Scoffing at privacy law

As the House Commerce and Senate Commerce and Judiciary committees actively consider new privacy, data-breach and cybersecurity legislation, as well as revisions to the long-suffered Electronic Communications Privacy Act, this might also be a good time to take stock of how Congress allowed one of the centerpiece privacy initiatives recommended by the 9/11 Commission to go missing in action. 

In 2004, in the Intelligence Reform and Terrorism Prevention Act, Congress established a Privacy and Civil Liberties Oversight Board in the executive office of the president. The concept for the board was to help prevent the rights of Americans from being sacrificed in the name of fighting terrorism. The last several years, however, have witnessed the de facto abandonment of the board. Given that the board is not optional — the legislation enacted originally in 2004 and amended in 2007 obligated the president to stand up the board and nominate a chairperson and four members — Congress has to ask itself how the board’s disappearance can be justified.

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The Privacy Board operated from 2006 through 2008 under then-President George W. Bush. The 2007 amendments to the board, which were intended to strengthen it and its pro-privacy mission, turned out to be highly counterproductive. The “reforms” resulted in a complete lapse in the board’s membership, staff, office and operations at the end of January 2008, when the new law terminated the existing appointments. This was a classic case of the — ostensibly — perfect being the enemy of the good.

Unfortunately, President Obama has not re-established the Privacy Board. This failure to execute Congress’s expectations is no trifling matter. The 2007 law passed by a new Democratic Congress expressly called on “the President and the Senate [to] take such actions as necessary ... to appoint members to the Privacy and Civil Liberties Oversight Board ... in a timely manner to provide for the continuing operation of the Board.” President Bush did so. He nominated a new chairman and sufficient members to constitute a quorum. The Senate, however, held no hearings and did not confirm those nominees. Obama then waited nearly two years into his tenure to nominate just two board members, not including a chairman, and has not allocated office space for the board or appointed any staff.

The rationale for Congress’s establishment of a Privacy and Civil Liberties Oversight Board was provided by the 9/11 Commission, which recognized that the government’s new powers to combat terrorists should be balanced with additional advice and oversight. Accordingly, the legislation establishing the board obligates it to review proposals and implementation of “legislation, regulations, and policies related to efforts to protect the Nation from terrorism” and advise and oversee the president and department heads “to ensure that privacy and civil liberties are appropriately considered, [and] ... that the need for the power is balanced with the need to protect privacy and civil liberties, ... that there is adequate supervision of the use by the executive branch of the power to ensure protection of privacy and civil liberties; and ... that there are adequate guidelines and oversight to properly confine its use.”

The 2007 law specifically empowered the board to coordinate the privacy and civil liberties officers in the various agencies, including the Department of Justice, and required agency heads to involve the board in privacy-implicating initiatives including, for example, an express statutory obligation for the secretary of homeland security to consult the board in “establish[ing] a Department of Homeland Security State, Local, and Regional Fusion Center Initiative” to share and obtain intelligence about possible terrorism-related activities around the country.

So, while it is fine and good for Congress to pass new legislation, it would seem at least appropriate for the Hill to insist on compliance with existing privacy law. Shouldn’t some committee take an interest in the fact that the Privacy and Civil Liberties Oversight Board that was mandated by Congress to protect Americans has not been operational for even one day during this administration?

Raul, a lawyer in Washington, D.C., served as vice chairman of the Privacy and Civil Liberties Oversight Board from 2006 to 2008.