Trump’s Privacy Board Pick Calls for Surveillance Transparency

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By Daniel R. Stoller

President Donald Trump’s pick to lead the Privacy and Civil Liberties Oversight Board told lawmakers Jan. 24 that, if confirmed, he would push for more transparency around the U.S. government’s foreign surveillance efforts.

Adam I. Klein said he hoped to shed light on the government’s use of Section 702 of the Foreign Intelligence Surveillance Act (FISA) which allows the National Security Agency to conduct digital communications surveillance on foreigners overseas. He also spoke in favor of producing materials to give the public a better understanding of the surveillance program.

Klein’s nomination hearing comes soon after Congress reauthorized Section 702. Privacy advocates and some lawmakers felt the bill didn’t go far enough to protect U.S. citizens’ privacy interests and to provide more transparency for the surveillance program. However, Klein’s willingness to produce FISA Court orders, surveillance reports, and push for an independent advocate at the FISC could help quell concerns from privacy groups and some lawmakers.

Klein received generally positive feedback from Senate Judiciary Committee members at his confirmation hearing to become Privacy and Civil Liberties Oversight Board chairman. Committee Chairman Charles E. Grassley (R-Iowa) called Klein an “avid champion” for the PCLOB who would take the chairmanship “obligation seriously and thoughtfully.”

The PCLOB is an independent, bipartisan executive branch agency created after 9/11 to oversee privacy and civil liberties issues surrounding government homeland security efforts, including surveillance practices.

Its role is to ensure government anti-terrorism efforts are “balanced with privacy and civil liberties,” which aren’t mutually exclusive, Klein said at the hearing. The U.S. government needed enhanced surveillance practices in the wake of 9/11, he said, but also “needed to preserve privacy and civil liberties oversight protections without sacrificing national security tools.”

Klein advocated declassifying some FISA court orders and releasing reports on government surveillance practices. Adding an outside advocate to the U.S. Foreign Intelligence Surveillance Court would also be beneficial, Klein said. Such privacy improvements would provide effective scrutiny and oversight without limiting surveillance powers, he said.

FISC orders are usually classified and unavailable to the public. On occasion, FISC orders are released publicly but redacted to protect the identities of those under surveillance and the intelligence collected.

Privacy advocates would like to see an even greater privacy and civil liberties commitment from Klein.

Klein’s “comfort with the government’s warrantless searches of Section 702 data for Americans’ communications, even where there is no nexus to national security,” is out of step with the privacy and civil liberties community, Robyn Greene, policy counsel and government affairs lead at the Open Technology Institute at New America, told Bloomberg Law Jan. 24.

Greene said she hopes Klein, if confirmed, follows through on his commitment to increase transparency with open meetings and public reports, and hires staff with strong backgrounds in privacy.

Board Hamstrung?

The PCLOB has been unable to conduct new business and hire additional staff after losing its quorum Jan. 7. It can still handle prior mission-related projects but can’t take on any new business.

The board currently has just one member, Republican Elisebeth B. Collins. Klein’s addition would still leave it short-handed. At full strength, the board has five members, all presidentially appointed and subject to Senate confirmation, with no more than three from the same party. Three board members are necessary to form a quorum.

The recent legislation renewing Section 702 could alleviate some procedural burdens.

Under the FISA Amendments Reauthorization Act, the PCLOB can use the chairman’s authority with board members’ unanimous approval to hire new staff and conduct other business.

To contact the reporter on this story: Daniel R. Stoller in Washington at dstoller@bloomberglaw.com

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

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