Privacy Advisor

Medine’s Confirmation Moves PCLOB Forward; Questions Remain About Cybersecurity Authority

June 1, 2013


By Jedidiah Bracy, CIPP/US, CIPP/E

On Tuesday, the U.S. Senate confirmed Obama nominee David Medine as chairman of the Privacy and Civil Liberties Oversight Board (PCLOB). The vote was divided among party lines, with Democrats in favor and Republicans opposed, and came nearly two years after his nomination.

“I was honored to have been confirmed by the Senate to be Chairman of the Privacy and Civil Liberties Oversight Board,” Medine told The Privacy Advisor in an email exchange. “I look forward to working with fellow board members Rachel Brand, Beth Cook, Jim Dempsey and Pat Wald.”

Medine, a long-time IAPP member, was originally appointed by President Obama in 2011. He has worked at the law firm WilmerHale and led the FTC’s efforts on Internet privacy and chaired an advisory committee during his eight years at the agency.

Sen. Chuck Grassley (R-IA) said he opposed Medine’s nomination because he did not answer certain questions during his confirmation hearing, specifically about his views on the USA PATRIOT Act and military force against terrorism, The Hill reports.

Judiciary Chairman Patrick Leahy (D-VT) applauded Medine’s confirmation in a press release. Amid calls of partisan obstructionism, Leahy said, “The confirmation of this nominee is a significant victory for all Americans who care about safeguarding our privacy rights and civil liberties. The American people now have a Privacy and Civil Liberties Oversight Board that is at full strength. This board should help to ensure that we honor our fundamental values as we implement a strategy to keep our nation safe.”

The PCLOB was enacted by Congress in 2004 in response to a recommendation by the 9/11 Commission and is tasked with ensuring privacy and civil liberties are balanced with anti-terrorist initiatives.

Preventing Privacy Office Redundancies

In his nomination hearing in April 2012, Medine answered detailed questions about how he would prevent the PCLOB from being another layer of bureaucracy. Leahy noted that in the years since the PCLOB “lay dormant,” in effect, “each of the relevant agencies in the war on terrorism,” including the Director of National Intelligence, Department of Justice, Department of Defense, Department of Homeland Security have all created similar privacy and civil liberties offices with their respective agency.

“How will the board’s work differ from these offices?” Leahy asked.

“The board will bring a fresh, independent perspective to the issues addressed by the privacy and civil liberties officers,” Medine testified. He also noted that “the board will have a government-wide perspective, including a sense of how precedents established by one agency may affect other agencies.” To avoid duplication of efforts from each agency, Medine said the PCLOB would review reports from the relevant officers.

Medine also noted the PCLOB would review and submit recommendations on proposed legislation in Congress related to anti-terrorism.

Medine’s Confirmation: An Expert’s Analysis

“I think this is an extraordinarily important development that we finally have a head of the PCLOB,” Alan Charles Raul told The Privacy Advisor.

A Washington lawyer who previously served as vice chairman of the PCLOB under President George W. Bush, Raul said the confirmation “brings executive capability to the agency that’s otherwise been populated by part-time members.”

Of note for Raul is the upcoming jurisdictional and scope-of-authority issues that Medine and the agency must decide. Will the agency have legal authority to extend to activities that take place outside of the U.S.? Will its authority extend to non-U.S. citizens or to folks outside of the country? Additionally, how will the PCLOB’s authority extend to efforts by states intending to implement drone surveillance or facial recognition?

PCLOB and Cybersecurity

“Another issue the PCLOB will have to grapple with,” said Raul, “is its relationship with cybersecurity efforts by the federal government and the president.”

Currently, the mandate allows the PCLOB to review and make recommendations to terrorist-related issues. “The number-one threat identified by President Obama and several national security agencies are cyberattacks and cyber espionage. These types of issues certainly have privacy and civil liberties implications,” Raul said, “but do not necessarily line up neatly with the war on terrorism.” He noted that most cybersecurity issues have been stemming from various nations and others “not classically defined as terrorists.”

Raul suggested that the PCLOB should be responsible for reviewing cybersecurity issues, both by the federal government and initiatives, such as CISPA, where the private sector may share information with the federal government about cyberthreats. “I think it’s reasonable for Congress to expand the mandate” for cybersecurity, he added.

For Congress to give the embattled PCLOB more authority may be a tall task, however. Medine’s confirmation was voted along party lines, with no support from Republicans. For Raul, extending the PCLOB’s authority to consider the various cybersecurity initiatives—whether it’s the president’s Executive Order or Congressional legislation such as CISPA—may be just as important as its authority to review anti-terror initiatives.

Medine told The Privacy Advisor that he will hold off on addressing any substantive issues until he’s been officially sworn in.

Read more by Jedidiah Bracy: 
A Look at the Privacy Consultants of Acxiom
ICO Fine “Confirms” Emergence of Private-Sector Enforcement Trend

Broad Spectrum Voicing Opinions on Proposed Data Protection Framework
Westin’s Privacy Scholarship, Research Influenced a Generation