2017 Intelligence Bill Would Constrain Privacy Board

The jurisdiction of the Privacy and Civil Liberties Oversight Board (PCLOB) would be restricted for the second year in a row by the Senate Intelligence Committee version of the FY2017 Intelligence Authorization Act (S.3017). Section 603 of the Act would specifically limit the scope of PCLOB’s attention to the privacy and civil liberties “of United States persons.”

Internal disagreements over the move were highlighted in the Committee report published last week to accompany the text of the bill, which was reported out of Committee on June 5.

“While the PCLOB already focuses primarily on U.S. persons, it is not mandated to do so exclusively,” wrote Senators Martin Heinrich and Mazie K. Hirono in dissenting remarks appended to the report. “Limiting the PCLOB’s mandate to only U.S. persons could create ambiguity about the scope of the PCLOB’s mandate, raising questions in particular about how the PCLOB should proceed in the digital domain, where individuals’ U.S. or non-U.S. status is not always apparent. It is conceivable, for example, that under this restriction, the PCLOB could not have reviewed the NSA’s Section 702 surveillance program, which focuses on the communications of foreigners located outside of the United States, but which is also acknowledged to be incidentally collecting Americans’ communications in the process,” they wrote.

“Over the past three years, the Privacy and Civil Liberties Oversight Board has done outstanding and highly professional work,” wrote Sen. Ron Wyden in his own dissent. “It has examined large, complex surveillance programs and evaluated them in detail, and it has produced public reports and recommendations that are quite comprehensive and useful. Indeed, the Board’s reports on major surveillance programs are the most thorough publicly available documents on this topic. My concern is that by acting to restrict the Board’s purview for the second year in a row, and by making unwarranted criticisms of the Board’s staff in this report, the Intelligence Committee is sending the message that the Board should not do its job too well.”

In support of the provision, the report said that “The Committee believes it is important for the Board to consider the privacy and civil liberties of U.S. Persons first and foremost when conducting its analysis and review of United States counterterrorism efforts.”

But the PCLOB already considers U.S. person privacy “first and foremost.” And the language of the Senate bill does not appear to permit even “secondary” consideration of the privacy of non-U.S. persons. Last year, the FY2016 intelligence authorization bill barred access by the Board to information deemed relevant to covert action.

On June 16, Sen. Patrick Leahy paid tribute to retiring PCLOB chair David Medine on the Senate floor. “[PCLOB] reports and Mr. Medine’s related testimony before the Senate Judiciary Committee have been tremendously beneficial to Congress and the American people in examining government surveillance programs,” he said.