In an opinion column at the Hill, Alan Charles Raul — who has served as vice chairman of the Privacy and Civil Liberties Oversight Board — discusses the continued delay in filling the oversight board. Here’s some background: A privacy and civil liberties oversight board was recommended by the 9/11 Commission, and the board was created in 2004 and placed within the White House. In 2008, Congress passed and President Bush signed the “Implementing the 9/11 Commission Recommendations Act of 2007,” which took the Privacy and Civil Liberties Oversight Board out of the White House and established it “as an independent agency within the executive branch.”
Terms for the original board expired in January 2008, but President Bush delayed the nomination of new board members for many months; none were confirmed by the Senate. President Obama last year nominated James X. Dempsey, Vice President for Public Policy at the Center for Democracy and Technology, and Elisebeth Collins Cook, who worked in the Justice Department in the Bush administration.
Raul writes in his op-ed:
As the House Commerce and Senate Commerce and Judiciary committees actively consider new privacy, data-breach and cybersecurity legislation, as well as revisions to the long-suffered Electronic Communications Privacy Act, this might also be a good time to take stock of how Congress allowed one of the centerpiece privacy initiatives recommended by the 9/11 Commission to go missing in action.
In 2004, in the Intelligence Reform and Terrorism Prevention Act, Congress established a Privacy and Civil Liberties Oversight Board in the executive office of the president. The concept for the board was to help prevent the rights of Americans from being sacrificed in the name of fighting terrorism. The last several years, however, have witnessed the de facto abandonment of the board. Given that the board is not optional — the legislation enacted originally in 2004 and amended in 2007 obligated the president to stand up the board and nominate a chairperson and four members — Congress has to ask itself how the board’s disappearance can be justified. […]
The rationale for Congress’s establishment of a Privacy and Civil Liberties Oversight Board was provided by the 9/11 Commission, which recognized that the government’s new powers to combat terrorists should be balanced with additional advice and oversight. Accordingly, the legislation establishing the board obligates it to review proposals and implementation of “legislation, regulations, and policies related to efforts to protect the Nation from terrorism” and advise and oversee the president and department heads “to ensure that privacy and civil liberties are appropriately considered, [and] … that the need for the power is balanced with the need to protect privacy and civil liberties, … that there is adequate supervision of the use by the executive branch of the power to ensure protection of privacy and civil liberties; and … that there are adequate guidelines and oversight to properly confine its use.” […]
So, while it is fine and good for Congress to pass new legislation, it would seem at least appropriate for the Hill to insist on compliance with existing privacy law.