Privacy and Civil Liberties Oversight Board Meets After Five-Year Absence
This week marks the first time in five years since the last Privacy and Civil Liberties Oversight Board (PCLOB) meeting. The board is an independent body within the President's office that is supposed to ensure privacy and civil liberties in the creation and implementation of US law and policy and executive branch actions against terrorism, but has languished for some time due to Presidential neglect.
On Wednesday, the board solicited public feedback for its agenda after the Senate finally confirmed four nominees in August. We hope the PCLOB embraces its role and becomes a forceful oversight mechanism by focusing on the government's surveillance regime—like the NSA's warrantless wiretapping—and secret legal analyses that undergird much of the government's domestic spying policies.
The PCLOB can shine a light in the dark corners of the federal government and should focus on uncovering the secret analyses behind much of our post-9/11 surveillance state. One instance is the FBI's secret interpretation of Section 215 of the USA PATRIOT Act, which allows the FBI to force businesses to turn over “any tangible thing” in relation to a terrorism or intelligence investigation. In a letter sent to the Department of Justice (DOJ), several Senators repeatedly warned about DOJ's use of Section 215 of the PATRIOT Act to support what government attorneys called a “sensitive collection program” that would make Americans "surprised and angry." EFF is suing the government to uncover this secret legal interpretation, and we urge the PCLOB to assist us in the fight by working to uncover this secret legal interpretation. At the three-hour meeting, organizations including NYU's Brennan Center for Justice, the Federation of American Scientists, and the Center for Democracy and Technology also insisted the board review the government's use of Section 215.
In addition, the organizations at the hearing urged the PCLOB to review policies surrounding drones. Drones offer frightening surveillance capabilities that more and more government agencies are beginning to use. We also urge the PCLOB to assess the civil liberties implications of domestic drones, which EFF's Transparency Project has already begun work on by uncovering the law enforcement agencies that fly drones. But more could done. And the PCLOB is in a prime position to review, revise, and even offer drone policy—and government wide policy—that respects privacy and civil liberties.
NSA's warrantless wiretapping program has been going on for 11 years and EFF's lawsuit against it for six. The renewal of the PCLOB presents an opportunity to uncover more information about the NSA's dragnet warrantless wiretapping of Americans citizens and the government's wider use of the Foreign Intelligence Surveillance Act (FISA), a law shamefully expanded after pressure to legalize certain portions of the NSA’s warrantless wiretapping program. Both are intricately connected. In a letter to Sen. Ron Wyden (D-OR), the Director of National Intelligence (DNI) indicated that the Foreign Intelligence Surveillance Court agreed with Wyden that the government had “circumvented the spirit of the law” while spying. The spying is so secret that Congress has exercised little public oversight over it. Beyond the lawsuits already filed about warrantless wiretapping, the letter—in and of itself—should serve as a catalyst for the PCLOB to uncover more information about the violations, the government's use of the Foreign Intelligence Surveillance Act, and relevant FISA Court opinions. If it doesn't, the testimony of, among others, the ACLU and The Constitution Project—both of which asked the board to investigate FISA and warrantless wiretapping—should persuade the board to begin an investigation.
The PCLOB could bring much needed transparency to government surveillance actions, legal analyses, and procedures. Not only can the board report to the public and recommend revisions to current laws and policies, but it can also "continually review" the implementation and creation of policies by issuing proposed corrections and admonitions—all while consulting with the public. A published report from the PCLOB can serve as an early warning system for the public.
Its reemergence is a step in the right direction, but even with the meeting, the office is without a full-time chair because the Senate has failed to confirm President Obama's nomination. Without one, the PCLOB can not hire full-time staff, but must rely on temporary staff. Over the next few months, we hope that the Senate confirms President Obama's nomination so that the board can work full-speed ahead on uncovering many of the abuses, and current policies, of our post-9/11 surveillance state.