LETTER TO THE HONORABLE LAWRENCE R. HOUSTON FROM J. WALTER YEAGLEY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP72-00310R000200320001-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 18
• Document Creation Date: December 15, 2016
• Document Release Date: August 26, 2004
• Sequence Number: 1
• Publication Date: November 6, 1970
• Content Type: LETTER

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 A98~b'TPNi ATTORNEY GENERAL
INTERNAL $EOU~p~~ed For Rele?~se~004/08/31 :CIA-RDP72-00310ROOrQy0~1Q~0;,l~1,~.,~
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20530
Honorable Lawrence R. Houston
General Counsel
Central Intelligence Agency
Washington, D. C. 20505
Dear Mr. Houston:
We have considered the proposed "Contract of Rights, ~
to Information" accompanying your letter of February ~.,.--
1968 and welcome this opportunity to discuss its provisions
with you.
The first paragraph in effect cancels all present
contracts of employment and requires the employee to agree
to the new use of information conditions or terminate his
employment with the Agency, Assumedly the exercise of this
power by the Director would violate no present fob rights
of the employees.
We of course do not know whether any present or former
employee intends to publish in the future, but we can sur-
mise that a present employee may be prompted to resign or
retire now in the belief that the restrictive covenants
would not thereby apply to him, Former employees can be
expected to contend that unclassified information derived
from employment with the Agency can be properly utilized
without Agency consent if the employee has not personally
agreed to refrain from using such information.
We assume you have already considered the risk that
the contract would be construed as creating new, rather
than confirming existing, Agency rights and employee ob-
ligations but that on balance you believe the Agency's
best interests in the long run would be better protected
with a contract than without one.
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The second paragraph of the contract should be deleted.
To require an employee to agree to keep classified informa-
tion forever secret" is unnecessary. He already has that
obligation so long as the information remains classified.
If it is intended to preclude the employee from using this
information without prior Agency approval after it has been
declassified, we question both its reasonableness and its
constitutionality. If the information on declassification
becomes in the public domain, there is no reason to preclude
its use by anyone. If the information on declassification
becomes "unclassified information derived from Agency em-
ployment", there is no reason why the limitations as to
unauthorized use of Agency property specified in paragraph
four 'below should not automatically apply.
On the other hand if the purpose of paragraph two is
to allow an employee to have classified information de-
classified for his personal benefit, the integrity of and
necessity for all of the Agency's classification actions
may be called into question. We would not want the Agency
to precipitate judicial examination into the need for classi-
fication of any security information or to invite charges of
Agency favoritism. It is not hard to imagine competing pub-
lishers!finding an improper motive for every Agency declassi-
fication action taken under paragraph two for the 'benefit of
a particular publisher and alleging discrimination for every
refusal by the Agency to declassify information of interest
to that publisher or to the press generally.
The third paragraph should not be, or seem to be, the
legal predicate for the Agency's proprietary interest in
classified and unclassified information deriving from Agency
employment. The basis should be asserted elsewhere so that
the interest will exist independently of the contract. The
contract can and should reference the independent basis but
this interest should exist and be operative even if by ad-
ministrative error the employee fails to execute the contract.
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.The fourth paragraph causes the greatest difficulty
because "unclassified information deriving from Agency
employment" does not readily fit established trade secrets
concepts, but the problem can be lessened if the restric-
tion against unauthorized release is limited to specified
types of unclassified information not in the public domain
of obvious interest and concern to the Agency.
The present contract language seems overly broad,
especially if interpreted to prohibit the publication or
dissemination of any materials of whatever kind based upon
unclassified information which the employee "happened to
acquire in the course of his employment.'
There must be a more precise definition of the property
sought to be protected. A mechanical test for non-disclosure
predicated solely on the employment relationship will probably
not withstand First Amendment scrutiny. The property to be
protected must not only be precisely defined but limited to
information clearly in need of protection from non-disclosure.
This is especially true where the contract is a standard form
of general applicability. If broader coverage is needed for
a particular undertaking, the contract with respect to that
individual should be tailored to meet the needs of that enter-
prise. The need for the greater limitation should appear in
the document ii;self so that if the individual contract is
later ruled unenforceable, the ruling may not affect the con-
tinuing validity of the standard agreement. If a separate
contract is not feasible, the need for secrecy would probably
justify some degree of classification to remain in effect
for as long as the special need for non-disclosure of the
information continued.
American public policy abhors denying an individual
the use of his personal skills, knowledge and experience
-even though the matter be of great value and secret as
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well.. Thus courts have repeatedly refused on public policy
grounds to enforce contracts seeking to restrain an employee
from using knowledge and skills learned or improved in the
course of employment. The law does not require the employee
to make a tabula rasa of his mind, by erasing from it knowledge
he has acqu re
The dictionary defines information as knowledge given
yr acquired. Thus the contract could be interpreted as
prohibiting an employee who learned to operate a certain
camera in connection with his work from subsequently offering
for publication or display any photograph taken with a similar
camera of his own even though the object of this photography
were entirely unrelated to his work. Similarly if he learned
French or some other language as part of an employee educa-
tion program, he could not under the terms of the proposed
contract subsequently put this knowledge to use even in
writings unrelated to the Agency's business. To prevent
such constructions we suggest the use of explicit categories
of covered information, such as (1 information involving.
intelligence activities or identification, (2) information
.involving communications or negotiations with foreign govern-
ments or international organizations, (3) information which
would embarrass or needlessly offend an international organi-
zation, foreign government or official thereof, and (/+) in-
formation the disclosure of which would hamper the operation
of the Agency. While still somewhat general in description,
these categories and others of like content you may decide
to use, specified in a contract would not only more readily
suggest their need for protection from unauthorized disclosure
but would provide greater certainty and narrower scope than
the presently rather sweeping language of the draft paragraph.
We also have some reservations about the reasonableness
an,d constitutionality of the fifty year ban against unauthorized
disclosure of unclassified information. We agree that some
automatic release date is desirable, but believe that fifty
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years would be hard to ,justify in the First Amendment area.
In the absence of some practical formula devising a reason-
able time period we believe an automatic ten year limitation
would be more readily sustainable. If longer periods are
necessary to protect particular items of information, here
again the need would probably justify some degree of classi-
fication to remain in effect on a clear determination of
necessity for as long as disclosure would endanger the
national security,
The fifth paragraph of the proposed contract should
be amended to make clear that the Government's interest
is not limited to the receipt of royalties or money damages
where the employee violates the terms of the contract, In
a proper ease, it may be necessary in order to protect the
Government's interest to enjoin publication in violation of
the information contract; and the contract as it now stands
would seem to indicate that the Government was mainly inter-
ested in protecting claims for royalties.
Of course injunction may be an illusory remedy in many
cases because of the problems in drafting a sufficiently
specific injunction without revealing the very thing sought
to 'be protected from disclosure, Even so, the inclusion
of a reference to possible in~unetive relief may serve as
a deterrent to wilful breach of contract or unauthorized
use of writings,
A second problem lurking in the assignment of royal-
ties provision arises out of the fact that no copyright
may subsist in any ublication of the United States Govern-
ment. (17 U.S,C. 8~ A government publication is defined
as a work which is prepared by a government employee as
part of his official duties. Public Affairs Associates Inc.
v, Rickover, 268 F. Supp. ~-~-~-, . nce
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this contract attempts to regulate as a part of the employ-
ment relationship the writings of Agency employees, it may
be that such writings, since they are controlled by the
employer, would be construed by the courts to constitute
"government publications" and, hence, in the public domain
and republishable by anyone without violating a copyright.
Therefore, while the assignment of royalties would be valid
and perhaps effective against the employee who violates the
contract, it may not operate as a deterrent to republication
by third parties if the contract is violated.
The confession of judgment provision in paragraph five
also appears to be so broad and encompassing as to be of
doubtful validity. An all-inclusive advance confession of
wrongdoing by the employee embracing any breach of the terms
of the contract is so basically unfair and unreasonable that
courts would likely condemn the whole contract as offensive
to public policy. Under a blanket confession of judgment
provision there could never be an independent ad~udieation
of a good faith dispute.
Public policy may give employees the right to have an
impartial determination of their constitutional rights, and
a contract provision which unreasonably limits the exercise
of a constitutional right may render the whole contract
unenforceable. We therefore suggest that the confession
of judgment provisions be eliminated from the agreement.
In its place we suggest the inclusion of an arbitration
provision. An arbitration provision in the contract serves
at least two purposes. It offers greater protection of the
secrecy of the .matter under consideration by avoiding at
least temporarily and possibly permanently its declassifi-
cation for court action and it is more likely to survive a
court test than a procedure calling far an ex ap rte deter-
mination of rights and liabilities by the employer alone.
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The sixth paragraph should not be, or seem to be, the
basis of the Agency's interest in, or of employee's duty
to return, the items enumerated at the termination of the
employment relationship. The basis should be independent
of the contract for the same reasons specified in connection
with the proprietary interest discussed above with respect
to paragraph three. The contract can and should reference
the independent basis but the interest and duty should
separately exist and be operative even if by administrative
error the employee fails to execute the contract. A separate
basis may also eliminate any need to trace possession through
the former employee under the contract to recover Agency
property in the hands of third parties.
The seventh and eighth paragraphs highlight the problems
discussed in connection with the first paragraph, namely, the
chance that the contract will be deemed to create new rights
and obligations not applicable to former employees not parties
to the contract.
Should you desire, we will be happy to meet with you
at any time in order to further discuss the proposed contract.
Sincerely,
J. WALTER YEAGLEY
Assistant Attorney General
Internal Security Division
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15 February 1968
Ths Hcsnarable J. t~Talter Yeagley
Assistant Attorney Gezzeral
Internal Security Division
D~spartment cif Justice
~d"ashington, D. C. 2~53i7
pursuant to the int?rafenacy meeting of 29 3asnuary 1968
(attended by representatirres of the D~:partment. Qf State, i~epaxtment
cif Defense, .Department of Justice, Atomic Energy Cornrnission and
Central ,Intelligence A~;crzcy}, where it was suggested that coordination
in the matter of security leaks be irxsplemented, I arrt forwarding to
you two items. The farst is a pro;,~osed "Contract of I~ii;hts to
lrxfgrrnationt" which, if utilized, would make it econc,micallyr
uzxrealistic f+ar a persona exnlaioyed under it to attempt tQ profit
financially by releasing classified inforrrration. The second item
is a draft revision of 5t? U. S,. C. 783(by. (The present language of
50 ~T. S. C. 783(bj is also enclosed. ~ 7Chis revision vyill rz~ake it
a crixxz+a for anyone to release clan sified information to any
unauthorised persoxs, changing the existirxg law, which makes
illegal only the act csf passing classified ixxforarrsaticn to an agent
of a foreign gc~vexnn~ent.
l~either of these iterx~s contaixas the full protection which each
of the interested organ;izatiozzs would probably desire, but tfltal.
prot~:ctiou appears net to be+ constitutionally feasible. Tc- Obtain a
successful conclusiosz tcx litigation under either a statute or as
contract,. it is apparent that decla,ssificatiQn for purposes of a
trial would probably be necessary. Ho~,vever, it is felt' that
deterrents which would rewire declassification axe better than.
the present system which. afforda no px~atectiQn at all.
,.
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'Xour cc~mme~stw and recc~mmenclations ozt these items would
be appreciated.
SinCe'rolyy
', -. .
1..awrence R. ~otaston
General Co~rri.sel
inked note on original only -Also thanks
for the material you sent me recently.
C?GC: TNT:bt
Distribution:
Orig. ' - Adse.
l ~ SEGUI~I'TY Sub,~ect file.
1 - 'A'NT' Signer
v~ ~> +Chrox~o
cc: Jared Carter
Special Asst. to Legal Advisor
. Department of State
Robert L. Gilliat
?ffice of Asst. General Counsel for
Manpower & Reserve Affairs
Department of Defense
Joseph J. Liebling
Director for Security Policy
Department of Defense
T-'toward C. Yiro~,~/n
Assistant General Manager
Atomic Energy Commission
Franklin N. Parks
Associate General Counsel
Atomic Energy Can3missifln
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CENTRAL INTELLIGENCE AGEI'vCY`
CC3~tT~ACT C?~' BIGHTS TU iNFQ~Iv#ATICJN
Thie contract entered rota this ~, day of
19 . between the Central Intelligence ,Agency (hereinafter called
"CIA") and _ {hereinafter called
~~Ernploy$e ").
~~II'I'NESSETH
1. CIA agrees to continue to) employ Employee under such
terms and conditions as the parties may agree and in accordance
with CIA employment policies and subject to the availability of
funds. This contract shall not preclude CIA from terminating
Employee for cause, because of a R eduction in ~"orce, because of
an insufficiency of funds, ox far any othmr reason err purpose, on
the sale determination of CIA. Ise particular this. contract does
not and is not intended to negate or irtxpair the authority of the
Director of Central Intelligence under Section 102(x) of the
l'Jatianal Security Act of 1947, as amended (50 U'. S. C. 403.
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~. Erriployee agrees to keep forever secret all classified
infQxmaticrn derived frazxx his ez~r~ployment by G1A, ,except to the
e~rtent that he may tie authorized izx writing by an authorized
J~' ,
representative of the 23irector of the C~ to reveal any such
information. ,
3. ErzYployee agrees that all inft~rxxaation, classified and
unclassified, deriving, frcna his e:cnpla~yrnent by GLA is the property
c+f ~lA.
4. JExx~ployee agrees he gill not, before the date which is
fifty years aftex his exr~pioyrxtiex~t by GI.A tezrninates, publish,
publicize, record, sell,. or in a:ny other way diesemiuate any
unclassified information deriving from such exriployment, or any
work 'used in whole or in part on, or which utilizes, any such
information, without the prior written approval of GIA. Without.
such prior written approval the Employee will take no action
desiganed or intended to accomplish any c-f the foregoin nor will
he do ax~ythi~xg to assist any other person to take any such action
based on or utilizing information acquired by Employed and
dexiv~d from such eznployx~xent.
5. Employed heraby assigns tQ CAA all right, title and
intexeat in any royalties and. rei~unezations of any natuze which
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ma.y inuxe to the ~ra~ployee because of any actian in breach of
this contract. Should azay litigation caf any kind axise au.t of such
action, ~?rnplc~yeca hereby confesses judgxraent in favor of the
1'Jx~ited States Gavernrzaent.
6. tJpar~ terrzyination of ex~nploynaent of ~xnployes by CIA,
,~xraplcayse shall promptly deiivex to CIA all clocurnents, papers,
Hates, notebooks, xeports, drawings, maps, tapes, and a3.1 other
material and i;nfcrmatiora of any natux+s relati~ag to CIA which
~mplayee has in his possessiozx car has acquired as a result of
hips ernploym~:nt with CIA.
7. Tha texm r+,en~,ployment" he~rvin applies with respect to
the periods of er,~ployment by CTA pricar to ~e data of thte
contract, as well as periods sutasequent to that date.
_._.__
:~. This contract is +effective as of l9 ?
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3~xal't R ev-isican of ~{~ CJ. S. C. 7$3(b)
Coxnxnunicativr~ of Classified Ir.~forrna.tion
by Gc~vexz~zzxent C3$'ficer or ~mp3c~yee
Xt shall ba unlavrrful far ~.ny officer yr employee of the
United :3t~.te3, car of any departrriesat or agency tht~reaf, or of
any cc~rparation the stock ref ~nrhich is awned iu whale or in mayor
paxt by th+~ LTz-ited States, or any department ar agency thezeQf,
to cornzztunicate os atterxzpt to cs~mmuzxicata fxz ~.ny manry,ex or by
any mews to any unauth.cxxi.~ed nexsozx pr paxsarts arey ixzforxration
of any Id.nd wb.atsoever which shall have been classified iay the
PrBSideant (ox by thc~ head cif any such department, agency ar
corparatioz~ with the appxoval of thg President) as affecting the
security of the YJz~ited Staten, Iaviowir,~ or having xcsasar~ to irxiow
that such inforrnatiox~ harp be~ex~ no classified, unless such +~fficc~r
or eraapioyee shalX have been, ~apecifically authorized by the 2'xesident,
ar by th+~ head of thc~ depaa~trnent, agency ar c+~rparation by which
this officer or employees i~ arxynloyc~d, to rn-ake such aiaciasure of
such i~nfaxrxacatiasa.
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~~~
 distinguishable unit, and
to such party.
f~~~~~ xF~~i~eol$~gge 2Q04/08/31 ?.~~At~=R~p~2.~ AO~-'44R~(}~OQ~flflfl?4~:z?~.~,~.~~.,...,::.,,.~,.~a.:,,~~~~y~
~P Pposxtlo2, ? p7oyee s~2-z,ll ~ave been specifically authox?ized ur the President, or
by the head of the department, agency or corporation b ti?h? h th?
Y t
(16) The term "doctrine" includes, but is not limited to, polici~?=,
practices, purposes, aims, or procedures.
(17} The giving, loaning, or promising of support or of moucy or
any other thing of value for any purpose to any organization shill
be conclusively presumed to constitute affiliation therewith; but
nothing in this paragraph shall be construed as an exclusive defini-
tion of affiliation. -
(18) "Advocating the economic, international, and government, I
doctrines of wox?1d communism" means advocating the establishment
of a totalitarian Communist dictatorship in any or all of the countric;
of the world through the medium of an internationally coordinated
Communist movement. -
(19) "Advocating the economic and governmental doctrines of anv
other form of totalitarianism" means advocating the establishmcllt
isf totalitarianism (other than world communism) and includes, but
is not limited to, advocating the economic and governmental doc-
trines of fascism and nazism. Sept. 23, 1950, c. 1024, Title I, ? 3, G-S
Staf.989. -
~ 753. Offenses-(a) Conspiracy or .attempt to establish tofalit..ri?
an dictatorship -
Ii shall be unlawful for any person knowingly to combine, cm2-
spire, or agree with any other person to perform any act ~v1.i~I+
would substantially contribute to the establishment within the Unit-
ed States of a totalitarian dictatorship, as defined in paragraph (l.ii
of section 782 of this title, the direction and control of which is to -
be vested in, or exercised by or under the domination or control ef,
and foreign government, foreign organization, or foreign individu::l:
Pro::ided, laomever, That this subsection shall not apply to the pro-
posal of a constitutional amendment.
Communicntion of dnssified b+formntion U}? Government oL"iccr or employee
. (b) It shall be unlawful for any officer or employee of the United
States ox? of any department or agency thereof, or of any corporation
the stock of which is owned in whole or in major part by the United
States or any department or agency thereof, to communicate in an}'
manner or by any means, to any other person whom such officer or
employee knows or has reason to believe to be an agent or represent .-
five of any foreign government or an officer or member of any Cor.2-
munist organization as defined in paragraph (5) of section 782 of this
title, any information of a kind which shall have been classificcl l,y
the President (or by the head of any such department, agency, or
corporation with the approval of the President.) as affecting the ~~--
curity of the United States, knowing or havxna reason to know th::'
~ such information has been so ctassifiecl, unless such officer or cr~~-~
r...r .._e?~n..:...,.,xs~..,ow...+c~:rze..r.M.}.