If after many years sitting empty the Privacy and Civil Liberties Oversight Board is finally filled with members and able to meet, its members will have the power to compel testimony and evidence from the Obama administration and its executive agencies. Using that power, the board has the responsibility to draft twice-yearly reports on civil liberties violations and share them with Congress and the public. Further, the board is given the responsibility of coordinating government action in a manner designed to prevent civil liberties violations in the future. If the current five nominees to the PCLOB are confirmed, if they are seated, and if they do their job, then violations of privacy and constitutional rights could be brought to public attention and resolved on a regular basis. That would be a departure from current practice, in which the Obama administration keeps its civil liberties violations secret, deploying the classic authoritarian justification that if we have transparency, openness and accountability, then the terrorists have won.
Before a functional Privacy and Civil Liberties Oversight Board can spring to life and function well, a number of hurdles must still be cleared. Senate Republicans are currently blocking the five nominees, trying to stall their seating until after the presidential election. And then there’s the agenda of the nominees themselves. There’s much that is still unknown about these nominees, but what has come to light is unsettling. Nominee Rachel Brand misled the nation regarding Patriot Act violations as a member of the Bush administration, repeatedly defended the government’s right to engage in intrusive and secret surveillance of citizens, and characterized DNA data sweeps of often innocent citizens as acceptable. Nominee Elisebeth Collins Cook, another Bush appointee, also pushed for broad DNA sampling of the population by the U.S. Government. Cook also helped stall torture investigations, opposed the right of journalists to keep their sources secret, and pushed for the government to infiltrate law-abiding social movement groups to keep tabs on their activities.
Now consider this piece of news. Three of the five nominees to the Privacy and Civil Liberties Oversight Board — a voting majority — hail from one corporate law and lobbying firm: WilmerHale.
From 10 years ago until just 2 months ago, nominee David Medine was a Partner at WilmerHale. Until last year, nominee Rachel Brand was employed as Counsel at WilmerHale. Nominee Elisebeth Cook is currently employed as Counsel at WilmerHale
WilmerHale is not a neutral player in matters of privacy and civil liberties. Headquartered along Pennsylvania Avenue just one block away from the White House, WilmerHale sells its influence to corporate clients in a profit model centered on “Regulatory and Government Affairs.” A major area of practice is corporate Intellectual Property. WilmerHale is also actively representing corporate interests in government surveillance programs:
We also work with clients in strategy development and advocacy in connection with legislative activity in the privacy and security arena. Our work in this area has dealt with subjects such as spam, responses to data security breaches, financial privacy, consumer reporting, behavioral targeting and online data collection, and electronic surveillance….
Our seasoned litigators have litigated precedent-setting privacy and data security-related national class actions and other cases in federal and state courts throughout the country. Highlights in recent years include:
Representing Bell operating company in national, multi-district class action litigation in connection with claims that it violated communications privacy laws by allegedly providing assistance to the National Security Agency in connection with alleged electronic surveillance activities.
Meanwhile, WilmerHale’s understanding of “privacy” is quite different from the manner in which you might understand the term:
Regulatory Proceedings and Investigations and Legislation
We regularly represent clients before federal and state agencies and officials such as the Federal Trade Commission (FTC), the Federal Communications Commission (FCC), and state Attorneys General (AG) in connection with investigations, rulemaking proceedings, legislation, and other matters raising privacy and data security issues.
Rulemaking and Similar Proceedings
We have assisted clients with advocacy in regulatory proceedings seeking to develop or modify privacy and security rules on a variety of subjects, including the development of a self-regulatory framework for behavioral advertising…
Advising clients such as broadband service provider, online content company and wireless carrier concerning the privacy implications of offering targeted advertising using behavioral data from customers’ Internet usage, location data and other demographic information
Counseling various clients concerning state and federal law governing the recording of telephone conversations, do-not-call restrictions and pre-texting…
If confirmed, will the WilmerHale majority of the Privacy and Civil Liberties Oversight Board look after your interests, or will they look after WilmerHale interests?