Talking Tech with Greg Nojiem on The Current State of PCLOB
On January 27th, the Trump Administration made headlines with a controversial move to dismiss three Democratic members of the Privacy and Civil Liberties Oversight Board (PCLOB), an independent agency responsible for ensuring transparency and accountability in U.S. surveillance practices. With the attempted removal of these members, including the Chair, the board now lacks a quorum and is unable to function effectively, leaving just one member behind. As the future of the board remains uncertain, it could take months for replacements to be appointed, leaving the agency non-operational for the foreseeable future.<br><br>On February 24th, two of the removed members filed a lawsuit in federal court, claiming their firing was illegal.<br><br>In this episode, Greg Nojeim, Senior Counsel and Director of CDT’s Security and Surveillance Project, joins us to discuss the ramifications of the Trump Administration’s actions, the legal battle ahead, and what this all means for the future of privacy and trans-Atlantic data flows.
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Transcript
Welcome to CDT's Tech Talk, where we dish on tech and Internet policy while also explaining what these policies mean to our daily lives. I'm Jamal Magby, and it's time to talk tech. Welcome to Tech Talk by CT. Team. On January 27, the Trump administration made a controversial move by attempting to dismiss three Democratic members of the Privacy and Civil Liberties Oversight Board, or PCLOB, an independent body tasked with ensuring transparency and accountability in The US surveillance practices. With the attempted removal of these members, including the chair, the board now lacks a quorum and can no longer function effectively, leaving just one member remaining. It is unclear when replacements will be appointed, but given past precedence, it is expected that this process could take months, leaving the agency nonoperational for the foreseeable future. Here to talk about the attempt to fire pCloud members and what it could mean for the future of privacy and transatlantic data flows is Greg Miljane, senior counsel and director of CDT Security and Surveillance Project.
Greg, welcome back to the show.
Thank you so much. To kick us off, can you tell us a little bit about the pCloud? What it is, what it does, and why did congress create it?
So the privacy and civil liberties oversight board or PCLOB, is a creature of the nine eleven attacks on the United States. So when the commission that that, was created to deal with the nine eleven attacks looked at the recommendations that was being made and thought about how congress would react to those attacks, it correctly concluded that there could be actions taken by our government to fight terrorism that would infringe on American civil liberties and privacy. So to prevent that and to account for that and to balance privacy and civil liberties against security needs in the antiterrorism context, they created this privacy and civil liberties oversight board. It started out as a creature of the White House. It was actually located in the executive office of the president. That didn't work out so well, so Congress made it an independent agency in about 2008.
So the p club that means the p club has been around for about twenty years. What is the most important thing that is done to protect privacy and civil liberties so far?
The most important thing I thought was it's the the reported issued on section two fifteen of The USA Patriot Act. Now this is a provision of law that was obviously in the Patriot Act that the government misinterpreted to give it permission to collect records of every phone call made to, from, and within The United States. You couldn't draw the conclusion from reading that statute that this is what it permitted. But that's how the intelligence community read it. And when Edward Snowden revealed that program in 2013, it became extremely controversial. The privacy and civil liberties oversight board, which had just recently been reconstituted, issued a scathing report on section two fifteen surveillance, and it found that the intelligence community's reading of the statute couldn't be supported by law was probably authorizing unconstitutional surveillance and that it wasn't protecting us against terrorism. Oh, wow. All the claims that the intelligence community were making about how it had thwarted terrorist attacks turned out not to be quite true. And for a federal agency to write that in a report and to back it up and to have been able to do that because it had access to classified information, it was unheard of in the history of intelligence oversight. So PLOP did a really good job in that particular report. Congress end up ended up killing that program, outlawing it. And, I thought that was PCLOP's, most important
move to protect privacy and civil liberties. It sounds like the PCLOP plays a key role in balancing national security interests with privacy rights. Can you help me understand what led to the attempted firing of the P Club members? And how does this shake up affect the board's ability to oversee privacy and civil liberties issues? Well, the president
never really stated a reason for firing the three Democrats who were then on the privacy and civil liberties oversight board. He never said, you haven't performed well. He never said, you've been issuing reports I don't like. He just got rid of them probably because they were Democrats. The sole remaining person on the privacy and civil liberties oversight board is a Republican, and the president has the power to appoint others to that body. He can only appoint two more who are, Republicans. That's statutory. He can't appoint all five members from his own party. But I think it's, reasonable to guess that he wanted a p club more pliant
to his views. I I wanna talk about the two members of the p club that brought a suit against president Trump. And those who were involved, they brought this suit against not only president Trump, but those involved in the attempt to fire them.
What are they claiming, and what do they have to prove in order to win? Well, this is an important piece of litigation because it it's really gonna determine whether the p club, is an effective oversight body going forward. They are claiming that they were fired Mhmm. In violation of their due process rights and in violation of a statute, the Administrative Procedures Act, that requires certain administrative procedures to be followed for actions like this. Their request for relief, it's not so much for monetary damages, although they did include a request for $10,000, which is what they would have been paid for their time as part time members of the p club. Primarily, what they are asking for is to be reinstated into their original positions. And they have a strong case, Jamal. They have a strong case. They can show that Congress changed the statute Mhmm. Of in 2007 I'm sorry, 2008 to make it so that to remove language in the original statute that said that members of the p club serve at the pleasure of the president. Mhmm. That language was stripped out, and instead, new language was put in saying, this club, it shall be an independent agency. New language was put in that said, this club, it shall report to congress, and it shall, issue these reports on legislation. The original language was just, hey. We're creating this p club to advise the president and intelligence agencies. That suggests that it could be a creature of the president. The new statutory language takes that out. So they have a good case, and, I'm hopeful that it will succeed and that, PicLab's credibility will be restored. Speaking of credibility, I I I wanna ask whether if Trump's attacks on the PLOP permanently damaged it.
If the PLOP members succeed in their lawsuit or by chance president Trump quickly replaces them, will that restore the PLOG to its proper role of balancing anti terrorism policies against privacy and civil liberties interest?
I think it's fair to say that if the first one happens, yes, if they succeed in their litigation. But if the second one happens, Trump, appoints people sympathetic to him, to the p club, that is not gonna restore its credibility. The the here's why I say that. Think about that report that I mentioned at the outset of our discussion. It was pretty hard hitting. You're not gonna get a hard hitting report like that from people who are worried that if they issue such a report, they'll be kicked off the board because the president doesn't like it. So I I think that unless they succeed in their litigation, in challenging their firing, in establishing p club through the courts as an independent entity, that it could be permanently damaged. There is one other possibility, and that is that Congress would amend the PLAAFP statute to make it crystal clear that the president can't fire members of the privacy and civil liberties oversight board, without cause, without having a good reason for doing that. Congress could do that. Congress could do a lot of things, Jamal, that it doesn't do. So I'm not holding my breath on that one. Although, I will say, it's it's likely that we will make a run, make an attempt at doing that, next year in connection with the legislation that congress will consider, to reauthorize,
a a critical intelligence program, section seven zero two. How could the attempted firing of the pCloud members influence the relationship between The United States and the European Union when it comes to data protection and transatlantic data flows? So the European Union has,
the GDPR, which is designed to make it so that if Europeans' data flows to other countries, that it's protected at a roughly equivalent level to the protection it enjoys within Europe. Well, The US doesn't have those same laws that European countries have to protect data. And the Europeans insisted that, if data were to flow across the Atlantic to tech companies through tech companies like Google and Meta, well, it would have to be protected from US government surveillance at a higher level. So they put into the data privacy framework agreement between The US and, Europe. They put in language that said, P Club shall oversee and issue a report on whether the intelligence agencies are abiding by these new restrictions on the scope of intelligence surveillance directed abroad. It has to issue a report on that, and it also has to oversee a data protection review court that was established in the Department of Justice as part of this agreement. P club cannot issue those reports unless it is reconstituted with a quorum. And a quorum is three members, and it doesn't have it has only one member right now. So if PLOB's oversight is just not there because it doesn't have the ability to issue these reports, well, the Europeans are losing the benefit of their bargain, and they'll have something to say about it. In fact, members of the European Parliament have already queried the European Commission, that's their executive, function, about the impact of the firing or the attempted firing, I should say, of these, members of the p club.
This actually flows really nicely into my next question. And I I would like your opinion on what actions the US government should take to reassure European stakeholders that privacy and civil liberties will continue to be safeguarded in the transatlantic
data exchanges? Well, the first thing they could do is, well, Jamal, there's only two things they can do, and both of them are hard for a government to do. One is to admit that the attempted firings of p club members was unlawful and to fold in court, highly unlikely. The other thing it could do is, support legislation that would guarantee independence by making it so its members couldn't be fired except with cause. That's also very difficult for the US government to do. I think, we're in for a rocky time when it comes to transatlantic data flows. And I'll just add one other thing. Whether US tech companies go to bat for the p club and put pressure on congress to reconstitute it as an independent body whose members can't be fired at will by the president, well, that would, that would go a long way toward accomplishing, that result and giving the Europeans some comfort that they were getting the benefit of their bargain.
I'd like to kind of bring that question back domestically too when thinking about how or what actions the US government could or should take to reassure Americans that our privacy and civil liberties will continue to be safeguarded.
Well, I think that reconstituting the p club as an independent agency would go a long way toward doing that. There are other improvements that could be made to help the p club do its work in protecting privacy and civil liberties. One of them would be to give it direct subpoena power. That's the ability for the board to demand with the force of law that intelligence agencies disclose information to it. There's always a dance behind the scenes. We don't see it, but there's always a dance about what information, an independent overseer like the p club will be able to get from intelligence agencies. So far, p club members have said they've gotten access when they insist on getting it. I think giving them subpoena power would give them quicker and more reliable access. There are other steps that could be taken, including, protecting people against firing, making all p club members full time. It's a big job they have, and, we they have a 30 some person staff that that serves them, but they're all part time except for the chair who is full time. So there are things that could be done to, strengthen the club and thereby protect Americans' privacy and civil liberties.
Before we close out, because we've talked about a lot in this last fifteen minutes. So if you had to leave listeners with one top line takeaway, what would that be?
It it would be this, that our rights are fragile, and we need to have independent agencies within the government who protect them. And I have to say the administration has really gone after those protectors. It fired most of the inspectors general. It is attempting to bring the independent agencies like the FTC, Federal Trade Commission, and the FCC within the, influence of other agencies of the government that are under the president, making them less independent. When Congress sees a problem and it creates an independent agency to deal with it, It's doing that for a reason. It's because the executive branch can't be trusted to look at the questions objectively, to develop an expertise that survives from one president to the next and that the American people can count on to protect their rights. So that's what I'd say people should be, focusing on. It's really this attack on oversight. The p club attempted firings are part of that attack. That's something that we have to push back on. Well, Greg, this has been extremely insightful,
and we appreciate your time. I know you're busy at right RightsCon right now, so I don't wanna take up too much of your time. But I really genuinely appreciate you joining us here today on Tech Talks to talk about this. Thanks, Jamal.
Thanks for all you're doing.
Of course. And for all our listeners, if you're curious to learn more about the work CDT is doing, please visit us at cdt.org and follow us on Facebook, Mastodon, LinkedIn, and the social media platform formerly known as Twitter at SendemTech. I'm Jamal Magby, and thank you for talking tech.
