Congress creates conundrum: What's 'sensitive'?

In its rush to straighten out security problems at Energy Department nuclear labs last year, Congress ended up creating more confusion for contractors who work for the agency, according to a recent DOE memo.

Section 3147 of the National Defense Authorization Act for fiscal 2000 included a provision penalizing Energy contractors who violate any rules "relating to the safeguarding or security of restricted data or other classified or sensitive information."

Under the law, DOE contractors can be fined up to $100,000 for releasing such data. But one small hitch was discovered after the new regulations were approved- legally, there is no such thing as "sensitive information."

In effect, Congress created a new classification category.

The department has received a number of inquiries from contractors concerning the implementation of the provision, according to a Jan. 5 memo from DOE general counsel Mary Anne Sullivan. To keep things fair, DOE won't impose any penalties until new regulations are issued that define the term "sensitive information," the memo said.

Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, said the muddled provision is a "good illustration of the excess zeal that overcame Congress last year" while it tried to improve security at the Energy Department.

"This is sloppy legislating. You don't impose severe penalties for an action without describing that action with some precision," Aftergood said.

Sensitive information may not need to be classified, he said. For example, information about alarm systems at DOE nuclear weapons labs isn't classified, because it needs to be shared with emergency response personnel. But it's also not something you would want to disclose to potential enemies, Aftergood said.

DOE already has a classification for such information regarding nuclear weapons called "unclassified controlled nuclear information." Penalties already exist for disclosure of such information. But the new provisions will likely include different types of information, Aftergood said.

While the term "sensitive information" is used by the Defense Department and appears in the Computer Security Act, it does not appear in the Atomic Energy Act where the new amendment is placed.

Until new regulations are issued that define "sensitive," DOE contractors will likely err on the side of caution, Aftergood said.

"To be on the safe side, the contractors are likely to withhold more, rather than less, information. It becomes a problem in terms of cost-effective security and accountability to the public because information gets withheld indiscriminately," he said.

According to Sullivan's memo, a process is underway to develop regulations regarding the new law.

Stay up-to-date with federal news alerts and analysis — Sign up for GovExec's email newsletters.
Close [ x ] More from GovExec

Thank you for subscribing to newsletters from
We think these reports might interest you:

  • Sponsored by G Suite

    Cross-Agency Teamwork, Anytime and Anywhere

    Dan McCrae, director of IT service delivery division, National Oceanic and Atmospheric Administration (NOAA)

  • Data-Centric Security vs. Database-Level Security

    Database-level encryption had its origins in the 1990s and early 2000s in response to very basic risks which largely revolved around the theft of servers, backup tapes and other physical-layer assets. As noted in Verizon’s 2014, Data Breach Investigations Report (DBIR)1, threats today are far more advanced and dangerous.

  • Federal IT Applications: Assessing Government's Core Drivers

    In order to better understand the current state of external and internal-facing agency workplace applications, Government Business Council (GBC) and Riverbed undertook an in-depth research study of federal employees. Overall, survey findings indicate that federal IT applications still face a gamut of challenges with regard to quality, reliability, and performance management.

  • PIV- I And Multifactor Authentication: The Best Defense for Federal Government Contractors

    This white paper explores NIST SP 800-171 and why compliance is critical to federal government contractors, especially those that work with the Department of Defense, as well as how leveraging PIV-I credentialing with multifactor authentication can be used as a defense against cyberattacks

  • Toward A More Innovative Government

    This research study aims to understand how state and local leaders regard their agency’s innovation efforts and what they are doing to overcome the challenges they face in successfully implementing these efforts.

  • From Volume to Value: UK’s NHS Digital Provides U.S. Healthcare Agencies A Roadmap For Value-Based Payment Models

    The U.S. healthcare industry is rapidly moving away from traditional fee-for-service models and towards value-based purchasing that reimburses physicians for quality of care in place of frequency of care.

  • GBC Flash Poll: Is Your Agency Safe?

    Federal leaders weigh in on the state of information security


When you download a report, your information may be shared with the underwriters of that document.