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    Update: Senate Confirms 4 to Privacy and Civil Liberties Oversight Board, But Chair Still Vacant

    To recap: 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. In 2010, President Obama 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. Privacy Lives joined in the call to nominate and confirm experts to the board. (For more information on the board, here’s a 2008 Congressional Research Service report (pdf) on the board’s history and powers.)

    In December, Obama nominated Rachel L. Brand (Chief Counsel for Regulatory Litigation at the U.S. Chamber of Commerce, National Chamber Litigation Center), Patricia M. Wald (who had served for twenty years on the U.S. Court of Appeals for the District of Columbia), and for the chairmanship, David Medine (a partner at WilmerHale whose practice focuses on data security and privacy).

    A nomination hearing was held in April and the Senate Judiciary Committee sent the five nominees to the full Senate for confirmation in May. On Thursday, the full Senate voted to approve all but Medine. As Ohio State law professor Peter Swire explains in a Concurring Opinions post, the lack of a chair matters because ” the statute allows only the Chairman to hire staff:  ‘The chairman of the Board … shall appoint and fix the compensation of a full-time executive director and such other personnel as may be necessary to enable the Board to carry out its functions.’ Clearly, the Board cannot carry out its work as the statute intends if there is no Chairman in place.”

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