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Fed surveillance oversight board stuck in neutral, Biden busy elsewhere

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President Joe Biden has yet to fill three vacancies on a five-person board created after 9/11 to monitor how the government balances national security and civil liberty.

Numerous U.S. rights groups have written to the White House demanding that Biden’s actions now mirror his campaign rhetoric about reining in secret and unfettered federal surveillance.

Most of the groups have been around long enough to know that the power to surveil in general has only grown since the 9/11 attacks. Facial recognition efforts have particularly grown.

Domestic surveillance has very rarely been curbed over the last 50 years and only after historic levels of public pressure.

After all, the nation elected a former director of the CIA, George H.W. Bush, president in 1989, and every administration since has found reasons to nibble or slash at privacy rights for national security.

The independent Privacy and Civil Liberties Oversight Board, first staffed in 2012, has been an interesting federal effort. It can interview, take statements and take public testimony from anyone in the executive. It cannot by itself compel testimony.

(The board’s $8.5 million fiscal 2021 budget justification is here.)

But the board is quite powerful in the access that its five members have to records, reviews, even classified surveillance information from the executive branch.

From a civil libertarian point of view, it is essential to have a working board overseeing government actions in as close to real time as possible given the extent to which agencies across the executive branch are using, for example, Clearview AI‘s face biometrics service.

(Clearview has been setting up its own board.)

Even if it was not illegal to do so, the board cannot meet or act until it has a majority of its members present.

Right now, only two board members remain.

One is Edward Felten, the Robert Kahn professor of computer science and public affairs at Princeton University, and a veteran of government service. The other is Travis LeBlanc, partner and vice chair of the cyber, data and privacy practice at Cooley LLP.

One board member left in January, a second in June and the third July 2021.

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