Watching Big Brother: Privacy Board Delayed

May 29, 2012
Originally published on May 29, 2012 7:45 pm

Congress is considering legislation allowing the government to search through Internet traffic for early warnings of cyberattacks. The bills are controversial — worries about government surveillance have led to protests online.

The government does have a tool that could calm fears about this kind of legislation — it just doesn't use it.

Sen. Ron Wyden, D-Ore., took to the Senate floor last week to denounce CISPA — the "Cyber Intelligence Sharing and Protection Act," which has already passed the House. That bill, and similar legislation in the Senate, are supposed to target viruses and cyberattacks, but Wyden fears the worst.

"They would allow law enforcement to look for evidence of future crimes, opening the door to a dystopian world where law enforcement evaluates your Internet activity for the potential that you might commit a crime," Wyden says.

Fears of Big Brother have become a common refrain in recent years. Whether it be the Bush administration's warrantless wiretapping program or the Transportation Security Administration's use of body scanners, it's hard to convince the public that the government won't abuse its new surveillance abilities.

A Counterbalance To The Patriot Act

So here's an idea: How about an oversight board — a group of citizens responsible for watching the watchmen? Democratic lawyer Lanny Davis describes it this way: "They are read in, and brought in to the most sensitive intelligence and security programs and are there to review whether they are too close to the line of infringing on privacy and civil liberties rights."

As it turns out, there used to be just such an entity — the Privacy and Civil Liberties Oversight Board. The suggestion for the board came from the 9/11 Commission, as a kind of counterbalance to national security laws like the Patriot Act. Davis served on the board under President George W. Bush — until he resigned to protest White House interference.

But then a funny thing happened: Congress rewrote the law to make the board stronger — and independent of the White House. On paper, the board is now a formidable check against Big Brother. In reality, though, not so much.

"It really is appalling," says Sharon Bradford Franklin, senior counsel with the nonpartisan Constitution Project, which tracks civil liberties issues. "We finally had Congress enact legislation to strengthen the board, to make it independent, to give it subpoena power, and then we haven't had any board whatsoever since that legislation was enacted in August of 2007."

'Disappointment In Government'

The Obama administration waited three years, until last December, to nominate a full slate of members to the board. The nominees are now awaiting Senate confirmation, but there are ominous signs that Senate Republicans will block them, even though the nominees come from both parties. Asa Hutchinson, a former Republican member of Congress who served on the first incarnation of the board, says he hopes that won't happen.

"Well, it shouldn't be a partisan issue at all. It's a balanced board that's being created, and it's just important for them to start the work after a five-year delay," Hutchinson says.

If the board had been operational in those years, could it have calmed some of the worries about government surveillance? It's hard to say, but Franklin, of the Constitution Project, says a functioning board might calm current privacy controversies — like the one over the cybersecurity bill.

"If it can review classified information that the public is not privy to and assure us that that kind of oversight is going on, that would certainly give me greater confidence, absolutely," she says.

To this, Hutchinson adds that the failure to staff the civil liberties board represents "an extraordinary disappointment in government."

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Transcript

MELISSA BLOCK, HOST:

The U.S. Congress is considering legislation that would allow the government to search Internet traffic for early warning of cyber attacks. The idea is controversial. It sparked protests online about government surveillance.

As NPR's Martin Kaste reports, the government does have a tool that could calm those fears - it just doesn't use it.

MARTIN KASTE, BYLINE: Ron Wyden, a Democrat from Oregon, took to the Senate floor last week to denounce CISPA. That's the Cyber Intelligence Sharing and Protection Act which has already passed the House. That bill and similar legislation in the Senate are supposed to target viruses and cyber attacks. But Wyden fears the worst.

SENATOR RON WYDEN: It would allow law enforcement to look for evidence of future crimes, opening the door to a dystopian world where law enforcement evaluates your Internet activity for the potential that you might commit a crime.

KASTE: Fears of Big Brother have become a common refrain in recent years, whether it be the Bush Administration's warrantless wiretapping program or the TSA's use of body scanners. It's hard to convince the public that the government won't abuse its new surveillance abilities.

So here's an idea: How about an oversight board, a group of citizens responsible for watching the watchmen? Democratic lawyer Lanny Davis describes it this way.

LANNY DAVIS: They are read in, and brought in to the most sensitive intelligence and security programs. And are there to review whether they are too close to the line of infringing on privacy and civil liberties rights.

KASTE: Turns out, there used to be just such an entity - the Privacy and Civil Liberties Oversight Board. The suggestion for the board came from the 9/11 Commission, as a kind of counterbalance to national security laws like the Patriot Act. Davis served on the board under President Bush until he resigned to protest White House interference.

But then a funny thing happened: Congress rewrote the law to make the board stronger and independent of the White House. On paper, the board is now a formidable check against Big Brother. In reality, though, not so much.

SHARON BRADFORD FRANKLIN: It really is appalling.

KASTE: Sharon Bradford Franklin is senior counsel with the non-partisan Constitution Project, which tracks civil liberties issues.

FRANKLIN: We finally had Congress enact legislation to strengthen the board, to make it independent, to give it subpoena power, and then we haven't had any board whatsoever since that legislation was enacted in August of 2007.

KASTE: The Obama administration waited three years until last December to nominate a full slate of members to the board. The nominees are now awaiting Senate confirmation but there are ominous signs that Senate Republicans will block them, even though the nominees come from both parties.

Asa Hutchinson, a former Republican member of Congress who served on the first incarnation of the board, says he hopes that doesn't happen.

ASA HUTCHINSON: Well, it shouldn't be a partisan issue at all. It's a balanced board that's being created, and it's just important for them to get to work after a five-year delay.

KASTE: If the board had been operational in those years, could it have calmed some of the recent worries about government surveillance? It's hard to say. But Sharon Bradford Franklin says a functioning board might calm current privacy controversies, like the one over the cyber-security bill.

FRANKLIN: If it can review classified information that the public is not privy to and assure us that that kind of oversight is going on, that would certainly give me greater confidence - absolutely.

KASTE: To this, Asa Hutchinson adds that the failure to staff the civil liberties board represents to him, quote, "an extraordinary disappointment in government."

Martin Kaste, NPR News. Transcript provided by NPR, Copyright National Public Radio.