Last Wednesday the Senate Judiciary Committee held a confirmation hearing for nominees to the Privacy and Civil Liberties Oversight Board (PCLOB). The Board, created in response to the 9/11 Commission, is charged with making sure privacy and civil rights are protected for executive branch activities and measures. It consists of five members appointed by the President, and all five of these nominees were present at Wednesday’s hearing. The nominee for Chairman of the PCLOB is David Medine, and the other nominees are James Xavier Dempsey, Elisebeth Collins Cook, Rachel L. Brand, and Patricia M. Wald. The nominees are bipartisan, and all are recognized thought leaders on privacy and civil rights.
The hearing showcased significant common ground between the senators present and the nominees. All agreed that civil rights are fundamental; as Senator Leahy put it, safeguarding liberties is not a partisan issue, it is an American issue. At the same time, everyone agreed that privacy controls should not impede security. Rather, there was consensus that that privacy and security are not mutually exclusive, and that it is possible to simultaneously have both strong security and privacy.
One topic that surfaced multiple times was cybersecurity and information sharing. Senators Leahy, Whitehouse, and Franken all asked the nominees questions about pending cybersecurity legislation. In particular, the senators were interested in how to encourage the sharing of cybersecurity threat information while also protecting the privacy of U.S. citizens. The nominees agreed that this is an important issue, and Mr. Dempsey expressed the opinion that increased information sharing would be beneficial and could be done in a privacy-friendly manner.
Another theme that surfaced several times was how to ensure privacy in an era of rapid technological change. GPS, facial recognition technology, data aggregation, and other new technologies allow the government track and gather significant data about citizens. This data can be used both to protect our nation’s security, but, if proper rules are not in place, it can also infringe the privacy and civil liberties of innocent Americans. Ms. Cook noted that, if confirmed, she would work with her colleagues to use new privacy enhancing technologies. Ms. Wald also noted the important role the PCLOB can play by working to ensure privacy and civil liberties are protected during the policy design phase.
The hearing demonstrated that if and when the nominees are confirmed, they will have to carefully prioritize their important work. The hearing did not feature any harsh questions or significant criticisms of the nominees, so the path may be clear for proceeding to confirmation.