Archive for December 1st, 2012

Congress turns to civil liberties

Saturday, December 1, 2012 at 4:14 pm by

This week, Congress took a number of actions with major implications for fundamental civil liberties. We’ll be covering them in greater detail next week, but in the meantime, here’s a quick summary of two of the week’s legislative highlights.

On Thursday, the Senate Judiciary Committee unanimously voted in favor of proposed updates to the Electronic Communications Privacy Act (ECPA) that would require a judicial warrant for some searches of electronic communications currently at risk of arbitrary government interception and seizure.

The very same evening, the Senate overwhelmingly supported an amendment to the 2013 National Defense Authorization Act (NDAA) that purports to enhance protections against military detention without trial, while unfortunately reinforcing such dangerous government power in several  ways.

With FISA still pending before the Senate, next week may seen even more action on civil liberties issues. Given how skewed the FISA debate has become, however, the result is not likely to adequately protect privacy.

BORDC continues to invite concerned Americans to raise our voices in defense of constitutional rights largely ignored by Congress.

BORDC welcomes Privacy & Civil Liberties Oversight Board

Saturday, December 1, 2012 at 10:01 am by

After a four year absence, a board charged with ensuring government respect for privacy and civil liberties was recently reconvened and received recommendations from civil liberties groups.  How it approaches its work will carry serious implications for civil liberties going forward.

In 2004, the September 11th Commission’s recommendations to Congress included the creation of a Privacy and Civil Liberties Oversight Board (PCLOB) to ensure the protection of civil liberties.  Noting that “if our liberties are curtailed, we lose the values that we are struggling to defend,” the commission called for a board to oversee the government’s adherence to defending civil liberties.  The PCLOB was constituted in 2006, but after operating for less than a year, it was reorganized by Congress, curtailing the tenure of its original members and then allowing to lapse after 2008.

After years of inactivity, the Senate finally confirmed new members of the Board, and it convened for a public hearing on October 31.  A bevy of civil liberties groups submitted statements to the Board, including the Bill of Rights Defense Committee (BORDC), as well as the ACLU, the Defending Dissent Foundation, the Electronic Privacy Information Center (EPIC), the Brennan Center for Justice at NYU School of Law, the DC-based Center for National Security Studies (CNSS), and the Constitution Project.

Both BORDC and CNSS  recommended approaches to the PCLOB’s work going forward, rather than discrete issues.  BORDC’s statement included three major recommendations to guide the work of the board:

  • [Undertake] a concerted effort to recruit and engage pro bono counsel to extent the PCLOB’s investigative capacity.
  • Beyond examining any discrete set of policies…acquaint policymakers, the press, and its observers within the executive branch with context about the landscape connecting these various long overlooked civil liberties issues.
  • Because the PCLOB has convened only in passing over the decade since its creation was first recommended by the 9/11 commission, it should evaluate contemporary policies not in the context of the most recent incremental changes, but rather against the baseline pre-dating the 9/11 commission.

Similarly, CNSS provided input on the Board’s role, objectives, operations and its place vis-a vis the public and Congress. Notably, CNSS urged the Board to take a broad view of what constitutes privacy, inviting it to:

consider those ways in which government access to personal information, even when that information may be somehow available on the internet, impacts those constitutional values of liberty, due process and individual autonomy that privacy is supposed to protect.

A number of allied organizations presented suggestions about particular issues screaming out for scrutiny and oversight by the PCLOB.