, Australian Vice-Chancellors' Committee, contactable at rxe@avcc.edu.au.
[65] The second draft of the revised Statement, Chapter 5, p 25, available at http://www.nhmrc.gov.au/publications/_files/acrcr.pdf, accessed October 30 2006.
[66] Sophie Morris, ‘Ideas come under anti-terrorism review’, Australian Financial Review, 18 September 2006, 33.
[67] Sensitive Technologies: The Tertiary Sector's Responsibilities, September 2006, available at http://www.asno.dfat.gov.au/publications/2006_ 060901_sensitive_technologies.pdf, accessed October 1 2006.
[68] Ibid, at 4.
[69] Adlai E. Stevenson Jr. (1900 - 1965), speech at the University of Wisconsin, Madison, October 8, 1952.
[70] To Socrates the pursuit of truth was a divine mission. The Socratic freedom of the scholar and student was rooted in the belief that the pursuit of truth was a calling, which transcended the reach of any earthly authority. See generally Gerasimos Santas, Xenophon, Socrates. Routledge, Kentucky, USA, 1999.
[71] Report Of The First Global Colloquium Of University Presidents, Columbia University, January 18-19, 2005.
[72] Monastersky, above n 51, at 5.
[73] CA McLeish, Reactions to Self-censorship, 20th Pugwash Workshop Study Group on the Implementation of the CBW Conventions, Geneva, November 2003, at 2, available at http://www.pugwash.org/reports/ cbw/cbw20/cbw20-mcleish.htm, accessed November 3, 2006.
[74] Ibid.
[75] Arvin S Quist, above n 8, at 142.
[76] In a 1980 study over 63% of significant scientific and technical information was produced and published outside the US, increasing from 25% in the 1950s and 1960s. P. Hernon and C. R. McClure, Federal Information Policies in the 1980s: Conflicts and Issues, Ablex Publishing, New Jersey, 1987, at 219, citing the U.S. Congressional Research Service. A 1984 study by the same authors, indicated that over 44% of the citations found in U.S. scientific and technological publications were from foreign sources.
[77] J von Neuman, Atomic Energy Act of 1946, Hearings before the Special Committee on Atomic Energy, U.S. Senate, on S. 1717, A Bill for the Development and Control of Atomic Energy, Part 2, 79th Cong., 2nd Sess., Jan. 25, 28-31, and Feb. 1, 1946, U.S. Government Printing Office, Washington, D.C., pp. 210-211 (1946)].
[78] See http://www.biomed-singapore.com/bms/sg/en_uk/index.html. asp, accessed June 1, 2007.
[79] Gelhorn W, Security, Loyalty, and Science, (1950), at 44.
[80] Quist, above n 8 at144.
[81] Ibid, 143.
[82] Donohue above n 39 at 334. Naturally occurring biological threats, such as AIDS, SARS, influenza, and food borne pathogens arguably pose a far greater risk to national and international security, than the threat posed by terrorist use of pathogens.
[83] American Association for the Advancement of Science, Committee on Science in the Promotion of Human Welfare, ‘The Integrity of Science’, American Scientist 53, 174-198, June 1965, p. 177.
[84] Ibid. at 144 – 145.
[85] Ibid.
[86] Kent, Roach, ‘Terrorism, Globalization and the Rule of Law: Must We Trade Rights For Security? The Choice Between Smart, Harsh, or Proportionate Security Strategies in Canada and Britain’ 27 Cardozo Law Review 2151, at 2172.
[87] Ibid.
[88] Ibid
[89] Donohue, above n 39 at 334.
[90] Monastersky, above n 51 at 8.
[91] Ibid; Donohue, above n 39 at 333.
[92] McLeish, above n 73, at 9.
[93] Ibid 4.
[94] Ibid.
[95] Donohue, above n 39 at 332.
[96] See p. 10 supra; also see McLeish, above n 73, at 9.
[97] For example, see
www.erowid.org/chemicals/mdma/mdma_ chemistry.shtml;
http://www.erowid.org/chemicals/lsd/lsd_ chemistry.shtml; http://leda.lycaeum.org/index.pl?ID=8731.
[98] For example see Drug Misuse and Trafficking Act 1985 (NSW) s 24A.
[99] Donohue, above n 39 at 332. In spite of government efforts to prevent information on the atomic bomb from being published information was widely available, including an article by Edward Teller, one of the creators of the weapon, published in Encyclopedia Americana. See L.A. Powe ‘The H-Bomb Injunction’, (1990) 61 University of Colorado Law Review, 55, at 62
[100] Donohue, above n 39 at 332.
[101] Above, Part 3 Do Restrictions Matter.
[102] Ibid 330. This argument has been central to recent debate in the U.S. and Australia over the conduct of stem cell and embryonic research.
[103] Ibid.
[104] Available at http://www.newscientist.com/article.ns?id=dn2265, accessed June 1, 2007.
[105] Marilyn W Thompson, The Pursuit of Steven Hatfill, available at http://www.ph.ucla.edu/epi/bioter/pursuithatfill.html, accessed June 1, 2007.
[106] McLeish, above n 73 at 9.
[107] Ibid.