NDA for FOUO CAP Radio Freqs to be released

[CommGeek]

This is to continue a thread on NDA's to release CAP Freq's that was started in an unrelated thread.

I know for a FACT that in order for CAP NHQ to release CAP freq to either a CAP member or a third party , CAP NHQ requires a Non Disclosure Agreement (NDA) to be signed by the receiving party.

In my real job with Emergency Management and the Acting State wide Public Safety Interoperable Communications Coordinator, we asked to have a list of  the new CAP freq's for several of our State Mobile Command Posts as well as the FEMA MURS Comm trucks. We were required to sign a NDA before they would release the freqs. Same applied to conduct an internod study at a new CAP repeater site with the new freqs. The bottom line  is they do not want the recipient to disclose the freqs to third party.  the WILL NOT release the freqs without it...even to a CAP member.

[Eclipse]

CAP 100-1
5-1. Requirements for Operating a CAP Radio Station. CAP radio stations are authorized by the Federal Government through the NTIA for emergency, training, and operational activities. Members are authorized to operate CAP radio stations upon certification by wing or higher authority. No CAP member may attend CAP radio operator training without first completing on-line CAP Operational Security (OPSEC) Training and having agreed to the on-line non-disclosure agreement.

[desertengineer1]

This is to continue a thread on NDA's to release CAP Freq's that was started in an unrelated thread.

I know for a FACT that in order for CAP NHQ to release CAP freq to either a CAP member or a third party , CAP NHQ requires a Non Disclosure Agreement (NDA) to be signed by the receiving party.

In my real job with Emergency Management and the Acting State wide Public Safety Interoperable Communications Coordinator, we asked to have a list of  the new CAP freq's for several of our State Mobile Command Posts as well as the FEMA MURS Comm trucks. We were required to sign a NDA before they would release the freqs. Same applied to conduct an internod study at a new CAP repeater site with the new freqs. The bottom line  is they do not want the recipient to disclose the freqs to third party.  the WILL NOT release the freqs without it...even to a CAP member.

There's a big difference between the NDA that you click on in the training (which really isn't legally binding BTW - it just helps them 2B you), and an ink signature you make someone else sign.

I could be wrong and someone may have changed the process recently, but I posed this question directly on the CAP-DC list about a year ago.  We're planning to install new repeaters on a few state and private towers.  Two owners have requested the frequencies for intermodulation studies, to ensure we don't interfere with another user, and that we don't bring a "magic" frequency that intermodulates with another one to cause intereference with, say, an aviation channel - for example.

One private owner balked immediately at making any agreement as a function of legality.  He gave a gentleman's agreement that they don't publish frequencies (because no one really cares), but signing an NDA would constitute legal liability, real or implied, by his company.

I found that there was a large discontinuity between the signed CAP-DC policy and what many members were perceiving.  Lots of comments my way regarding NDA's from members like yourself, but I had yet to see one.  Because we were dealing with private owners of repeater sites, I posed a very clear question to CAP-DC.  I made my position clear that we, as CAP, do not have legal authority to make a third, private party sign an NDA for a DoD owned frequency, based on a DoD OPSEC CI.  There are a whole bunch of legal landmines in trying to do that.  You cannot legally represent CAP in that settng.   You absolutely cannot represent the AF in such an agreement.  Worse, if you attempt or imply you are representing the Air Force, YOU or the Corporation could be legally liable.  Yes, I said YOU, because it could be determined that you are acting outside the reasonable bounds of your authority in CAP.

The policy signed by Gen Courtier makes no mention of any procedural signature by third parties when CAP frequency information is approved for release.  The policy is for CAP's management of release by YOU, the member for the legal reasons above. 

The response from those "in the know" at CAP-DC level (at that time) was that no NDA's were planned.  We must get permission, and we should ask them not to release such info, but that's as far as our legal boundry goes.

In addition, I have yet to see any of these NDA's people are talking about - which means it's more of an urban legend than fact.

However, if we have individuals or wings authoring their own NDA's, this is bad.  It could be perceived as a legally binding agreement between corporations.  THOSE must be approved by CAP.  I can understand why it wasn't in the CAP policy. The lawyers would have stopped such talk early.

Again, CAP frequencies are NOT classified.  Let me make this very clear to all you boneheads out there who just don't seem to get it.  CAP FREQUENCIES ARE NOT CLASSIFIED.  THEY CANNOT BE CLASSIFIED.  YOU HAVE NO AUTHORITY TO SAY THEY ARE CLASSIFIED.  YOU MAKE YOURSELF LOOK LIKE A TRUE IDIOT WHEN YOU ELUDE THAT THEY ARE.  THEY ARE FOUO - WHICH IS NOT A DOD 5200R CLASSIFICATION. 

FOUO just means the information is exempt from release under FOIA.  But I digress.  That's a whole seperate debate.  I think I made a good post on it here a while back.

Obviously, if I have to make the statements above to those who can't understand that concept, I won't even try to explain the DOD 5200 definitions regarding definitions of classified info.  There are many, none of which apply here.

Bottom line - members need to stop the classified, spook, NDA talk, and NEVER EVER require someone outside of CAP to sign something without consulting with NHQ or wing legal staff.

[desertengineer1]

This is to continue a thread on NDA's to release CAP Freq's that was started in an unrelated thread.

I know for a FACT that in order for CAP NHQ to release CAP freq to either a CAP member or a third party , CAP NHQ requires a Non Disclosure Agreement (NDA) to be signed by the receiving party.

In my real job with Emergency Management and the Acting State wide Public Safety Interoperable Communications Coordinator, we asked to have a list of  the new CAP freq's for several of our State Mobile Command Posts as well as the FEMA MURS Comm trucks. We were required to sign a NDA before they would release the freqs. Same applied to conduct an internod study at a new CAP repeater site with the new freqs. The bottom line  is they do not want the recipient to disclose the freqs to third party.  the WILL NOT release the freqs without it...even to a CAP member.

Who is "they"?  Please PM me....

[heliodoc]

Yep

The CAP spook stuff has really got to quit.

Let the TRUE operators talk the spook stuff

Until CAP has got some REAL horsepower behind assigning comm freq, let the comm assignment to the folks who do this every day

OPSEC, NDA screamin FOUO only make CAP look like........a bunch of little ninnies

GET a real clearance S TS etc..  I know I held on in Army Aviation  but I am throwing around all that OPSEC FOUO stuff around here just 'cuz I held aa clearance

Some of CAP has to get over its FOUO self

[Major Lord]

Yep

The CAP spook stuff has really got to quit.

Let the TRUE operators talk the spook stuff

Until CAP has got some REAL horsepower behind assigning comm freq, let the comm assignment to the folks who do this every day

OPSEC, NDA screamin FOUO only make CAP look like........a bunch of little ninnies

GET a real clearance S TS etc..  I know I held on in Army Aviation  but I am throwing around all that OPSEC FOUO stuff around here just 'cuz I held aa clearance

Some of CAP has to get over its FOUO self

Did you know that the CIA killed Albert Einstein? He knew too much.....

Major Lord

[heliodoc]

Here's a suggestion for you CAP types throwing around FOUO on a regular basis:

PROVE it ALL in writing or documentation from your favorite agency and how it relates to CAP

Yes . I have read the FOUO stuff on the NHQ website....

But when people start throwing it around CAP like a badminton game gone awry....... I ask to them to prove it....that usually settles that conversation down to a dull roar.

My $.02?  I would respect CAP alot more if the folks here stop looking like they are trying to be military and all

If you already have served in the RM and KNOW how to operate in the SECRET, TOP SECRET. FOUO, Classified and NON Classified world that is great

If you are a civilian and in CAP and batting some new found FOUO knowledge.....  go settle yourself down.

I have seen CAPers here try do debate desertengineer here and alot odf other folks that MAY have a clue in this arena...Again if you just learned about FOUO and "Classified CAP stuff."  Stop throwing it around like you are an operator.

Unless there is hammering directive from CAP NHQ and a real traveling fun show that meets every Wing (spell that Contact Team) that explains in CLEEEAAAAR detail and the legal types are there going over with every CAP troop like they do with JAG types before some or most deployments..... then the CAP FOUO and classified vs non classified stuff is alot of verbiage and some hot air with no real meat behind it

AND some of CAP regulations ....well they are in need of overhaul.  I have seen tighter regs in the RM

I will continue to " salute and execute" another term batted around here on CAPTalk, and read my CAPM 100-1

But I will leave the spook stuff to the REAL operators in life.  Right now after getting on CAPTalk at times and seeing the abuses of the FOUO stuff I have less belief in CAP on it teachews and instructs folks.

Most often I come CAPTalk for the humor.....especially these threads....

[desertengineer1]

Thanks, Doc.

I don't really intend to be mean, but I get frustrated when the line between paranoia talk and actual process blurs enough to cause real problems.

If there is a WG DC or CC somewhere making agencies sign NDA's, and it wasn't approved by CAP, it needs to be reported and addressed.  We have a responsibility as members to correct or clarify that because there is risk to everyone.

On the other hand, if CAP NHQ, CAP-DC or CAP-USAF has mandated these NDA's, it has obviously not been communicated to wing DC's or CC's.  It's just as important to clarify and get reported up the chain.

So, the issue on the table is to get the real story.  Is this fact or just someone talking trash?  Fact means I make a couple of phone calls to the people who DO know the right process.  Fiction means that we need to do a better job of communicating the real facts and spank members for wasting everyone's time with the paranoia talk.  If a member can't handle the definition difference between FOUO and "classified", they shouldn't be in positions for ES or CUL.  I'm tired of correcting them.

Again, I don't mean to be mean.  But I get to a certain tolerance level and have to call folks on it. 

It's the price I pay for being a unit security manager and OPSEC officer in the other life.  This isn't the kind of thing to take lightly because there are some significant legal and ethical risks to our organization.

Just my $0.02 thoughts....

[heliodoc]

No problem, desert

After being in a number of HLS classes in the last weeks  the tempering of 9/11 is apparently are leveling to a level that the EM world still has to be vigilant and calmer than BITD.  The "new stuff is just a new version of the old  stuff.  Read Civil Defense...only with new comms and whatnot

The "fever pitch" in CAP can be pretty funny to follow

CAP just ought to live with AF freq assignments, work with interopability and if the CAP "secret freqs" make to the internet......well

Maybe CAP can be big brother and start putting monitoring stations out to do their part in HLS missions and monitoring all CAP offenders and start typing out 2B's for the betterment of CAP.  But wait a minute, there WILL be an online test to get those credentials before a CAP member can become an airwave intelligence analyst

[Eclipse]

While you guys are up there congratulating each other, you might want to read AFI 33-118 as well as Title 18, section 793 of the USC.

These are the federal laws and Air Force regulations which mandate that CAP protect this information.

The only people on this board making any comment about freq info being "classified", are the people who keep making the assertion that they "aren't", to somehow make an argument that CAP's requirement of an NDA isn't required by criminal law.

Of course its not. 

An NDA is a civil document between parties who agree not to disclose information in relation to their business dealings.  It is only enforcible in a civil court via a lawsuit if the "infringed" party is so inclined.

The fortitude in requiring an NDA is directly related to how much the corporation in question wants to do business with the respective vendor or supplier.  Apple has something tech websites need, namely pre-release information, so they can mandate an NDA before showing off their latest overpriced product, and enforce that NDA via a lawsuit, including damages, if that Tech site reveals information outside the NDA's rules.

However if Apple needs something from a single-source supplier, and that supplier knows they own the market, the supplier is free to tell Apple to go jump about an NDA, and Apple has to decide if they need those "whatever" bad enough to risk early release of information.

CAP does not need random radio technicians who can't abide by our rules, and is mandated by US law and the USAF to protect related information. Therefore, someone who wants to either do business with CAP, or "help" a member, has to sign an NDA.  Period.  Disobeying CAP's rules risks disciplinary action for the member, and could, potentially, get the attention of the USAF and the Feds.

In the case of a repeater site, freq info, at least those applicable to the repeater for isolation and deconfliction issues, is obviously something the host landlord "needs to know", and an NDA should be signed by that landlord.  However, if the host decides he's not interested in signing the NDA, then CAP needs to decide if the repeater site is important enough to allow the info to be released without an NDA.

Not something a local squadron can decide.  This would need to be a Wing CC as a minimum, and probably should go to NHQ for consideration before any information is released.

Whether this information is already in the wild, or is easily obtained by someone with the inclination is not relevant to the federal law cited, or the USAF regulations that CAP is bound by.   CAP is mandated to protect this information, and they do so through their established internal procedures.

Whether the USAF or Federal Government cares enough to pursue some HAM who posts the information is a separate issue, and not CAP's problem, as long as CAP is following its rules.

[heliodoc]

Thank you, Eclipse for your enlightening review

Still there are alot of CAPers still spouting off.

Maybe USAF ought to take over CAP and CAP loses its Inc status.. they might think their business status is A OK.  But there are still issues that maybe PAPA 1 AF may want to wrestle CAP and hopefully at a time when they have less balls to juggle in the free and not so free world, they will and hopefully AF leadership comes down on that "CAP leadership."  Maybe that and reduction in funds mandated by Congress could convince CAP of its so called invincibility.  I for one could live with it 'cuz of the operations that I got to do with the Army.

Then CAP ought to control itself, which apparently many circles it can not.

Again maybe CAP needs more online tests regarding NDA and OPSEC.....'cuz the current status of things in CAP and interpretations are wildly different...

CAP ....once again a UNIFORMITY issue(s) are still lacking

Congratulating each other?  Maybe.  Let see what CAP can REALLY do legally, Huh?  Let us see CAP set precedent on all these things.. UNTIL then CAP really is a meooooooowing tiger!!

[Flying Pig]

http://www.radioreference.com/apps/db/?aid=1092

http://wiki.radioreference.com/index.php/Civil_Air_Patrol

Is this some of the classified stuff we are talking about?

[Eclipse]

No.

That looks like the same old-plan page everyone gets when they do a web search.

[N Harmon]

There's a big difference between the NDA that you click on in the training (which really isn't legally binding BTW - it just helps them 2B you), and an ink signature you make someone else sign.

[...]

I made my position clear that we, as CAP, do not have legal authority to make a third, private party sign an NDA for a DoD owned frequency, based on a DoD OPSEC CI.

[...]

However, if we have individuals or wings authoring their own NDA's, this is bad.  It could be perceived as a legally binding agreement between corporations.  THOSE must be approved by CAP.  I can understand why it wasn't in the CAP policy. The lawyers would have stopped such talk early.

I'm just curious by what basis you make these statements. In regard to your first statement, the courts have consistently found so-called click-wrap agreements to be binding, so I would be extra careful about telling people they are not legally bound by their CAP OPSEC agreements.

Further, I don't think the fact that CAP does not own its frequencies would invalidate a contractual agreement where a landlord agrees not to release those frequencies. Obviously non-CAP legal officers should not be drafting their own NDAs and using them, but that is aside from the point.

Lastly, NDAs are contracts so why would they not be perceived as such?

FOUO just means the information is exempt from release under FOIA.

But, CAP isn't subject to FOIA.    So, why would we need to label things as "exempt from release under FOIA", when in fact,... It's ALL exempt. 

Bottom line - members need to stop the classified, spook, NDA talk, and NEVER EVER require someone outside of CAP to sign something without consulting with NHQ or wing legal staff.

Mostly, I agree with that.

[desertengineer1]

While you guys are up there congratulating each other, you might want to read AFI 33-118 as well as Title 18, section 793 of the USC.

I am very familiar with 33-118.  It has nothing to do with the NDA discussion.

Let's take a gander...

3.6.1.5. Civil Air Patrol (CAP). The CAP is an auxiliary of the Air Force under Title 10, U.S.C.,
Armed Forces, Chapter 909, Civil Air Patrol. AFI 10-2701, Organization and Function of the
Civil Air Patrol, outlines Air Force support to the CAP. CAP units submit frequency actions that
support Air Force operations and training, whether in whole or in part, to CAP National Headquarters
(CAP-DOKF), 105 South Hansell Street, Maxwell AFB AL 36112-6332. CAP National
Headquarters sends the frequency actions to Headquarters Air Education and Training Command
(HQ AETC CSS/SCYC), 61 Main Circle, Suite 3, Randolph AFB TX 78150- 4546, who in turn,
sends them to AFFMA.
3.6.1.5.1. AFFMA may assign CAP frequencies for Air Force units to communicate with the
CAP during operational missions.
3.6.1.5.2. Air Force units may allow CAP to use their assigned frequencies to communicate
with other Air Force units during operational missions.
3.6.1.5.3. CAP units give the ISM a list of frequencies used on the installation. A number of
these should appear in the installation data pull.

Nothing here applies to the question at hand regarding a CAP to XXXX NDA for frequency release.  This only defines CAP's use of frequencies, and states the high level process for CAP's role in USAF spectrum management.

A more relevant chapter is this:

A2.3.1. Although most individual frequency assignment records in the Air Force Radio Frequency
Authorization (RFA) are individually unclassified, classify the total RFA according to the highest
classification level of the assignments it contains. Lists (two or more frequencies) of unclassified frequency
assignment records in a given range of frequencies, or in a given area, can be categorized as
sensitive, but unclassified because they may provide information leading to the disclosure of military
or national security-related operations and scientific and technological matters relating to national
security. These lists can indicate the overall strategic telecommunications capabilities of the US, and
their disclosure could cause damage to national security. The continued protection of this information
is essential to national security because it pertains to communications security and reveals vulnerabilities
and capabilities. Its unauthorized disclosure can reasonably be expected to result in nullifying
the effectiveness of telecommunications networks and the capability of the US.


Note there is a very subtle tone here, common to AFI's.  You cannot put something in an AFI that trumps an absolute rule in a higher directive (such as DoD).  However, you can give clarified "guidance".  This is why the word "sensitive" is used in A2.1.3.  It relegates such frequency information to directives of the using authority.  CAP is an authorized user, not the managing authority.  I believe the ADCON for us is AFNORTH A6. 

Further down....  Note the use of the word "Guidance".  That's very important.

A2.3.2. The USMCEB-M-019-98 gives guidance on classifying compilations of frequency assignment
records. Based on this guidance:

A2.3.2.3. A RFA or frequency list containing only UNCLASSIFIED assignments of one unit or
location is considered UNCLASSIFIED. For example, to select all records where SFAF data item
200 (Agency) = USAF would result in a CONFIDENTIAL aggregate list; whereas, select all
records where SFAF item 301 (Transmitter Location) or 401 (Receiver Location) = Hill would
result in an UNCLASSIFIED aggregate list. Users that plan to operate in an UNCLASSIFIED
environment should select from the FRRS only UNCLASSIFIED records applicable to their operational
requirements.


You cannot deem something classified just because you want it to, i.e. without reason.  That would violate DoD's core directives regarding lowest level possible or through derived or originating authority.  We have neither as CAP.  For example, frequencies in use by a classified operation can be classified on a derived basis.  CAP's mission is not classified, so you can't go there.  (Yes, we might have one or two missions, but those are WAY out of our normal realm)  We are also NOT authorized access to, or given clearances based on our membership as volunteers - as a whole.  Therefore, this is relegated down to the "unit" level - i.e. CAP-USAF and AFNORTH A6.  THEY have deemed frequency information FOUO, presumably per AFI 10-701's OPSEC process.  Frequencies in CAP are most likely on the CI list.  I don't know that for sure, but that's where they normally go in AF units.

Finally...

A2.4.5.3. This document contains records/data that are exempt from public release under the provisions
of the Title 5, U.S.C., Section 552(b)(1). The release of any records to any non-DOD organization
requires approval of the authority (agency) that made the assignment.


THIS is where FOUO comes from. 

Nothing in any of your citations defines the authority or requirement for organization to organization NDA's under DoD or USAF directives.  YOU DO NOT have the authority to write any kind of agreement not specified in CAPR without express approval or direction from CAP NHQ - period.  To do such an agreement means that you are legally speaking for us as a corporation.  A whole host of problems can arise out of that, the least of which could be an implied contractual agreement between CAP and the site owner.  CAPR's are very clear you are not to do these without express permission.

I don't understand why this is an argument.  If someone is making up NDA's and having organizations sign them on their own, without express approval or direction from Maxwell, it needs to stop.

Am I the only one confused here?

[raivo]

Who *is* writing up these NDAs, anyway? Is it National or someone else?

[heliodoc]

Kinda spell it out for me

Not an AF commo type or an outhouse CAP lawyer

BUT maybe CAP NHQ better get it s better outhouse lawyer to get on up to NHQ, SecAF, PAPA 1AF and quite possibly US Southern Command,eh

But I am awaiting all the "Professional CAP" comment that is about to ensue.

Thanks, desertengineer, really, for the research....more for the CAPers to put into their pipe and smoke   just make sure its legal and taxable...we need more funding for CAP!!!

[desertengineer1]

I'm just curious by what basis you make these statements. In regard to your first statement, the courts have consistently found so-called click-wrap agreements to be binding, so I would be extra careful about telling people they are not legally bound by their CAP OPSEC agreements.

Further, I don't think the fact that CAP does not own its frequencies would invalidate a contractual agreement where a landlord agrees not to release those frequencies. Obviously non-CAP legal officers should not be drafting their own NDAs and using them, but that is aside from the point.

Lastly, NDAs are contracts so why would they not be perceived as such?

FOUO just means the information is exempt from release under FOIA.

But, CAP isn't subject to FOIA.    So, why would we need to label things as "exempt from release under FOIA", when in fact,... It's ALL exempt. 

Bottom line - members need to stop the classified, spook, NDA talk, and NEVER EVER require someone outside of CAP to sign something without consulting with NHQ or wing legal staff.

Mostly, I agree with that.

I guess I wasn't as clear as I should have been in all that.  All I'm trying to say is that the average member can get CAP into trouble by doing their own NDA's willy nilly with site owners and other agencies.  You DO NOT have authority to speak for CAP as a corporation unless specifically authorized by CAPR's and NHQ.  By making someone sign an NDA outside of that authority, YOU can lose legal protection and cost NHQ millions.  You can also be sued in civil court for going outside your authority.  CAP can say "He/she wasn't authorized to make such a contract for our organization per XXXX and YYYY", and most likely get out with a payoff to lawyers.

While your lawyer is trying to prevent you from getting sued (worse case), there is a bright side.  CAP will most likely send you a nice 2B suitable for framing.

If, on the other hand, CAP-DC is requiring wing DC's to have a document or agreement signed, the rest of us need to know about it.  A policy needs to be clearly communicated to all.  Otherwise, the spook paraniods come out and we're back to CAPTALK wasting time again.

[desertengineer1]

http://www.radioreference.com/apps/db/?aid=1092

http://wiki.radioreference.com/index.php/Civil_Air_Patrol

Is this some of the classified stuff we are talking about?

Doesn't matter.  YOU as a CAP member agreed not to release the information.  You're not going to jail over it.  You'll get a lifetime 2B.

[raivo]

I guess what I really don't understand is why CAP would have someone sign an NDA in the first place (unless it's just as a "deterrent"), since I'm not really sure I could see CAP suing someone for breaking an NDA and disclosing our frequencies.

In large part because frequency information, though it IS sensitive, isn't really *that* important in the grand scheme of things.