The Privacy and Civil Liberties Oversight Board (PCLOB) has proven itself a valuable watchdog over the counterterrorism operations of U.S. intelligence agencies since its inception during the Obama administration. That’s why President Trump’s recent decision to dismiss its three democratic members is so alarming. Unless the PCLOB is reconstituted, the American public will be deprived of a vital independent check on government surveillance activities that pose risks to Americans’ privacy interests. His decision runs counter to calls from Republicans to reform the U.S. intelligence apparatus, and strips from the American public a vital check on government overreach.
If anything, the scope of the PCLOB’s review authorities should be expanded, not dismantled. In today’s rapidly evolving threat landscape, its limited statutory focus on counterterrorism oversight leaves a dangerous gap in independent review of the U.S. government’s other surveillance activities, which likewise pose risks to privacy and civil liberties. Lawmakers, therefore, should consider urging President Trump to reconstitute the Board’s leadership and pass legislation to expand its authority to look beyond counterterrorism programs to help better protect U.S. citizens from the potential excesses of government.
A perpetual tension of the United States’ liberal democracy is the balance between liberty on the one hand, and security and safety on the other. Unrestricted freedom maximizes liberty but deprives the government of the tools to identify and disrupt threats, while comprehensive security protects society from threats but risks burdening liberty in the process.
In the shadow of Sept. 11, 2001, the U.S. government expanded the surveillance authorities of the Intelligence Community (IC) to intercept communications and other digital markers to identify and thwart terrorist plots within the United States and overseas. Recognizing the associated risks to civil liberties, the 9/11 Commission recommended the creation of an independent board to oversee the government’s use of these counterterrorism tools and report to the president and the public regarding potential encroachments on privacy and civil liberties.
Authorized in 2007 and operational since 2012, the Board has become an important independent check on the privacy implications of the government’s counterterrorism activities, providing critical analysis to the U.S. public about these programs and their impact on civil liberties. It has published more than a dozen public reports providing transparency about intelligence operations and encouraged meaningful reforms in surveillance programs, allowing for a better balance between counterterrorism efforts and civil liberties. Among other things, the PCLOB recommended substantial reforms to the bulk collection of telephone metadata after it was publicly revealed by leaks from Edward Snowden in 2013. And it successfully advocated for added transparency with respect to the surveillance court that oversees operations undertaken under the Foreign Intelligence Surveillance Act.
But for the Board to remain relevant, Congress must expand its role to account for the growing field of government activities that pose risks to the privacy of U.S. citizens.
Today, the U.S. government works to defend against threats from foreign actors such as Russia, Iran, and China, which use sophisticated tools to influence society, steal U.S. data, and exploit internal divisions — from AI and machine learning to social media manipulation and advanced data analytics. And it likewise undertakes the precarious work of defending against threats from within, from domestic terrorists and white nationalists to anarchists and other forms of violent extremism.
These efforts are as critical as they are concerning. In the name of national security, U.S. citizens ask the government to do more to keep them safe. The steps the government then takes to address these threats, particularly given society’s increased reliance on digital communication, expands its powers and thus pose greater risks to civil liberties.
These expanded efforts, including FBI intelligence gathering that targets U.S. citizens within the United States, pose not only risks to civil liberties, but are also politically fraught. Conservatives have long warned about the dangers of an unchecked surveillance state, while President Donald Trump and many Republicans have claimed that political objectives motivated the government’s intelligence activities related to foreign influence operations in U.S. elections and civil discourse. Trump has rightly called for ensuring that our national security apparatus remains strictly apolitical. Similarly, Democrats have raised legitimate concerns about the politicization of these powers, pointing to troubling signals that some might seek to weaponize government capabilities for partisan ends.
Rather than relitigating past controversies, the solution to creeping government surveillance lies in establishing robust, nonpartisan safeguards that protect all U.S. citizens’ civil liberties, regardless of which party controls Washington. Congress has the power to act now — through straightforward legislative changes — to demand that the President reconstitute the Board’s leadership, and expand the Board’s mandate to restore and strengthen these critical protections. For example, the PCLOB’s authority should be expanded to undertake a review of domestically-focused surveillance efforts targeting individuals and organizations with suspected links to foreign adversaries such as Russia and China, as well as domestic extremist groups. While such surveillance activities, generally speaking, are critical to the FBI’s mission to protect the American public from foreign spies and violence crimes, the means by which the FBI goes about its work raises significant privacy concerns. Both parties recognize that intelligence and law enforcement must remain apolitical – expanding the PCLOB’s oversight role offers a way to help ensure this.
While expanding the Board’s role is not a comprehensive solution to legitimate privacy concerns, strengthening independent oversight would provide crucial accountability and transparency. In an era of unprecedented technological capabilities, rapidly evolving national security threats, and increasingly powerful government surveillance tools, bolstering this democratic safeguard is not only beneficial, but imperative.