The U.S. Government’s Privacy Watchdog Is Basically Dead, Emails Reveal

The privacy watchdog can't issue recommendations, produce its semi-annual reports to Congress, declassify information, or hold public meetings.

Photo Illustration: Soohee Cho for The Intercept

There’s a little-known federal agency whose job is to ensure U.S. spy agencies protect privacy and other civil liberties even as they work to defeat terrorists and criminals, and to blow the whistle when that doesn’t happen. But the agency, known as the Privacy and Civil Liberties Oversight Board, is down to just a single voting member — which means it has been stripped of nearly all its powers, according to emails obtained by The Intercept.

The board was created by Congress in 2004, at the recommendation of the 9/11 Commission, to help the executive branch balance national security priorities with individual rights. After Bush administration officials heavily edited PCLOB’s first report, one member resigned, and Congress in 2007 turned it into an independent agency and expanded its writ to include oversight of congressional action. Still, the board remained obscure; some members of Congress seemed unaware of its existence even as documents from NSA whistleblower Edward Snowden produced more privacy scandals.

PCLOB is supposed to have five members, no more than three of whom come from the same political party; to employ a full-time chairperson; to have regular access to the 17 intelligence agencies; and to publish unclassified versions of its evaluations of U.S. espionage powers.

But with just one part-time board member left, after another member’s term ended last week, the agency has very few formal powers to police the so-called “deep state” until President Trump nominates a new board, the emails reveal. Without the statutory quorum of three members, PCLOB “may not initiate new advice or oversight projects” or offer advice to the intelligence community, according to a list drawn up by Jen Burita, PCLOB’s public affairs and legislative officer, and shared by email with several congressional staffers who had raised questions about the impact of the attrition among board members.

In addition, the agency cannot submit to Congress either its semi-annual reports, which detail the conclusions of its investigations, or its plans for declassifying information it has uncovered. The board can’t hold public meetings, which have offered the chance for public input in the past, or give formal recommendations to the intelligence community.

The board can proceed with ongoing investigations, and individual members — or member, as the case may be — may make public appearances, issue statements, testify before Congress and give advice to intelligence agencies without purporting to speak for PCLOB as an agency or board.

Nominations to bring PCLOB to quorum seem unlikely to happen any time soon, if they happen at all. One hurdle is that Trump has to work with Democrats to name at least two of the board’s members, and lack of bipartisan cooperation stymied PCLOB appointments under Presidents Bush and Obama. The bigger issue is that Trump may not be interested in naming any members at all. On Fox News on Tuesday, the president claimed he hasn’t filled upwards of 600 administration slots because “they’re unnecessary to have.”

The board’s eight or so staff workers are ready for a doomsday situation.

“The board has anticipated a sub quorum scenario and has been preparing for that already,” Burita wrote in an email to a staff member of the House intelligence committee in early December. (The email and other documents cited in this story were obtained by The Intercept through a Freedom of Information Act request.)

One key item on PCLOB’s agenda for the near future was helping ensure that privacy rights were protected in the course of implementing a pact called Privacy Shield, which would allow corporate information transfers to the U.S. from within the European Union. The U.S. government reassured Europeans, fearful of American surveillance programs, that PCLOB would be involved in overseeing such transfers. But with only one member, that’s unlikely, says Jake Laperruque, senior counsel at the legal think tank The Constitution Project. “PCLOB falling away may be another nail in the coffin for the US-EU Privacy Shield unless Congress gets serious” about reforming other areas of surveillance policy, he wrote in an email to The Intercept.

One congressional staffer asked Burita in an email if there was “any word from Trump-elect team on names for consideration.” There was no response indicating that was the case.

But this didn’t start with Trump. The board’s been withering away for almost a year.

Its former chair, David Medine, resigned last March to work on global poverty issues and was never replaced. James Dempsey, the executive director of the Berkeley Center for Law & Technology, left when his term ended on January 29. Judge Patricia Wald, a former chief judge on the U.S. Court of Appeals for the District of Columbia, quietly retired on January 7 — requesting no statement be made publicly, according to the emails. And as of February 21, Rachel Brand, who served in the Bush administration Department of Justice, is gone too, after her term ended.

The board’s one remaining board member, Elisabeth Collins, worked in the Justice Department under George W. Bush and, according to the Associated Press, “drafted revised guidelines in 2008 that … gave FBI agents involved in national security probes new authority to conduct physical surveillance without a court order.” Collins also dissented from a 2014 PCLOB finding that the NSA’s bulk phone-record collection program was illegal and should be shut down.

The board served a vital oversight role in recent years. After examining how the NSA was vacuuming up massive amounts of information about Americans’ phone calls in 2014, it eviscerated the program in an extensive public report. That input helped Congress decide to nix the program and replace it with one where companies held onto the data instead of the government in 2015.

The panel’s nearly 200-page 2014 study on Section 702 of the Foreign Intelligence Surveillance Act will undoubtedly play a role in lawmakers’ decisions about how to reform foreign surveillance programs this year. The board had also intended to publish a report by the end of 2016 on its investigation into Executive Order 12333, a major expansion of the intelligence community’s surveillance powers by President Ronald Reagan, but that never happened.

Medine, in an email to the The Intercept, called on Trump to take action. “With only one member remaining, the board can no longer conduct business until new appointments are made by the president and confirmed by the Senate,” he wrote.

While PCLOB might be hobbled for the time being, it appears the board members did scramble to complete several classified reports before losing quorum.

According to the emails obtained by The Intercept, PCLOB managed to complete and submit a “deep dive” report on the CIA as well as an assessment of an Obama presidential policy directive on privacy prior to Dempsey and Wald’s departure.

The emails don’t describe the CIA report in detail, but do give a general sense of the directive behind the investigation into the presidential policy directive, known as PPD-28, which required intelligence agencies to draw up plans to protect personal information collected in the course of their work. Burita wrote that Obama “encouraged the Privacy and Civil Liberties Oversight Board to prepare a report that assesses the implementation of any matters contained within this directive that fall under the agency’s mandate … as it relates to counterterrorism efforts and the protection of privacy and civil liberties.”

Top image: An email obtained through Freedom of Information Act by The Intercept sent by PCLOB public affairs and legislative officer Jen Burita.

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