Senate Confirms PCLOB Chair

May 7, 2013

By Elizabeth

The Senate has voted to confirm David Medine as Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB), one year after he was favorably reported by the Judiciary Committee and nine months after the Senate moved to confirm four other nominees to the Board. In a statement earlier today, Judiciary Committee Chairman Patrick Leahy (D-Vt.) lamented the delay in taking up Medine’s nomination, but noted that after a year of obstruction the PCLOB “will finally be able to begin to carry out its important work on behalf of the American people.”

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 made little progress in the first several years of its existence. AALL has repeatedly expressed concern that without nominated and confirmed members, the PCLOB could not perform its critical mission to ensure post-9/11 intelligence collection efforts  do not improperly infringe on Americans’ rights. Although the Senate had confirmed the other four members of board last summer, the chair is the board’s only full-time member and only member with the authority to hire a staff.

AALL applauds the confirmation of David Medine today as a considerable step forward. We have recently joined several civil liberties organizations to urge the PCLOB’s focus on a variety of issues related to national security policies and programs, including the Foreign Intelligence Surveillance Act (FISA), classification policy, cybersecuritystate secrets privilegeNational Security Letters (NSLs), and the PATRIOT Act.  The Cyber Intelligence Sharing and Protection Act (CISPA), which recently passed the House, would assign additional oversight responsibilities to the Board regarding the government’s use of data collected from private companies. It is our hope that with the confirmation of Chairman Medine, the Board will finally be able to begin to make progress on its crucial mission.

The Economic Impact of Ending the American Community Survey? Not Good.

June 21, 2012

On Tuesday, the Congressional Joint Economic Committee held a hearing entitled, “The Economic Impact of Ending or Reducing Funding for the American Community Survey and other Government Statistics.” In direct response to the May 10th vote by the House of Representatives to strip funding for the American Community Survey (ACS) and 2012 Economic Census, the hearing offered inquiry into the economic value of U.S. economic statistics, their timeliness and accuracy. Four economists were called to testify. From the Democratic side: Mr. Kenneth Simonson, Chief Economist at the Associated General Contractors of America and Vice President of the National Association for Business Economics; and Dr. Andrew Reamer, Research Professor at George Washington University Institute of Public Policy. From the Republican side: Mr. Keith Hall, Senior Research Fellow at the Mercatus Center at George Mason University and former Commissioner of the Bureau of Labor Statistics; and Mr. Grant D. Aldonas, Principal Managing Director of Split Rock International. Representative Carolyn Maloney (D-NY-14) presided.

Though the hearing proceeded as you might expect any economic conversation would in this staunchly partisan Congress, there were several points that should be of particular interest to information policy advocates:

First, the hearing room was filled to capacity with eager observers. Congressional aides, representatives from nonprofits and the general public turned out in large numbers, rendering the Cannon House Office Building room to standing room only. Several audience members held signs calling on Congress to “Stop cutting tools for job creation.” An infant in an ACS onesie was also in attendance. The majority of the audience, it appeared, was there to show support for these vital Census Bureau programs and research tools—a critical reminder that the values and work of AALL members do not exist in a vacuum.

Second, Dr. Reamer made several persuasive points about the importance of data as a public good. Dr. Reamer founded and managed two economic development consulting firms and in 2010, published a report for the Brookings Institution measuring the overall impact of the ACS. In his prepared remarks, Dr. Reamer drove home a message familiar to law librarians:

Data are a classic ‘public good,’ resulting in substantial underinvestment by the private sector. Consequently, the tendency is for markets to lack access to information necessary to be efficient. Only the Federal government has the fiscal resources, authority, and motivation to produce data that are objective, reliable, and relevant to policy needs, consistent over space and time, and freely accessible to multiple users. Free access provides substantial benefits to society, including improved public and private decision-making and economic outcomes.  (emphasis added)

Equitable, no-fee permanent public access to authentic online legal information is a tenet of AALL’s advocacy work and Dr. Reamer’s statements about the value of the ACS emphasized this message.

Lastly, though most testimony fell along party lines, by the end of the hearing three out of four witnesses conceded that no adequate substitution or replacement for the ACS exists in the private sector, nor does the decennial Census provide sufficient socio-economic data to replace the ACS. Further, three out of the four stated that making the ACS voluntary would compromise the response rate and, therefore, the integrity of the data collected. The fourth witnesses declined to answer these questions. The ACS has gained bipartisan support with the Chamber of Commerce and economists at conservative think tanks like the Cato Institute, American Enterprise Institute and The Heritage Foundation all speaking out in support of funding.

The House Appropriations bill (H.R 5326) that defunded the ACS is still awaiting consideration by the Senate, so there is still time to act. If yesterday’s hearing is any indication, these valuable research tools are being given real consideration. Your calls to your Senators just may turn the tide.

House Oversight Subcommittee Examines Federal Records Implications of Web 2.0

July 23, 2010

On July 22, the House Oversight and Government Reform Information Policy, Census and National Archives Subcommittee held a hearing on “Government 2.0: Federal Agency Use of Web 2.0 Technologies.”

Chairman William Lacy Clay (D-MO-1) explained in his opening statement the three goals of the hearing were to: gain an understanding of what is meant by Web 2.0 in the Federal government; recognize the Federal records management implications of these new technologies; and identify what areas of Web 2.0 need further exploration by the Committee.

United States Archivist David Ferriero was the first witness. He discussed NARA’s guidance on Federal e-records management, including the 2005 guidance on managing Web records and the 2006 guidance on the use of new Web technologies, including RSS feeds, blogs and wikis. NARA will be issuing a new Bulletin on Web 2.0 and Social Media Platforms this fall that will expand on how agencies’ use of social media platforms may impact records management. NARA is also currently conducting a study on Federal agencies’ use of Web 2.0 technologies to identify what kinds of records agencies are creating and their potential long-term value.

Gregory Wilshusen, Director of Information Security Issues at the Government Accountability Office (GAO), testified on the challenges that Web 2.0 has created for agencies in  identifying what records to preserve, and how, as well as the privacy implications of these new technologies. He also spoke about uncertainties that Web 2.0 records have created for agencies in responding to FOIA requests, because it is not always clear whether agencies control Web 2.0-generated content and whether the information created actually constitutes federal records.

Chairman Clay had previously requested that GAO conduct a review of the management and protection of information collected and maintained by third party social media providers such as Facebook and Twitter. Since that review has just begun, Wilshusen could not yet comment on its findings. We’ll let you know when that report is released.

David McClure, Associate Administrator of the Office of Citizen Services and Innovative Technologies at the General Services Administration, testified on the important role Web 2.0 can have in easing outreach to the public, and the challenges that these third party applications can create since they are not built exclusively for government use. Finally, John Simpson of Consumer Watchdog expressed his concerns about the risks that third party Web 2.0 technologies present for consumer privacy.

This hearing was the first in a series on Federal agencies’ use of Web 2.0 and the e-records management challenges it creates. We’ll keep you updated as future hearings occur.

[Posted by Emily Feldman]

Loss of Department of Justice Emails Illustrates Continuing Lack of Effective E-Records Management

March 12, 2010

The Senate Judiciary Committee held a hearing on February 26 on the troubling findings of an investigation by the Department of Justice’s (DOJ) Office of Professional Responsibility (OPR) into the Office of Legal Counsel’s memoranda on issues relating to the CIA’s use of “enhanced interrogation techniques,” commonly referred to as the “torture memos.” The report revealed that the OPR investigation had been obstructed by the loss of emails belonging to former DOJ lawyers John Yoo and Patrick Philbin during the period in which the memos were being drafted.

The apparent destruction of emails raises serious concerns about possible violations to the Federal Records Act (FRA). On March 10, AALL joined 45 organizations committed to government transparency and accountability on a letter to the House and Senate Subcommittees that have jurisdiction over Federal government information policy. The letter requests hearings on how the emails could be missing despite the requirements of the FRA, and to determine whether the Act needs to be strengthened to prevent such violations in the future.

This latest example of missing emails illustrates the continuing inadequacy of effective electronic records management at Federal agencies. In fact just today, the non-profit National Security Archive awarded their annual “Rosemary Award” for worst open government performance to the Federal Chief Information Officers Council for failing to address this major problem despite the Federal CIO’s annual $71 billion budget for Information Technology.

Under the FRA, it is ultimately the responsibility of the National Archives and Records Administration (NARA) to provide federal oversight and guidance of agency records management, including email records. Unfortunately, despite years of continued appropriations for NARA’s Electronic Records Archive (ERA) to preserve and provide long-term access to electronic records and ultimately move away from a paper-based record-keeping system, the Government Accountability Office has documented continued problems and delays with the ERA.

[Posted by Emily Feldman]

Baish Testifies in Support of Government Printing Office’s FY 2011 Budget Request

February 25, 2010

On Wednesday, February 24, Mary Alice Baish, Director of the AALL Government Relations Office, testified at the public witness hearing before the House Committee on Appropriations Subcommittee on the Legislative Branch in support of the U.S. Government Printing Office’s (GPO) Fiscal Year 2011 budget request.

Mary Alice addressed several important issues in her oral testimony, including the need:

  • To fund fully the Congressional Printing and Binding request so that federal depository libraries can continue to have the option of receiving Congressional materials in print.
  • To fund FDsys at the requested $8 million so that GPO can complete the migration of the GPO Access system into FDsys. We are especially anxious for the entire e-CFR to be migrated into FDsys.
  • To encourage GPO and the Library of Congress to enter into a formal Memorandum of Understanding to partner on the digitization of historic legal resources.
  • For GPO to capture content from agency Web sites to be ingested into FDsys as part of their mission to provide access to current government information.

This was Mary Alice’s fourth year in a row testifying before the Subcommittee in support of GPO’s budget request. Her testimony was very well-received by the Subcommittee, whose members asked a number of insightful questions.

[Posted by Emily Feldman]

House Judiciary Committee Passes PATRIOT Reauthorization Bill

November 6, 2009

Yesterday, the  USA Patriot Amendments Act of 2009 (H.R. 3845) was reported favorably out of the House Judiciary Committee by a vote of 16-10. During the mark-up, the Committee adopted Chairman Conyers’ manager’s amendment that tightens the standards for issuing National Security Letters and adopts important new reporting, audit and oversight provisions. Unfortunately, the committee also adopted an amendment offered by Rep. Adam Schiff (D-CA-29) that struck the “specific and articulable facts” language for Sec. 215 orders.

Thank you to all of you who took action on our alert to ask your representatives to co-sponsor H.R. 3845. Earlier this week, AALL, MLA and SLA sent a letter to Chairman John Conyers (D-MI-14), Jerrold Nadler(D-NY-8) and Bobby Scott (D-VA-3) to express support for the bill.

As we reported in the October E-Bulletin, the Senate Judiciary Committee reported the USA PATRIOT Act Sunset Extension Act of 2009 (S. 1692) favorably out of committee on October 13. The bill will now go to the Senate floor for a vote.

For more information about the fast-moving PATRIOT Act reauthorization process, please take a look at our updated Issue Brief.

[Posted by Emily Feldman]

Senate Hearing on Whistleblower Protections

June 11, 2009

The Senate Committee on Homeland Security and Governmental Affairs Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia is holding a hearing right now on whistleblower protections. The hearing began at 2:30pm EDT. The subcommittee is holding this hearing to consider legislation in the Senate to provide whistleblowers with stronger protections, the Whistleblower Protection Enhancement Act of 2009 (S. 372). The hearing will also address differences between S. 372 and the House version of the bill (H.R. 1507).

As we explain in a new AALL Issue Brief on whistleblower protections, the Senate bill lacks several important provisions in the House bill, including the right to a jury trial in federal court and coverage of national security employees. On May 15, AALL joined 292 organizations on a letter to President Obama and Members of Congress in support of the House bill.

[Posted by Emily Feldman]

AALL Government Relations Office Director to Testify at House Legislative Branch Appropriations Hearing

May 4, 2009

Tomorrow, Mary Alice Baish, Director of the AALL Government Relations Office, will testify before the House Committee on Appropriations’ Subcommittee on the Legislative Branch on the FY 2010 Appropriations Request of the U.S. Government Printing Office (GPO). She will testify on behalf of AALL, the Medical Library Association, and the Special Libraries Association.

Mary Alice also testified before this committee last year. Her testimony then focused on the need to fund GPO’s Federal Digital System (FDsys), which is now available as a public beta.

The hearing will take place tomorrow, Tuesday, May 5, at 10:00 AM in room H-144 of the United States Capitol. Mary Alice’s testimony is embargoed until after the hearing but will be posted on our Web site later this week.

[Posted by Emily Feldman]

House Holds Hearing on New FOIA Ombudsman

September 19, 2008

On Wednesday, September 17, the House Oversight and Government Reform’s Subcommittee on Information Policy, Census, and National Archives held a hearing on the implementation of the Office of Government Information Services (OGIS). The OPEN Government Act (P.L. 110-175) created OGIS within the National Archives and Records Administration (NARA) to review agency compliance with the Freedom of Information Act (FOIA) and offer mediation services to requestors.

I attended the hearing on Wednesday, much of which focused on the White House’s repeated attempts to shift the responsibility of OGIS to the Department of Justice (DOJ). As AALL stated in letters to the House and Senate Appropriations Committees in February 2008, allowing DOJ to oversee the office in charge of FOIA mediation services creates a major conflict of interest and contradicts both the spirit and the letter of the law. Congress agreed and indicated that it will appropriate $1 million for OGIS, specifying that the office will remain at NARA. However, the budget with this new appropriation is not likely to be enacted until March 2009.

In his testimony, Archivist of the United States Allen Weinstein encouraged Congress and the White House to meet to resolve their differences on whether OGIS should be located at NARA or DOJ. Mr. Weinstein stated, however, that if asked, NARA will create OGIS:

Should it be resolved that the responsibility of this office falls to the National Archives and Records Administration, we will do everything we can to follow the letter of the law and the intent of Congress to create an office that would assist in seeking to resolve disputes between agencies and individuals requesting information from their government.

The other witnesses offered recommendations for creating a successful Office within NARA. Thomas Blanton, Director of the National Security Archive at George Washington University, emphasized the importance of strong leadership, transparency, and priority setting for OGIS. Patrice McDermott, Director of, focused on OGIS’s duties to ensure agency compliance with FOIA. Rick Blum, Coordinator of the Sunshine in Government Initiative, recommended that OGIS should be led by a senior executive reporting directly to the Archivist and that OGIS must maintain its independence. Lastly, Terry Mutchler, Executive Director of Pennsylvania’s Office of Open Records, described her experience as a FOIA mediator in Illinois and Pennsylvania and offered recommendations for the structure of OGIS.

In his testimony, Mr. Blanton nicely summed up the importance of creating a strong OGIS and the need for Congressional oversight:

None of this will be easy, as you know, Mr. Chairman. Every bureaucracy in world history has utilized secrecy as a core tool of its power. The iron laws of turf protection, embarrassment avoidance, and controlling the spin all mean that freedom of information is a constant struggle. But Congressional attention like this hearing today really works, providing decision-forcing deadlines, encouraging wider public dialogue, clarifying both official and stakeholder positions.

[Posted by Emily Feldman]

New Bill Would Prevent Presidents from Making Secret Changes to Executive Orders

August 8, 2008

A bill introduced in the Senate last week would prevent the President from secretly modifying or revoking a published executive order. The bill, S. 3405, the “Executive Order Integrity Act of 2008,” is sponsored by Sen. Russ Feingold (D-WI) and Sen. Sheldon Whitehouse (D-RI). As reported by Secrecy News, the bill comes in response to an Office of Legal Counsel (OLC) opinion, revealed last year by Sen. Whitehouse, who, as a member of the Senate Intelligence Committee, was granted access to OLC secret opinions.

Sen. Whitehouse found that, according to one secret opinion, “There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order. Rather than violate an Executive order, the President has instead modified or waived it.”

To prevent a President from changing an Executive Order in secret, S. 3405 would require that notice be placed in the Federal Register within 30 days if a President revokes, modifies, waives, or suspends a published Executive Order or similar directive.

Steven Aftergood, author of Secrecy News, testified last April at a Senate Judiciary Committee hearing, “Secret Law and the Threat to Democratic and Accountable Government,” on the various categories of secret law, including FISA Court Opinions, OLC opinions, and secret Presidential Directives. More information about the hearing, including testimony of all witnesses, is available on the Senate Judiciary Committee’s web site here.

[Posted by Emily Feldman]

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