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.