The purpose of the Privacy and Civil Liberties Oversight Board is two-fold: 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 to ensure that liberty concerns are appropriately considered in the development and implementation of law, regulations and policies related to efforts to protect the nation against terrorism.
The Board has two main functions: (a) advice and counsel on policy development and implementation and (b) oversight. Its functions include reviewing proposed legislation, regulations and policies; advising the President and the departments and agencies of the executive branch; and continually reviewing the implementation of the regulations, policies, and procedures of the executive branch relating to terrorism to ensure that privacy and civil liberties are protected. In addition, the Board is specifically charged with responsibility for reviewing the terrorism information sharing practices of executive branch departments and agencies to determine, whether they adhere to guidelines designed to appropriately protect privacy and civil liberties.[2][3] In the course of performing these functions, the Board shall coordinate with the privacy and civil liberties officers in the relevant departments and agencies.
The Board is authorized to have access to all relevant information necessary to fulfill its role, including classified information consistent with applicable law. The Board is required to report to Congress not less than semiannually.
History
2004–2006: Creation within the Executive Office
Recommended by the 9/11 Commission Report issued on July 22, 2004, the Privacy and Civil Liberties Oversight Board was initially established by the Intelligence Reform and Terrorism Prevention Act of 2004.[4] It consisted of five members appointed by the President, with the board being part of the Executive Office of the President and was supported by an Executive Director and staff. In February 2005, a majority of Minnesota congresspersons and senators had nominated Coleen Rowley to serve on the Board,[5] but President George W. Bush did not nominate her.
The first Board members from 2006 were Carol E. Dinkins, of Texas, Chairwoman; Alan Charles Raul, of the District of Columbia, Vice Chairman; Theodore B. Olson, of Virginia; Lanny Davis, of Maryland, and Francis X. Taylor, of Maryland. The Chairwoman and Vice Chairman were confirmed by the Senate on February 17, 2006. All Board members were sworn in and had their first meeting on March 14, 2006. On May 14, 2007, Lanny Davis resigned, charging that the White House had sought to control the content of a Board report.[6]
2007–2012: Lack of quorum
From 2007 until August 2012, the Board did not have a quorum.[citation needed]
In January 2007, H.R. 1 ("Implementing Recommendations of the 9/11 Commission Act of 2007"), aimed to reconstitute the board as an independent agency, composed of 5 Senate confirmed members serving staggered six-year terms and passed the U.S. House of Representatives. The Senate companion bill, ("Improving America's Security Act of 2007", S. 4), passed on March 13, 2007. The House language prevailed upon reconciliation and on August 3, 2007 President Bush signed the Implementing Recommendations of the 9/11 Commission Act of 2007, into law.[7] In January 2008, the changes took effect, at which time the original Board ceased to exist.
On February 27, 2008, the Senate received President George W. Bush's first three nominations to the revamped PCLOB: Daniel W. Sutherland, Officer for Civil Rights and Civil Liberties at the Department of Homeland Security, to serve a six-year term as chair of the board; Ronald D. Rotunda, professor of law at George Mason University, to serve a four-year term as a member of the PCLOB; and Francis X. Taylor, a former member of the board, to a serve a two-year term. On September 8, 2008, President Bush made a fourth nomination, of James X. Dempsey, senior counsel at the Center for Democracy and Technology, to serve a five-year term. The nominations were referred to the Senate Committee on the Judiciary, which took no further action.[6]
In December 2010, President Barack Obama nominated two persons to the Board: Dempsey, and Elisebeth Collins Cook, a former Assistant Attorney General at the U.S. Department of Justice and, at the time, a partner in a Chicago law firm.[8][9][10] Those nominations expired at the end of the 111th Congress.
In January 2011, President Obama re-nominated Dempsey and Cook.[11] In December 2011, the Obama administration announced to revitalize the Board as a check against its proposed cybersecurity policies and measures.[12] and the President made three more nominations: David Medine, a former associate director of the Federal Trade Commission, as chairman; Rachel Brand, Chief Counsel for Regulatory Litigation at the U.S. Chamber of Commerce and a former Assistant Attorney General at the United States Department of Justice, as a member; and Patricia M. Wald, a former federal appeals-court judge, as a member.[13]
On August 2, 2012, the Senate confirmed Dempsey, Brand, Cook, and Wald,[14] but did not act upon the nomination of David Medine to be chair at that time.
2013: Independent agency begins work
In January 2013, the White House re-nominated David Medine as chair,[15] and the Senate confirmed him on May 7, 2013 in a 53–45, party-line vote.[16] On July 9, 2013, the Board held its first public workshop and its first substantive hearing on November 4, 2013.[17]
On January 23, 2014, the board released its first report. It was the first comprehensive review of the NSA warrantless surveillance program instituted under the Patriot Act, after Edward Snowden had released classified documents from the NSA.[18][19] It includes reviews of classified information and briefings with officials from the Department of Justice, FBI, NSA, and CIA.[19]
The report found two main problems with the NSA's surveillance program: it "lacks a viable legal foundation"[18][20] and there is "little evidence that […] NSA's bulk collection of telephone records actually have yielded material counterterrorism results that could not have been achieved without the NSA's Section 215 program."[21]
The PCLOB report argued that the legal basis for NSA surveillance programs in Section 215 of the Patriot Act, allows only the FBI to collect bulk data for investigations and that the NSA is not directly permitted to do so. The report found that the NSA's reliance on a 2004 Foreign Intelligence Surveillance Act (FISA) court opinion approving the bulk collection of Internet metadata does not correctly apply to the situation: "The government should not base an ongoing program affecting the rights of Americans on an interpretation of a statute that is not apparent from a natural reading of the text".[19]
The report said that data collected by the NSA did not contribute uniquely to any FBI criminal investigations and that the PCLOB did not find a single case where NSA surveillance programs directly contributed to the disruption of a terrorist attack. Additionally, there is only one instance where NSA data helped identify an unknown terrorism suspect. Since the NSA collects data as it is generated, the PCLOB argued that the collection process violated the Electronic Communications Privacy Act, could not be directed towards any specific investigation, and that the information could not be treated as relevant to any FBI investigation except in response to specific enumerated circumstances.[19] The PCLOB found no evidence of bad faith or misconduct on the part of the NSA, but that the technological complexity and vast scope of surveillance programs coupled with the potential for governmental abuse of power posed an inherent risk to Americans.
The report noted that although the FISA court was designed to hear cases regarding foreign surveillance, FISA does not provide a mechanism for the court to allow non-governmental parties to provide arguments against government surveillance proposals or otherwise participate in court proceedings.[19] As a result, there are very few appeals of FISA court decisions.
The PCLOB report recommended that the US end bulk data collection and that the FISA court judges' decision making "would be greatly enhanced if they could hear opposing views when ruling on requests to establish new surveillance programs"[19] to increase public confidence in intelligence and surveillance programs. It recommended that the government should promote more transparency to inform public debate on technology, national security, and civil liberties. Among other things, the board recommended that the FISA court should declassify its rulings and opinions of the FISA court and establish a Special Advocate board should be formed. These measures would allow citizens to bring up surveillance concerns in court, challenge government surveillance proposals, and help keep the proceedings of the court more transparent.[citation needed]
Some people initially viewed the PCLOB with skepticism, since the board was convened to protect the American public against privacy intrusions by their own government.[17] Under the board's statute, only the Chairperson is a full-time employee and has the power to hire staff. Since Medine was not confirmed until May 7, 2013, it was not until after that time that the Board was finally able to begin to engage in any substantial projects.
Proposals to strengthen the Board
In 2015, Ron Wyden (D-OR) in the Senate and Tulsi Gabbard (D-HI-2) in the House spearheaded, along with co-sponsors Tom Udall (D-NM) and Trey Gowdy (R-SC-4), the Strengthening Privacy, Oversight, and Transparency (SPOT) Act,[22] to, as Udall stated, strengthen the PCLOB and "significantly improve the oversight and accountability of the nation's intelligence community to protect Americans' constitutional rights."[23][24]
In 2017, the House bill H.R. 3523, the Cyber Intelligence Sharing and Protection Act (CISPA) of 2011, proposed that the PCLOB issue annual reports on the civil liberties and privacy impact of CISPA's provisions for the sharing of "cyber threat" information and intelligence between the government and private companies. It would have made PCLOB responsible for reporting on privacy and civil liberty intrusions under its information sharing program. The bill died in Congress.[25]
The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies.
The Foreign Intelligence Surveillance Act of 1978 is a United States federal law that establishes procedures for the surveillance and collection of foreign intelligence on domestic soil.
Executive Order 12333, signed on December 4, 1981 by U.S. President Ronald Reagan, was an executive order intended to extend powers and responsibilities of U.S. intelligence agencies and direct the leaders of U.S. federal agencies to co-operate fully with CIA requests for information. This executive order was titled United States Intelligence Activities.
NSA warrantless surveillance — also commonly referred to as "warrantless-wiretapping" or "-wiretaps" — was the surveillance of persons within the United States, including U.S. citizens, during the collection of notionally foreign intelligence by the National Security Agency (NSA) as part of the Terrorist Surveillance Program. In late 2001, the NSA was authorized to monitor, without obtaining a FISA warrant, phone calls, Internet activities, text messages and other forms of communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S.
The Terrorist Surveillance Program was an electronic surveillance program implemented by the National Security Agency (NSA) of the United States in the wake of the September 11, 2001 attacks. It was part of the President's Surveillance Program, which was in turn conducted under the overall umbrella of the War on Terrorism. The NSA, a signals intelligence agency, implemented the program to intercept al Qaeda communications overseas where at least one party is not a U.S. person. In 2005, The New York Times disclosed that technical glitches resulted in some of the intercepts including communications which were "purely domestic" in nature, igniting the NSA warrantless surveillance controversy. Later works, such as James Bamford's The Shadow Factory, described how the nature of the domestic surveillance was much, much more widespread than initially disclosed. In a 2011 New Yorker article, former NSA employee Bill Binney said that his colleagues told him that the NSA had begun storing billing and phone records from "everyone in the country."
The United States Department of Justice National Security Division (NSD) handles national security functions of the department. Created by the 2005 USA PATRIOT Act reauthorization, the division consolidated all of the department's national security and intelligence functions into a single division. The division is headed by the Assistant Attorney General for National Security.
Warrantless searches are searches and seizures conducted without court-issued search warrants.
The Protect America Act of 2007 (PAA),, is a controversial amendment to the Foreign Intelligence Surveillance Act (FISA) that was signed into law by U.S. President George W. Bush on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside the United States. The FISA Amendments Act of 2008 reauthorized many provisions of the Protect America Act in Title VII of FISA.
The FISA Amendments Act of 2008, also called the FAA and Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, is an Act of Congress that amended the Foreign Intelligence Surveillance Act. It has been used as the legal basis for surveillance programs disclosed by Edward Snowden in 2013, including PRISM.
Matthew Glen Olsen is an American attorney who has served as the Assistant Attorney General for the National Security Division since 2021. He is the former director of the National Counterterrorism Center.
The President's Surveillance Program (PSP) is a collection of secret intelligence activities authorized by the President of the United States George W. Bush after the September 11 attacks in 2001 as part of the War on Terrorism. Information collected under this program was protected within a Sensitive Compartmented Information security compartment codenamed STELLARWIND.
PRISM is a code name for a program under which the United States National Security Agency (NSA) collects internet communications from various U.S. internet companies. The program is also known by the SIGAD US-984XN. PRISM collects stored internet communications based on demands made to internet companies such as Google LLC and Apple under Section 702 of the FISA Amendments Act of 2008 to turn over any data that match court-approved search terms. Among other things, the NSA can use these PRISM requests to target communications that were encrypted when they traveled across the internet backbone, to focus on stored data that telecommunication filtering systems discarded earlier, and to get data that is easier to handle.
The global surveillance disclosure released to media by Edward Snowden has caused tension in the bilateral relations of the United States with several of its allies and economic partners as well as in its relationship with the European Union. In August 2013, U.S. President Barack Obama announced the creation of "a review group on intelligence and communications technologies" that would brief and later report to him. In December, the task force issued 46 recommendations that, if adopted, would subject the National Security Agency (NSA) to additional scrutiny by the courts, Congress, and the president, and would strip the NSA of the authority to infiltrate American computer systems using "backdoors" in hardware or software. Geoffrey R. Stone, a White House panel member, said there was no evidence that the bulk collection of phone data had stopped any terror attacks.
The Fourth Amendment Protection Acts, are a collection of state legislation aimed at withdrawing state support for bulk data (metadata) collection and ban the use of warrant-less data in state courts. They are proposed nullification laws that, if enacted as law, would prohibit the state governments from co-operating with the National Security Agency, whose mass surveillance efforts are seen as unconstitutional by the proposals' proponents. Specific examples include the Kansas Fourth Amendment Preservation and Protection Act and the Arizona Fourth Amendment Protection Act. The original proposals were made in 2013 and 2014 by legislators in the American states of Utah, Washington, Arizona, Kansas, Missouri, Oklahoma and California. Some of the bills would require a warrant before information could be released, whereas others would forbid state universities from doing NSA research or hosting NSA recruiters, or prevent the provision of services such as water to NSA facilities.
The USA Freedom Act is a U.S. law enacted on June 2, 2015, that restored and modified several provisions of the Patriot Act, which had expired the day before. The act imposes some new limits on the bulk collection of telecommunication metadata on U.S. citizens by American intelligence agencies, including the National Security Agency. It also restores authorization for roving wiretaps and tracking lone wolf terrorists. The title of the act is a ten-letter backronym that stands for Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015.
The FISA Improvements Act is a proposed act by Senator Dianne Feinstein, Chair of the Senate Intelligence Committee. Prompted by the disclosure of NSA surveillance by Edward Snowden, it would establish the surveillance program as legal, but impose some limitations on availability of the data. Opponents say the bill would codify warrantless access to many communications of American citizens for use by domestic law enforcement.
Proposed reforms of mass surveillance by the United States are a collection of diverse proposals offered in response to the Global surveillance disclosures of 2013.
Former U.S. President Barack Obama favored some levels of mass surveillance. He has received some widespread criticism from detractors as a result. Due to his support of certain government surveillance, some critics have said his support violated acceptable privacy rights, while others dispute or attempt to provide justification for the expansion of surveillance initiatives under his administration.
The Privacy and Civil Liberties Oversight Board report on mass surveillance was issued in January 2014 in light of the global surveillance disclosures of 2013, recommending the US end bulk data collection.
Rachel Lee Brand is an American lawyer, academic, and former government official. She served as the United States Associate Attorney General from May 22, 2017, until February 20, 2018, when she resigned to take a job as head of global corporate governance at Walmart. Brand was the first woman to serve as Associate Attorney General. She also served as Assistant Attorney General for the Office of Legal Policy in the George W. Bush administration and was appointed by President Barack Obama to serve on the Privacy and Civil Liberties Oversight Board. Prior to becoming Associate Attorney General, Brand was an associate professor at Antonin Scalia Law School.
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