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Shell’s alleged espionage in the USA


As an ‘insider’ with some knowledge of Shell’s (alleged) espionage scheme and after doing some poking around on the web, I have learned a few things about the legal aspects of this story that are quite interesting. And I think they are worth sharing with your readers.

For those who are interested I would recommend calling up the US Atomic Energy Act of 1954 (as amended), the Patent Security Act of 1952, the Economic Espionage Act of 1996, the Arms Control Act, the Export Control Act, and the espionage statutes. All are applicable in this case, and they are all online. Cornell’s online law library is a very good source.

The US Navy apparently did not ‘formally classify’ the former Shell engineer’s material for a number of years after they began their so-called ‘national security’ review and technical evaluation, and they obviously took their own sweet time doing that review. What can anyone say, that is so typical of a governmental bureaucracy.

However, that is actually irrelevant. Under the provisions of the US Atomic Energy Act any technology that is found to be related to the design of nuclear weapons, whether developed privately or by the government, is considered to be ‘born classified’. DoE documents available online make it clear that this is US government policy derived from law. What this means is that, from a legal perspective, the technology this former Shell engineer developed was legally classified from the moment of ‘creation/inception’. Under US law it actually makes no difference when the formal legal action was taken to place that technology under Secrecy Orders. In this case it appears the provisions of the Atomic Energy Act would have been applied retro-actively.

Furthermore, under US law any and all patent applications under a security review are consider to be ‘provisionally classified’ in that they must legally be treated as classified material until such time as decision is made by the reviewing national defense agency to release that material into the public domain.

So, in this particular case Shell and their partners (allegedly in crime) would have been violating the conspiracy clauses under the US espionage statutes, 18 USC Sec. 793 and 794, and the general conspiracy clause of 18 USC Sec. 371, from the very outset of their (alleged) endeavors to gain access and possession. These are criminal statutes. For Shell that appears to have been shortly after this engineer filed his first application.

Furthermore, under the Atomic Energy Act, ownership of nuclear weapons design technology by an entity other than the US government is strictly prohibited. That means that not only was this technology ‘born classified’, it was also ‘born US government property’, by law. So, Shell, et al, were in effect (allegedly) attempting to steal/claim ownership, or whatever, and gain unlawful access to legally classified material that was by law US government property.

Not very smart. Not very smart at all. (Remember the old saying: ‘Look before you leap’?)

The fact that this material was formally classified by the US Navy means that is was owned by the US government. The US government cannot classify privately owned intellectual property. They can mandate export controls, and issue Secrecy Orders, but they cannot classify private property, unless the entity who owns that property has a security agreement with the government and is a defense contractor.

The Atomic Energy Act also makes it clear that as soon as a formal determination is made regarding the applicability to nuclear weapons design the government will begin condemnation proceedings, if the technology is privately owned, and take formal ownership of the material regardless of whether the owner of the technology is a defense contractor or not.

Now, it is also DoD and DoE policy that all classified material be stored at a location that provides for an armed guard. In the case of a location where classified nuclear weapons design information is stored it is almost certain that the ‘rules of engagement’ for any unauthorized intrusion into or onto the grounds of the storage facility would be the AUTHORIZED use of deadly force without warning, day or night, to prevent that intrusion, regardless of whether the intruder was armed or not. ‘Authorized’ entry in this case would mean authorization for entry by the controlling Federal agency. State authorities would have absolutely no jurisdiction in such a matter.

It is clear that Shell and their (alleged) minions have most probably ‘stepped in it’ big time. Furthermore, Shell’s goon squad was very lucky someone did not end up as a statistic and in a morgue. These people were most definitely, and quite stupidly, ‘playing with the wrong snake’.

It is pointless to speculate what the US government may be up to in this case, but they have confirmed that Shell, et al, were/are under investigation for conspiracy to commit espionage. In that regard I would make the observation that while the wheels of justice often turn slowly, they do turn, and in cases like this they usually, and inevitably, grind the offenders into the dust.

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