Surprise resignation threatens to hobble privacy watchdog

The surprise resignation of the nation’s top federal privacy watchdog threatens to handicap a key government body that has only recently escaped irrelevance.

The Privacy and Civil Liberties Oversight Board (PCLOB) sat ineffective for years, until David Medine was confirmed by the Senate to be its chairman — and only full-time member — in 2013.

The board then hit the ground running, with stinging criticism of federal spying powers and new details about U.S. surveillance.

{mosads}But Medine’s unexpected announcement last week that he would resign his post this summer — a year and a half before the end of his term — could plunge the board back into obscurity.

In the short-term, the PCLOB will be able to continue on without Medine, even though the four other members only work part-time. By law, they could increase the amount of time spent with the board, if they so chose. 

But without a chairman, the board will be unable to directly hire new staffers from outside the government, which could become a problem if the vacancy lingers.

“With all due respect to all of the other board members … they’re part-time,” said Faiza Patel, co-director of the Brennan Center for Justice’s liberty and national security program. “Having somebody full-time, driving the work for the board like this, is really important to get things done.”

And there could be more problems if it takes until 2017 for the Senate to confirm a new chairman.

The term of another board member, James Dempsey, ran out in January. He has been re-nominated by the White House but has yet to be confirmed. Dempsey is allowed to continue in his current post until the end of the year but could be forced out if the Senate does not act on his nomination by then.

“We’re always telling people about how great our system is because of oversight,” Patel said. “So I think it would be really kind of shameful if we didn’t have this one very important piece.” 

Before Medine joined the board in May of 2013, it was by all accounts ineffectual.

The privacy watchdog was granted independent powers in 2007 and was first recommended in the 9/11 Commission’s 2004 report.

But until Medine was approved as its first chairman, the board had just two staffers — they were brought over from other agencies and were hamstrung in what they could do. It was only in 2013 that the PCLOB moved into office space and set up its website. 

One month after Medine became chairman, Edward Snowden leaked reams of documents about the National Security Agency (NSA), thrusting into the spotlight questions about digital privacy and U.S. spying powers. 

And under Medine, the PCLOB responded quickly. Despite its small size, the board made significant waves in early 2014 when it declared the NSA’s bulk collection of Americans’ phone records illegal.

The declaration proved to be critical early ammunition to opponents of the NSA’s spying powers. Last summer, Congress killed the phone records program.

Since that first NSA report, the PCLOB has shined a light on foreign surveillance authorities granted to U.S. agencies and it is in the midst of a months-long analysis of a sweeping executive order believed to underpin the majority of the NSA’s powers.

The watchdog still plans to release its analysis of the sprawling Executive Order 12333, a spokeswoman confirmed, even though Medine will step down on July 1 to begin working on data privacy and consumer protection issues for a development organization.

With the Senate currently deadlocked in a confirmation fight over Supreme Court nominee Merrick Garland, election-year politics threaten to stonewall any action to replace Medine until a new president takes office.

Republicans “are blocking everybody,” said Sen. Patrick Leahy (D-Vt.), the ranking member of the Judiciary Committee, which has jurisdiction over the PCLOB.

“They just don’t want the government to work.”

Lawmakers in both parties have attempted to tweak the PCLOB to avoid, in part, the uncertainty created by having just one full-time board member.       

One measure, from Sen. Tom Udall (D-N.M.) and others, would make all five board members full-time, while also giving the group greater legal powers.

The bill, called the SPOT Act, “is needed to reform PCLOB into a vigilant watchdog that can protect Americans’ privacy, and I will continue to push for its passage,” Udall said in a statement to The Hill.

“In the meantime, the privacy board needs a chairman, and I am calling on the president to nominate a qualified replacement and for the Senate to act without delay to provide its advice and consent.”

A White House spokesman declined to offer details about when President Obama would nominate a replacement for Medine, or whom he might tap.

For privacy advocates, the board is nearing a crossroads. Either Medine — whose term term was set to end in January 2018 — is swiftly replaced and the PLCOB solidifies its role as a stalwart watchdog, or else it diminishes as the spotlight of Snowden’s leaks fade away.   

“The PCLOB was really stood up post-Snowden, when there was a recognition of the need for more oversight,” said Neema Singh Guliani, a legislative counsel with the American Civil Liberties Union.

“PCLOB isn’t a silver bullet, but it’s very necessary and an important step forward to have them doing oversight of these programs,” she added, “many of which we know very little about — and even members of Congress know very little about.”