Privacy board awakens after NSA spying is revealed

Jochai Ben-Avie contributed to this post

Call in your bets — PCLOB held an official meeting!

The Privacy and Civil Liberties Oversight Board (PCLOB) is the government oversight body principally charged with protecting privacy and civil liberties in the United States. However, in the eight years since it was established under the Bush administration (and subsequently dissolved, restructured, and hamstrung by Congress), the PCLOB has met only infrequently. In fact, the US Senate only finally appointed Obama’s nominee for chairperson, David Medine, last month. But with the recent revelations of unconstitutional massive data collection by the NSA, it seems the PCLOB’s long run of applied irrelevance may have finally come to an end – and not a moment too soon.

Brief history of PCLOB
PCLOB is an independent body that reviews all government actions related to terrorism, in order to ensure relevant legislation and policies account for privacy and civil liberties concerns. PCLOB was established by the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. No. 108-458), but without a chair, the body has been largely ineffectual since inception. It first met in 2006, but was dissolved about two years later and reconstituted to be more independent from the executive branch.

The reconstituted Board went without a Director until Medine was approved, and did not meet at all during the first term of the Obama administration. Following revelations of the PRISM and Foreign Intelligence Surveillance Act programs, Medine requested a meeting with National Intelligence Director James Clapper. That led to an ad-hoc briefing last week with NSA Director Gen. Keith Alexander and an unspecified number of Board members. The Federal Register announced the official Board meeting on Wednesday, June 19.

According to reports, the Board had convened twice before Wednesday’s two-hour meeting, which included all five Board members. Wednesday’s meeting was closed to the public because of the classified material discussed, but a public Board meeting is scheduled for July 9.

What’s next? Analysis and recommendations
The Board’s main powers are in oversight and public reporting, while its mandate is over the laws passed and Executive actions taken “to protect the Nation from terrorism.” The Board is tasked with “ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties” and that “liberty concerns are appropriately considered.”

Medine said the Board will study and publicly report on the NSA programs. This is an excellent goal for its first public report this decade. It’s been revealed that the NSA collects the phone records of all Verizon Wireless users, and likely those of AT&T and Sprint users as well. The PRISM program is directed at surveilling non-US persons, but likely catches a broad swath of US users as well. Privacy and civil liberties have fallen by the wayside to enable the programs’ unconstitutional surveillance.

Of course, this being PCLOB, there are potholes in what will likely be a long road to success. Access has a few recommendations to PCLOB and Congress on how to bolster the Board’s performance, starting with its oversight of NSA surveillance:

1) Though it appears Board members have gotten adequate security clearances, the group still lacks a secure office. A week before Wednesday’s meeting, Chairperson Medine was still in the process of getting the appropriate security clearance to receive the classified briefing, and asked Director Clapper for temporary clearance. Not only do Board members need Top Secret (TS) clearance, but they also likely need access to highly sensitive “Special Access Programs.” The most common clearance for these programs is TS/Sensitive Compartmented Information, or TS/SCI.

After the meeting, Medine said that all five board members had adequate security clearances, but that the Board still depends on other federal agencies to provide a secure meeting area for it to review classified materials.

2) PCLOB has extensive power to compel executive branch employees to testify publicly, and can petition the Attorney General to subpoena other government officers. Staff members and heads of agencies have immunity for their disclosures, as long as their testimony is not false.

PCLOB could go further than Congress has with its hearings, and dig deeper into the depths of the intelligence apparatus, hopefully uncovering some of the “unknown unknowns.” The Board’s specific mandate on privacy and civil liberties should guide it away from the more political leanings of the House Permanent Select Committee on Intelligence, whose hearing this week was titled, “How Disclosed NSA Programs Protect Americans, and Why Disclosure Aids Our Adversaries.”

3) PCLOB needs more staff and financial support. The ACLU reports its number of staff with security clearances at zero, and its budget at $1 million. There’s no way PCLOB can meet its broad mandate without human resources and the money to access and review the officials, locations, and materials relevant to its mandate.

4) Overall, the Board must report to public whenever possible and as often as it can. The Board is explicitly charged with making its reports publicly available “to the greatest extent” that is consistent with protecting classified information, and can also hold public hearings. We understand that some meetings will need to be classified, but still ask for public minutes of all meetings and public lists of attendees.

PRISM is a tailor-made issue for the Board to tackle in its first active year since last decade. While the companies involved in the PRISM and other NSA programs are limited in what they can say publicly, PCLOB should have the appropriate security clearances to see everything – and make much of it public. Accurate information about the programs has been very hard to come by, in part because of the gag orders on the companies, but also because of political grandstanding by government officials. If the President truly wants a robust ‘debate’ on the issues, PCLOB needs more support, and the chutzpah to exercise those powers it does have.