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Privacy and Civil Liberties Oversight Board

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The Privacy and Civil Liberties Oversight Board (PCLOB) is an independent agency within the executive branch of the United States government, established by Congress in 2004 to advise the President and other senior executive branch officials to ensure that concerns with respect to privacy and civil liberties in the United States are appropriately considered in the development and implementation of all laws, regulations, and executive branch policies related to terrorism.[1]

Privacy and Civil Liberties Oversight Board
Agency overview
Formed2004
JurisdictionUnited States
HeadquartersWashington, DC
Agency executives
  • Sharon Bradford Franklin, Chair
  • Edward W. Felten, Board Member
  • Travis LeBlanc, Board Member
  • Beth Ann Williams, Board Member
  • Vacant, Board Member
Key documents
Websitehttps://www.pclob.gov/

Role and operations

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The purpose of the Privacy and Civil Liberties Oversight Board is two-fold: to analyze and review actions the executive branch takes to protect the nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and to ensure that liberty concerns are appropriately considered in the development and implementation of law, regulations and policies related to efforts to protect the nation against terrorism.

The Board has two main functions: (a) advice and counsel on policy development and implementation and (b) oversight. Its functions include reviewing proposed legislation, regulations and policies; advising the President and the departments and agencies of the executive branch; and continually reviewing the implementation of the regulations, policies, and procedures of the executive branch relating to terrorism to ensure that privacy and civil liberties are protected. In addition, the Board is specifically charged with responsibility for reviewing the terrorism information sharing practices of executive branch departments and agencies to determine, whether they adhere to guidelines designed to appropriately protect privacy and civil liberties.[2][3] In the course of performing these functions, the Board shall coordinate with the privacy and civil liberties officers in the relevant departments and agencies.

The Board is authorized to have access to all relevant information necessary to fulfill its role, including classified information consistent with applicable law. The Board is required to report to Congress not less than semiannually.

History

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2004–2006: Creation within the Executive Office

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Recommended by the 9/11 Commission Report issued on July 22, 2004, the Privacy and Civil Liberties Oversight Board was initially established by the Intelligence Reform and Terrorism Prevention Act of 2004.[4] It consisted of five members appointed by the President, with the board being part of the Executive Office of the President and was supported by an Executive Director and staff. In February 2005, a majority of Minnesota congresspersons and senators had nominated Coleen Rowley to serve on the Board,[5] but President George W. Bush did not nominate her.

The first Board members from 2006 were Carol E. Dinkins, of Texas, Chairwoman; Alan Charles Raul, of the District of Columbia, Vice Chairman; Theodore B. Olson, of Virginia; Lanny Davis, of Maryland, and Francis X. Taylor, of Maryland. The Chairwoman and Vice Chairman were confirmed by the Senate on February 17, 2006. All Board members were sworn in and had their first meeting on March 14, 2006. On May 14, 2007, Lanny Davis resigned, charging that the White House had sought to control the content of a Board report.[6]

2007–2012: Lack of quorum

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From 2007 until August 2012, the Board did not have a quorum.[citation needed]

In January 2007, H.R. 1 ("Implementing Recommendations of the 9/11 Commission Act of 2007"), aimed to reconstitute the board as an independent agency, composed of 5 Senate confirmed members serving staggered six-year terms and passed the U.S. House of Representatives. The Senate companion bill, ("Improving America's Security Act of 2007", S. 4), passed on March 13, 2007. The House language prevailed upon reconciliation and on August 3, 2007 President Bush signed the Implementing Recommendations of the 9/11 Commission Act of 2007, into law.[7] In January 2008, the changes took effect, at which time the original Board ceased to exist.

On February 27, 2008, the Senate received President George W. Bush's first three nominations to the revamped PCLOB: Daniel W. Sutherland, Officer for Civil Rights and Civil Liberties at the Department of Homeland Security, to serve a six-year term as chair of the board; Ronald D. Rotunda, professor of law at George Mason University, to serve a four-year term as a member of the PCLOB; and Francis X. Taylor, a former member of the board, to a serve a two-year term. On September 8, 2008, President Bush made a fourth nomination, of James X. Dempsey, senior counsel at the Center for Democracy and Technology, to serve a five-year term. The nominations were referred to the Senate Committee on the Judiciary, which took no further action.[6]

In December 2010, President Barack Obama nominated two persons to the Board: Dempsey, and Elisebeth Collins Cook, a former Assistant Attorney General at the U.S. Department of Justice and, at the time, a partner in a Chicago law firm.[8][9][10] Those nominations expired at the end of the 111th Congress.

In January 2011, President Obama re-nominated Dempsey and Cook.[11] In December 2011, the Obama administration announced to revitalize the Board as a check against its proposed cybersecurity policies and measures.[12] and the President made three more nominations: David Medine, a former associate director of the Federal Trade Commission, as chairman; Rachel Brand, Chief Counsel for Regulatory Litigation at the U.S. Chamber of Commerce and a former Assistant Attorney General at the United States Department of Justice, as a member; and Patricia M. Wald, a former federal appeals-court judge, as a member.[13]

On August 2, 2012, the Senate confirmed Dempsey, Brand, Cook, and Wald,[14] but did not act upon the nomination of David Medine to be chair at that time.

2013: Independent agency begins work

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In January 2013, the White House re-nominated David Medine as chair,[15] and the Senate confirmed him on May 7, 2013 in a 53–45, party-line vote.[16] On July 9, 2013, the Board held its first public workshop and its first substantive hearing on November 4, 2013.[17]

2014: Report on mass surveillance

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Main article: Privacy and Civil Liberties Oversight Board report on mass surveillance

On January 23, 2014, the board released its first report. It was the first comprehensive review of the NSA warrantless surveillance program instituted under the Patriot Act, after Edward Snowden had released classified documents from the NSA.[18][19] It includes reviews of classified information and briefings with officials from the Department of Justice, FBI, NSA, and CIA.[19]

The report found two main problems with the NSA's surveillance program: it "lacks a viable legal foundation"[18][20] and there is "little evidence that […] NSA's bulk collection of telephone records actually have yielded material counterterrorism results that could not have been achieved without the NSA's Section 215 program."[21]

The PCLOB report argued that the legal basis for NSA surveillance programs in Section 215 of the Patriot Act, allows only the FBI to collect bulk data for investigations and that the NSA is not directly permitted to do so. The report found that the NSA's reliance on a 2004 Foreign Intelligence Surveillance Act (FISA) court opinion approving the bulk collection of Internet metadata does not correctly apply to the situation: "The government should not base an ongoing program affecting the rights of Americans on an interpretation of a statute that is not apparent from a natural reading of the text".[19]

The report said that data collected by the NSA did not contribute uniquely to any FBI criminal investigations and that the PCLOB did not find a single case where NSA surveillance programs directly contributed to the disruption of a terrorist attack. Additionally, there is only one instance where NSA data helped identify an unknown terrorism suspect. Since the NSA collects data as it is generated, the PCLOB argued that the collection process violated the Electronic Communications Privacy Act, could not be directed towards any specific investigation, and that the information could not be treated as relevant to any FBI investigation except in response to specific enumerated circumstances.[19] The PCLOB found no evidence of bad faith or misconduct on the part of the NSA, but that the technological complexity and vast scope of surveillance programs coupled with the potential for governmental abuse of power posed an inherent risk to Americans.

The report noted that although the FISA court was designed to hear cases regarding foreign surveillance, FISA does not provide a mechanism for the court to allow non-governmental parties to provide arguments against government surveillance proposals or otherwise participate in court proceedings.[19] As a result, there are very few appeals of FISA court decisions.

The PCLOB report recommended that the US end bulk data collection and that the FISA court judges' decision making "would be greatly enhanced if they could hear opposing views when ruling on requests to establish new surveillance programs"[19] to increase public confidence in intelligence and surveillance programs. It recommended that the government should promote more transparency to inform public debate on technology, national security, and civil liberties. Among other things, the board recommended that the FISA court should declassify its rulings and opinions of the FISA court and establish a Special Advocate board should be formed. These measures would allow citizens to bring up surveillance concerns in court, challenge government surveillance proposals, and help keep the proceedings of the court more transparent.[citation needed]

Current members

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As of December 2023:

Position Name Party Assumed office Term expiration
Chair Sharon Bradford Franklin Democratic January 29, 2024
Member Beth Ann Williams Republican January 29, 2026
Member Edward Felten Democratic January 29, 2025
Member Travis LeBlanc Democratic January 29, 2028
Member Vacant Republican January 29, 2029

Criticism

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Some people initially viewed the PCLOB with skepticism, since the board was convened to protect the American public against privacy intrusions by their own government.[17] Under the board's statute, only the Chairperson is a full-time employee and has the power to hire staff. Since Medine was not confirmed until May 7, 2013, it was not until after that time that the Board was finally able to begin to engage in any substantial projects.

Proposals to strengthen the Board

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In 2015, Ron Wyden (D-OR) in the Senate and Tulsi Gabbard (D-HI-2) in the House spearheaded, along with co-sponsors Tom Udall (D-NM) and Trey Gowdy (R-SC-4), the Strengthening Privacy, Oversight, and Transparency (SPOT) Act,[22] to, as Udall stated, strengthen the PCLOB and "significantly improve the oversight and accountability of the nation's intelligence community to protect Americans' constitutional rights."[23][24]

In 2017, the House bill H.R. 3523, the Cyber Intelligence Sharing and Protection Act (CISPA) of 2011, proposed that the PCLOB issue annual reports on the civil liberties and privacy impact of CISPA's provisions for the sharing of "cyber threat" information and intelligence between the government and private companies. It would have made PCLOB responsible for reporting on privacy and civil liberty intrusions under its information sharing program. The bill died in Congress.[25]

See also

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Footnotes

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  1. ^ George, Roger Z.; Robert D. Kline (2005). Intelligence and the National Security Strategist. Rowman & Littlefield. p. 572. ISBN 978-0-7425-4039-2.
  2. ^ George W Bush (16 December 2005). "Message to the Congress of the United States on Information Sharing". Office of the Press Secretary, The White House. Archived from the original on 25 October 2017. Retrieved 8 September 2017.
  3. ^ George W Bush (16 December 2005). "Memorandum for the Heads of Executive Departments and Agencies". whitehouse.gov. Archived from the original on 11 October 2012. Retrieved 5 September 2012 – via National Archives.
  4. ^ "Title I – Reform of the Intelligence Community" (PDF). United States Government Printing Office. Archived from the original (PDF) on 5 February 2012. Retrieved 5 September 2012.
  5. ^ Max Lerner Coleen Rowley Archived 2019-09-20 at the Wayback Machine Civil liberties in times of war. PBS Now,3 April 2005
  6. ^ a b Garrett Hatch (November 14, 2011), Privacy and Civil Liberties Oversight Board: New Independent Agency Status (PDF), Congressional Research Service, archived (PDF) from the original on May 5, 2012, retrieved April 13, 2012
  7. ^ Public Law 110–53—Aug. 3, 2007. Implementing Recommendations of the 9/11 Commission Act of 2007 (PDF), intelligence.senate.gov, archived from the original (PDF) on 2012-09-15, retrieved 2012-04-13
  8. ^ "Nominations Sent to the Senate | The White House". whitehouse.gov. 2010-12-17. Archived from the original on 2017-02-16. Retrieved 2012-09-01 – via National Archives.
  9. ^ "President Obama Announces More Key Administration Posts, 12/16/10 | The White House". whitehouse.gov. 2010-12-16. Archived from the original on 2017-02-16. Retrieved 2012-09-01 – via National Archives.
  10. ^ "President Obama Announces Another Key Administration Post, 12/16/10 | The White House". whitehouse.gov. 2010-12-16. Archived from the original on 2017-02-16. Retrieved 2012-09-01 – via National Archives.
  11. ^ "Presidential Nominations Sent to the Senate | The White House". whitehouse.gov. 2011-01-05. Archived from the original on 2017-02-16. Retrieved 2012-09-01 – via National Archives.
  12. ^ Howard A. Schmidt (16 December 2011). "Protecting Our Values and Cyberspace Together | The White House". whitehouse.gov. Archived from the original on 2017-01-23. Retrieved 2012-09-01 – via National Archives.
  13. ^ "President Obama Announces More Key Administration Posts | The White House". whitehouse.gov. 2011-12-15. Archived from the original on 2017-01-24. Retrieved 2012-09-01 – via National Archives.
  14. ^ Michael Daniel, Danny Weitzner and Quentin Palfrey (2012-08-03). "Senate Confirms Four Nominees to Privacy & Civil Liberties Board | The White House". whitehouse.gov. Archived from the original on 2017-02-17. Retrieved 2012-09-01 – via National Archives.
  15. ^ Presidential Nominations Sent to the Senate Archived 2017-02-16 at the Wayback Machine The White House, January 22, 2013
  16. ^ On the Nomination (Confirmation David Medine, of Maryland, to be Chairman and Member of the Privacy and Civil Liberties Oversight Board ) Archived 2018-09-25 at the Wayback Machine U.S. Senate Roll Call Votes 113th Congress, U.S Senate, May 7, 2013
  17. ^ a b Ali Watkins (November 2013). "NSA Cites stop and frisk". McClatchy. Archived from the original on 9 January 2014. Retrieved 9 January 2014.
  18. ^ a b Micek, Peter; Ben-Avie, Jochai; Fox, Jon (January 23, 2014). "US privacy oversight board slams legality & usefulness bulk data collection". Accessnow.org. Retrieved February 1, 2014.
  19. ^ a b c d e f Medine, David (2014-12-05). "Report on the Telephone Records Program Conducted Under Section 215 of the USA Patriot Act and on the Operations of the Foreign Intelligence Surveillance Court" (PDF). pclob.gov. p. 238. Archived (PDF) from the original on 2017-08-28. Retrieved 2014-10-24.
  20. ^ Spencer Ackerman in Washington (2014-01-23). "US privacy board dissenters defend balancing act of NSA surveillance". The Guardian. Archived from the original on 2014-02-01. Retrieved 2014-02-01.
  21. ^ Abdo, Alex (2014-01-24). "PCLOB NSA surveillance report: Three things you need to know". Slate. Archived from the original on 2014-01-29. Retrieved 2014-02-01.
  22. ^ Gabbard, Tulsi (2015-06-26). "Related Bills - H.R.2305 - 114th Congress (2015-2016): SPOT Act". www.congress.gov. Retrieved 2019-12-27.
  23. ^ "Lawmakers want to expand role of government privacy watchdog". Washington Post. ISSN 0190-8286. Retrieved 2022-05-01.
  24. ^ "Udall Bill Would Strengthen Ability of Privacy Oversight Board to Protect Americans' Constitutional Rights | U.S. Senator Tom Udall of New Mexico". www.tomudall.senate.gov. Retrieved 2019-12-27.
  25. ^ Rep. Michael “Mike” Rogers [R-MI8]. "Cyber Intelligence Sharing and Protection Act (H.R. 3523)". GovTrack.us. Archived from the original on 2019-04-03. Retrieved 2012-09-01.{{cite web}}: CS1 maint: numeric names: authors list (link)

General references

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  • Public Law 110-53, Title VIII (August 3, 2007).
  • "Dempsey Nominated for Privacy and Civil Liberties Oversight Board". Benton Foundation. 2008-08-20. Retrieved 2008-12-01.
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