Updates

PRESS RELEASE: EPIC Calls on Congress to Hold On Confirmations Pending White House Nominations to Fill Privacy Oversight Board

January 30, 2025

On January 27, the Privacy and Civil Liberties Oversight Board (PCLOB or the Board) announced that its Chair, Sharon Bradford Franklin, and two of its Members, Ed Felten and Travis LeBlanc had been terminated by the White House. These terminations leave the Board with only a single, part-time member in Beth Williams.

The PCLOB is an independent agency within the Executive Branch and is responsible for ensuring that the government’s counterterrorism activities are carried out consistent with the need to protect privacy and civil liberties. No basis has been offered to justify these firings, and their legality is questionable. EPIC calls on the White House to immediately nominate a Chair and full bipartisan slate of Board Members, subject to the advice and consent of the Senate and consultation with Congressional leadership as required by the law. EPIC also calls on members of the Senate Judiciary and Intelligence Committees to hold consideration of other Intelligence Community nominations until the PCLOB Member nominations have been submitted.

These firings by the White House threaten the independence and effectiveness of the PCLOB and thereby threaten the security and liberty of all Americans. The Board was first created on the recommendation of the 9/11 Commission Report, based on Congress’ findings that “The choice between security and liberty is a false choice, as nothing is more likely to endanger America’s liberties than the success of a terrorist attack at home. Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values that we are struggling to defend.” That work is more important now than ever, and Congress’ decision to reconstitute the Board as an independent entity in 2007 must be respected. Without a quorum of at least 3 active members, the Board is unable to carry out these integral advisory and oversight functions.

In response to initial reports of the firings, Jeramie Scott, Senior Counsel and Director of EPIC’s Project on Surveillance Oversight, gave the following statement to the New York Times: “The PCLOB is a fully independent agency for a reason—so it can do its work of oversight without interference from the Executive branch. Calling for current Democratic members of the Board to resign or be fired threatens independent oversight of surveillance programs by this administration and future administrations.”

The Board plays a vital role in ensuring that the U.S. Intelligence Community carries out its mission consistent with the privacy and civil liberties rights guaranteed by law and by the Constitution. This bipartisan group of experts has provided much needed transparency and accountability for government surveillance programs operated under both Republican and Democrat administrations.

Furthermore, the Board’s independent role is a core part of the legal basis for the current EU-U.S. Data Privacy Framework. The Data Privacy Framework is a legal mechanism that forms the basis for data transfers between the U.S. and the European Union (EU). Specifically, the Data Privacy Framework requires various safeguards on the intelligence community’s processing of European data, including a redress mechanism which the PCLOB oversees almost exclusively. The PCLOB consults on appointments of Data Protection Review Court (DPRC) judges and special advocates and is the sole oversight body of the Office of the Director of National Intelligence’s Civil Liberties Protection Officer and of DPRC decisions.

Significantly, the addition of the Board as an oversight mechanism is one of the only meaningful differences between the Data Privacy Framework and Privacy Shield – the previous cross border data transfer agreement that was struck down because of the lack of independent oversight. With a non-functional PCLOB, there will be no body available to review appeals or interpret whether the decisions are consistent with both U.S. and EU law, bringing the Framework’s continued existence into question. Calli Schroeder, Senior Counsel and Global Privacy Counsel, noted that “The PCLOB’s independence and functionality were cornerstones of a Data Privacy Framework already under intense scrutiny within the EU. The longer this critical component of the agreement is unable to operate, the more likely we are to see this Framework invalidated and data transfers between the EU and U.S. come to a halt.”

EPIC has been a proponent of empowering the Board to conduct meaningful oversight of government surveillance since its inception. EPIC previously urged the Board to conduct a review of surveillance under Executive Order 12333. In 2020, EPIC and a coalition of 40 organizations urged the PCLOB to recommend suspending face surveillance across the federal government. In 2022, EPIC urged the Board to investigate fusion centers and federal agency’s use of aerial surveillance. Finally, EPIC engages with past and current members of the Board, including Travis LeBlanc who is a member of EPIC’s advisory board.

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