Time for the Privacy and Civil Liberties Oversight Board to Get Cracking

The recent disclosure of NSA's telephone and internet data mining has ignited a firestorm of controversy, pitting advocates of national security and privacy against each other. Back in 2004 in its final report, the 9/11 Commission recognized a strong need for a board to oversee the protection of civil liberties at a time when the threat of terror attacks resulted in expanded government authority to gather information. The subsequent history of the creation of the Privacy and Civil Liberties Oversight Board has been one of fits and starts. President Bush named a board in 2006, giving lip service to the commission's recommendation but failing to provide it with adequate investigative powers or funding. Unsurprisingly, this toothless board added nothing of value to either curtailing the widespread abuses then rampant or informing the public. In 2007, Congress sought to remedy the situation by passing the Implementing Recommendations of the 9/11 Commission Act, which included a provision authorizing an enhanced board with subpoena power and reporting requirements to both Congress and the public. Even with the change in administrations, the full five member board did not become operational until its chairman, David Medine was confirmed by the Senate on May 7 of this year - a far slower process than many had hoped.

It is now apparent that a national debate focused on an exposition of accurate facts concerning the scope of data vacuumed up by NSA and the checks and oversight - both internally within the executive branch as well as by Congress and the judiciary - is warranted. There is an important role to be played in this discussion by the Privacy Board.

On the basis of the information revealed thus far, it would appear that the data collected by NSA was lawfully obtained under authorities provided by Congress and vetted by the Department of Justice and the special FISA court, and subject to appropriate Congressional oversight. Much, but not all, of the outcry is the result of not paying attention to the enhanced authorizations passed by Congress and their logical consequence. The highly respected NSA Director, Gen. Keith Alexander, has begun to discuss more widely how such data was utilized in connection with successful national security investigations. The Privacy Board should independently review the scope of the data collected against the authority provided NSA and authorized by the FISA Court. But the Board's contribution to the national dialogue should go further - to determine whether the extent of intrusion into information otherwise deemed private was appropriate and proportionate to the use for which it was collected, stored and, to some extent, used. As a policy matter, it will be useful to consider how much of NSA's actions are the result of technological innovations and capability and how much is driven by justifiable need. In short, even given the reported successes, was PRISM and other programs as yet unrevealed more intrusive or less constrained than necessary.

President Obama, Gen. Alexander and Director of National Intelligence Gen. James Clapper, as well as Congressional leaders, have all called for greater transparency - a call echoed by the critics of the programs in and out of government. This highlights the need for the Board to ensure that sufficient facts are made known publicly to allow for a reasoned and informed discussion. Accomplishing this goal while at the same time protecting essential secrets will be no easy task. This is why Congress, echoing the 9/11 Commission's words in enacting the law creating the Privacy Board, noted that the expanded authority given to the government in combating terrorism requires "an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life and to ensure that the government uses its powers for the purpose for which the powers were given."

Finally, the Privacy Board should play another important role beyond mediating between security and privacy - that of educating the public about the potential for misuse of sweeping authority to collect information surreptitiously. We are not writing on a clean slate here. Past abuses must be recalled, particularly for citizens too young to remember the consequences of unrestrained government actions used to curtail and punish dissent. There is a natural tendency by law enforcement agencies to expand techniques authorized for limited purposes for investigation and prosecution of drug smuggling, child pornography, and various other criminal endeavors. Allowing "mission creep" or collateral use of such massive data collection would put us on the slippery slope to a police state. In an age when many of our citizens casually reveal information about themselves in social media wildly beyond anything imaginable only a decade ago, it would seem to be a useful exercise in civics to re-educate the public about the value and purpose of protecting against unwarranted government intrusion.

It is regrettable that inaction by two administrations has deprived us until now of the services of a robust and legitimate Privacy Board. We can be encouraged by recent reports indicating that Privacy Board Chairman Medine is moving to obtain information from NSA and the Director of National Intelligence. It will be a great benefit to the nation if the Board gets cracking and performs the difficult task for which it was intended.

Richard Ben-Veniste, a partner at Mayer Brown LLP, was a member of the 9/11 Commission