Senate Judiciary Committee Holds Hearing on PCLOB Nominees

April 18, 2012. The Senate Judiciary Committee (SJC) held a hearing on the five nominees to the Privacy and Civil Liberties Oversight Board (PCLOB).

The five nominees -- James Dempsey, David Medine, Patricia Wald, Elisebeth Cook, Rachel Brand -- appeared as witnesses. They submitted no written statements, and made no opening statements.

Three of the nominees are notable for their lack of experience with information or communications technologies, or in legal fields involving privacy or surveillance. Two of the nominees would bring significant expertise and experience to the PCLOB. Dempsey has vast experience, particularly with respect to electronic surveillance issues. Medine also has much experience in privacy related matters. Although, his experience relates to the impact of business practices on consumers' privacy, and particularly financial privacy, rather that the impact of government surveillance and data collection on citizens' privacy, which is the work of the PCLOB.

The two Republican nominees, Cook and Brand, are youthful attorneys whose brief careers have included a series of political and partisan positions, but little that relates to the work of the PCLOB.

The Democratic nominees are Dempsey, Medine and Wald. Wald has little background that relates to the work of the PCLOB. Moreover, Wald retired from the federal bench in 1999, and is now 83.

Three of the nominees are current or recent attorneys at the law firm of Wilmer Hale -- Medine, Cook and Brand.

James Dempsey is a VP at the Center for Democracy and Technology (CDT), where he has worked for nearly two decades. He is a leading authority on the Electronic Communications Privacy Act (ECPA) and Foreign Intelligence Surveillance Act (FISA), and the many surveillance and data collection activities of government agencies.

He has been one of the leading organizers of the Digital Due Process coalition that advocates for reform of the ECPA. The DDP argues that "The government should obtain a search warrant based on probable cause before it can compel a service provider to disclose a user's private communications or documents stored online." It also argues that "The government should obtain a search warrant based on probable cause before it can track, prospectively or retrospectively, the location of a cell phone or other mobile communications device." See, story titled "Digital Due Process Coalition Proposes Changes to Federal Surveillance Law" in TLJ Daily E-Mail Alert No. 2,068, March 31, 2010.

At the hearing, Dempsey offered this understanding of how the PCLOB should approach its office. He said that "this technology that has become so woven into our lives, both personally and professionally, is very powerful. And, it provides businesses with a tool, and it provides the government with tools, and the government should certainly take advantage of those tools. But, as we also known, the technology also has it downsides, which in various ways policies makers, including this Committee, have been dealing with now since the dawn of the digital age. So, I think that if confirmed, and if the Board comes into existence, I think our challenge is to, as I said before, understand the needs of the agencies that are using these technology tools, and to look at the whole question of effectiveness, and how the information is being used, what outcomes it is yielding, and with that foundation, the foundation of the need and the utility, then looking at what are the adverse consequences, what are the unintended consequences, and how can you develop a set of checks and balances, a set of rules, guidelines, due process protections, whatever, that would give us the benefit of the technology, while mitigating or limiting the downsides of it."

He also said that he would work with the board to establish a sense of priorities, and information sharing would be a critical issue. He said that information sharing poses challenges, both on the security side, as the WikiLeaks case demonstrated, and on the privacy side.

He said that the cyber security threat "is a very critical threat, and one that could have very broad implications for our economy as well as our security." He added further action by the Congress is necessary.

He said with respect to legislation regarding sharing of cyber security information, "My personal view is that some changes to the privacy laws are necessary to promote more information sharing."

David Medine just this month went to work at the Securities and Exchange Commission (SEC) as an Attorney Fellow. He will work on financial privacy issues in the SEC's Division of Corporate Finance.

Before that he worked for a decade at the law firm of Wilmer Hale. Before that he worked in the Executive Office of the President at the end of the Clinton administration. Before that he worked for over a decade at the Federal Trade Commission (FTC) in its Financial Practices Division, where he worked on privacy issues.

Elisebeth Cook works in the Washington DC office of the law firm of Wilmer Hale. She is a former SJC staff member; she was Republican Chief Counsel, Supreme Court Nominations. She was also briefly the Assistant Attorney General (AAG) in charge of the Department of Justice's (DOJ) Office of Legal Policy (OLP) at the end of the Bush administration.

Cook said that "for a government to be effective it needs the trust and credibility of its citizenry, and if there is even a perception that the government is misusing or abusing data to which it has access, that creates both a privacy problem and a security problem .. and that is a starting point for this Board if we are confirmed".

Rachel Brand is a U.S. Chamber of Commerce attorney. She is Chief Counsel for Regulatory Litigation at the Chamber's National Chamber Litigation Center. She was AAG for the DOJ's OLP before Cook. She also worked at Wilmer Hale. She was also Associate Counsel to the President earlier in the Bush administration. She was also General Counsel to former Sen. Elizabeth Dole's 2000 Presidential Election exploratory committee.

Brant said the biggest challenge that people are facing is that so much more information is available. However, she added that the biggest challenges are in the consumer privacy area, which is outside of the Board's jurisdiction

Patricia Wald is a former Judge of the U.S. Court of Appeals for the District of Columbia.

She said that the "aggregation of vast amounts of data", and related issues, including data retention, "is the biggest civil liberties problem" that the Board will face.

Sen. Charles Grassley (R-IA) read a prepared statement at the outset. He questioned whether the PCLOB would interfere with ongoing intelligence activities, or the operations of agency privacy officers.

Grassley noted that some pending cyber security bills contain information sharing provisions. He also praised the post September 11, 2001, legislative changes that took down the wall on information sharing. He then asked, "do you support recreating the wall as part of cyber security legislation"? He received no responsive answers.

Grassley asked questions about the targeting of US citizens abroad. None of the nominees had an opinion or conclusion. Indeed, witnesses evaded expressing opinions on issues that might be reviewed by the PCLOB.

Sen. Sheldon Whitehouse (D-RI) referenced Chinese companies hacking into the computers of US companies and stealing and using their proprietary research and development.

Sen. Patrick Leahy (D-VT) stated that "It is important that we have a fully functioning board", and "we need to have meaningful checks and balances".

He also said that "location tracking conducted by local police" is "a little bit too close to big brother to me". Sen. Al Franken (D-MN) also raised the issue of law enforcement tracking of citizens via their cell phones without a warrant.

History of the PCLOB. The original PCLOB was created by Section 1061(b) of the Intelligence Reform and Terrorism Prevention Act of 2004. That statute made the PCLOB a part of the Executive Office of the President (EOP).

The members of the original PCLOB were Carol Dinkins (Vinson & Elkins), Alan Charles Raul (Sidley Austin), Ted Olson (Gibson Dunn & Crutcher), Francis Taylor and Lanny Davis. That body hired staff, conducted investigations, and wrote a report. See, story titled "President's Civil Liberties Oversight Board Releases Annual Report" in TLJ Daily E-Mail Alert No. 1,572, May 1, 2007.

However, for the last five years, the PCLOB has existed by statute, but has had no appointees to conduct its statutory duties.

The 110th Congress reconstituted the PCLOB in Section 801 of HR 1 [LOC | WW], the "Implementing Recommendations of the 9/11 Commission Act of 2007". President Bush signed that bill into law on August 3, 2007. It is now Public Law No. 110-53. HR 1 makes the PCLOB "an agency" within the meaning of 5 U.S.C. 551. HR 1 also provides that the PCLOB "shall be composed of a full-time chairman and 4 additional members, who shall be appointed by the President, by and with the advice and consent of the Senate."

President Bush nominated persons, but the Senate did not act on those nominations. See, stories titled "Bush Nominates Members of New Privacy and Civil Liberties Oversight Board" in TLJ Daily E-Mail Alert No. 1,724, February 27, 2008, and "Bush to Nominate Dempsey for Privacy and Civil Liberties Oversight Board" in TLJ Daily E-Mail Alert No. 1,815, August 19, 2008.

President Obama has delayed the operation of the PCLOB by not completing his nomination of five members until nearly three years after taking office. He announced his intent to nominate Dempsey and Cook in 2010. See, story titled "Obama to Nominate Dempsey and Cook to Privacy and Civil Liberties Oversight Board" in TLJ Daily E-Mail Alert No. 2,181, December 17, 2010. However, he did not complete his slate of nominees until December of 2011.

However, there are both Democrats and Republicans who have little interest in an effective and operational PCLOB.

PCLOB Statute. The statute provides that the PCLOB "shall be composed of a full-time chairman and 4 additional members, who shall be appointed by the President, by and with the advice and consent of the Senate."

It further provides that the purposes of the PCLOB are to "analyze and review 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 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 against terrorism".

It provides that the board shall "have access from any department, agency, or element of the executive branch, or any Federal officer or employee of any such department, agency, or element, to all relevant records, reports, audits, reviews, documents, papers, recommendations, or other relevant material, including classified information consistent with applicable law".

The statute does not give the board subpoena power. However, it authorizes the board to request the Attorney General to issue subpoenas.