The Director of National Intelligence has taken another step in asserting his role as the nation’s Security Executive Agent by creating and promulgating a new Classified Information Nondisclosure Agreement, SF312. All of the four million plus people with access to classified materials, whether in an intelligence capacity or not, will be required to sign this document. The Federation of American Scientists is presently hosting a copy on its website in PDF format.
The FAS has a blog post on the new document which notes that sections 10 and 11 are new. The two paragraphs detail the meshing of the NDA and the various whistleblower laws, executive orders and regulations. These additions are stated in the NDA as “controlling”. The various whistleblower protections, enhanced in a 2012 law titled the Whistleblower Protection Enhancement Act, still apply. NDA signers should realize that personnel working for select intelligence agencies and programs have a different process to follow than do most Federal employees.
The signing of an NDA should be preceded by “a security indoctrination concerning the nature and protection of classified information.” In addition, the briefing officer should answer any questions and make available written copies of “the Executive Order and statutes referenced in this agreement and its implementing regulation (32 CFR Part 2001 , section 2001 .80(d)(2) )” for the signee to read if they want. This is not a simple “sign here” document.
Other key provisions of the NDA state that nothing in the agreement waives any right the U.S. Government has to prosecute the signee for violating the agreement. The NDA also assigns all income a signee may receive from the disclosure of classified information which has not been authorized as described in the agreement. The NDA also makes each provision of the agreement severable, meaning that if a court invalidates one provision, the remaining provisions remain in effect.
