BORDC welcomes Privacy & Civil Liberties Oversight BoardSaturday, December 1, 2012 at 10:01 am by Michael Figura
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.
For instance, the ACLU’s submission invited the Board’s scrutiny of a recent data retention authority:
The Board could have a real and immediate impact by investigating program activities under the amended National Counterterrorism Center (NCTC) guidelines signed by Attorney General Eric Holder and Director of National Intelligence James Clapper in March 2012. These new guidelines authorize collection authorities on a scale not claimed since Congress de-funded the Total Information Awareness program.
The Defending Dissent Foundation urged the Board to review the surveillance of groups and individuals based on First Amendment protected speech. In addition to exploring the FBI’s history of infiltrating activist groups, Defending Dissent also specifically addressed DHS-funded Fusion Centers:
Fusion Centers were intended to be at the center of sharing terrorism and homeland security information for state and local law enforcement, but have little oversight and few guidelines to protect privacy and civil liberties. As a result, American’s privacy and civil liberties are threatened.
The Electronic Privacy Information Center (“EPIC”) advised the Board to focus on improving oversight of the Department of Homeland Security (DHS). Specifically, EPIC recommended that the Board focus on:
(1) suspension of the Fusion Center Program; (2) limiting closed-circuit television surveillances; (3) eliminating the use of body scanners; (4) establishing privacy regulations for drones; (5) improving Information Sharing Environment (ISE) and Suspicious Activity Reporting (SARS) Standards; and (6) Privacy Act adherence.
In its submission to the PCLOB, the Brennan Center for Justice at NYU Law School highlighted a number of pressing issues in the areas of religious profiling, information privacy and transparency. Among other issues, the submission highlighted the dangers of the government’s reliance on a spurious theory of domestic radicalization:
Unthinking acceptance of the flawed religious conveyor belt theory, particularly by law enforcement agencies such as the FBI, has enormous negative consequences. It undergirds the view that our national security is served by monitoring the religious views of American Muslims to identify potential terrorists. The result has been widespread surveillance of Muslim communities that is unconnected to any suspicion of criminal or terrorist activity. We urge the PCLOB to consider the full range of issues relating to radicalization, including the very real impact of the religious conveyor belt theory on the First Amendment rights of American Muslims.
Finally, the Constitution Project suggested areas of focus for the Board that would fully leverage its access to classified information. Thus TCP recommend the board review:
(1) programs whose very existence is classified and that remain largely if not entirely unknown to the public; (2) the targeted killing or drone program; and (3) programs that involve intelligence collection on, and government monitoring of, U.S. persons and their personal information.
As these submissions to the PCLOB suggest, the issues facing the Board are weighty, numerous and pressing. Its first priority must be to hire staff enabling it to fully pursue its mandate to provide meaningful review.
Tags: accountability, civil liberties, civil rights, Constitution, dissent, due process, electronic privacy, FBI, First Amendment, Fourth Amendment, government secrecy, PCLOB, Secure Communities, transparency, warrantless surveillance, wiretapping