from Net Politics and Digital and Cyberspace Policy Program

Is the Privacy and Civil Liberties Oversight Board Back in Business?

The executive branch and Congress have had a love-hate relationship with the Privacy and Civil Liberties Oversight Board. Will a new chairman keep the board relevant?

September 11, 2017

A security camera hangs near the U.S. Capitol in Washington, DC in November 2016. Joshua Roberts/Reuters
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The White House’s announcement of its intent to appoint Adam I. Klein as chairman of the Privacy and Civil Liberties Oversight Board (PCLOB) has raised hopes the appointment might begin to resuscitate it. PCLOB has a troubled history and has not developed into a sustained source of oversight of U.S. counterterrorism policies. Does Klein’s appointment herald a turning point that gets PCLOB back on track?

Rise and Fall

In 2004, the 9/11 Commission recommended establishing a board within the executive branch to oversee adherence of counterterrorism policies with protections for privacy and civil liberties. Congress created such a board in 2004 and then reconstituted it as an independent agency in 2007. However, in September 2011, a review of the 9/11 Commission’s recommendations observed the board had been “dormant for more than three years” following the 2007 legislation. PCLOB did not commence work until August 2012 when the Senate confirmed its four part-time members, and only became fully operational in May 2013, when a chairman was confirmed.

In June 2013, Edward Snowden began his disclosures of National Security Agency programs, and the resulting controversies gave PCLOB opportunities to demonstrate the value the 9/11 Commission believed it could have. In January 2014, President Barack Obama asked PCLOB to provide a report assessing his reforms of signals intelligence. Its reports in 2014 on the domestic telephone metadata program operated under Section 215 of the USA PATRIOT Act and surveillance conducted under Section 702 of the Foreign Intelligence Surveillance Act proved influential. In the USA Freedom Act, Congress implemented recommendations PCLOB made in its Section 215 report, and the U.S. intelligence community adopted recommendations from its Section 702 report.

In 2015, the board began examining another important source of U.S. intelligence gathering authority, Executive Order 12333. The U.S. government cited PCLOB’s importance during the Privacy Shield negotiations with the European Union on trans-Atlantic data transfers to assuage EU concerns about weak oversight of U.S. intelligence activities.

However, PCLOB’s fall was as rapid as its rise. In 2015, members of Congress became concerned when PCLOB’s chairman argued independent oversight of U.S. targeted killings was needed, oversight he suggested PCLOB could undertake. Proposals to limit PCLOB’s authority appeared in Congress in 2015 and 2016. During 2016, the chairman and two of its part-time members left, and only two members remained when President Donald J. Trump was inaugurated. Adam Klein argued in January 2017 that PCLOB was “on the verge of being defunct.” By March, only one member remained, leading one commentator to argue PCLOB was “basically dead.”

Rejuvenate and Sustain?

PCLOB advocates emphasize that, as a first step, the Trump administration should appoint, and the Senate confirm, a full board. However, this “easy win” does not guarantee PCLOB will fulfill its oversight and advisory responsibilities. The ability of a five-member board with four part-time members, limited budget, and small staff to produce effective oversight over the large, well-resourced intelligence community has been questioned. In addition, as an American Civil Liberties Union representative argued, “whether the board continues as a diligent watchdog will depend upon the actual nominees.”

The potential for congressional displeasure with PCLOB still exists. Whether the threats members of Congress made in 2015 and 2016 to curtail the board’s authority make it more cautious remains to be seen. PCLOB could offer advice to Congress concerning deliberations on reauthorizing Section 702. The end-of-year deadline for reauthorization and slow pace of nominations and confirmations for executive branch positions probably means a functioning board will not be “in fighting shape during the reauthorization debate.”

Further, PCLOB’s prominence in 2013-15 did not arise from a strategy the board itself devised. Its influence developed because of the crises Snowden created and the Obama administration’s willingness to integrate PCLOB and its recommendations in administration responses. The terrorist threat remains serious, creating demands for robust surveillance within and beyond the United States. PCLOB has no shortage of issues to address, but how the Trump administration will receive independent oversight of its surveillance activities is hard to predict. 

In a June op-ed, President Trump’s homeland and counterterrorism advisor said PCLOB deserves “special praise.” However, absent Snowden-scale controversies, the Trump administration might not tolerate PCLOB scrutiny of its counterterrorism surveillance. The administration’s relationship with privacy and civil liberties advocates, who generally support PCLOB’s mission, is already toxic, which means a new board will have to navigate difficult political waters.

PCLOB champions argue it can protect the privacy and civil liberties of Americans, support U.S. companies that rely on cross-border data transfers, and strengthen the legitimacy of the intelligence community’s work. So far, PCLOB has not developed into a sustained source of these benefits. Klein’s appointment is about more than replenishing the board. It perhaps marks the start of PCLOB’s last chance to prove its lasting value.

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