The U.S. Senate has officially confirmed a working quorum of members to the Privacy and Civil Liberties Oversight Board. There is No Privacy and Civil Liberties Oversight Board.
Both statements are true. On August 3 2012, as the Obama administration notes, the U.S. Senate confirmed “four of the President’s five nominees to the Privacy and Civil Liberties Oversight Board (PCLOB): Rachel Brand, Elisabeth Cook, Jim Dempsey, and Judge Patricia Wald.” This means that officially, the Privacy and Civil Liberties Oversight Board exists.
But as legal analyst Todd Ruger notes, the Privacy and Civil Liberties Oversight Board does not and cannot exist as an operating and functioning body, because the U.S. Senate chose not to confirm its Chairman, the only person who can actually staff the board and provide it with the resources needed to get to work:
The agency, which is supposed to provide a safeguard against overzealous government intrusions on privacy during the fight against terrorism, still can’t hold a meeting because the Senate did not confirm the nominee for chairman.
Peter Swire, Professor of Law at the Ohio State University, has testified before the Senate Homeland Security & Governmental Affairs Committee in agreement with Ruger. Without an appointed Chairman, the Privacy and Civil Liberties Oversight Board can do no work:
Currently, the PCLOB is not in operation. The 9/11 Commission recommended implementing this type of Board to increase oversight of the expanded information sharing practices among agencies adopted after the attacks of September 11, 2001. The Senate confirmed members of the PCLOB in 2006, and the Board began operation. Controversy emerged about the original Board’s lack of independence. As a result, a revised structure for the Board was established in 2007, as part of the Implementing Recommendations of the 9/11 Commission Act. The revised structure creates staggered 6-year terms for each of the five Members, and required the Chairman to work full-time for the Board….
Having a functioning Privacy and Civil Liberties Oversight Board is important under any circumstances, to ensure regular and effective examination of the information sharing and privacy practices for homeland security and other anti-terrorism activities. The importance of implementing the Board becomes even greater, however, due to the expanded information sharing in the proposed cybersecurity legislation. A key purpose behind that legislation is to enhance information sharing as a tool for fighting cyber-attacks. A key safeguard is for the Board to scrutinize this type of information sharing. In my view, putting the Board in place should be a required component of approving cybersecurity legislation….
I would also like to comment specifically in support of the nomination of David Medine to serve as the Chairman of the Privacy and Civil Liberties Board. Mr. Medine received dissenting votes on his nomination in committee, although there are no public reports of any basis for opposition or concern. I have known Mr. Medine professionally for over 15 years. From 1992 to 2000, Mr. Medine was the senior civil servant expert on privacy at the Federal Trade Commission, serving as the Associate Director for Financial Practices. Shortly after, he became a partner at the leading law firm WilmerHale, where he worked with private-sector clients primarily on privacy and data security. In the latter position, he counseled clients on how to comply with complex privacy requirements. I believe this real-world compliance experience is highly relevant to realistic privacy protection. Mr. Medine has experience both in enforcing to protect privacy and in the burdens that exist when privacy rules are overly strict or badly drafted. This balanced experience makes him an outstanding person to Chair the Privacy and Civil Liberties Oversight Board.
The statute creating the Board requires the Chairman to work full time. In addition, the statute allows only the Chairman to hire staff: “The chairman of the Board … shall appoint and fix the compensation of a full-time executive director and such other personnel as may be necessary to enable the Board to carry out its functions.” Clearly, the Board cannot carry out its work as the statute intends if there is no Chairman in place. The Senate should act promptly to confirm all five nominees.
Since Barack Obama was inaugurated President, the United States Government has managed to avoid appointing a functioning Privacy and Civil Liberties Oversight Board (for a chronological listing of stalling maneuvers by the President, the Judiciary Committee and the full Senate, click here). The White House has not even bothered to create a web presence for the board that is supposed to sit within its walls. With no prospects for a confirmation vote of a PCLOB Chairman during the upcoming “lame duck” session of Congress, it appears that the entire first term of the Obama presidency will pass without a body to protect our civil liberties.
No protests are scheduled.