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By Jimmy H. Koo
President Donald Trump’s intent to nominate Adam I. Klein as chairman of the Privacy and Civil Liberties Oversight Board brings the agency a step closer to having sufficient members to form a quorum.
Trump announced Aug. 25 his intent to nominate Klein, a national security policy senior fellow at the Center for a New American Security and former law clerk for U.S. Supreme Court Justice Antonin Scalia.
The PCLOB is an independent, bipartisan executive branch agency created in the wake of 9/11 to ensure the consideration of privacy and civil liberties for government anti-terrorism and homeland security initiatives. At full strength, the board consists of five members appointed by the president and confirmed by the Senate. No more than three members can be from the same political party.
The board currently has only one member, and even with Klein would be short of the three members needed for a quorum to conduct new business. The agency is able to continue working on mission-related projects that were approved before the board lost its quorum on Jan. 7, but can’t take on new projects. Having a functioning oversight board to advise the executive branch on the legality of its intelligence efforts is essential to assuring European Union officials of the administration’s commitment to privacy.
The PCLOB was originally created as a part of the executive branch, but there were concerns about whether it was sufficiently independent. The board had been housed within the executive office of the president and was disbanded in 2007. It began operating again in 2013.
National Security Council spokesman Marc Raimondi told Bloomberg BNA Aug. 28 that “the President wants to ensure that this important board remains able to do its job.” Trump “intends to fill the other vacancies on the Board,” he said.
It is likely that Trump will make other nominations soon, so that there will be a functioning board, University of California Berkeley Center for Law & Technology Executive Director James Dempsey, a former member of PCLOB, told Bloomberg BNA Aug. 28.
Klein is a graduate of Columbia Law School and was a senior associate at Wilmer Hale LLP. He didn’t immediately respond to a Bloomberg BNA request for comment.
Appointing members who are “a bit more skeptical” of the government’s efforts is necessary to avoid PCLOB becoming a “rubber-stamp for the intelligence community,” Stephen I. Vladeck, professor of law at the University of Texas School of Law with a focus on national security law, told Bloomberg BNA Aug. 28.
Elisebeth B. Collins, the only current member of the board, told Bloomberg BNA Aug. 28 that she welcomes Klein’s chairmanship nomination because he is “an accomplished and well-respected national security and intelligence expert.”
EU officials have said that the PCLOB’s ability to function will be considered in the annual review of the EU-U.S. Privacy Shield data transfer program by the European Commission, the EU’s executive arm. The first annual review of the Privacy Shield, which more than 2,400 U.S. companies and tens of thousands of EU companies rely on to transfer data legally from the EU to U.S. companies that self-certify their compliance with EU privacy principles, is scheduled to begin in September.
Some in the EU have expressed concern over Trump’s commitment to privacy and whether personal data transferred to the U.S. will be adequately protected from government surveillance. The European Parliament expressed “great concern” in its report in April over whether the PCLOB could perform its functions with only one member.
Gabe Maldoff, privacy and data protection associate at Bird & Bird LLP in London, told Bloomberg BNA Aug. 28 that “many EU officials see PCLOB’s lack of quorum as a symbol of the program’s weaknesses.” However, Klein’s appointment is a “sign of goodwill from the administration,” he said.
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