President Trump to Nominate Two to White House Privacy Board

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By George Lynch

President Donald Trump March 13 tapped former FTC chief technologist Edward Felten and former Justice Department official Jane Nitze to fill empty slots on the Privacy and Civil Liberties Oversight Board.

Felten is a professor of computer science at Princeton University. He was chief technologist at the Federal Trade Commission from 2015-17, and deputy chief technology officer for the White House’s Office of Science and Technology Policy (OSTP) from 2011-12.

Nitze is a former attorney advisor at the U.S. Department of Justice Office of Legal Counsel, a former law clerk for Neil Gorsuch on the U.S Supreme Court and the U.S. Court of Appeals for the Tenth Circuit, and a former law clerk for Justice Sonia Sotomayor.

The PCLOB is an independent, bipartisan executive agency created to advise the president and other executive branch officials and provide oversight to the intelligence community and counterterrorism activities.

“These are quality nominees,” Cameron Kerry, data privacy partner at Sidley Austin LLP in Boston and former general counsel and acting secretary at the U.S. Commerce Department, told Bloomberg Law. Felten has “been a leader in the field, he knows the policy landscape from the both the FTC and OSTP and, as a technologist, he adds a valuable dimension to the PCLOB’s work,” Kerry said.

Jamil Jaffer, founder of the National Security Institute at George Mason University’s Antonin Scalia Law School, said Nitze “has spent a significant portion of her career focused on the key issues at the intersection of the law, privacy, and national security.”

Staffing Up

Republican Elisebeth B. Collins is the only current member of the board, which at full strength has five Senate-confirmed members. Three board members are needed to form a quorum, and no more than three may be from the same political party. The White House did not state which slots each nominee would fill.

The European Union has recently insisted that PCLOB be fully staffed as part of the EU-U.S. Privacy Shield agreement. The Privacy Shield is relied on by over 2,700 U.S. companies to transfer data of EU citizens to the U.S.

The White House nominated Adam Klein to lead the PCLOB in September 2017. Klein had his nomination hearing in January and is awaiting Senate confirmation.

PCLOB provides oversight for the Foreign Intelligence Surveillance Act, a law recently renewed by Congress that allows the National Security Agency to conduct surveillance on the digital communications of non-U.S. citizens overseas.

PCLOB and the Foreign Intelligence Surveillance Court have struggled to keep up with the technological implications of U.S. surveillance programs, Robyn Greene, policy counsel and government affairs lead at the Open Technology Institute at New America, told Bloomberg Law. Felten’s “technical expertise and perspective will be invaluable to the PCLOB,” Greene said.

“Today’s nominations present a unique opportunity for the White House and Senate to work together to get this board up and running again,” Jaffer told Bloomberg Law. “Swift action by the Senate to hold hearings and confirm these nominees, along with Adam Klein, who has been nominated to serve as PCLOB Chairman, would be in the national interest.”

Kerry said that because both nominees “recently were in positions in the federal government where they would have high-level security clearances, they should be able to hit the ground running at the PCLOB.”

To contact the reporter on this story: George Lynch in Washington at glynch@bloomberglaw.com

To contact the editor responsible for this story: Donald Aplin at daplin@bloomberglaw.com

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