When is a Secret not a Secret?

November 19th, 2007

This isn’t really my area, but I find the idea of “secrets” fascinating.

The Ninth Circuit Court of Appeals issued a ruling last Friday in an interesting case. An Oregon Islamic charity named Al-Haramain Islamic Foundation came to believe that it had been the object of warrantless wiretapping surveillance in the aftermath of September 11, and brought a civil action against President Bush and other US government officials.

During the proceedings, government lawyers inadvertently delivered to Al-Haramain a National Security Administration call log marked “Top Secret” together with other unclassified information. The log (which the court’s opinion doesn’t actually describe) was given to Al-Haramain’s attorneys and directors and seen by a Washington Post journalist. The FBI then collected all copies of the log from Al-Haramain’s counsel (though perhaps not from its directors).

The Ninth Circuit ultimately held that the log, though it had been disclosed, still counted as a “state secret” and could not be used by Al-Haramain to support its warrantless wiretapping claims. It sounds like that was their only piece of solid evidence, so the pundits say the organization’s chances of success are now close to nil.

What intrigues me about this is what “secret” means here. Apparently it means “still secret even though it has been disclosed”. Had this been a trade secrets case in which, say, the mythic Coca-Cola formula had been inadvertently disclosed to Pepsi Co it is hard to believe that the court would have still called it a “secret”- once disclosed there is no more secret.

To my eye (admittedly inexperienced in these matters), the court punts on this. It says, offering some rather thin reasoning and assurances that it reviewed the materials and found them to be very sensitive indeed, that even though the secret was disclosed to Al-Haramain, the government had not waived the state secrets privilege.

It sounds like the court was concerned that in a different set of circumstances the secret information could have been made completely public, destroying any shred of actual secrecy. Worried about pointing toward such a course of action in future inadvertent disclosure cases, the court allowed the government to maintain the fiction that the information was still secret.

So to answer the initial question, a trade secret ceases to exist once disclosed.  A state secret can apparently be much more open and retain its secret identity.  Interesting indeed.

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