This week, Congress finally acted to bring the U.S. Privacy and Civil Liberties Oversight Board (PCLOB) to its full strength and enable it to begin its critical mission. With the confirmation Tuesday of David Medine as chair of the PCLOB, Medine and his distinguished bipartisan group of colleagues will finally be able to begin their work in earnest.
The PCLOB is a vital guardian of Americans’ privacy rights and civil liberties. As an independent voice for privacy and civil liberties, it will oversee executive branch activities with civil liberties implications, including intelligence, counter-terrorism and law enforcement activities. The PCLOB will also offer guidance to the president and federal agencies on ways to ensure that counterterrorism practices respect basic constitutional protections principles.
As government’s ability to collect, analyze and retain data about millions of citizens grows, there are more and more circumstances in which the PCLOB will serve as the ONLY independent oversight body (aside from Congress). Privacy professionals who work primarily in the commercial arena may be inclined to pay scant attention to the PCLOB on the theory that it is only about government surveillance. While this is true, we can expect the PCLOB to be one of the first expert bodies to give careful consideration to a new class of Big Data capabilities that offer the ability to discover sensitive information about individuals.
Consider the new authority given to the National Counterterrorism Center (NCTC) last year by the Attorney General. In the name of helping NCTC track terrorist threats, this intelligence organization will be able to request large volumes of data held by civilian agencies, combine it with other data sets and hold it for up to five years. More significant than the retention period is the fact that NCTC now has unprecedented ability to integrate large amounts of data from multiple sources and analyze it for multiple purposes.
Application of Big Data analytic techniques is, of course, important to discovering unexpected linkages between individuals who may pose a threat to the U.S. If an intelligence agency has reason to suspect an individual, it is valuable to be able to explore data that other agencies have that is linked, even indirectly, to that individual. However, in the past, those queries were generally handled on an individual basis, with agency A asking agency B for information related to a particular person. But with its new authority, NCTC is allowed to collect data in bulk on millions of individuals from multiple agencies, without any individualized suspicion to justify access to those records. NCTC is ultimately obliged to remove any data about U.S. persons that is not identified by NCTC as “terrorism information.”
The Attorney General has instructed NCTC to put in place audit controls to guard against misuse. NCTC’s new authority certainly poses exciting challenges for the privacy professionals responsible for internal compliance, and I have no doubt they will take their jobs seriously. However, when it comes to protection of civil liberties, we have always expected that ultimate oversight and accountability should be handled by the independent judiciary. In the case of new NCTC authorities, it is hard to imagine how a court would ever come to review NCTC privacy practices. Traditionally, courts have oversight over law enforcement civil liberties practices when an individual charged with a crime challenges the evidence used in court. Then, applying the Fourth Amendment and relevant statutes, the court can examine whether the government respected the defendant’s civil liberties. However, data used for counterterrorism investigation may well never be subject to the scrutiny of a court. Our aim with respect to terrorism is as much to detect and deter terror plots, as to bring terrorists to justice in U.S. courts.
Many of the analytic results from the massive NCTC database will never appear before a court, so what will be the source of independent oversight? How will the American people be satisfied that the internal controls put in place are working?
Enter the PCLOB!
The new PCLOB is in a unique position to examine the internal and classified activities of NCTC and other intelligence agencies to make sure that they are complying with relevant rules. And more likely than not, the PCLOB may discover that existing laws are not quite up to the challenge posed by powerful new data analytic tools. All of us who care about civil liberties should certainly be watching carefully. And more broadly, as the PCLOB comes face-to-face with some of the more challenging questions of how to monitor privacy practices in new Big Data environments, the entire privacy community ought to be paying attention.