Friday, June 28, 2013

The Very Private Privacy and Civil Liberties Oversight Board

With the recent announcement that President Obama was meeting with the Privacy and Civil Liberties Oversight Board, many people around the world are wondering who this group is.  Here's some background information for you.

Let's start with a quote from the Federal Register about the aforementioned group:

"The Privacy and Civil Liberties Oversight Board (PCLOB) is an advisory body to assist the President and other senior Executive branch officials in ensuring that concerns with respect to privacy and civil liberties are appropriately considered in the implementation of all laws, regulations, and executive branch policies related to war against terrorism. 

Recommended by the July 22, 2004, report of the National Commission on Terrorist Attacks Upon the United States, the Privacy and Civil Liberties Oversight Board was established by the Intelligence Reform and Terrorism Prevention Act of 2004...."

The PCLOB was established as a result of the 2004 report which recommended that:

(1) the President, in the course of determining the guidelines for information sharing among government agencies and by them with the private sector, “should safeguard the privacy of individuals about whom information is shared”; and 

(2) the “burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive’s use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use.”

The Board is designed to ensure that the sharing of information is done in a manner that safeguards the privacy of the individuals about whom the information is being shared and that the President's use of power adheres to the guidelines that actually enhance security.

Between 2007 and 2012, the PCLOB had no appointees to carry on its mandate and many Democrats and Republicans have little interest in seeing it operate effectively.  Back in December 2010, the current President took the step of nominating two new members; Elisebeth Cook and James Dempsey with both nominations expiring at the end of the 111th Congress.  Both were renominated in early January 2011 as President Obama took steps to safeguard Americans' privacy and civil liberties in light of the Administration's new and improved cybersecurity legislation as shown in this letter to Congress:

Basically, the Board's purpose is two-pronged:

1.) It ensures that concerns about civil liberties are considered in the development and application of laws that are related to protecting the United States against terrorism.

2.) It analyzes the actions taken by the Executive Branch of the federal government to protect the United States against terrorism and ensures that these actions are balanced with the need to protect both the privacy and civil liberties of Americans.

The Board consists of five members, all appointed by the President, serving at "his/her pleasure".  It is part of the White House Office within the Office of the President and has its own support staff and Executive Director.

Currently, the five members on the Board as well as their political affiliation and expiry date are:

Patricia M. Wald (D) - term expires January 29, 2019 
Elisebeth C. Cook (R) - term expires January 29, 2014 
James X. Dempsey (D) - term expires January 29, 2016
Rachel L. Brand  (R) - term expires January 29, 2017
David Medine (D) - Chairman - term expires January 30, 2018

Interestingly, Patricia Wald is now 84 years of age and is a former judge on the U.S. Court of Appeals for the District of Columbia.  Of the five nominees, only two have extensive experience and expertise in the fields of privacy, surveillance, information and communications technologies.

When asked by Senator Charles Grassley (R-IA) during the April 2012 Senate Judiciary Committee hearing that was held to consider the appointment of the President's nominees about whether the candidates supported the re-creation of the wall on information sharing that was taken down post-September 11th, none of the candidates had anything to say.  As well, none of the nominees took a stand on the targeting of United States citizens abroad.

Remembering that the Board members "serve at the President's pleasure", is it just me or is there a conflict of interest here?  If a Board member finds itself in conflict with the President and his views on surveillance and privacy, is their continued presence as a Board member jeopardized?  In other words, does this secretive Board have the best interests of the American public at heart?  What should be of particular concern to everyone is that the majority of the five members appointed to this Board have a complete lack of skills or experience in the fields of communications technology or in the legal fields that involve our privacy and civil rights.

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