Federal privacy watchdog gets new leadership as CIA domestic surveillance concerns surface

At the urging of Sens. Ron Wyden (D-Ore.) and Martin Heinrich (D-N.M.), the CIA recently released a redacted fraction of a Privacy and Civil Liberties Oversight Board report acknowledging that the agency engages in some form of secretive bulk data collection. The report was one of multiple “Deep Dives” conducted by the PCLOB that explored intelligence activities authorized by Executive Order 12333 — but the publicized portion discloses almost nothing about what, exactly, the CIA was doing.

As a 2021 letter from Wyden and Heinrich that was likewise declassified objects, even Congress appears to have been kept in the dark about the CIA’s activities. (An intelligence official, speaking to The New York Times on condition of anonymity, suggested members of Congress were notified of the collection itself but not necessarily how data would be stored or analyzed.)

The disclosure came just days after the Senate confirmed the nominations of two new members — Sharon Bradford Franklin and Beth Ann Williams — to the Board.

The addition of Franklin and Williams boosts the Board’s count to four members, still shy of a full five-seat contingent, which the PCLOB has not seen since 2017. A number of privacy and government transparency organizations had signed a September 2021 letter to President Biden, urging him to “fill the vacancies on the [PCLOB] as expeditiously as possible and with nominees that will vigorously protect privacy and civil liberties while upholding government transparency.”

The PCLOB is a bipartisan, independent agency housed in the executive branch and tasked with ensuring that “the federal government’s efforts to prevent terrorism are balanced with the need to protect privacy and civil liberties.” But the Board’s ability to function is handicapped when it lacks a quorum, as it has for long stretches of its existence.

The vigor of the Board’s oversight of EO 12333 in particular — which governs the most secretive corner of the federal government’s surveillance activities — has been criticized by civil society groups. The agency’s last investigation of 12333 activities was apparently so thin that one dissenting Board member called the resulting document a “book report.” As Matthew Guariglia and Cindy Cohn of the Electronic Frontier Foundation wrote of the still-classified portions of that report, “Nothing signals to the public a lack of commitment to transparency and a frank assessment of civil liberties violations like blocking the public from even reading a report about one of the most invasive U.S. surveillance programs.”

The CIA’s latest disclosures were highly redacted and came as a delayed response to demands for transparency. Wyden and Heinrich originally requested the release of these documents in April of last year. Ten months later, the result is a report that fails to specify what types of data are being collected and contains little analysis as to the propriety of using Executive Order 12333 to surveil Americans.

This particular PCLOB investigation began in 2015, spanning six years. Franklin’s and Williams’s terms will expire in the next two. Franklin joins the Board from her post as co-director of the Security and Surveillance Project at the Center for Democracy and Technology. She previously served as executive director of the PCLOB and will be stepping up as chair of the Board for a term expiring in 2024. The Board has been without a chairperson since June 2021, when former Chair Adam Klein completed his term.

Williams, a former partner at Kirkland & Ellis LLP, served as assistant attorney general in the Justice Department’s Office of Legal Policy from 2017 to 2020. She will be a member of the PCLOB until January 2023, replacing Jane Nitze, who resigned from the Board in July of last year.

*Samantha Reilly is a legal extern for the Reporters Committee for Freedom of the Press. She is currently a law student at the Northwestern Pritzker School of Law.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.