Caroline Alewaerts Blog Post

Caroline Alewaerts
Information Privacy Law
Professor Ira Rubinstein

April 10, 2017

Uncertain Future of the Privacy and Civil Liberties Oversight Board

Reduced to only one member since the beginning of the year, many news reports warn that the Privacy and Civil Liberties Oversight Board (PCLOB) may have become a dead shell, and will remain so unless decisions are made to replenish it.

The PCLOB is a bipartisan independent agency within the Executive branch, created under the recommendations of the 9/11 Commission. [i] Although it was originally created in 2006, and redesigned in 2007, it only became effective in 2013 with the appointment of its last member. Its primary role is to review and oversee the actions of the Executive branch to ensure that their actions adequately protect privacy and civil liberties. Its missions however also include ensuring that privacy and civil liberties are appropriately considered in the development and implementation of regulations and policies related to national security. Part of its tasks involves submitting semi-annual reports to the Congress and the President on its activities and findings.

The PCLOB played a significant role in the review of the NSA surveillance programs revealed by Edward Snowden. In a 2014 report regarding Section 215 of the Patriot Act, the PCLOB declared that the NSA bulk telephone metadata collection program was illegal and should be shut down.[ii] Its recommendations have reportedly been influential in the reform that led to the adoption of the US freedom Act. It is worth noting, however, that although the recommendations were endorsed by all members of the PCLOB, two of them dissented on the finding of illegality of the program.

The PCLOB is composed of five members – one full time chairman and four part-time members – appointed by the President and confirmed by the Senate. It requires a quorum of 3 members to operate. Over the last year, however, four of the five members have left the Board (David Medine, former chairman, resigned last summer, Patricia Wald retired at the end of January, and both James Dempsey and Rachel Brand left after their term ended respectively in January and February), leaving Elisabeth Collins the last remaining member of the PCLOB. [iii]

Worth noting is that Collins was one of the two members that dissented to the finding of illegality of the NSA surveillance program. This, however, may not have much importance in the current circumstances since, without the required quorum, it is now impossible for the PCLOB to carry out its missions. While it may continue working its ongoing investigations, it can no longer issue its semi-annual reports, organize meetings, nor initiate new advices or oversight projects.

The absence of operational PCLOB may also have impact on an international scale. Although EU officials have criticized its limited authority, they have described the PCLOB and its role in overseeing the surveillance practices of the Executive branch as an essential element of the US-EU Privacy Shield agreement. Predictably, the EU has raised concerned over the sustainability of the US-EU Privacy Shield now that the PCLOB is reduced to one member, and effectively no longer operational. [iv]

The PCLOB plays a significant role in ensuring that national security interests are adequately balanced with the need to protect privacy and civil liberties. It cannot, however, operate with only one member, and it is therefore crucial that the empty seats be filled as soon as possible. It is however uncertain that this will be a priority of the new Trump administration, which already expressed its interest in reducing the number of agencies and administrations that it deems “unnecessary”.

[i] See Privacy and Civil Liberties Oversight Board website, About the Board, available at https://www.pclob.gov/about-us.html

[ii] See Charlie Savage, New York Times, Watchdog Report Says N.S.A. Program Is Illegal and Should End (January 23,2014), available at https://www.nytimes.com/2014/01/23/us/politics/watchdog-report-says-nsa-program-is-illegal-and-should-end.html; Dia Kayyali, Electronic Frontier Foundation, Privacy and Civil Liberties Oversight Board to NSA: Why is Bulk Collection of Telephone Records Still Happening? (February 4, 2015), available at https://www.eff.org/deeplinks/2015/02/privacy-and-civil-liberties-oversight-board-nsa-why-bulk-collection-telephone

[iii] See Privacy and Civil Liberties Board website, Board Member Bibliographies, available at https://www/pclob.gov/about-us/board.html; Jenna McLaughlin, The Intercept, The U.S. Government’s Privacy Watchdog is Basically Dead, Emails Reveal (March 3, 2017), available at https://theintercept.com/2017/03/03/the-governments-privacy-watchdog-is-basically-dead-emails-reveal/; Carrie Cordero, Lawfare, An easy Win: Replenishing the Privacy and Civil Liberties Oversight Board (PCLOB) (February 2, 2017), available at https://www.lawfareblog.com/easy-win-replenishing-privacy-and-civil-liberties-oversight-board-pclob#

[iv] See Human Rights Watch and ACLU, Joint Letter to Commissioner Jourova Re: Privacy Shield (February 28, 2017), available at http://www.wuroparl.eu/news/en/news-room/20170329IPR69067/data-privacy-shield-meps-alarmed-at-undermining-of-privacy-safeguards-in-the-us