Sensitive But Unclassified Data Directive
The provisions of Section 1217 of Public Law 98-94 are implemented in the Department of Defense by a new directive (DoD Directive 5230.25) that sets forth policies, procedures, and responsibilities for the withholding of unclassified technical data from public disclosure.
DoD Directive 5230.25, “Withholding of Unclassified Technical Data from Public Disclosure”
Criteria for Withholding
The Directive provides that data may be withheld from public disclosure when all of the following criteria are met. The technical data:
- Are in the possession of or under the control of the Department of Defense.
- Have military or space application.
- May not be exported lawfully without an approval, authorization, or license under U.S. export control laws, and
- Disclose critical technology.
Information under the control of or in the possession of the Department of Defense means data created or received by elements of the Department and information developed and produced for the Department under contractual arrangements or other agreements.
The new legislation defines technical data with military or space application as any:
- Blueprint,
- Drawing,
- Plan,
- Instruction,
- Computer software and documentation, or
- Other technical information,
that can be used, or adapted for use, to:
- design,
- engineer,
- produce,
- manufacture,
- operate,
- repair,
- overhaul, or
- reproduce military or space equipment or related technology. However, the Secretary’s authority to withhold such data does not extend to technical data authorized for export under a general, unrestricted license, or exemption under regulations implementing the export control laws.
The implementing regulations for the export control laws describe the technical data that may not be exported lawfully without approval. Generally, technical data related to items on the State Department’s Munitions List and the Commerce Department’s Commodities Control List, contained in these regulations, require licensing or approval.
“Critical technology” essentially is data that reveals production know-how that would contribute significantly to a country’s military potential and possibly prove detrimental to the security of the United States. Such data may be comprised in part or in whole of:
- Arrays of design and manufacturing know-how
- Keystone manufacturing, inspection, and test equipment
- Keystone materials
- Goods accompanied by sophisticated operation, application, or maintenance know-how
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