Groups express concern about Privacy and Civil Liberties Oversight Board

The Privacy and Civil Liberties Oversight Board needs members and should get up and running as soon as possible.

That according to a group of 29 civil liberties and public interest groups, which sent a letter to the White House recently voicing concern about the languishing Board.

Harley Geiger is Staff Counsel for the Center for Democracy and Technology, one of the groups that signed the letter.

He said the Board has been inactive almost since its creation, and it's time for a change.

"[It] is a board that is intended to advise the president and the Executive Branch on civil liberties with respect to national security policies and programs, specifically those that relate to terrorism. So, the Board is supposed to advise the development of policy and review specific programs to ensure that American liberties are being preserved."

The Board was created by law in 2004, but Geiger said there was a lot of talk back then about its lack of independence and effectiveness. So, in 2007, Congress enhanced the powers of the Board, but has lacked members and staff since then.

"Neither the Bush nor the Obama administrations have made it a priority to get the Board up and running. . . . By law, it's supposed to have five members, so there would be one full-time chairman and four part-time members. Then, there's supposed to be no more than three that can be of the same political party. So, presumably, three from the President's party and three from the minority party -- and they serve fixed terms of no more than six years."

Geiger said President Bush nominated four members to the board in 2008, but, since it was an election year, the Senate didn't move to confirm any of them. He added that he doesn't know why the Obama administration has yet to take action.

Earlier this year, the White House conducted a Cyberspace Policy Review, which mentions the Board, and which Geiger said has broad implications.

"It's recommending to the administration that the Privacy and Civil Liberties Oversight Board be staffed and implemented, but it also recommended the authority of the Board extend to cybersecurity. This would require a statutory change, because, currently the Board's mandate is pretty much only related to terrorism. So, to the extent that terrorists make attacks on cybersecurity, the Board already covers that."

CDT is taking a split stance as to whether or not this is a good idea.

"It's going to have it's hands full with terrorism already. If you think of all the things that it should have been working on in the past few years -- from warantless wiretapping and data mining, etcetera. So, while cybersecurity certainly needs to have privacy and civil liberties oversight, the administration really needs to consider whether or not a five-member board will have the capacity to do so."

This, Geiger said, points out the implicit need for the appointing and approving of a cybersecurity coordinator -- something that still hasn't happened yet.

"[This] is another big priority in terms of civil liberties oversight and protecting our data infrastructure. It's something that also needs to be taken up as a priority in addition to the Board. How the two interlock is another matter, as well."

Geiger said, once the Board gets going, there are a number of priorities and topics that it must look at, the most important being the information sharing environment.

"[It] is a program that essentially connects a lot of the existing databases between law enforcement agencies on the state, local and federal level, so that you actually have a situation where local law enforcement agencies can be sharing information with -- for example, the CIA or the FBI and visa versa. This is something that the Board is supposed to look at by statute -- and, in fact, the information sharing environment's own documentation refers to the Board as one of the crucial aspects of its privacy protection; however, the Board is not active, so there is no privacy protection. So that's one of the first things that the Board is going to have to deal with."

CDT's position is that the Board is essential, and Geiger said that, while it is understood that the administration is facing tough challenges right now, the Board needs members and should be active as soon as possible.

"Some of the problems that the Obama administration is facing are definitely pretty dire; however, that does not mean that all of the other priorities just sort of fall by the wayside. I don't think that's what the Obama administration is doing, but this is something that we feel needs to be addressed sooner rather than later because it's going to take time for the Board to get up and running. The Board is the closest thing that the United States has to a federal privacy agency, which many other industrialized nations have. It's one of the only overarching safeguards that we would have to protect our civil liberties in the face of some of the sweeping national security and surveillance programs that were put into place after 9/11."