united-states criminal-law patents secret
If an inventor were to create a top secret invention, does this person have a legal obligation to keep it secret?
<p>In a scenario in which an inventor was able to invent something that the government would likely classify as 'Top Secret' or even 'Born Secret', and the inventor knows that it will be classified as such, does the inventor then have a legal and/or civic obligation to keep this invention secret until it has been reviewed and classified by the government? The reason being to prevent a possible major disruption to the nation's economy or national security.</p>

<p>In other words, if the inventor were to disclose his/her Top Secret idea out to the public domain/social media before it has been addressed by the government, and this disclosure were to cause a major economic disruption or weaken national security, is it highly likely that the inventor will be prosecuted and incarcerated, and perhaps even be charged with treason?</p>

<p>"Civic obligations" are based on one's personal moral philosophy, best discussed on Philosophy SE. On the legal front, in the US, there is no (existing) legal basis for simply declaring some random thing to be "top secret", even if it has great potential to be used for evil purposes. If this is research conducted under the umbrella of the Dept. of Defense, it might be classified, but a garage inventor is not subject to the laws regarding classified documents. Congress could pass a law prohibiting promulgating research on time travel, but even if such a law were found to be constitutional (unlikely, on First Amendment grounds, see <a href="https://law.stackexchange.com/questions/32822/is-the-right-to-engage-in-scientific-inquiry-a-fundamental-right">this</a>), one cannot be penalized for breaking the law before it becomes a law. </p>

<p>There is no obligation to maintain the secrecy of information simply because it would likely be classified Top Secret. In the absence of a secret designation, legally generated information is free to disseminate.</p>

<p><strong>Born Secret</strong><br>
Under "Born Secret" doctrine, the answer is different. In those cases, the government does not designate information as classified; the information is effectively classified without any action being taken by the government. But it's too narrow to be applied to just any information that <em>could be</em> classified.</p>

<p>Here's how it works:</p>

<ol>
<li>First, it applies only to "restricted data," defined as "all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy." <a href="https://www.law.cornell.edu/uscode/text/42/2014" rel="nofollow noreferrer">42 USC § 2014</a>.</li>
<li>Then it imposes restrictions on anyone "having possession of, access to, control over, or being entrusted with any document, writing, sketch, photograph, plan, model, instrument, appliance, note, or information involving or incorporating Restricted Data." Under <a href="https://www.law.cornell.edu/uscode/text/42/2274" rel="nofollow noreferrer">42 USC § 2274</a>, it is a felony if that person:

<ul>
<li>"communicates, transmits, or discloses the same ... with intent to injure the United States or with intent to secure an advantage to any foreign nation" or</li>
<li>"communicates, transmits, or discloses the same ... with reason to believe such data will be utilized to injure the United States or to secure an advantage to any foreign nation."</li>
</ul></li>
<li>It also includes a broader provision prohibiting the disclosure of restricted data regardless of purpose, but it only applies to federal employees, contractors, and the like. <a href="https://www.law.cornell.edu/uscode/text/42/2277" rel="nofollow noreferrer">42 USC § 2277</a>.</li>
</ol>

<p>So the law applies to anyone with "possession of ... any ... instrument ... or information involving or incorporating Restricted Data," and restricted data is "data concerning ... manufacture ... of atomic weapons." If our inventor had developed a 3-D atomic bomb printer, she would have possession of an instrument and information involving data concerning the manufacture of atomic weapons. She would therefore be covered under the law.</p>

<p>That means that she would be prohibited from disclosing any restricted data, but only if:she made the disclosure because she was trying to injure the United States or to help a foreign nation, or if she knew that disclosing the data would have that information.</p>

<p>Selling the data to North Korea would obviously be a problem in that case, but it sounds as though a simple announcement of the fact that she had successfully built the device would not violate the Act, as that would not actually be disclosure of "data" concerning the manufacture of atomic weapons. </p>

<p>Even the disclosure of the data itself would not necessarily violate the law. If she shared it with someone to facilitate a collaboration on improvements to the device, that shouldn't be a problem unless she knew that the collaborator was trying to injure the United States or help a foreign nation. On the other hand, simply taking all the data and posting it to the Internet probably would be a violation, as anyone doing so would know that it would then be used by foreign nations to their own advantage.</p>

<p>Beyond Born Secret, there's also the <a href="https://www.law.cornell.edu/uscode/text/35/part-II/chapter-17" rel="nofollow noreferrer">Invention Secrecy Act</a>, but my understanding is that it only applies to inventions for which the inventor has applied for a patent.</p>

<p><strong>Constitutional limitations</strong><br>
Of course, all of this assumes that Born Secret or the Invention Secrecy Act can withstand a <a href="https://www.law.cornell.edu/constitution/first_amendment" rel="nofollow noreferrer">First Amendment</a> analysis, which is hardly certain. Under <a href="https://law.justia.com/cases/federal/district-courts/FSupp/467/990/1376343/" rel="nofollow noreferrer"><em>Bartnicki v. Vopper</em>, 532 U.S. 514, 527 (2001)</a> "state action to punish the publication of truthful information seldom can satisfy constitutional standards." There's obviously a strong argument to be made that an atomic bomb how-to would be a good exception. This was the subject of <a href="https://law.justia.com/cases/federal/district-courts/FSupp/467/990/1376343/" rel="nofollow noreferrer"><em>United States v. Progressive</em></a>, which was never fully resolved.</p>

<p>Both restrictions also implicate the <a href="https://www.law.cornell.edu/constitution/fifth_amendment" rel="nofollow noreferrer">Fifth Amendment</a>'s Takings Clause, though the Invention Secrecy Act makes <a href="https://www.law.cornell.edu/uscode/text/35/183" rel="nofollow noreferrer">some provisions for compensation to the inventor</a>.</p>
