Privacy and Civil Liberties Oversight Board
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 are appropriately considered in the development and implementation of all laws, regulations, and executive branch policies related to terrorism.
Role and operations
The purpose of the 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 are being followed. 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.
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. It consisted of five members appointed by the President. The Board was part of the Executive Office of the President and was supported by an Executive Director and staff.
The original Board members 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, one of the Board members, Lanny Davis resigned, charging that the White House had sought to control the content of a Board report.
H.R. 1 ("Implementing Recommendations of the 9/11 Commission Act of 2007"), introduced on January 5, 2007, included provisions reconstituting the board as an independent agency, composed of 5 members serving staggered six-year terms, with all five members subject to Senate confirmation. H.R. 1 was passed by the U.S. House of Representatives on January 9, 2007. The Senate companion bill, ("Improving America's Security Act of 2007", S. 4), passed on March 13, 2007. When the bills were reconciled in conference, the House language prevailed. President Bush signed the legislation, the Implementing Recommendations of the 9/11 Commission Act, into law on August 3, 2007. The changes took effect in January 2008, at which time the original Board ceased to exist.
President George W. Bush's first three nominations to the revamped PCLOB were received in the Senate on February 27, 2008. They were 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. No further action was taken on those nominations by the 110th Congress.
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. Those nominations expired at the end of the 111th Congress.
In January 2011, President Obama re-nominated Dempsey and Cook. In December 2011, the Obama administration announced an effort to revitalize the Board as a check against its proposed cybersecurity policies and measures. The President made three additional nominations: David Medine, a former associate director of the Federal Trade Commission, as Chairman; Rachel L. 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.
On August 2, 2012, the Senate confirmed four of the Board members: Dempsey, Brand, Cook and Wald. The Senate did not act upon the nomination of David Medine to be chair at that time.
Proposed CISPA Effect on Board Responsibility
The House bill H.R. 3523: Cyber Intelligence Sharing and Protection Act of 2011, known as CISPA, would make PCLOB responsible for reporting on privacy and civil liberty intrusions under its information sharing program. Specifically, CISPA 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.
Criticism of PCLOB
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, but only held its first public workshop on July 9, 2013, and its first substantive hearing on November 4, 2013. However, 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.
2014 report on mass surveillance
On January 23, 2014, the board released a report recommending the US end bulk data collection. The report was issued in response to questions from policymakers and the public over the operations and scope of NSA surveillance programs after Edward Snowden released classified documents from the NSA.  It includes reviews of classified information and briefings with officials from the Department of Justice, FBI, NSA, and CIA.  The report was the first comprehensive review of a government surveillance program instituted under the Patriot Act, and it found several problems with the NSA’s surveillance program. According to the investigation, the NSA surveillance program "lacks a viable legal foundation". The report states that there is, “little evidence that the unique capabilities provided by the 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." NSA surveillance programs have their legal basis in Section 215 of the Patriot Act. However, according to this section, only the FBI is allowed to collect bulk data for use in investigations. The NSA is not directly permitted to collect any sort of bulk information on citizens. Instead, the NSA’s surveillance program relies heavily on the reasoning from a 2004 Foreign Intelligence Surveillance Act (FISA) court opinion approving the bulk collection of Internet metadata to operate. However, the PCLOB report argues that this opinion does not correctly apply to the situation. It concludes, “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”.  The report also claims that data collected by the NSA does not contribute uniquely to any FBI criminal investigations. After thorough review, 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 argues that the collection process could not be directed towards any specific investigation. The program puts telephone companies under an obligation to furnish calling records on a daily basis as they are generated. Thus, the information from bulk collection cannot be treated as being relevant to any FBI investigation. Bulk collection also violates the Electronic Communications Privacy Act, which prohibits telephone companies from sharing customer records with the government except in response to specific enumerated circumstances.  Although the report found no direct evidence of bad faith or misconduct on the part of the NSA, the PCLOB suggested that the technological complexity and vast scope of surveillance programs coupled with the potential for governmental abuse of power poses an inherent risk to Americans. One of the prominent bodies that exists to regulate government surveillance is the Foreign Intelligence Surveillance Act (FISA) Court. The NSA’s telephone records program is operated under an order issued by the FISA court pursuant to Section 215 of the Patriot Act. Although the court is 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.  As a result, there are very few appeals of FISA court decisions. The PCLOB report claims 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”.  Although some secrecy is needed in surveillance, transparency can increase public confidence in intelligence and surveillance programs. The report recommends that the government should attempt to promote more transparency to inform public debate on technology, national security, and civil liberties. To do this, the report suggests that the rulings and opinions of the FISA court should be declassified and a Special Advocate board should be formed in the FISA court. 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.
- George, Roger Z.; Robert D. Kline (2005). Intelligence and the National Security Strategist. Rowman & Littlefield. p. 572. ISBN 978-0-7425-4039-2.
- "Message to the Congress of the United States on Information Sharing". The White House. December 2005.
- "Memorandum for the Heads of Executive Departments and Agencies". The White House. December 2005. Retrieved 5 September 2012.
- "Title I - Reform of the Intelligence Community". United States Government Printing Office. Retrieved 5 September 2012.
- Garrett Hatch (November 14, 2011), Privacy and Civil Liberties Oversight Board: New Independent Agency Status, Congressional Research Service
- Public Law 110–53—Aug. 3, 2007. Implementing Recommendations of the 9/11 Commission Act of 2007, intelligence.senate.gov
- "Nominations Sent to the Senate | The White House". Whitehouse.gov. 2010-12-17. Retrieved 2012-09-01.
- "President Obama Announces More Key Administration Posts, 12/16/10 | The White House". Whitehouse.gov. 2010-12-16. Retrieved 2012-09-01.
- "President Obama Announces Another Key Administration Post, 12/16/10 | The White House". Whitehouse.gov. 2010-12-16. Retrieved 2012-09-01.
- "Presidential Nominations Sent to the Senate | The White House". Whitehouse.gov. 2011-01-05. Retrieved 2012-09-01.
- Howard A. Schmidt. "Protecting Our Values and Cyberspace Together | The White House". Whitehouse.gov. Retrieved 2012-09-01.
- "President Obama Announces More Key Administration Posts | The White House". Whitehouse.gov. 2011-12-15. Retrieved 2012-09-01.
- Michael Daniel, Danny Weitzner and Quentin Palfrey (2012-08-03). "Senate Confirms Four Nominees to Privacy & Civil Liberties Board | The White House". Whitehouse.gov. Retrieved 2012-09-01.
- Rep. Michael “Mike” Rogers [R-MI8]. "Cyber Intelligence Sharing and Protection Act (H.R. 3523)". GovTrack.us. Retrieved 2012-09-01.
- "NSA Cites stop and frisk". Retrieved 9 January 2014.
- "Blog | Access". Accessnow.org. Retrieved 2014-02-01.
- 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". pclob.gov. Retrieved 2014-10-24.
- Spencer Ackerman in Washington (2014-01-23). "US privacy board dissenters defend balancing act of NSA surveillance | World news". theguardian.com. Retrieved 2014-02-01.
- Abdo, Alex (2014-01-24). "PCLOB NSA surveillance report: Three things you need to know". Slate.com. Retrieved 2014-02-01.
- Medine, David. "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". pclob.gov. United States Privacy and Civil Liberties Oversight Board. Retrieved 24 October 2014.
- 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.
- PCLOB website
- Privacy and Civil Liberties Oversight Board in the Federal Register
- CRS report for Congress with more information
- C-SPAN Video Library: Privacy and Civil Liberties Oversight Board
- White House website at the Wayback Machine (archived January 22, 2009)