By Jennifer L. Saunders, CIPP
With the 10th anniversary of Sept. 11, 2001, fast approaching, privacy experts have been weighing in on the myriad impacts beyond the immediate tragedies of the events of that day, including the implications of anti-terrorism efforts on privacy rights.
In companion features for The Privacy Advisor, Mathew Schwartz and Peter Swire, CIPP, take a close look at the past 10 years and the evolution of privacy and data protection, and one issue in particular has been making headlines of late with regard to privacy protection and anti-terrorism: the continued dormancy of the Privacy and Civil Liberties Oversight Board.
“There is currently no central review or coordinating body in government to convene the privacy and civil liberties officers in the various relevant departments, and to report to the president and agency heads whether these crucial interests are being adequately and appropriately taken into account,” Alan Charles Raul, who served as the board’s vice-chairman from 2006 to 2008, told the Daily Dashboard. “Congress intended the Privacy Board to serve this critical function and to help the president balance privacy and civil liberties with the dictates of national security.”
A Huffington Post retrospective on the privacy and security aftermath of Sept. 11 points out, “The aftermath of the terror attacks was marked by an extraordinary growth in data gathering and surveillance powers by federal law enforcement and intelligence agencies,” suggesting the Privacy and Civil Liberties Oversight Board has been “ineffectual under both the Bush and Obama administrations, according to 9/11 commissioners.”
The report states that while two members of the five-person board have been nominated by the president and await confirmation by the Senate, the other three posts remain vacant.
Features in the Chicago Sun-Times and The Washington Times published in advance of the Sept. 11 decade anniversary, also describe how the board--which was established by Congress during the Bush Administration to ensure that security efforts did not undermine privacy rights and became an independent agency in 2007 with required Senate confirmation of its members--has remained dormant since early 2008.
In response to recent reports on the disappearance of the board, Raul told the Daily Dashboard, that former President George W. Bush “originally nominated and appointed a full slate of members for the Privacy Board after Congress established the Board in 2004. I served on that board as vice-chairman, along with Chairman Carol Dinkins, Ted Olson, Frank Taylor and Lanny Davis. The board was fully operational and engaged until January 30, 2008.”
It was at that time, he explains, that the “2007 amendments to the Privacy Board’s statutory charter thus terminated the existing work of the board (in 2008) and required the president and Senate to act on new nominees. President Bush proceeded to nominate a new chairman for the Privacy Board and a quorum of members. However, the Senate never confirmed, or even held a hearing, on any of President Bush’s nominees.”
Raul notes that President Barack Obama did not nominate any members to the board until December 2010, and with just two nominees, that has been insufficient to constitute a quorum.
“The Administration has also not taken any action or made any provision for office space, staff or other necessities to get the Privacy Board up and running. Congress has not held any hearings on the Privacy Board, and has not acted on or otherwise considered the nominations of President Obama’s two candidates,” he notes, adding, “Given this lack of commitment to making the Privacy Board operational, despite the legal requirement to do so, Congress should really ask itself how seriously it takes its own privacy mandates.”
Raul has been a consistent voice for the need of the board since it lapsed--and was one of those calling for just such a committee in the months following the Sept. 11 terrorist attacks on the U.S., writing in a December 2001 piece for the Los Angeles Times that, amidst calls for action to protect the nation from terrorism, “the president also could consider establishing a blue-ribbon civil liberties council that would advise him privately on the wisdom and implications of new anti-terror measures. The council could be drawn from current and former attorneys general, White House counsels, Judiciary Committee chairs, judges, law professors and historians. They would help the president answer the hard questions about where the country is better off limiting certain liberties for a time in favor of safeguarding American lives and livelihoods.”
In a 2009 feature for The Washington Post, Raul called the board’s lapse “unacceptable,” noting its “work remains vital regardless of what administration is in power.”
Almost a year ago, he called for the revival of the board in a letter to The New York Times, and looking at the current push for new privacy laws at the congressional level, Raul wrote in a recent op-ed for The Hill that “Congress has to ask itself how the board’s disappearance can be justified.”
Looking to the future, Raul points out, “The Privacy and Civil Liberties Oversight Board could, and should, be playing an important role in overseeing the FBI’s powers under the Patriot Act, the National Security Agency’s electronic surveillance activities, the Department of Homeland Security’s domestic intelligence efforts, the use of EINSTEIN and other cybersecurity measures, interagency data aggregation and data mining, and countless other necessary safeguards that our country must pursue to keep us safe...As we reflect on the tenth anniversary of 9/11, we should all be very grateful that the vigilance of Presidents Bush and Obama, and the country’s military, homeland security and intelligence personnel, have continued to protect our nation against further terrorist attacks. We should continue to be mindful that American interests also embrace respect for the rule of law and protection of our privacy rights and civil liberties. I do not doubt that Congress and President Obama, like his predecessor, are genuinely concerned that these fundamental rights not be sacrificed in the course of protecting us from our enemies. However, the last years’ blatant disregard for the legally mandated Privacy and Civil Liberties Oversight Board runs directly counter to governmental respect for the rule of law. If the Privacy Board is no longer needed or important, then the president should recommend that Congress repeal the legal requirement for the board, and Congress should absolve the president from further concern in this regard. If, as I believe, privacy and civil liberties continue to warrant special attention in the context of counterterrorism and cybersecurity, then Congress and the president should undertake to advance the law’s provisions.”
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