NSA Spying Controversy: The New Agency That Could Change Government Surveillance

You’ve probably never heard of it, but there is a new agency in Washington that is working to make sure the government’s anti-terrorism efforts do not ride roughshod over Americans’ civil liberties.

These days, when a sharply divided Congress struggles to get nearly anything accomplished, there is little evidence that such an agency, armed only with the mandate to offer advice, can influence lawmakers. But the Privacy and Civil Liberties Oversight Board may have a better chance at reforming the national security apparatus than many assume. In fact, the board is in a unique position to shape the legislative debate over the government’s spying abilities -- and has powerful allies to make sure Congress takes up its recommendations.

Referred to as the PCLOB (sounds like 'pee-klawb'), the new agency has the job of advising the president, federal agencies and Congress on how to balance the government’s national security efforts with civil liberties concerns. Board members have top-secret clearances, and agency heads are expected to turn over any documents the board requests. If the board needs information from the private sector, the attorney general can issue a subpoena on its behalf.

Created in 2004 at the recommendation of the 9/11 Commission, the PCLOB did not get off to an auspicious start. It was originally located within the Executive Office of the President, and its first report to Congress was edited by the Bush White House, prompting one Democratic member to resign. In response, in 2007 the new Democratic Congress made the board an independent agency within the executive branch. Then-President George W. Bush clashed with Senate Democrats over board nominees, and ultimately none were confirmed. President Barack Obama dragged his feet in choosing nominees and when they finally did come, Republicans refused to approve them. Four part-time members were finally approved in the last nine months. The board’s chairman, David Medine, was not formally installed on until May 29, 2013. One week later, the Guardian newspaper published its first scoop, based on leaked National Security Agency documents, showing the government collected and stored metadata on the phone calls of millions of Americans.

Over the next few days, the documents leaked by Edward Snowden revealed that the government went further, collecting and storing metadata on the phone calls of virtually all Americans. The government was also scooping up an untold amount of Americans’ electronic communications as part of its foreign surveillance operations. These revelations thrust the board into the middle of the most important debate over privacy and civil liberties in years. Sen. Tom Udall, D-N.M., sent a letter to the board asking it to “make it an urgent priority to investigate the programs” and provide an unclassified report on their legality and whether they take the “necessary precautions to protect the privacy and civil liberties of American citizens under the Constitution.” Twelve additional senators, including two Republicans, signed Udall’s letter. On June 21, the board met with Obama. All this before its office space was even ready or emails set up.

The full board’s first public appearance came Tuesday at a workshop in Washington, D.C., where the five members -- three Democrats and two Republicans -- queried three separate panels of experts on how the surveillance programs might be brought more in line with civil liberties concerns. Civil liberties advocates appear cautiously optimistic about the new board, whose opinion could help determine whether Congress decides to take on the massive surveillance programs. Advocates are also aware of the board’s ability to actually move their cause backward and entrench these programs.

“If it blesses these programs, they are likely to continue,” privacy rights advocate Greg Nojeim, who participated in one of Tuesday’s panels, said in an interview Wednesday. Whether the board deems the phone metadata collection is unlawful or not will be “one of the most significant tests of PCLOB,” said Nojeim, a lawyer at the Center for Democracy and Technology.

But whatever its recommendations ultimately are, the PCLOB is armed by circumstance with the power to shape the laws governing the surveillance state, particularly Section 215 of the USA Patriot Act, also known as the “business records” provision, under which the government claims the authority to collect Americans’ call data. During Tuesday’s workshop, panelist Michael Davidson, former legal counsel to the Senate Intelligence Committee, hinted at the board’s potential for influence.

“Can I suggest a focus for the board, and that is the Congress will turn to the many important questions that have been discussed through the day when it has to,” Davidson said. “And it will have to when, initially, when the sunset for business records [provision] is reached in the middle of 2015.”

In other words, the government’s authority to carry out the phone metadata collection will expire on June 1, 2015, absent congressional action – a situation the board can use to shape the debate and even push its recommendations. On June 1, 2017, the portion of the Foreign Intelligence Surveillance Act under which the NSA conducts electronic foreign intelligence sweeps that also snag domestic communications will expire without reauthorization, as well.

Privacy advocates don’t want the board or Congress to wait years to address the surveillance programs they believe are illegal. But at the end of the day, the sunset dates guarantee that a debate over these programs will take place -- and when it does, the PCLOB can have its reports and recommendations ready to shape that conversation. Moreover, because the issues in are so complex from a legal, practical and technological point of view, lawmakers who want to put forward serious reforms may not have the ability to craft adequate proposals before the sunset deadline. The board can help in that practical function to make sure that lawmakers have reforms ready to be implemented when the debate begins.

Nojeim also sees this as an “advantage” unique to the PCLOB. “The board has a guaranteed congressional audience that other boards don’t have because it’s making recommendations on statutes that will expire unless acted on,” he said Wednesday.

Despite the leverage the PCLOB has in 2015 and 2017, the civil liberties community believes it has a popular mandate to move reforms -- at least more basic changes like releasing more classified materials -- while the public is engaged on the issue. The NSA leaks are “a game-changer,” said Michelle Richardson, a legislative counsel at the American Civil Liberties Union, noting that members of Congress on both sides of the aisle have indicated that the NSA’s programs need to be reined in. “This certainly seems like our best opportunity yet.”

Whether or not Congress takes up a range of proposals put forward in the last month to reform the intelligence system, the board has allies in Congress who will have the power to make sure its recommendations are debated, even if it takes until 2015 for that to happen. “There are senators and representatives, including [Vermont Democratic Sen. Patrick] Leahy, who chairs the Senate Judiciary Committee, who struggled and pushed and cajoled until the PCLOB members were nominated and approved,” Nojeim said Wednesday. “They are not going to ignore the recommendations of the board they fought for.”