The federal agency designed to ensure US spy agencies protect people's privacy and civil liberties has been revived two years after it was effectively killed off by Congress.
On Tuesday, the White House announced two members to the Privacy and Civil Liberties Oversight Board (PCLOB), adding to a nomination for PCLOB chair made back in August.
If all are approved, it would bring the number of PCLOB Board members to four, from the current single member, and so allow the organization to restart its work having spent two years doing nothing but give occasional speeches.
The announcement represents a behind-the-scenes agreement between the Trump Administration and Democrats in Congress. The two new nominees, Edward Felten and Jane Nitze, both worked in the Obama Administration.
That agreement comes as a number of matters that the PCLOB is supposed to oversee have entered the frame, including the shaky Privacy Shield agreement covering data transfers between the US and Europe, and the controversial reauthorization of a spying program built around Section 702 of the Foreign Intelligence Surveillance Act (FISA).
While it is good news that the body is being revived so that privacy concerns have a separate voice within the intelligence community, the unfortunate truth is that the PCLOB is still largely worthless since it has been stripped of almost all of its power and independence. It is a watchdog without any teeth.
Efforts to reintroduce actual oversight powers that the PCLOB is supposed to possess – and which Congress and the intelligence services continued to pretend its does - were shot down during Congressional reauthorization of FISA late last year.
The PCLOB was created in 2004 following a recommendation by the 9/11 Commission that an executive branch board be created to oversee how counterterrorism efforts fitted with privacy and civil liberty laws. Lawmakers were concerned that the intelligence service could run amok without safeguards built into the system.
That board was turned into an independent agency in 2007 with new legislation. But thanks in large part to behind-the-scenes lobbying and maneuvering by the intelligence services, it was never able to get up and running.
In 2011, when Congress undertook a review of the 9/11 Commission's recommendations, lawmakers noticed that the PCLOB had never been started and have in fact been "dormant for more than three years."
So Congress pushed and approved four part-time members, finally approving a chair - David Medine - in May 2013. The PCLOB finally started doing its work.
And then, literally one month later, Edward Snowden went public with details of a host of secret mass surveillance operations carried out by the US intelligence services. Suddenly it became clear why there had been so much resistance to allowing the PCLOB to do its work.
It some respects it was perfect timing. Doing its job, the PCLOB weighed in on the mass surveillance programs. In a number of official reports starting in 2014, it tore the programs apart, calling them unconstitutional and leading directly to several of them subsequently being shut down.
Revenge was swift. The intelligence services immediately starting undermining the PCLOB and in 2016, Congress passed new legislation that severely limited its independence. No longer would the PCLOB be allowed to review covert activity, and no longer could it control its own budget. It also lost independent publication rights – it had to report directly to Congress.
In response, almost all the PCLOB's staff and board resigned. Between January and March 2016, three board members quit and a fourth's term was not renewed, leaving a single person – Elisebeth Collins – on the Board. With just one person, the agency did not have a legal quorum and so was unable to carry out any official work.
And that's how things have been since March 2016, when Medine quit as chair and noted in his resignation statement the "daunting challenge of starting a new federal agency at the same time as we were being called upon to address how this country can simultaneously protect its cherished values while ensuring national security."
As to the members of the new PCLOB: all are highly regarded lawyers who have served in previous administrations and have clerked for Supreme Court judges. However, in Adam Klein, the PCLOB has an NSA-friendly chair.
Despite glowing reviews from his peers, Klein was only offered the job after he publicly defended the controversial Section 702 spying program where the US intelligence services are known to have built a vast database on US citizens - despite the law explicitly rejecting that approach – by applying a series of highly dubious legal interpretations.
One month before he got the post, Klein wrote a piece for The Wall Street Journal that defended that program and went against calls by many lawmakers that law enforcement get a warrant before searching the database for information on US citizens.
Instead he parroted the NSA and FBI's argument that "keeping officials from searching this data would make it more difficult to prevent homegrown terrorist attacks."
Democrats in Congress have held up Klein's nomination in response. But that impasse appears to be over with the nomination of two more members of the PCLOB. Klein is likely to gain formal approval very soon, even though his written responses to questions from the Senate Judiciary Committee make it plain he will not act on privacy concerns.
Nope and nope
For example, on the touchstone issue of the storage of information on US citizens under Section 702, Klein has repeatedly given purposefully vague responses.
To the consternation of lawmakers, the intelligence services spent over a year giving excuses for why they couldn't even tell Congress how many US citizens were included in the database before finally saying they just weren't going to tell them.
"If confirmed, would you direct the Board to help determine the total number of US persons’ information collected under 702?" asked [PDF] the highest ranking Democrat, Senator Dianne Feinstein (several others also asked the same question.)
Klein's lengthy response was a study in obfuscation: "In the past, I have written that public discussion about Section 702 would 'be better informed if Congress and the public had some idea of how much US-person data is collected.' Encouraging responsible statistical transparency about the effects of programs within the Board’s jurisdiction…. important element of the Board's work... Given this issue’s importance… this would be an appropriate and important subject for continued Board oversight… I would also welcome the opportunity to provide advice on this issue in my individual official capacity."
In other words, I will ask for the data as soon as the intelligence services tell me they are willing to provide it.
Faced with the fact that the PCLOB will almost certainly serve as little more than a fig-leaf of accountability, it's fair to ask why the two new nominees, Edward Felten and Jane Nitze, agreed to have their names put forward. We have asked them both but have yet to receive a response.
Our speculation: since the PCLOB has effectively been prevented from taking on any controversial topics, there is little downside and lots of upside to serving on the PCLOB. For one, Board members will have access to high ranking members of both Congress and the intelligence services: a very valuable asset for future Washington DC careers.
They will also have access to top secret information and be in a position to see and understand the hidden inner workings of the more secret parts of government. And in response, all they have to do is produce semi-annual reports given the intelligence service a clean bill of health.
Moral and ethical dilemmas are likely to be limited since the PCLOB is not allowed to review covert activity, and reports have to be fed through Congressional committees first, providing a buffer between the PCLOB and the public. It's a choice job for someone who wants a career boost without accompanying public scrutiny.
Edward Felten is currently director of the Center for Information Technology Policy and a Professor of Computer Science and Public Affairs at Princeton University. He was a former chief technologist of the FTC and was deputy CTO at the White House under President Obama.
Jane Nitze worked for the Department of Justice under the Obama Administration and currently works at Harvard University. She is often highlighted as possessing bipartisan credentials having clerked for both Judge Neil Gorsuch – who is now a Supreme Court justice – and Justice Sonia Sotomayor on the Supreme Court.
She was briefly put in the spotlight when she featured in a video supporting the nomination of Gorsuch for the Supreme Court at a time when Democrats were considering whether to strongly oppose his nomination.
In short, the PCLOB is back and filled with highly qualified lawyers. But if anyone expects it to keep the US establishment's feet to the fire when it comes to privacy and civil liberties, they are going to be sorely disappointed. ®