When the U.S. Senate confirmed four of five Privacy and Civil Liberties Oversight Board (PCLOB) nominees in early August, the federal government moved one step closer to enacting a dormant—yet significant—agency.
As the prospect of cybersecurity legislation looms on the horizon, some lawmakers, privacy experts and advocates worry that serious information-sharing mandates will become law before the necessary oversight is in place.
In written testimony to a Senate subcommittee hearing last month, Ohio State University Law Prof. Peter Swire, CIPP/US, said that in addition to ensuring “regular and effective examination of the information-sharing and privacy practices for homeland security and other anti-terrorism activities,” the PCLOB’s implementation “becomes even greater…due to the expanded information-sharing in the proposed cybersecurity legislation.”
Swire, a former Office of Management and Budget chief counselor for privacy under President Bill Clinton, believes the PCLOB is a “key safeguard” for scrutinizing the information-sharing required in fighting cyberattacks.
“In my view,” he wrote, “putting the board in place should be a required component of approving cybersecurity legislation.”
Alan Charles Raul has expressed similar concerns.
A Washington lawyer who previously served as vice chairman of the PCLOB under President George W. Bush, Raul told The Privacy Advisor, “The board’s job remains particularly important today as Congress and the White House consider undertaking new cybersecurity initiatives to combat the serious national security and economic risks the country is facing in cyberspace,” adding, “I believe Congress should expressly expand and enhance the privacy board’s jurisdiction to cover the privacy implications of the government’s cybersecurity actions.”
In a blog post for Concurring Opinions, Swire wrote that the four confirmations are “good news,” but added, “The good news is incomplete.”
Swire has pointed out the statute mandating the PCLOB “allows only the chairman to hire staff,” noting, “Clearly, the board cannot work as the statute intends if there is not chairman in place.”
The lone unconfirmed nominee happens to be the PCLOB’s chairman, David Medine. Swire wrote, “There are no criticisms I have been able to discover of Medine’s qualifications—he was the senior civil servant for years at the FTC on privacy, and he has counseled major global clients at WilmerHale on privacy and security.”
Raul also lauded Medine’s qualifications.
“I strongly encourage the committee to reconsider and act favorably on Mr. Medine’s nominations in the interest of allowing the board to resume its important work of protecting the privacy interests and civil liberties of all Americans,” Raul told The Privacy Advisor.
Additionally, in a letter to Sens. Patrick Leahy (D-VT) and Chuck Grassley (R-IA) dated April 6, Raul wrote “in strong support of the nomination of David Medine to be chairman” of the PCLOB.
Even if a chairman were to be nominated, hiring and getting staff up-to-speed would take time. According to POLITICO, American Civil Liberties Union Legislative Counsel Chris Calabrese said, “It’s hard to see them even being able to provide strong oversight in the next six months to a year,” adding, with a relatively small budget and staff, the PCLOB would have to oversee departments such as the National Security Agency and the Department of Homeland Security—agencies that “are the size of small towns.”
Though the PCLOB was made independent of the executive branch in 2007, Raul believes “the president—any president—should be entitled to appoint someone in his administration to serve as the lead privacy coordinator for the executive branch; perhaps Congress may wish to amend the statute to allow the president to designate the chairman of the privacy board from among any of the Senate-confirmed members of the board.”
Raul likens his proposal to processes found in the Federal Trade Commission and the Securities Exchange Commission. “If the administration should change,” Raul said, “the president could designate a new chairman, while the prior chairman could continue on as a member of the board.”
Sen. Joe Lieberman (I-CT), a sponsor of one of the cybersecurity bills, has said the PCLOB is a “check on greater authorities granted to the government following 9/11, and it will be critical to fair implementation of cybersecurity legislation,” POLITICO reports.
Swire notes, “The debates about cybersecurity legislation show the centrality of information-sharing to how government will respond to cyberattacks. So we should have the institution in place to make sure that the information sharing is done in a lawful and sensible way, to be effective and also to protect privacy and civil liberties.”
The immediate future of the PCLOB or cybersecurity legislation is still quite hazy, especially as the U.S. moves toward a presidential election. Yet, several lawmakers, advocates and experts seem to agree on one thing: The PCLOB needs to function, and it needs to function soon.
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