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At a time of great need, has the Privacy and Civil Liberties Oversight Board neutered itself?

The Supreme Court just ruled that police can collect the DNA of people who are never charged with a crime.

The actions of your government in seizing the phone records of all Americans have just been exposed.

The same government has been sweeping up wide swaths of data on the activities of innocent people from the servers of Google, Microsoft, Apple, Yahoo, Facebook, YouTube, Skype and AOL.

All this in the month after the Privacy and Civil Liberties Oversight Board was finally activated after more than half a decade of delay. Under the Implementing Recommendations of the 9/11 Commission Act of 2007 Section 801, the Privacy and Civil Liberties Oversight Board is directed by law to:

  • “Analyze and review actions the executive branch takes… ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties”.
  • “Ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies”.
  • “Review proposed legislation, regulations, and policies related to efforts to protect the Nation from terrorism,”
  • “Review the implementation of new and existing legislation, regulations, and policies related to efforts to protect the Nation from terrorism,”
  • “Advise the President and the departments, agencies, and elements of the executive branch to ensure that privacy and civil liberties are appropriately considered in the development and implementation of such legislation, regulations, policies, and guidelines,”
  • “Receive and review reports and other information from privacy officers and civil liberties officers under section 1062; when appropriate, make recommendations to such privacy officers and civil liberties officers regarding their activities; and when appropriate, coordinate the activities of such privacy officers and civil liberties officers on relevant interagency matters.”
  • “Periodically submit, not less than semiannually, reports—
    1. to the appropriate committees of Congress, including the Committee on the Judiciary of the Senate, the Committee on the Judiciary of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Homeland Security of the House of Representatives, the Committee on Oversight and Government Reform of the House of Representatives, the Select Committee on Intelligence of the Senate, and the Permanent Select Committee on Intelligence of the House of Representatives; and
    2. to the President; and
    3. which shall be in unclassified form to the greatest extent possible,”
  • “Not less than 2 reports submitted each year under paragraph (1)(B) shall include a description of the major activities of the Board during the preceding period; information on the findings, conclusions, and recommendations of the Board resulting from its advice and oversight functions under subsection (d); the minority views on any findings, conclusions, and recommendations of the Board resulting from its advice and oversight functions under subsection (d); each proposal reviewed by the Board under subsection (d)(1) that the Board advised against implementation; and notwithstanding such advice, actions were taken to implement; and for the preceding period, any requests submitted under subsection (g)(1)(D) for the issuance of subpoenas that were modified or denied by the Attorney General.”
  • “INFORMING THE PUBLIC. The Board shall make its reports, including its reports to Congress, available to the public to the greatest extent that is consistent with the protection of classified information and applicable law; and hold public hearings and otherwise inform the public of its activities, as appropriate and in a manner consistent with the protection of classified information and applicable law.”

If the Privacy and Civil Liberties Oversight Board had actually carried out these activities — if President Barack Obama had not blocked its creation during the years of 2009, 2010, 2011, and 2012 — then the liberties of the American people would have had effective representative in government (did I mention that under law the PCLOB has complete subpoena power for any member of the executive branch?).

Unfortunately, the formation of the Privacy and Civil Liberties Oversight Board was stymied by the Obama administration for four straight years. That history cannot be changed. Fortunately, as of last month a Chairman of the Privacy and Civil Liberties Oversight Board was finally confirmed and so the Board can finally begin to act.

The question is, will the Board act?

In its only substantive action since its activation last month, the Privacy and Civil Liberties Oversight Board last week published a rule in the Federal Register that asserts its powers and duties. The rule describes the PCLOB’s functions as follows:

(a) The Board provides advice and counsel to the President and executive departments and agencies to ensure that privacy and civil liberties are appropriately considered in proposed legislation, regulations, and policies, and in the implementation of new and existing legislation, regulations, and policies, related to efforts to protect the Nation from terrorism;
(b) The Board oversees actions by the executive branch relating to efforts to protect the Nation from terrorism to determine whether such actions appropriately protect privacy and civil liberties and are consistent with governing laws, regulations, and policies regarding privacy and civil liberties; and
(c) The Board receives and reviews reports and other information from privacy and civil liberties officers under 42 U.S.C. 2000ee-1 and, when appropriate, makes recommendations to and coordinates the activities of privacy and civil liberties officers on relevant interagency matters.

That’s it. What’s missing from the functions described in the PCLOB’s self-written rule?

Reports to Congress are missing.
Reports to the public are missing.

Of course, these reports have been missing for years. With 2013 half gone, there are 9 semi-annual reports of the Privacy and Civil Liberties Oversight Board that should have been issued but have not been issued by the Obama administration.

Is this omission by the Privacy and Civil Liberties Oversight Board simply an oversight of a function so obvious that it need not be stated? Or does the PCLOB intend to continue the lack of civil liberties reports so far under the administration of Barack Obama?

Wait, watch this space in the Federal Register and see.

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