Ben Powell is currently a partner at WilmerHale, and is the co-chair of the cybersecurity and privacy practice.
Mr. Powell highlighted two challenges the government confronts in improving the declassification process: prioritization and resources.
First, immediate national security issues often take priority over declassification issues. The government is dealing with geopolitical issues and national security threats—the challenge is how to fit declassification in this setting and get it seen as an urgent issue. One of the biggest challenges for the Public Interest Declassification Board (PIDB) is ensuring that declassification is prioritized among the government’s long list of other priorities — and getting classification/declassification issues highlighted as both contributing to our national security and as an important public interest.
Second, both the PIDB and the government have limited resources. There are many classified documents that are subject to mandatory declassification review. There is now an overwhelming amount of information that is classified and cannot be reviewed for declassification in a timely manner.
When asked about reasons why over-classification occurs, even though directly opposed to Executive Order 13526 § 1.2(c) (“If there is significant doubt about the appropriate level of classification, it shall be classified at the lower level.”), Mr. Powell believes that human nature tends to classify at a higher level to minimize any risk, and that the provision of the Executive Order was written to make people think more carefully about the level of classification at which they mark documents. The Executive Order has not quelled people’s concerns about protecting national security, which can lead to over-classification.
On the subject of over-classification, Mr. Powell believes it is a real issue that results in information being more difficult and expensive to process and release. Perhaps more importantly, over-classification can unnecessarily deny people access to documents needed for their jobs. For example, if someone is only authorized to access documents classified as “secret” but a document that should be classified under the “secret” level is over-classified to the “top secret” level, that person will not be able to access the document that they need to do their job. Additionally, over-classification could deny the United States information that could help us and our allies.
Looking forward, Mr. Powell believes that the PIDB must make sure declassification is seen as a priority. He believes one way to do this is to show why it is important from a public interest, national security, and compliance perspective. The PIDB has done important work in highlighting effective ways to improve the system and deal with the massive amount of classified information created every year in this digital age. This includes exploring the use of advanced technology, including advanced text processing and machine learning, and exploring policy improvements at agencies, such as the creation of consolidated declassification guides.