What is the Privacy and Civil Liberties Oversight Board?
The PCLOB is an independent agency within the executive branch established by the Implementing Recommendations of the 9/11 Commission Act of 2007. The bipartisan, five-member Board is appointed by the President and confirmed by the Senate. The Chairman serves full time, but the four other Board members serve in their positions part-time. The PCLOB’s mission is to ensure that the federal government’s efforts to prevent terrorism are balanced with the need to protect privacy and civil liberties.
What are the Board's Authorities?
The Board’s enabling statute, codified at 42 U.S.C. § 2000ee, vests it with two fundamental authorities: (1) to review and analyze actions the executive branch takes to protect the nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties, and (2) to ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the nation from terrorism.
In addition to its primary mandate, the Board also has designated roles under the following legal authorities
Executive Order 13636 on Improving Critical Infrastructure Cybersecurity, issued in February 2013, calls upon multiple agencies to research and create a Cybersecurity Framework to minimize the risk of a cyber attack on critical infrastructure. Section 5 of the executive order requires the Department of Homeland Security to prepare a report, in consultation with the PCLOB, recommending ways to mitigate the privacy and civil liberties risks created by cybersecurity measures adopted under the order. The report must be reviewed on an annual basis and revised as necessary.
Presidential Policy Directive 28 (PPD-28) articulates "principles to guide why, whether, when, and how the United States conducts signals intelligence activities for authorized foreign intelligence and counterintelligence purposes." In the directive, the President encourages the Board to provide him with an assessment of the implementation of any matters contained in the directive that fall within the Board’s mandate.
Section 803 of the Implementing Recommendations of the 9/11 Commission Act directs the privacy and civil liberties officers of eight federal agencies – and any additional agency designated by the Board – to submit periodic reports to the PCLOB regarding the reviews they have undertaken during the reporting period, the type of advice provided and the response given to such advice, and the number and nature of the complaints received by the agency for alleged violations, along with a summary of the disposition of such complaints. The PCLOB's enabling statute directs the Board to receive these reports and, when appropriate, make recommendations to the privacy and civil liberties officers regarding their activities.
What is the History of the Board?
In its 2004 report, the National Commission on Terrorist Attacks Upon the United States (known as the 9/11 Commission) recommended the creation of what is now the Privacy and Civil Liberties Oversight Board. The 9/11 Commission recognized concerns about "the shifting balance of power to the government" after the September 11 attacks, but found that "there is no office within the government whose job it is to look across the government at the actions we are taking to protect ourselves to ensure that liberty concerns are appropriately considered." To fill that gap, the Commission recommended establishing a board within the executive branch to oversee the government's adherence to the protection of civil liberties in its efforts to prevent terrorism.
The Board today is in its third iteration. In response to the recommendation of the 9/11 Commission, President George W. Bush created the President's Board on Safeguarding Americans' Civil Liberties in 2004. The President's Board ceased to meet following the enactment later that year of the Intelligence Reform and Terrorism Prevention Act of 2004 ("IRTPA"), which created a Privacy and Civil Liberties Oversight Board within the Executive Office of the President. In 2007, the Implementing Recommendations of the 9/11 Commission Act reconstituted the Board in its current form, as an independent agency within the executive branch. The Board is comprised of four part-time members and a full-time chairman, each of whom is appointed by the President, with the advice and consent of the Senate, for staggered six-year terms.
The 2007 legislation disbanded the Board that had been housed within the Executive Office of the President, and from that time until August 2012, the Privacy and Civil Liberties Oversight Board did not exist. In August 2012, the Senate confirmed the current Board's first four members, providing a quorum to commence operations and to begin standing up as an agency. The Board's chairman was confirmed in May 2013, finally providing the Board with a full complement of five members and allowing it to hire staff and become fully operational as an independent agency within the executive branch.
What are the Board's Responsibilities?
The Board's responsibilities comprise two basic functions: oversight and advice.
In its oversight role, the Board is authorized to continually review the implementation of executive branch policies, procedures, regulations, and information sharing practices relating to efforts to protect the nation from terrorism, in order to ensure that privacy and civil liberties are protected. The Board also is authorized to continually review any other actions of the executive branch relating to efforts to protect the nation from terrorism, in order to determine whether such actions appropriately protect privacy and civil liberties and whether they are consistent with governing laws, regulations, and policies regarding privacy and civil liberties.
In its advice role, the Board is authorized to review proposed legislation, regulations, and policies related to efforts to protect the nation from terrorism (as well as the implementation of new and existing policies and legal authorities), in order to advise the President and executive branch agencies on ensuring that privacy and civil liberties are appropriately considered in their development and implementation.
The Board is also directed by statute to, when appropriate, coordinate the activities of federal agency privacy and civil liberties officers on relevant interagency matters. Twice each year, the Board must report to Congress and the President on its activities, making the reports available to the public to the greatest extent possible.
What Actions Can the Board Take?
In order to carry out its mission of providing oversight and advice, the Board is authorized to access all relevant executive agency records, reports, audits, reviews, documents, papers, recommendations, and any other relevant materials, including classified information. The Board may interview, take statements from, or take public testimony from any executive branch officer or employee. Additionally, the Board may request in writing that the Attorney General subpoena on the Board's behalf parties outside of the executive branch to produce relevant information.