Classified information and ship design trade secrets are almost always very tightly controlled by data rights management protocols.

These protocols have failed DCNS, a French shipbuilder.

A leak of 22400 pages submarine plans detailing the secret combat capability of DCNS’s Scorpene –class submarines has been the subject of much consternation in defence circles in the past month. Australian Defence Industry Minister Christopher Pyne was reported last week as being unperturbed because the Barracuda-class submarine, to be provided to Australia by DCNS under a AUD50 billion contract, is a different design to Scorpene-class submarines.

But the classified information is alleged to include details of the capabilities of the SM39 Exocet submarine-launched anti-ship missile expected to be used on the Scorpene. The SM39 is a sea-skimming missile with a small warhead for use against frigates and corvettes. This leak includes classified information about the number of targets the missile was capable of processing. This missile is produced by MBDA Missile Systems, a French company unrelated to DCNS.

Rear Admiral (Retd) John Padgett, a former commander of US Pacific Fleet Submarine Force, has publicly noted that the leaks would undermine the confidence in the ability of French companies to protect classified information.

DCNS are reported to have lodged a complaint with the Paris public prosecutor for breach of trust, receiving the proceeds of an offence and aiding and abetting. It also commenced proceedings in the Supreme Court of New South Wales against The Australian newspaper, which broke the story, by which DCNS successfully obtained an order compelling The Australian newspaper to hand over all DCNS documents in its possession. Various newspapers have reported that the leak has been blamed on a sub-contractor to DCNS who is thought to have copied the Scorpene confidential information and taken it with him to a new job in South East Asia.

Submarine secrets have history of litigation in Australia.

Back in 2001, Swedish submarine builder Kockums received a contract from the Australian government to produce Collin-class submarine designs. Kockum’s design contract was significant:

“(1) The Commonwealth has a requirement for the supply of six (6) submarines, facilities, services and associated support detailed in this Contract for the Department of Defence….
“Services” means…the preparation, development and completion of the design of the submarines but excluding the design of the Combat System in such a manner as to comply with the Submarine Specification including the preparation, development and completion of those services, documents, plans, specifications, drawings, data and activities to be provided by the Design Sub-Contractor listed and scheduled in Annex BB including the integration of the design provided by other sub-contractors of the Contractor with the design of the submarines.”

This included a unique seven-bladed propeller design. But the propeller was noisy, ascribed to cavitation problems, and also suffered from fatigue failure. The Australian government decided to seek US Navy assistance. Design modifications were suggested by a US Navy facility and these were implemented, reducing the cavitation problem.

Kockums commenced proceedings in the Federal Court of Australia over copyright and confidentiality in the drawings in the submarine propeller where Kockums perceived a risk that this IP would be used by a US company called Lips Propellers Inc in the United States. Lips Propellers is a US subsidiary of Dutch company Lips NV, a competitor of Kockums. The apprehension was to do with breach of copyright – the United States Navy, or Lips Propellers, would prepare drawings by “reverse engineering” from the propeller itself. Kockums was unsuccessful in getting an interlocutory injunction to stop this. The court noted that “Any leakage of information by Lips Propellers would not only constitute a serious breach of its contract with the United States Navy, which is apparently a major customer; it would seriously (possibly catastrophically) compromise Lips Propellers’ reputation.”

A decision by the Australian navy to seek the assistance of a US navy contractor to fix a noisy propeller design is understandable if potentially disastrous to the integrity of Kockums’ trade secret. A leak by a subcontractor of over twenty-two thousand documents indicates that data rights management protocols in this new incident were either non-existent or catastrophically failed.