With U.S. President Donald Trump's nomination of Adam Klein to chair the historically dormant Privacy and Civil Liberties Oversight Board, it seems the board is once again inching toward reaching a quorum and becoming operational. Given the number of government agencies that remain unstaffed since the Trump administration took power, it may seem surprising to some that it has chosen to prioritize staffing an independent oversight board, one that's job is often to criticize government programs and operations.
But some say that's a strategic decision, and not necessarily because the administration cares deeply about privacy and data protection: Privacy Shield negotiations are ongoing, Section 702 of the Foreign Intelligence Surveillance Act is up for renewal, and trans-Atlantic data flows are at stake.
PCLOB's troubled past
A bit of context: 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. When the board is fully staffed, there are five members serving six-year, overlapping terms, and only the chairman is full-time.
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.
By statute, without a chairman, the board can't hire support staff. Former Chairman David Medine, who served from 2013 to 2016 before he resigned, remembers very well the dire situation he found the board in when he was finally — after a long consideration period — confirmed by the Senate. At the time, it was August 2012, and four board members had been confirmed. But it took 510 days for Medine to be Senate-approved. Sen. Chuck Grassley, R-Iowa, had concerns about Medine.
"I started work on the board in the first week of June in 2013, and there was not even a board office yet. We worked out of a lunchroom. There was no staff ... no website. No email system. That was on Monday. And on Thursday, the Snowden leaks occurred," Medine recalled.
Today, there are about 17 people on staff. They were hired by Medine before he resigned. That's good news for PCLOB's only current existing member, Elisebeth Collins. The rules allow her, a part-timer, to continue projects initiated when the board had a quorum. She's also allowed to make public appearances, talk to the media, testify before Congress, and give the intelligence community advice — but only on her own behalf. She's not permitted to start new oversight projects, offer advice on behalf of the board nor issue reports.
Klein's nomination a shift in momentum?
Perhaps it's with that in mind that Collins told The Privacy Advisor she welcomes Klein's nomination. She called Klein an "accomplished and well-respected national security and intelligence expert with a deep understanding of issues related to counterterrorism." She added that she knows him to be committed to PCLOB's mission: "to ensure the efforts by the executive branch to protect the nation from terrorism are balanced with the need to protect privacy and civil liberties."
While Collins was willing to throw her support behind Klein, advocates and former PCLOB members alike are being tight-lipped about their opinions on him one way or another. It seems to be a highly political subject.
So who is this Klein, anyway?
He's currently a senior fellow at the Center for a New American Security. He graduated from Columbia Law School and clerked for both Supreme Court Justice Antonin Scalia and U.S. Court of Appeals for the D.C. Circuit Judge Brett Kavanaugh.
And according to the only other person who'd talk to The Privacy Advisor about him (EFF, EPIC, ACLU and CDT all either declined to comment on Klein specifically or did not respond for requests to comment), Benjamin Wittes of the Brookings Institution, he's "a spectacularly talented individual with a very deep interest in the subject matter that the PCLOB works on."
That said, as Wittes disclosed at the outset, he's not unbiased. He's worked with Klein and even co-authored a paper with him in the Harvard National Security Journal years ago. Wittes said in his experience Klein is someone who "behaves in a very ecumenical and nonpolitical fashion, and so he's exactly the sort of person you would want running the PCLOB. The only question in my mind is whether they can staff the rest of it at anything like his level of quality."
Where Klein has faced some controversy in the media lately is for his support of the renewal of Section 702. As The Privacy Advisor reported in March, Klein testified at a House Judiciary hearing in favor of the reauthorization of 702, before it expires at year's end, with very limited tweaks, while many privacy advocates have urged significant reforms. (Here's Klein's full report to Congress on why to reauthorize 702.) That's important to note because PCLOB has focused extensively on 702 in its short history.
In 2014, it reviewed both Section 702 and Section 215 of the Communications Act, and ultimately called for 22 combined recommendations for improvements. In 2016, PCLOB released a report finding all 22 of its recommendations for improvements had in fact been implemented or were in the process of being implemented. With that review and subsequent report, PCLOB was responsible for eliminating the National Security Agency's practice of surveilling bulk call data records under Section 215, citing the program wasn't effective, legally authorized, or constitutional.
In fact, Medine cites that report as one of the board's greatest accomplishments, adding it was a defining moment in the board's credibility. While the White House at the time said Sections 702 and 215 were functioning well and thwarting terrorist plots, "We were an independent agency and able to disagree," he said. But PCLOB wasn't simply "reflexively opposing everything the intelligence community was doing. Where we saw value, and legally authorized effectiveness, we were fully prepared to say that in our report."
PCLOB essential to trans-border relations
A credible PCLOB may be more important now than ever, many agree. With the Privacy Shield's first review underway, a board that keeps the U.S.'s surveillance policies in check may be, at least in part, what the country's European counterparts want to see.
Wittes said Klein's nomination reflects both the U.S. imperative to not only reauthorize 702 but retain the Privacy Shield.
"Europeans care about this a lot," he said of PCLOB's role in Privacy Shield negotiations. "And [the U.S.] wants to get 702 reauthorized, and getting it reauthorized without a functioning PCLOB is going to be harder than getting it reauthorized with a functioning PCLOB." It's for those reasons he sees the Trump administration pushing forward on this ahead of other priorities.
Peter Swire, who served as chief counselor for privacy under President Bill Clinton, agreed.
"The European Union has emphasized the importance of PCLOB for its Privacy Shield review," he said. He added the nomination of a chair is big because it's the most challenging role to fill. "That person has to quit their previous job and accept a relatively modest government salary," he said. "Once the chairman is in place, the board can staff up again and play a more prominent role."
Jim Dempsey, PCLOB board member, from 2012 to 2017 and now a professor at U.C. Berkeley Law, said a functioning PCLOB is important beyond the U.S.'s relationship with the EU, because it's uniquely "both within the executive branch, but at the same time independent, and which has access to information classified at the highest level but is not part of the intelligence community, and which is a collegial body headed by individuals of diverse perspectives and backgrounds."
But when will PCLOB officially have a quorum and be able to effectuate change? Even if Klein's Senate confirmation happens quickly, Section 702 is set to expire December 31 unless reauthorized by Congress, and Privacy Shield negotiations are currently ongoing.
Well, that's anyone's guess. But Wittes, for one, feels good about it.
"I think it's a very encouraging sign," he said. "I haven't spent a lot of time praising the Trump administration for its nominations, but I think this is a good one."
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