Hey, We Finally Have A Privacy And Civil Liberties Oversight Board… After Being Left Dormant For Almost Five Years

from the about-time dept

With all the efforts to pass cybersecurity legislation, along with all the fears of government violating our privacy (4th amendment? Whazzat?), you might think it would be somewhat useful to have an agency in charge of watching the government — one which actually has some real power. Well, it exists. Sort of. In 2006, the Privacy and Civil Liberties Oversight Board (PCLOB) was created, in part as a counterweight to concerns over the Patriot Act. The PCLOB was staffed, but after the White House tried to interfere and stifle some of its work, one member very publicly quit in 2007. Congress responded by actually passing a useful law, which gave the PCLOB more independence and more power (including subpoena power). After it passed, there was a transition period of six months. At the end of that, the existing board (which was a part of the White House) would cease to exist, and a new independent agency was supposed to take its place. Instead, the existing board ceased to exist on January 30, 2008… and that was it. Since then, there has been no board. At times, both President Bush and President Obama have sent some nominations to the Senate, but nothing more had happened. Even back in 2010 people were complaining what a travesty it was that the board remained empty for two years.

Fast forward another two years and change… and the thing still wasn’t staffed. The whole thing was such a joke that in a recent discussion with a Congressional Rep (known for being a supporter of civil liberties), when the PCLOB (and its lack of members) was brought up, the Congressional Rep admitted that he’d never even heard of the thing. For all the urgency that was talked about in passing cybersecurity legislation, everyone just sat around twiddling their thumbs while this independent organization tasked with making sure the government didn’t abuse our civil liberties sat completely empty.

Until now. Yes, we finally have a staffed PCLOB. The Senate has approved all five nominees: David Medine, James Dempsey, Elisebeth Cook, Rachel Brand and Patricia Wald. It’s amazing that it’s taken nearly five years to put this board in place (and that there wasn’t more outrage over its absence). The real question now is how will the PCLOB wield its power. Hopefully it does some good and actually holds the government to account when it violates the civil liberties of the public.

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Comments on “Hey, We Finally Have A Privacy And Civil Liberties Oversight Board… After Being Left Dormant For Almost Five Years”

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ShellMG says:

Who are these people?

David Medine, Chairman (proposed)

“From 1992 to 2000 Medine was the senior civil servant expert on privacy at the Federal Trade Commission, serving as the associate director for financial practices. Shortly after, he became a partner at the leading law firm WilmerHale, where he worked with private-sector clients primarily on privacy and data security. In this position, he counseled clients on how to comply with complex privacy requirements. I believe this real-world compliance experience is highly relevant to realistic privacy protection. Medine has experience both in enforcing to protect privacy and in the burdens that exist when privacy rules are overly strict or badly drafted. This balanced experience makes him an outstanding person to chair the Privacy and Civil Liberties Oversight Board.”

William C. O’Neill

James Dempsey:
(Excerpt) “Vice President for Public Policy, has been with CDT since 1997. From 2003 to 2005, he served as Executive Director; he currently heads CDT West, in San Francisco. At CDT, Mr. Dempsey concentrates on Internet privacy, government surveillance, and national security issues. He coordinates the Digital Due Process coalition, http://www.digitaldueprocess.org, a diverse group of companies, advocacy groups and think tanks working to update the Electronic Communications Privacy Act of 1986.”

He works for CDT, and a large bio can be found here:

Elisebeth Cook

“Elisebeth Collins Cook is a partner with the law firm of Freeborn & Peters LLP, where she focuses on complex civil litigation, Constitutional Rights, and administrative law. In 2008, Ms. Cook was unanimously confirmed by the United States Senate as Assistant Attorney General for Legal Policy at the United States Department of Justice, where her portfolio included national security, civil rights, and regulatory policy. She previously served as Senior Counsel, Counselor to the Assistant Attorney General, and Deputy Assistant Attorney General in the same office. In 2009, Ms. Cook served as Republican Chief Counsel, Supreme Court Nominations for the United States Senate Committee on the Judiciary. Prior to joining the Justice Department, Ms. Cook was a litigation associate with Cooper & Kirk, PLLC. Earlier in her career, she clerked for Judge Lee H. Rosenthal of the U.S. District Court for the Southern District of Texas and for Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia. She received her B.A. with honors from the University of Chicago and her J.D., cum laude, from Harvard Law School.”

Source: http://www.whitehouse.gov/the-press-office/2010/12/16/president-obama-announces-another-key-administration-post-121610

Bio at Wilmerhale:

Rachel Brand:

“Rachel Brand
Rachel Brand practices law at WilmerHale in Washington, D.C.

Prior to joining WilmerHale, Ms. Brand was Assistant Attorney General for Legal Policy at the U.S. Department of Justice. In that position, she managed the Justice Department’s role in the selection and confirmation of federal judges at all levels and was responsible for preparing Chief Justice Roberts and Justice Alito for their confirmation hearings. In addition, from 2001 to 2002, Ms. Brand served as Associate Counsel to the President at the White House, where she counseled White House staff on a wide range of legal and constitutional issues.

Ms. Brand graduated, with High Distinction and Honors, from the University of Minnesota-Morris. She received her law degree, cum laude, from Harvard Law School. She went on to clerk for the Honorable Charles Fried of the Supreme Judicial Court of Massachusetts and Justice Anthony Kennedy of the U.S. Supreme Court.”

Source: http://www.americanprogress.org/events/2010/06/inf/brand_bio.html

Patrica Wald:
Her time on the panel is iffy; she’s 83 years old. Carter appointee, dealt with war crimes in the past. Here’s a decent bio:


Sorry this is quick, dirty and by no means thorough, but I wanted to know what orgs, committees, senators and lobbyists these appointees may have “attachments.” I didn’t want this to go to waste.

ShellMG says:

I should add that I found recommendations for all these panel appointees by both conservative/GOP and liberal/Dem orgs, so there doesn’t appear to be a huge battle ahead. According to the official announcement they will need confirmation by the Senate, confirmed by the Presidential signature, and serve as an “independent” panel under the Executive Branch.

Oh well. At least it’s not under the DoJ.

ShellMG says:


Mr. Dempsey appears to be the only appointee with any experience in technology and/or digital communications. The rest have all served as attorneys either in private civil law practice or within the government as clerks or departmental attorneys. The background in civil service earned by retired judge Wald is very extensive.

I would have preferred someone with more technical expertise to lend Mr. Dempsey a helping hand; this panel is very heavy on the law and policy side, not necessarily implementation and enforcement.

ShellMG says:

It’s odd, but I’ve come up dry on Mr. William O’Neill. There’s this, from the link above:

“I am the C. William O?Neill professor of law at the Moritz College of Law at Ohio State University. In 1999 I was named chief counselor for privacy in the U.S. Office of Management and Budget. In that role, I was the first?and thus far the only?person to have governmentwide responsibility for privacy policy. As chief counselor for privacy, I worked extensively with the Privacy Act of 1974, helped institutionalize the practice of Privacy Impact Assessments for federal systems, and addressed many other privacy and cybersecurity issues affecting federal agencies. Since then I have continued to write and speak extensively on privacy and security issues.”

The bio of William C. O’Neill is not listed as faculty at Moritz and I’m coming up completely dry on Google. There *is* an attorney by the same name, but he deals with insurance law. (??)

Anonymous Coward says:

Mistake number one, having no staff for years

Mistake number two, as far as i know, no public involvement on the screening progress on the staff who’s job is to fight for peoples rights, oh well, lets al just assume, that these guys and gals actually care about civil rights and heaven forbid, have no ulterior motive, or especially heavy pockets

Anonymous Coward says:

I’m sure these appointments have nothingggg to do with the very public backlash/protests against things like SOPA and ACTA and increased attention paid to bills like CISPA or NDAA, or the fact that there just, well, happens to be elections in three months.

I will be the first to be in utter shock and awe (no not really), if after the new year starts, much of the teeth are silently and quickly yanked from the jaws of this board.

wynship (profile) says:

Hold Your Horses...

I beg the author’s pardon, but the article appears to contain an error.

The article referenced mentions that the nominees were approved by the Senate Judiciary Committee. It does not report that they were confirmed by the full Senate.

The Senate Judiciary Committee website, another source, and the New York Times report that NO ACTION has been taken to confirm the nominated Chairman, David Medine. The Chair is directed to hire staff (42 U.S.C. sec. 2000ee(j)(1)).

Lastly, the referenced article mentions that “A budget of one or two million dollars a year is a small price to pay to help protect us from a growing government.” Actually, the budget is ten times that (42 U.S.C. sec. 2000ee(m)(4)).

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