U.S. Air Force Requests Removal of Documents from Public Intelligence

On July 29, 2010, Public Intelligence received a notice from Paul Malcolm of Booz Allen Hamilton in support of the U.S. Air Force Key Management Infrastructure program.  Mr. Malcolm was very polite in requesting the removal of two “For Official Use Only” documents, one of which, he says, is proprietary.  Both documents concern the Simple Key Loader, a fill device used to load cryptographic keys into encryption systems.  The first document is the U.S. Air Force SKL Wireless & Black Data Distribution System Overview.  The second is the Simple Key Loader Instruction Guide.  Neither of the documents bear any particular markings indicating their proprietary nature.  While he does not specify which document is proprietary, it is possible that the SKL Instruction Guide is thought to be proprietary because it concerns the functioning and operation of a device produced under contract and ostensibly owned by the Sierra Nevada Corporation.  In fact, it was on the official website of the Sierra Nevada Corporation that both of these documents were originally and inadvertently made available.  One is still available.  Neither document bears any indication of its proprietary nature, nor any indication of its production by a private entity.

Under U.S. law, works of the United States Government are incapable of being copyrighted:

Title 17, Chapter 1, § 101:

A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.

Title 17, Chapter 1, § 105:

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

The prevailing view is that works produced under governmental contract are not subject to these limitations, and are thus capable of being copyrighted and proprietary.  However, this is a blatant misreading and manipulation of U.S. law.  The obvious intent of the above definition of a “work of the U.S. government” is to determine whether or not any such work was produced by an agent of the U.S. government in the performance of their “official duties”.  Simply because the U.S. government chooses to privatize and externalize functions that it is legally bound to perform itself, this does not mean that the public has any less of a right to access, share, or disseminate information regarding its functioning.

We have dealt with similar cases in the past of false claims of proprietary information.  In approximately one year of operation, we have received around twenty separate legal threats and takedown notices from a wide variety of entities such as NATO, the U.S. Army, FEMA, the FBI, and the U.S. Secret Service.  No document has ever been removed from this site.

Subject: Request to Remove FOUO and Proprietary Documents from Website
From: “MALCOLM, PAUL E CTR USAF AFMC CPSG/NIX” <paul.malcolm.ctr@us.af.mil>
Date: Thu, 29 Jul 2010 16:13:26 -0500
To: “legal@publicintelligence.net” <legal@publicintelligence.net>
CC: “ROGERS, JOHN G IA-04 USAF AFMC CPSG/NIX” <john.rogers.3@us.af.mil>, “GRANT, RAY JR IA-04 USAF AFMC CPSG/NIX” <ray.grant@us.af.mil>, “PHAM, DZUNG T IA-04 USAF AFMC CPSG/NIX” <dzung.pham.1@us.af.mil>


I’d like to request two documents posted on your website be removed.  They are titled “USAF SKL Wireless & Black Data Distribution System Overview” and “USAF SKL (Simple Key Loader) Instruction Guide”.  Both are labeled “For Official Use Only” and one is Proprietary.  Neither document is cleared for public release and shouldn’t have been submitted to your site.  Please let me know if this is a problem.

Paul Malcolm

Paul Malcolm, CISSP, PMP
Spt Contractor, Booz Allen Hamilton
AF KMI Program
Cryptologic Syst Division
Lackland AFB, TX
(210) 925-2630
DSN 945-2630

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