Clipped Wings

Todd Ruger

Corporate Counsel

10-01-2012

After five years in limbo, the Privacy and Civil Liberties Oversight Board finally has a panel to run it. But that may not be enough to bring it back to life.

In August the Senate confirmed the four individuals nominated to sit on its board. But the agency, which is supposed to provide a safeguard against overzealous government intrusions on privacy during the fight against terrorism, still can't hold a meeting because the Senate did not confirm the nominee for chairman.

The chairman is the only member who can hire an executive director and other staff to assist the board, according to Peter Swire, a law professor at Ohio State University Michael E. Moritz College of Law and the former chief counselor for privacy in the Office of Management and Budget under President Bill Clinton.

"Clearly, the board cannot carry out its work as the statute intends if there is no chairman in place," Swire told a subcommittee of the Senate Oversight and Government Management Committee.

The oversight board, which was created after the September 11 terrorist attacks, was restructured and made an independent entity within the White House in 2007. Yet it had no members from then until August 2, when the Senate confirmed Patricia Wald, a former chief judge of the U.S. Court of Appeals for the D.C. Circuit; James Dempsey of California; Elisebeth Cook of Illinois; and Rachel Brand of Iowa. The confirmations came amid a flurry of activity before the Senate's four-week summer break.

But the Senate did not confirm the nominee for chairman: Washington lawyer David Medine, currently an attorney fellow with the Securities and Exchange Commission. A former partner with Wilmer Cutler Pickering Hale and Dorr who focused on privacy and data security, Medine also served as senior adviser to the National Economic Council from 2000 to 2001.

There appears to be opposition to his nomination. Swire said in his testimony that Medine "received dissenting votes on his nomination in committee, although there are no public reports of any basis for opposition or concern."

Before a vote at the Senate Judiciary Committee in May, Senator Chuck Grassley (R–Iowa), the ranking minority member, said he was troubled by Medine's responses to some questions. Medine said it would be "inappropriate" for the federal government to profile foreign nationals from high-risk countries solely on the basis of their country of origin, Grassley said. That was at odds with answers from the other nominees.

And Grassley said that Me­dine failed to adequately respond to other questions, including ones that probed his views on the Foreign Intelligence Surveillance Act and the Patriot Act.

Swire encouraged the Senate to confirm all five nominees to "ensure regular and effective examination of the information sharing and privacy practices for homeland security and other antiterrorism activities." To no avail.

While the board has been moribund, the increased use of computers to store personal information, and the wars on terrorism and cyberterrorism, have spurred Congress and the White House to weigh in on privacy issues. Congress is considering various proposals to enhance the nation's cybersecurity, which in turn could affect privacy rights.

The questions is, will there be an active Privacy and Civil Liberties Oversight Board to participate in the conversation?

A version of this article first appeared in The National Law Journal, a sibling publication of Corporate Counsel.