At a hearing of the Senate Committee on the Judiciary Wednesday, lawmakers questioned U.S. President Donald Trump's nominee to chair the long-dormant Privacy and Civil Liberties Oversight Board, Adam Klein. At the short hearing, Klein emphasized his dedication to ensuring the government isn't letting Americans' constitutional rights slip in the name of keeping the nation's borders safe.
As The Privacy Advisor reported in an earlier story on Klein's nomination, the PCLOB was established by President George W. Bush after the terrorist attacks of September 11, 2001, as part of the 9/11 Commissions Act. It's a bipartisan, independent agency with two essential functions: to make sure executive branch counterterrorism actions are balanced with privacy and civil liberties concerns and to ensure "liberty concerns" are appropriately considered in the development of counterterrorism laws and regulations. But it also serves largely as an advisory board and enjoys a surprisingly collegiate relationship with the intelligence community. PCLOB has access to "records, reports, audits, reviews, documents, papers, recommendations, and any other relevant materials, including classified information."
When the board is fully staffed, there are five members serving six-year, overlapping terms, and only the chairman, Klein if confirmed, is full-time.
The only existing member at this time is Elisebeth Collins, who's served on the board since 2012. The hiring of a chairman means, by statute, support staff may be hired. Collins has only been allowed to continue on projects that were initiated back when the board had a quorum. She's not allowed to start new projects, offer advice on behalf of the board or issue reports.
PCLOB has gone through three incarnations. It's been kind of a rough ride, and its history is a bit convoluted. But what's important to know is, after the board was established by Bush in 2004, it was abolished for concerns about its true independence. In 2007, Congress approved a new, fully independent board, but it wasn't until 2012, under President Barack Obama's administration, that the board became staffed and therefore fully operational.
Senators at Klein's hearing wanted to know how Klein planned to maintain the delicate balance of protecting citizens privacy but also the nation's security. It's a debate that Congress has been having continuously during the recent reauthorization of Section 702 of the Foreign Intelligence Surveillance Act.
"I think to some extent that view is baked into our Constitution," said Klein. "The federal government has the powers that it does to advance the general welfare and provide for the common defense, but also to secure our liberties. ... It's also baked into the board's statute, which recognizes of course that, in the wake of the 9/11 attacks, the government needed enhanced powers to carry out its counterterrorism mission, but at the same time, in doing so, we can't forget the things that make us American, our civil liberties, our privacy, our constitutional values and our rule of law."
Unsurprisingly, some of the senators' questions Wednesday centered around Section 702. As an independent oversight board, PCLOB is seen as an essential voice in advising the intelligence community on the counterterrorism measure.
Sen. Dianne Feinstein, D-Calif., citing the government's recent failure to revise Section 702's privacy provisions in any meaningful way, said part of the problem is getting the public to understand 702 itself and its potential misuses. She asked Klein to identify what PCLOB has done to "enhance the public's understanding of 702, its value," and any cautionary tales. Klein pointed to PCLOB's 2014 report on 702, which made more than a dozen recommendations for improvements.
"In my opinion, PCLOB has made perhaps the single biggest contribution to public understanding of Section 702, both its value for counterterrorism and the authentic privacy concerns it raises," Klein said, adding the board made several recommendations for 702 improvements, and all were implemented. "And so hopefully that's the type of work that the board would continue doing in the future."
In fact, a follow-up report by PCLOB in 2016 later found that all of its recommendations had been implemented.
The significance of a full-working PCLOB is important not only to U.S. citizens' civil liberties, but to the relationship the U.S. enjoys with its European counterparts. The European Commission has made it very clear in recent years, particularly in its negotiations for the Privacy Shield agreement, that government access to citizens' data is a significant concern. The Commission has closely watched the reauthorization of Section 702 as well as the status of PCLOB as a functioning oversight board.
At the Computers, Privacy and Data Protection event in Brussels this week, Justice Commissioner Vera Jourova's head of cabinet, Renate Nikolay, said she was hoping for increased privacy provisions in Section 702's reauthorization and that the commission is "not totally happy with what we have seen" and that talks it had with the Trump administration and Congresspeople didn't seem to impact how the government voted in the end.
In addition, she said, "On PCLOB, I think it's very unfortunate some of these nominations are still not done. We have written letters and made it clear in our annual review ... we expect this U.S. administration that has been in power now for over a year to fill these important positions because they are one of the one of the key important novelties of this regime of the Privacy Shield." She noted that in the Privacy Shield agreement, there are provisions allowing the EC to back out of the agreement if certain conditions aren't met.
Also at CPDP, Max Schrems, the man responsible for taking down the Privacy Shield's now-defunct predecessor, Safe Harbor, spoke of Section 702's reauthorization and PCLOB without enthusiasm. He said, "The fundamental problem is we have 702 that simply allows massive surveillance of foreigners, period, with no overview in any kind of material way as we usually have in the fundamental rights setting." He said attempted fixes to some of the EU's concerns about government access to data just fall short. "All the other details are nice, nice to have, political achievements that are nice to have, but the fundamental problem is we do have this mass [data] processing situation. ... If there's a PCLOB or isn't there, it doesn't really change the fundamental problem."
Back at the hearing, in somewhat of a curveball question, Sen. Mazie Hirono, D-Hawaii came out with: "Since you became a legal adult have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a physical nature?" To which Klein quickly responded, "no." It's unlikely that kind of questioning has come in a confirmation hearing before, but it's perhaps a sign of the times.
According to those familiar with such proceedings, Klein will next face senators' written "questions for the record," and once they're submitted, a vote by first the Senate Judiciary Committee and then the full Senate. It's not yet known what that timetable looks like.