On August 2, the Senate voted to confirm four nominees to the Privacy and Civil Liberties Oversight Board (PCLOB). While the nomination of David Medine to chair the PCLOB has yet to be considered, this unanimous Senate vote marks progress towards enabling PCLOB to undertake its critical work.
Created in 2004 by the Intelligence Reform and Terrorism Prevention Act (P.L. 108-458) at the recommendation of the 9/11 Commission, the PCLOB is charged with reviewing privacy and civil liberties issues impacted by the government‘s national security policies and programs. But hampered by politicking, the board has made little progress in its eight years of existence. The PCLOB was originally formed as part of the White House and therefore, was not independent. In 2007, Congress enacted legislation to reconstitute the PBLOB as an independent agency with subpoena power. Nonetheless, the board continued to stall. Since 2007, the PCLOB has existed only in name, lacking any members due to inaction by Congress.
In 2011, the Obama administration announced an effort to revitalize the board as a check against its proposed cybersecurity policies and measures. At the same time, House bill H.R. 3523, the Cyber Intelligence Sharing and Protection Act of 2011 (CISPA), made the 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.
AALL has for several years expressed concern that without nominated and confirmed members, the PCLOB cannot perform its critical mission to ensure post-9/11 intelligence collection efforts do not improperly infringe on Americans’ rights. We applaud the recent confirmation of four of the five PCLOB members: Republicans Elisebeth C. Cook, an attorney at WilmerHale and former assistant attorney general for the Department of Justice, and Rachel L. Brand, chief counsel for regulatory litigation at the U.S. Chamber of Commerce; and Democrats James X. Dempsey, vice president of the Center for Democracy and Technology, and Patricia M. Wald, a retired federal judge. However, without a chair—the board’s only full-time member and authority to hire a staff—it is unclear whether the board can begin its work.
The New York Times Caucus blog speculates that objections of unnamed senators precluded the confirmation of the board’s full-time chairman, David Medine, a Democrat and lawyer who long worked at the Federal Trade Commission and now is working temporarily at the Securities and Exchange Commission while awaiting Senate action. The Times reports:
One theory circulating in Washington is that the delay is Republican strategy: if Mitt Romney becomes president and the job is not yet filled, he will be able to appoint a member of his party to a six-year term as chairman.
It remains to be seen whether PCLOB will be able to overcome the history and politics plaguing its progress.