Backgrounder: Privacy and Civil Liberties Oversight Board

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What it is: The Implementing Recommendations of the 9/11 Commission Act of 2007 (.pdf) established the Privacy and Civil Liberties Oversight Board as an independent agency within the executive branch. The law says PCLOB's purpose is to

  • analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and
  • ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations and policies related to efforts to protect the Nation against terrorism.

What it will do: The 2007 law tasks PCLOB with a range of activities, including to

  • review proposed legislation, regulations and policies related to terrorism and information sharing;
  • advise the executive branch to ensure that its actions take into account privacy and civil liberties;
  • submit at least two reports per year to Congress and the president in an unclassified form to the greatest extent possible; and
  • hold public hearings or otherwise inform the public of its activities.

Reports: PCLOB's reports are supposed to describe its major activities, along with findings and recommendations. It must note any proposals that it advised against that the government implemented anyway. It also must note the times that the attorney general denied its requests for subpoenas.

Subpoenas and access: PCLOB can have access to executive branch records and interview any of its personnel. It also can request information or assistance from state, local and tribal governments.

The majority of PCLOB's members can vote to request that the attorney general subpoena people to produce records or testimonial evidence. Within 30 days of the request, the attorney general must either issue the subpoena or explain in writing why it won't. When the latter happens, PCLOB must notify the House and Senate judiciary committees within another 30 days.

The American Civil Liberties Union has criticized the law for not giving PCLOB its own subpoena power. That it must go through the attorney general is a "cumbersome barrier and a real threat to its independence," the ACLU's Chris Calabrese wrote in May.

First incarnation: PCLOB originally existed within the Executive Office of the President, as established by the Intelligence Reform and Terrorism Prevention Act of 2004 (.pdf). But it was reconstituted in 2007 as a result of concerns about its independence.

Years of vacancy: The Senate never acted on President Bush's 2008 nominations, and President Obama didn't announce a full slate of nominees until December 2011, four of whom the Senate confirmed in August.

Current members: PCLOB is to consist of a chairman plus four other members, each serving a 6-year term. The Senate confirmed James Dempsey, Elisebeth Cook, Rachel Brand and Patricia Wald on Aug. 2, but did not act on the nominee for chairman, David Medine.

One crucial vacancy remains: The lack of a chairman will limit PCLOB, particularly because the law charges the chairman with hiring the board's staff. Peter Swire, a senior fellow at the Center for American Progress, told FierceHomelandSecurity, "The four confirmed members of the board are very capable individuals. The real work of oversight, however, requires staff to be in place." Swire served as the Clinton administration's chief counselor for privacy from 1999 to 2001.

While PCLOB cannot hire staff without a chairman, the law does say any federal employee can be detailed to PCLOB without reimbursement. PCLOB can also hire consultants. Neither of those provisions requires the chairman's involvement.

PCLOB can also meet without its chairman, so long as a majority of its members call for a meeting. Three members constitutes a quorum.

What PCLOB could be doing now: The FISA Amendments Act of 2008 (.pdf) is set to expire on Dec. 31, 2012. But "right now Congress is legislating in the dark" as it considers reauthorization, said Greg Nojiem, director of the Center for Democracy & Technology's project on freedom, security and technology. A functional PCLOB could shed light on how that law has been used so far.

Nojiem said he'd also like to see whether the nation's fusion centers are monitoring political dissent instead of just monitoring threats.

During an April hearing where the five PCLOB nominees testified before the Senate Judiciary Committee, senators asked many questions about how they'd approach cybersecurity. But Nojiem predicted that PCLOB will instead start on issues that are strictly related to terrorism, at least until it receives a clearer mandate about how its role pertains to cyber issues.

Such a mandate may come if Congress passes cybersecurity legislation, as it has tried and failed to do recently.

PCLOB should also balance its public and behind-the-scenes roles, Nojiem added. He offered the 9/11 Commission as a model of the impact that could be made if PCLOB keeps the public informed.

"But it also has to gain the trust of executive branch officials if it's going to do its work," he said.

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