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Privacy Rights in the Digital Age, 2nd Edition

Privacy and Civil Liberties Oversight Board (PCLOB)

by Paula Collins

Identification: As currently constituted, a five-member, bipartisan, independent agency whose members are appointed by the president and confirmed by the Senate. PCLOB was created by 42 U.S.C. §2000ee in 2007, as part of the executive branch. Other documents that give authority and operations purpose to PCLOB are Executive Order 13636, on Improving Critical Infrastructure Cybersecurity; Presidential Policy Directive 28 (PPD-28); and Section 803 of the Implementing Recommendations of the 9/11 Commission. By statute, the chairperson of PCLOB serves fulltime, while the remaining four members serve part-time. Terms are staggered, six-year terms.

The stated mission of PCLOB is to ensure that “the federal government’s efforts to prevent terrorism are balanced with the need to protect privacy and civil liberties.” Activities of the board include assessment of proposed policy and implementation of matters involving intelligence activities, collaborating with the Department of Homeland Security to the extent of providing an annual report with updates as needed, and directing the privacy and civil liberties officers of eight federal agencies. At times, PCLOB reports reviews that have been undertaken at agencies regarding the rights of citizens in relation to data collection, exchange of information between agencies, and threats to cybersecurity. PCLOB is authorized to access and audit agency records and any relevant materials, as well as to interview, take statements from or take public testimony from any executive branch employee. The board may request that the Attorney General subpoena parties in order that they produce information.

Much of the current work of PCLOB centers around Section 215 of the 1978 Foreign Intelligence Surveillance Act (FISA). Amended in 2001 and renamed the USA PATRIOT Act, this legislation allowed the Federal Bureau of Investigation (FBI) to apply for an order to produce records, books, phone data, and other items in an investigation against terrorism or clandestine intelligence activities. A January 23, 2014, PCLOB report on the telephone records search and operations of the Foreign Intelligence Surveillance Court (FISC) made the following recommendations: (1) end the National Security Agency (NSA) collection of telephone records and metadata; (2) immediately add privacy safeguards to the bulk telephone records program; (3) revamp FISC to hear independent views, allow opportunities for appellate review, and explore opportunities for outside legal and technical input in FISC matters; (4) release information regarding FISC decisions; (5) publicly report on the operation of the FISC Special Advocate Program; (6) permit companies to disclose information about their receipt of FISA production orders and to disclose more detailed statistics on surveillance; (7) inform PCLOB of FISA activities and provide relevant congressional reports about FISC decisions; (8) revise NSA’s procedures for more accurate documentation of the foreign intelligence reason for targeting decisions; (9) update the FBI’s procedures to place additional limits on the FBI’s use of data; (10) require NSA and Central Intelligence Agency (CIA) personnel to provide a statement explaining their purpose before using identifiers, and develop written guidance on applying this standard; (11) adopt measures to document and publicly release information showing how frequently NSA acquires and uses communications of people within the United States or U.S. citizens located abroad; and (12) develop a methodology for assessing the value of counterterrorism programs.

The PCLOB report of January 2014 was released largely in response to a July 2013 news report by then–NSA contractor Edward Snowden, who made public information about the U.S. government’s sweeping efforts to collect and monitor phone calls and other metadata of citizens. PCLOB effectively affirmed at least some of Snowden’s concerns. A PCLOB report released in January 2015 revealed that, contrary to their earlier recommendations, NSA had not ended telephone surveillance, although legislation was in progress. Most other recommendations were partially implemented or were accepted and awaiting implementation. The suggestion to take advantage of opportunities outside legal and technical input in FISC matters was consistently implemented. Other activities, reviews, and reports by PCLOB include a May 2015 report to the Department of Homeland Security on cybersecurity, issued in compliance with an executive order that requires federal agencies to develop and induce participation in a technology-neutral cybersecurity framework, share information on cyber-threats with the private sector in a timely manner, and work with senior agency officials to ensure that privacy and civil liberties protections are incorporated into these activities.

From early 2017 until October 2018, the only PCLOB board member was Elisabeth Collins. Three new board members were approved by the Senate in October 2018, but Collins completed her term in December 2018.

Increasing concerns have been voiced by United States allies in the European Union over the need for the PCLOB to adopt and implement a privacy framework that is compatible with the EU Privacy Shield. At least two deadlines were passed, with the result that the EU is using a call for concern over the status of EU-USA transmissions of data, and whether EU citizens are protected against potential threats to their private information when dealing with US transfers.

In August 2018, watchdog groups called for a shift in the PCLOB’s agenda towards the following priorities: 1) review the impact of the call detail records (CDR) program, particularly in light of the use of call detail data in the NSA data breach; 2) review warrantless data searches, and limit searches under Section 702; 3) investigate targeted surveillance of people of color by groups such as the New York Police Department, Homeland Security, the Drug Enforcement Agency (DEA), and the FBI.

For the 2018 annual operating budget, the PCLOB requested $8 million, and no new positions, in order to continue to carry out its mission: to “conduct oversight and provide advice to ensure that efforts taken by the executive branch to protect the nation from terrorism are appropriately balanced with the need to protect privacy and civil liberties, while operating as an established agency with a growing infrastructure and increasingly comprehensive operating policies and procedures.”

Further Reading

1 

Kerry, Cameron. “It’s Time for the Senate to Act on PCLOB Nominations.” August 27, 2018. Lawfare.com.

2 

Laperruque, Jake. “A Proposed Agenda for a New PCLOB.” August 28, 2018. Lawfare.com.

3 

Nelson, Steven. “Privacy Board Will Do ‘Deep Dive’ on NSA, CIA Practices.” U.S. News and World Report, April 8, 2015.

4 

Relyea, Harold. Privacy and Civil Liberties Oversight Board Congressional Refinements. Washington, DC: Congressional Information Service, Library of Congress,2007.

5 

Relyea, Harold. Privacy and Civil Liberties Oversight Board New Independent Agency Status. Washington, DC: Congressional Research Service, Library of Congress, 2008.

6 

Relyea, Harold. Privacy and Civil Liberties Oversight Board 109th Congress Proposed Refinements. Washington, DC: Congressional Information Service, Library of Congress, 2005.

See also: Foreign Intelligence Surveillance Act (FISA); Foreign Intelligence Surveillance Court (FISC); Homeland Security, Department of (DHS); National Security Agency (NSA); Snowden, Edward Joseph; USA PATRIOT Act

Citation Types

MLA 9th
Collins, Paula. "Privacy And Civil Liberties Oversight Board (PCLOB)." Privacy Rights in the Digital Age, 2nd Edition, edited by Jane E. Kirtley & Michael Shally-Jensen, Salem Press, 2019. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA2e_0179.
APA 7th
Collins, P. (2019). Privacy and Civil Liberties Oversight Board (PCLOB). In J. E. Kirtley & M. Shally-Jensen (Eds.), Privacy Rights in the Digital Age, 2nd Edition. Salem Press. online.salempress.com.
CMOS 17th
Collins, Paula. "Privacy And Civil Liberties Oversight Board (PCLOB)." Edited by Jane E. Kirtley & Michael Shally-Jensen. Privacy Rights in the Digital Age, 2nd Edition. Hackensack: Salem Press, 2019. Accessed May 30, 2026. online.salempress.com.