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Congress Seeks to Hobble Privacy & Civil Liberties Oversight Board

The Privacy and Civil Liberties Oversight Board is tasked with the study of how surveillance and other intelligence activities by the U.S. government protect (or do not protect) the civil liberties guaranteed under the United States Constitution.  It is an independent body in the executive branch, beholden to no politician — not even the president.  The PCLOB has subpoena power to collect information and under law it must report its findings to Congress every year.

Lady Liberty being arrested on April 11 2016 for speaking her mind outside the U.S. Capitol Building. This is What Democracy Doesn't Look Like.The existence of an independent Privacy and Civil Liberties Oversight Board to protect our freedom upsets some people.  President Barack Obama spent his first 1,060 days in office refusing to nominate a full slate of board members, preventing the PCLOB from meeting.  For more than a year after that, the Senate Judiciary Committee delayed confirmation of a PCLOB Chair, which prevented the PCLOB from hiring any staff and making any consequential decisions.  And with the recent resignation of the PCLOB Chair effective July 1, the Board’s activities have ground to a halt. President Obama has not bothered to nominate a new chair, stymieing the Board for at least the rest of this year and possibly a significant part of the next.

On top of all these actions against the Privacy and Civil Liberties Oversight Board, some disturbing text has been quietly inserted into the Intelligence Authorization Act (H.R. 5077 in the House, S. 3017 in the Senate) being considered by Congress.  Title VI of this Act changes the investigative activities of the Privacy and Civil Liberties Oversight Board, requiring that the PCLOB notify government targets of investigation, including fully substantive descriptions of the PCLOB’s suspicions and plan for investigation, all before the investigation is carried out.  “Break out the shredders,” these new letters might as well read.  Even more disturbingly, Title VI prevents the PCLOB from investigating constitutional rights violations of any person who isn’t either a citizen or a permanent resident of the United States (see here for the legal definition of “United States Person”). The jurisdiction of constitution protections are much broader than that, but Title VI draws places curiously limited blinders on the PCLOB’s ability to expose unconstitutional behavior against all sorts of people, including people visiting the United States, refugees, and people with green cards, just to name a few.

This legislation has not yet been passed, but it has made it out of committee in both the House and Senate.  Watch for debate (or the lack of debate) on these provisions.  If you find these changes upsetting, call the Capitol Hill switchboard at (202) 224-3121 and ask to speak to your senators and representative.

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