S. HRG. 112–920 

NOMINATIONS TO THE PRIVACY AND CIVIL 

LIBERTIES OVERSIGHT BOARD 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

APRIL 18, 2012 

Serial No. J–112–71 

Printed for the use of the Committee on the Judiciary 

( 
NOMINATIONS TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT 

BOARD 
U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

92–205 PDF 2015

S. HRG. 112–920 

NOMINATIONS TO THE PRIVACY AND CIVIL 

LIBERTIES OVERSIGHT BOARD 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

APRIL 18, 2012 

Serial No. J–112–71 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 1 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 3 

prepared statement .......................................................................................... 382 

STATEMENTS OF THE NOMINEES 

Witness List ............................................................................................................. 381 

Medine, David, Nominee to be Chairman and Member of the Privacy and 

Civil Liberties Oversight Board .......................................................................... 7 

Questionnaire .................................................................................................... 8 

Dempsey, James Xavier, Nominee to be a Member of the Privacy and Civil 

Liberties Oversight Board ................................................................................... 52 

Questionnaire .................................................................................................... 53 

Cook, Elisebeth Collins, Nominee to be a Member of the Privacy and Civil 

Liberties Oversight Board ................................................................................... 131 

Questionnaire .................................................................................................... 132 

Brand, Rachel L., Nominee to be a Member of the Privacy and Civil Liberties 

Oversight Board ................................................................................................... 223 

Questionnaire .................................................................................................... 224 

Wald, Patricia M., Judge, Nominee to be a Member of the Privacy and 

Civil Liberties Oversight Board .......................................................................... 252 

Questionnaire .................................................................................................... 253 

QUESTIONS 

Questions submitted by Senator Leahy for David Medine .................................. 383 

Questions submitted by Senator Leahy for James Xavier Dempsey ................... 384 

Questions submitted by Senator Grassley for David Medine .............................. 385 

Questions submitted by Senator Grassley for David Medine, James Xavier 

Dempsey, Elisebeth Collins Cook, Rachel L. Brand, and Patricia M. Wald ... 386 

Questions submitted by Senator Klobuchar for David Medine, James Xavier 

Dempsey, Elisebeth Collins Cook, Rachel L. Brand, and Patricia M. Wald ... 397 

Questions submitted by Senator Leahy for David Medine .................................. 398 

ANSWERS 

Responses of David Medine to questions submitted by Senators Leahy and 

Klobuchar .............................................................................................................. 399 

Responses of David Medine to questions submitted by Senator Grassley .......... 421 

Responses of James Xavier Dempsey to questions submitted by Senators 

Leahy, Grassley and Klobuchar .......................................................................... 424 

Responses of Elisebeth Collins Cook to questions submitted by Senators 

Grassley and Klobuchar ...................................................................................... 447 

Responses of Rachel L. Brand to questions submitted by Senators Grassley 

and Klobuchar ...................................................................................................... 463 

Responses of Patricia M. Wald to questions submitted by Senators Grassley 

and Klobuchar ...................................................................................................... 485 
Page

IV 

SUBMISSIONS FOR THE RECORD 

Undersigned Organizations: American Association of Law Libraries; American 

Civil Liberties Union; American Library Association; Association of Research Libraries; Bill of Rights Defense Committee; Center for Financial 

Privacy and Human Rights; The Constitution Project; Consumer Action; 

Consumer Watchdog; Defending Dissent Foundation; Liberty Coalition; 

Muslim Public Affairs Council; National Association of Criminal Defense 

Lawyers; OpenTheGovernment.org; Patient Privacy Rights; Privacy Times; 

Remar Sutton; Founder, Privacy Rights Now Coalition, April 17, 2012, 

joint letter ............................................................................................................. 507 
(1) 

NOMINATIONS TO THE PRIVACY AND CIVIL 

LIBERTIES OVERSIGHT BOARD 

WEDNESDAY, APRIL 18, 2012 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 10:08 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Whitehouse, Franken, and Grassley. 

Chairman LEAHY. Thank you all for being here. Normally, I 

would go first. Senator Grassley has to go on to something else, so 

I will yield to Senator Grassley to begin. 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. 

SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. I thought we had everything lined up so I 

could speak at 10:10 over on the floor and then get over here, and 

that is what I emailed him this morning. So I have got to back up 

and be over here now. Welcome to all of you. 

Following the terrorist attacks on 9/11, we made a number of reforms in order to protect the Nation from further attacks. These reforms included tearing down the artificial wall between law enforcement and national security cases that the Justice Department 

had created, passage of the PATRIOT Act, reforming the intelligence community, and updating the Foreign Intelligence Surveillance Act. 

Many of these efforts were based upon Commission by the bipartisan 9/11 Commission. Altogether, the various reforms recommended by the 9/11 Commission and then implemented have 

strengthened our National security and helped to prevent another 

major terrorist attack on U.S. soil. However, we must remain vigilant against terrorist attacks and not let down our guard. 

I am sorry. I ran over here, and I should not have run. I am too 

old for that. 

[Laughter.] 

Chairman LEAHY. I know all the running you do. None of us 

could keep up with you. 

Senator GRASSLEY. Lest we forget that we were spared an attack 

on Christmas Day 2009 because the would-be bomber could not ignite the explosives, similar to the failure of the would-be shoe 

bomber, Richard Reid, further evolving threats such as radicalized 

homegrown terrorists, such as Nidal Hasan, who is charged with 
2 

murdering 13 and wounding 29 at Fort Hood, represent the evolving threat we face. 

That said, some have argued that all these reforms to our intelligence, law enforcement, and national security agencies have been 

at the cost of civil liberties and individual rights. Recognizing this 

concern, the 9/11 Commission recommended that Congress create 

the Privacy and Civil Liberties Oversight Board to oversee the new 

authorities granted to these agencies. 

In 2004, President Bush issued an Executive order creating an 

executive branch board focusing on safeguarding civil liberties. 

Congress also acted by passing and signing into law the Intelligence Reform and Terrorism Prevention Act, which included provisions creating the Privacy and Civil Liberties Oversight Board in 

statute. However, the original board was slow to develop, facing 

nomination and budget issues. 

In 2007, legislation updated the board’s statute, re-establishing 

it as an independent agency. President Bush promptly nominated 

three individuals to serve on the board in February 2008, but those 

nominations were not addressed by this Committee during the 

110th Congress. 

Despite the board’s new Congressional mandate in 2007, President Obama waited until December 2010 to nominate two of the 

five board members. The other three were not nominated by the 

President until December 2011. Given the significant mission of 

this board, it is hard to understand why it took the President nearly three and a half years of a four-year term to send up the nominees. 

We are here today to address all five of these nominations. There 

are a lot of important questions that I have of the nominees. Because we probably will not be able to ask all the questions, I will 

just say a summary of what I am going to proceed with when we 

get to questions. 

There are significant concerns over the broad mandate of the 

board, how it will be staffed, and how much it will cost. Further, 

there are concerns about what the mission of the board will really 

be. We already have privacy and civil liberties officers at many of 

the federal agencies that the board will oversee. How do the members plan to interact with these existing entities to ensure that the 

board does not prevent them from doing their job? I look forward 

to hearing the nominees’ views on how the board will actually operate and how they plan to coordinate but not duplicate existing civil 

liberties oversight. 

Most importantly, I want to hear from the nominees how they 

will ensure that the work of the board will not hinder ongoing intelligence and law enforcement operations. Additionally, I will ask 

about their views on a number of critical national security tools 

that have been proven to keep the Nation safe. Both the PATRIOT 

Act and FISA have been reformed to ensure that information critical to preventing terrorist attacks is accessible and is shared 

among necessary law enforcement and national security partners. 

This board has a broad mandate to oversee how these laws are 

implemented, and it is important for Members to understand if 

these nominees have any preconceived bias or opposition to these 

important tools authorized by Congress. 
3 

So for a second time, I welcome the nominees as well as their 

family members and guests with them. Each of the nominees has 

a distinguished background. Many of them are no strangers to this 

Committee, having previously been confirmed by the Senate to very 

important positions, and obviously, Rachel Brand, one of the nominees, is from my State of Iowa, and she has very impressive credentials as well as an impressive professional career. 

Welcome to all of you. Thank you. 

Chairman LEAHY. Thank you. 

Senator GRASSLEY. And I will be back in a little while. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Chairman LEAHY. Thank you very much. 

As I said earlier, the Committee is holding this important hearing. We do want to consider these nominations to the Privacy and 

Civil Liberties Oversight Board. The PCLOB—and if anybody 

wants to try to pronounce that, feel free, because I know I could 

not. But as our Nation faces growing threats to national security 

at home and abroad and in cyberspace, I think it is important that 

we have a fully functioning board, and I welcome the President’s 

nominees to this critical board. 

We have developed a lot of new tools to combat terrorism—some 

have worked, some have not—since September 11th. Some have 

been very effective; some have been, I think, as much an annoyance as they have been effective. But throughout it all, I applaud 

the people in our country who do try to keep us safe, and we know 

that we will continue to have new procedures. But we also have to 

have meaningful checks and balances. We are going to safeguard 

our fundamental values as we try to secure the Nation. 

I have worked with Senators Durbin, Lieberman, Collins, and 

others to create the Privacy and Civil Liberties Oversight Board at 

the recommendation of the 9/11 Commission, something I felt 

should be there. We wanted to ensure that Americans’ privacy and 

civil liberties are effectively protected even while we had these 

heightened national security measures. 

As the 9/11 Commission observed in its report, which is something we should not forget, is that ‘‘[I]f our liberties are curtailed, 

we lose the values that we are struggling to defend.’’ That goes 

back to Ben Franklin’s comments that were not dissimilar. 

The board was initially established within the Executive Office 

of the President. Five years ago, we revised the legislation to improve the board’s effectiveness. We wanted it to be an independent 

executive branch entity. We did this to strengthen the board. By 

‘‘we,’’ I mean all of us who worked together on this legislation. We 

wanted to have a greater impact on the policies that affect Americans’ privacy and civil liberties. 

Now, here in Congress, we are considering various proposals to 

enhance the Nation’s cybersecurity. We all want to do that. We are 

not absolutely sure the best way to do it because the proposals 

would have a significant impact on the privacy rights and liberties 

of all Americans. So we are grappling with these important questions. How does our National Counterterrorism Strategy impact the 

rights and liberties of U.S. citizens not only here at home but when 
4 

we are abroad? We have smartphones, GPS devices, and other mobile technologies that make it a lot easier for our Government to 

identify and track potential threats. But they also mean that we 

could have increased government surveillance which could imperil 

our privacy rights and our civil liberties. 

Over the last several weeks, we have seen reports in the New 

York Times and elsewhere about the increased location tracking 

conducted by local police and the fact that such surveillance is neither limited to terrorist threats or, most importantly, subject to a 

warrant requirement or judicial review. It is getting a little bit too 

close to Big Brother for me, and that is why I have been working 

so hard to update and strengthen the Electronic Communications 

Privacy Act. 

This should not be a partisan idea. Safeguarding our liberties is 

not a Democratic or a Republican idea. It is an American idea. 

These are American values, and we should all embrace them. And 

they set us apart from some of the other countries around the 

world, the fact that we do appreciate our privacy and liberty. And 

if anybody questions whether you really appreciate privacy, go to 

my own State of Vermont. We consider privacy to be one of the 

most important values we have. 

So I hope we will join together and consider these nominations 

to this important board in a bipartisan manner. I welcome the 

nominees. 

Before we start and before I introduce each one of the nominees, 

as is our custom, I wish to swear you all in, so if you could stand, 

please. Do you swear that the testimony you will give before the 

Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Mr. MEDINE. I do. 

Mr. DEMPSEY. I do. 

Ms. COOK. I do. 

Ms. BRAND. I do. 

Judge WALD. I do. 

Chairman LEAHY. Thank you. 

Our first witness will be David Medine. He is an attorney at the 

U.S. Securities and Exchange Commission. He previously served as 

a senior adviser to the White House National Economic Council 

from 2000 to 2001 before spending 10 years as a partner at the law 

firm of Wilmer-Hale. We have alumni of Wilmer-Hale here. From 

1992 to 2000, Mr. Medine was the Associate Director for Financial 

Practices at the Federal Trade Commission, where, in addition to 

enforcing financial privacy laws, he took the lead on Internet privacy, chaired a federal advisory committee on privacy issues, and 

was part of the team that negotiated the Privacy Safe Harbor 

Agreement with the European Union. That must have been fun. 

Before joining the FTC—I say that tongue in cheek—he taught 

at Indiana University’s Bloomington School of Law and the George 

Washington University School of Law. He has been nominated to 

serve as Chair of the Privacy and Civil Liberties Board. 

Before you begin, Mr. Medine, do you have any family members 

here? 

Mr. MEDINE. Yes, I do. 
5 

Chairman LEAHY. Well, would you go ahead and introduce them? 

That way it will be part of the record, and it will be someday in 

the Medine family archive. 

Mr. MEDINE. Thank you very much, Mr. Chairman. First, I will 

introduce my wife, Carol Weil; my daughter, Marissa, who is a 

public policy major in college; my other daughter, Julia, who is a 

high school student locally; and my sister, Emily. 

Chairman LEAHY. You are fortunate to have your family with 

you, and please go ahead. Do you have a statement you wish to 

make? 

Mr. MEDINE. No, just that we are—I was humbled and grateful 

to have been nominated for this position. I look forward to working 

with such a distinguished bipartisan group of colleagues, and I look 

forward to answering your questions. 

Chairman LEAHY. I am going to introduce each one of the members of the panel, and then we will go to questions. 

James Dempsey—James Xavier Dempsey, as I recall—is Vice 

President for Public Policy at the Center for Democracy and Technology—no stranger to this Committee, he has testified here many 

times—a nonprofit organization focused on privacy, national security, government surveillance, and other policy issues. Prior to joining it in 1997, he served as deputy director of the nonprofit Center 

for National Security Studies and special counsel to the National 

Security Archive. He served as Assistant Counsel to the House Judiciary Committee’s Subcommittee on Civil and Constitutional 

Rights. He clerked for Judge Robert Braucher of the Massachusetts 

Supreme Judicial Court, and as I said, no stranger to this Committee. 

Mr. Dempsey, do you have family members here? 

Mr. DEMPSEY. No, Mr. Chairman, I do not. 

Chairman LEAHY. The next witness will be Elisebeth Collins 

Cook, counsel with the law firm Wilmer-Hale. Did we leave anybody back at Wilmer-Hale? 

[Laughter.] 

Chairman LEAHY. She focuses on complex civil litigation, administrative action, and legal policy. In 2008, she was confirmed as Assistant Attorney General for Legal Policy at the U.S. Department 

of Justice. In 2009, Ms. Cook served as Republican Chief Counsel, 

Supreme Court Nominations, for the U.S. Senate Committee on the 

Judiciary, and, of course, is no stranger to all of us here. 

Earlier in her career, she clerked with Judge Lee Rosenthal of 

the U.S. District Court for the Southern District of Texas and for 

Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia. 

Ms. Cook, do you have any family members here? 

Ms. COOK. Yes, I am delighted to be joined today by my parents, 

Tom and Martha Collins; and my husband, James Cook. 

Chairman LEAHY. Thank you. Good to have you. 

Ms. COOK. And friends and colleagues have taken the time today 

to be here, and I thank them for that. 

Chairman LEAHY. Thank you. We will add all of them, if you give 

all of their names to the reporter. They might as well be in the 

Cook archive. 
6 

Rachel Brand, currently Chief Counsel for Regulatory Litigation 

at the U.S. Chamber of Commerce, National Chamber Litigation 

Center, and she is referred to, of course, by Senator Grassley earlier. Previously she practiced law with the firm of Wilmer-Hale. 

She also served as Assistant Attorney General for Legal Policy at 

the U.S. Department of Justice. She handled policy issues including 

counterterrorism. She was Associate Counsel to President George 

W. Bush. She was a law clerk to Justice Anthony Kennedy of the 

Supreme Court of the United States and to Justice Charles Fried 

of the Supreme Judicial Court of Massachusetts. 

Ms. Brand, do you have family members here? 

Ms. BRAND. Thank you, Mr. Chairman. I do. My husband, Jonathan Cohn, is in the audience, and my four-year-old son, Willem 

Cohn, is here, too. 

Chairman LEAHY. Who is just fascinated by all the—— 

[Laughter.] 

Chairman LEAHY. Last, but not least, is a very good friend of this 

Committee, and I would note a personal friend, Judge Patricia 

Wald. She served on the U.S. Court of Appeals for the District of 

Columbia from 1979 to 1999, including five years as Chief Judge. 

Since that time, she has served in various capacities, including as 

a judge on the International Criminal Tribunal for the Former 

Yugoslavia; a member of the President’s Commission on Intelligence Capabilities of the U.S. Regarding Weapons of Mass Destruction. She had been an Assistant Attorney General for Legislative Affairs at the Department of Justice before joining the court 

of appeals. She also clerked for Judge Jerome Frank on the U.S. 

Court of Appeals for the Second Circuit, which is a circuit I argued 

before years ago. 

Judge Wald, do you have family members here? 

Judge WALD. No, I do not, Senator. My husband died within the 

last year, so I am sure he is here in spirit supporting me on. My 

five children and 10 grandchildren are so widely dispersed throughout the country that I gave them a pass on this hearing since they 

have been to previous confirmation hearings. 

I do have some good friends and former colleagues in the audience. 

Chairman LEAHY. I offer my condolences on the passing of your 

husband. I know you were together for a long, long time. Enjoy 

those grandchildren. As you know, they are the reward for having 

put up with your children all those years. 

[Laughter.] 

Chairman LEAHY. And there is a hidden part of the Constitution 

which I will reveal today to all these legal scholars, the hidden part 

of the Constitution which requires grandparents to spoil their 

grandchildren. My wife and I believe strongly in it. 

Mr. Medine, a fully operational Privacy and Civil Liberties Oversight Board is, of course, essential, as we know, to protecting our 

privacy. And I have said on this so many times since September 

11th of 2001, we have got to protect ourselves, but we have got to 

balance it with what makes us great as a Nation, our privacy and 

our civil liberties. What are going to be some of your first priorities 

if you are confirmed as Chairman of the Board, and how will you 

address these priorities? 
7 

STATEMENT OF DAVID MEDINE, TO BE CHAIRMAN AND MEMBER OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT 

BOARD 

Mr. MEDINE. Thank you, Mr. Chairman—— 

Chairman LEAHY. Is your microphone on? 

Mr. MEDINE. Thank you, Mr. Chairman. If confirmed, the board 

would have to meet and discuss what our priorities are, but there 

are obviously a lot of pressing concerns about national security and 

counterterrorism efforts and our charge to make sure that there is 

the proper balance struck between privacy and civil liberties and 

counterterrorism. But as you alluded to, the 9/11 Commission said 

the choice between security and liberty is a false choice. But there 

are a number of programs that we would look at. One is the statute 

calls for us to look at the information-sharing guidelines, and so 

that would certainly be a first priority. And I know those guidelines have been recently revised, and so they are essentially a living process, and the board, if confirmed, would be happy to look 

into those and provide the required advice. But there are a number 

of other issues that, once we meet, we would establish some priorities. 

One thing that we cannot do until we have been established is 

to gain access to highly classified information which would give us 

the full range of knowledge in setting our priorities. 

Chairman LEAHY. Mr. Dempsey, we talked about how you share 

information within the government, and obviously, if we are under 

any kind of an attack, the ability to share that is very important, 

whether it is a physical attack against us or a cyber attack. But 

I am also concerned that today we do not have all our private information in a filing cabinet at home. It is online somewhere. And I 

have had a lot of Vermonters who expressed worry about the National Security Agency or the Department of Defense accessing information about their online activities. I worry because sometimes 

with good intentions you have people who do not seem to use much 

sense. 

For example, whoever the idiots were in the Department of State 

and the Department of Defense who put all this information, private and confidential memos from Ambassadors onto a computer 

where a corporal, whatever his motivations, could just access all 

that stuff and give it out—I mean, people have died and other 

things have happened because of that. And I realize the corporal 

has been arrested, but I would like to see some public exposure of 

whoever the num-nums were—that is a professional Vermont 

term—who allowed all that stuff to be put on a computer where 

somebody could get it anyway. It is obvious they had no idea how 

computers work or how easily they can be accessed. 

I say that because you can understand why people are worried 

that if we give more and more power to the government to go into 

our private things, some idiot is going to put it somewhere where 

the next thing we know it is going to be all over Leak-a-pedia, or 

whatever you might want to call it. 

So how do you assess the privacy and civil liberty implications? 

How do you address something like that? 

[The biographical information follows.] 
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STATEMENT OF JAMES XAVIER DEMPSEY, NOMINEE TO BE A 

MEMBER OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD 

Mr. DEMPSEY. Well, Mr. Chairman, as you know, the questions 

of technology and security and privacy are of long-running interest 

to me as they are to you, and if confirmed and if the board comes 

into operation, I would look forward to working with the Chairman 

and the other members of the board to establish a sense of priorities. But I think the whole question, as Senator Grassley also referred to, of information sharing is critical. 

After 9/11, appropriately in my view, the law was taken down, 

and agencies were under an imperative and are under an imperative properly to share information. But as the 9/11 Commission recognized, as the Congress recognized, as the agencies themselves 

recognized, this poses challenges both on the security side, as illustrated by the WikiLeaks situation, and on the privacy side. 

So, if confirmed, I would look forward to working with you and 

with the privacy officers in the various agencies who, I know, are 

grappling with this issue and to work with the people designing 

and running these systems, look at what is effective, what are the 

needs, what is the threat, and then how can we meet the threat 

with the system of checks and balances, accountability, and the 

kinds of rules that you referred to. 

Chairman LEAHY. Well, you know, we talk about WikiLeaks. 

There is a case where we had some real—the leaking of parts of 

it was just embarrassing, but other parts really went at our National security, and in some cases I think a case could be made 

that people died as a result of it. And that is an easy one. I mean, 

the fact that it came out and WikiLeaks used it and so on. But we 

can also go just as average citizens, you might have everything 

there from a member of your family is undergoing psychiatric help 

or alcoholic rehabilitation or something like that, and if it is easily 

available, does that leak out to your embarrassment? 

I might ask the same question of everybody else here. Ms. Cook, 

do you want to add anything to that? 

[The biographical information follows.] 
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STATEMENT OF ELISEBETH COLLINS COOK, NOMINEE TO BE 

A MEMBER OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD 

Ms. COOK. I would echo Mr. Dempsey’s thoughts on this issue. 

I would just add that, if confirmed, one of the things I think you 

see today is development of technological privacy enhancements at 

the same time that you see development of the ability of the government to use analytical tools. So with respect to large sets of 

data, if confirmed, I would look forward to working with privacy officers, working with Congress, and working with the agencies to 

ensure that as they use their enhanced or additional tools, they are 

taking care to also put into place appropriate enhanced safeguards. 

Chairman LEAHY. Ms. Brand, do you want to add anything to 

that? 

[The biographical information follows.] 
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STATEMENT OF RACHEL L. BRAND, NOMINEE TO BE A MEMBER OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT 

BOARD 

Ms. BRAND. I am not sure how much I can add there, but it is 

clearly important both that agencies continue to develop the culture of sharing information, which was a challenge after 9/11, but 

also put into place the safeguards that will make sure that the information that they appropriately have and are sharing is safeguarded as well. 

Chairman LEAHY. But you understand the real concern Americans have for—— 

Ms. BRAND. Absolutely. 

Chairman LEAHY. And, Judge Wald, did you want to add anything to that? 

[The biographical information follows.] 
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STATEMENT OF HON. PATRICIA M. WALD, NOMINEE TO BE A 

MEMBER OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD 

Judge WALD. I would only add that I am happy with the prior 

Congress having put into our mandate 2000(e), the fact that we 

should provide advice on proposals to retain or enhance a particularly governmental power to ensure that the need for the power is 

balanced and that it has supervision, et cetera. 

I hope that the board will be able, as new technology requires 

new responses by the government, to pursue that particular power 

and to be at the initiation of those policies. 

I think I would take a note from the Supreme Court’s—some of 

the language in the recent U.S. v. Jones case which dealt with the 

GPS and their notion that technology is coming along, we cannot 

really know in advance how to cope with all the new technologies, 

but we do have to be alert to all their various propensities, their 

various capabilities. And I hope that, if confirmed, we can follow 

through with the mandate in our statute. 

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Chairman LEAHY. Thank you. 

We have been joined by Senator Whitehouse, a former Attorney 

General of his State and U.S. Attorney. 

Senator WHITEHOUSE. Thank you, Chairman, and thank you to 

each one of you for being willing to step into the service of our 

country in this very important way. These are not easy questions, 

and I respect that you have been willing to take on this responsibility. 

I just came from the Senate floor where I gave some remarks 

about the cyber threat that the country faces and my concern that 

we pass adequate legislation to actually meet that threat. And I 

think that is going to be an issue that you are going to have to 

face, and I wanted to get a sense, I guess particularly from Mr. 

Dempsey, who has testified on this subject before us, both I think 

in this Committee and the Intelligence Committee, if I remember 

correctly, Jim. 

Let me start with what do you consider the scale of the cyber 

threat to our National and economic security to be. 

Mr. DEMPSEY. Good morning, Senator. 

Senator WHITEHOUSE. Good morning. 

Mr. DEMPSEY. I agree with you that this is a very critical threat 

and one that could have obviously very broad implications for our 

economy as well as for our National security. And I also believe 

that further action by Congress is necessary and appropriate. 

One of the critical issues, actually, is the issue that we were just 

discussing to some extent with Chairman Leahy, which is the information-sharing issue. And it has been my personal view and my 

colleagues at CDT have testified to this fact—although when I am 

on the board, if confirmed, I would only be acting in my personal 

capacity. But my personal view is that some changes to the privacy 

laws are necessary, in fact, to promote more information sharing. 

Senator WHITEHOUSE. Do you accept that—one of the things we 

often hear in the Senate, particularly from people who want to attack environmental protection rules, is that there is a stark choice: 

You can either protect the environment, or you can have a good 

economy, but you cannot do both. I consider that to be a completely 

false choice, and I think that in some respects the choice between 

security and privacy is also a false choice. If you are a consumer 

and your credit card and Social Security number are right now up 

for sale on a Web site run by Estonian gangsters, you have a pretty 

serious privacy issue. If your art or your music or your design is 

presently being sold by foreign criminals without your permission, 

you presently have a pretty serious privacy issue about your own 

talents and ability to control your product. And when your company has to compete with a Chinese competitor who hacked into 

your computer and stole your R&D and is now making on the 

cheap the product that you spent hundreds of millions of dollars to 

design, you have got a pretty significant privacy issue. 

And so I assume that you all agree that the choice between security and privacy is also a false one in the sense that the choice between environment and economy is a false one. 

Mr. DEMPSEY. Absolutely, and I have dedicated much of my career to reconciling and balancing those two interests and working 

to achieve them, and if—— 
367 

Senator WHITEHOUSE. Which sometimes actually are common interests. 

Mr. DEMPSEY. Exactly. And I think that that is a very powerful 

concept, actually, when you realize that many of the same actions 

which will protect privacy may enhance security and many of the 

same things that you would do from an operational or effectiveness 

standpoint are actually also good for privacy. So, if confirmed to 

this board, I would very much want to bring that perspective, and 

I know that the other members of the panel that we have talked 

about this all share this view of achieving both of those goals. That 

is our National goal, it is the stated goal in the goal in the legislation, and it is the goal that I am committed to. 

Senator WHITEHOUSE. And, of course, we have to recognize that 

when you are cold and dark because the power grid is down or 

when you are alone because the communications networks you rely 

on have been hacked and are down or when you cannot get access 

to your bank account and the neighborhood store cannot process a 

purchase because the servers that process our financial transactions have been taken down, in those circumstances there are 

basic priorities in life that also emerge that need to be given considerable value in the equation, correct? 

Mr. DEMPSEY. Exactly. 

Senator WHITEHOUSE. Thank you, Chairman. 

Chairman LEAHY. I will place in the record a letter signed by a 

number of different groups urging the Senate Judiciary Committee 

to move forward quickly with the confirmation process so that the 

PCLOB is finally able to ‘‘begin its important work,’’ to quote them. 

I happen to agree with that, and I hope we can move quickly. 

[The letter submitted by Senator Leahy appears as a submission 

for the record.] 

From what you said earlier, Judge Wald, I understand you feel 

there is a need to balance government secrecy and the public’s 

right to know in our National security matters. 

Judge WALD. Yes, sir. 

Chairman LEAHY. Do you want to elaborate on that at all? 

Judge WALD. Well, I can elaborate basically mainly through my 

past experience. I have run into this problem both in my capacity 

as a judge on the court of appeals where we have many issues of 

national security that came before us. I also would like to mention 

that while I certainly do not feel as technologically expert as some 

of my hopefully future comrades here, in the D.C. Circuit, I am 

sure you are aware, we passed on most of the agency regulations, 

which included everything from the electric grids that Senator 

Whitehouse referred to down through pollution technology. So I 

have found that it is possible, and I think necessary, to look at 

some of these very complex issues from the point of view of the ordinary citizens that we are basically told to protect in the statute. 

As you know, Senator, I testified before this Committee about a 

bill which I believe you were a chief sponsor of, the state secrets 

bill, which dealt in that case with how state secrets are handled 

in the judicial process. And while I do not expect that this board 

will have any litigation problems—at least we hope not—I do think 

that the same kind of balance comes up again and again because 

most of our constitutional doctrines and our constitutional require-
368 

ments, as well as many of the statutory requirements, are based 

in terms of balancing the need for something against the least restrictive kinds of alternatives for arriving at that. And I believe the 

board can do a great deal of work at an earlier stage in that process by being in on the evolution of many of these techniques and 

to review the rules and regulations that would govern them. 

Chairman LEAHY. Thank you. 

I am going to submit some other questions for the record which 

I would ask you to respond to because I do want to put this on— 

I want to put this nomination on the agenda as soon as possible. 

Let me just ask you one question. 

What, in your view—and I will start with you, Mr. Medine—is 

the most significant privacy issue that Americans face today? And 

how can the board address that? 

Mr. MEDINE. A challenging question. 

Chairman LEAHY. I meant it to be. 

Mr. MEDINE. Our mandate is, again, the massive amounts of information that are being gathered by the government in its efforts 

to combat terrorism and, as you have pointed out and Senator 

Whitehouse has pointed out, how to balance those concerns with 

privacy and civil liberties of Americans who are subject to that information. And so our goal, if confirmed, would be to strike the 

right balance to make sure that privacy and civil liberties rights 

are protected, but at the same time making sure that our efforts 

to combat terrorism remain extremely effective. 

Chairman LEAHY. Mr. Dempsey. 

Mr. DEMPSEY. Well, Mr. Chairman, as you well know, this technology that has become so woven into our law, both personally and 

professionally, is very powerful, and it provides businesses with a 

tool, and it provides the government with tools. And the government should certainly take advantage of those tools. But as we also 

know, the technology has its downsides, which in various ways policymakers, including this Committee, have been dealing with now 

really since the dawn of the digital age. 

So I think, if confirmed and if the board comes into existence, I 

think our challenge is to, as I said before, understand the needs of 

the agencies that are using these technology tools and to look at 

the whole question of effectiveness and how the information is 

being used, what outcomes it is yielding. And with that foundation, 

the foundation of the need and the utility, then looking at what are 

the adverse consequences, what are the unintended consequences, 

and how can you develop a set of checks and balances, a set of 

rules, guidelines, and due process protections, whatever, that would 

give us the benefit of the technology while mitigating or limiting 

the downsides of it. 

Chairman LEAHY. Ms. Cook. 

Ms. COOK. I think that for a government to be effective, it needs 

the trust and consideration of its citizenry, and if there is even a 

perception that the government is misusing or abusing data to 

which it has access, that creates both a privacy problem and a security problem. I think this is recognized by the implementing legislation for this board—which we have been referring to as ‘‘PCLOB,’’ by the way. That was our attempt at a pronunciation of 

that. But this is reflected in the implementing legislation for 
369 

PCLOB, and I think that is a starting point for this board, if we 

are confirmed. 

Chairman LEAHY. Ms. Brand. 

Ms. BRAND. Mr. Chairman, I think your question was what is the 

biggest privacy challenge that people are facing today. I suspect the 

biggest challenge that people are facing is that so much more information about them is in the public and is online than ever was the 

case before. I think probably the biggest challenge arises in areas 

that are outside of the board’s jurisdiction in the consumer privacy 

area, for example, which is not something that we are mandated 

to look at. But the new technologies of, you know, Facebook, for example, things that law enforcement and individuals were not dealing with 15 years ago, create a challenge both for people in protecting their own privacy and for the government in dealing with 

how to get the information they need and how to implement appropriate privacy safeguards. So we will be looking at some of those 

issues on the board. 

Chairman LEAHY. Judge Wald. 

Judge WALD. I agree with my companions at the table here that 

the aggregation of vast amounts of data and files on people, thereby evoking concern among them as to what is going to happen, is 

perhaps the biggest civil liberty problem that I am aware of. And 

I would only say that it seems to me that one of the functions of 

the board in its statute, one we do not talk about very much, is informing the public and public awareness. And I think it may do— 

the board may be able to perform a good function there in looking 

at all of these, whatever technologies we prioritize, with regard to 

some very simple questions: who collects it, what is collected, who 

has access to it once collected, and along those lines, what are the 

protections against any abuse, how long it is retained. 

I realize there will always be exceptions, and that is the highest 

security where all of those may not be public, but I think to the 

extent that we can reassure the public by being somewhat more 

transparent about the process, that will be a useful function. 

Chairman LEAHY. I agree on the length of how long they can be 

retained. I will have a question I will be submitting to you on these 

new proposals for the five years. But Judge Wald, and Ms. Cook, 

what you said about people have to have trust in their government, 

too, and what they are doing, I think that is also part of this. Government works only if you trust it, and if people feel they cannot 

be trusted with information, then we do have problems. 

I have told this story before about Vermonters’ attitude toward 

this. An article once written about me in a major newspaper—actually, I think it was the only article in 37 years I have actually 

clipped out and framed because I enjoyed it so much. To put this 

in perspective, my wife and I live on a dirt road in an old farmhouse where we spent our honeymoon 50 years ago. There is a lot 

of land on this little farm on a dead-end road, and neighboring 

farmers, successive generations, they have hayed our fields and 

what-not, they have known me since I was a child. And the whole 

thing goes like this: 

On a Saturday morning, a reporter in out-of-State car sees this 

farmer sitting on the porch and says, ‘‘Does Senator Leahy live up 

this road? ’’ 
370 

He said, ‘‘Are you a relative of his? ’’ 

He said, ‘‘No.’’ 

’’Are you a friend of his? ’’ 

’’Well, not really.’’ 

’’Is he expecting you? ’’ 

’’No.’’ 

’’Never heard of him.’’ 

I have a listed phone number at home, but people respect your 

privacy in Vermont. I just want, in a far more technologically advanced time, that our private sector is protected, too. I want our 

country to be protected, but I want our privacy to be protected, and 

I do not think those two concepts are contradictory. So I thank you 

all very much. 

Senator WHITEHOUSE. Mr. Chairman, if I could just add one 

question for the record, it would be an optional question for the 

record. Nobody has to respond to it. But I saw an awful lot of heads 

nodding during my discussion with Mr. Dempsey. If there is any 

disagreement with the points that I made or with points that he 

made, I would be delighted if you would set that out so I am not 

just assuming agreement from silence. This will give people a 

chance to respond otherwise if they disagreed with that discussion. 

And thank you, Mr. Chairman, for this. Certainly you are one of 

the towering figures in privacy protection in this Committee’s and 

this country’s history, and it is great to be here with you on this 

occasion. 

Chairman LEAHY. We have some experts here. We all want the 

same thing, to protect our privacy. 

I am going to another Committee meeting, and I am going to 

turn the gavel over to Senator Grassley, who has been here long 

enough to know how to do it. 

Senator GRASSLEY. Thank you. 

Chairman LEAHY. And I think we are going to have a couple 

other Members coming. I think Senator Franken may be coming to 

take over. 

Senator GRASSLEY. You are probably going to the Agriculture 

Committee. 

Chairman LEAHY. I am. 

Senator GRASSLEY. I will try to be there soon after you get there. 

Chairman LEAHY. And if Senator Franken is on his way, when 

you are ready to leave, if you can just recess subject to the call of 

the Chair. 

Senator GRASSLEY. I will do that. 

Chairman LEAHY. Thank you all very much, and good luck in 

this. 

Senator GRASSLEY [presiding.] The first question would be to all 

of you, but I have a lead-in. The board has broad jurisdiction ‘‘to 

review actions the executive branch takes to protect the Nation 

from terrorism, ensuring that the need for such action is balanced 

with the need to protect privacy and civil liberties.’’ 

One recent high-profile action involved the targeting and killing 

of American citizens abroad that were engaged in terrorist activity. 

I will start with Mr. Medine and then ask all of you: Do you believe 

that the President has the power to target and kill an American 

citizen abroad based upon due process that does not include judi-
371 

cial review? Why or why not? And I would appreciate it if we could 

have fairly short answers because we have five people I would like 

to get the answer from. Go ahead. 

Mr. MEDINE. Thank you, Senator Grassley. That is a very important and challenging issue that I have not had a chance to delve 

into, but if confirmed, I would expect that that is just the kind of 

issue that the board would look at and have the benefit of the legal 

analysis of the administration and other sources to consider that 

issue. 

Senator GRASSLEY. Okay. Mr. Dempsey. 

Mr. DEMPSEY. Yes, Senator, I would have to say the same, that 

it is clearly a very important issue and one that a lot of attention 

has already been given to. 

I think in our prioritization of issues, to my mind it remains to 

be seen whether we take that one on at all, but if it is the desire 

of the board and of the agencies that we interface with that we do 

look into that, I am certainly going to approach that with an open 

mind and listen to the current thinking that has evolved both within the administration and within this Congress. 

Senator GRASSLEY. Okay. Ms. Cook. 

Ms. COOK. I really cannot improve upon Mr. Dempsey’s answer. 

Senator GRASSLEY. Ms.—I call you ‘‘Rachel.’’ Ms. Brand. 

Ms. BRAND. I cannot improve upon it either. I would just add 

that when we are—if we are confirmed, when we are on the board 

and have the clearances that we would need, it would be easier for 

us to make a judgment than sitting here not really knowing what 

is going on on the outside. 

Senator GRASSLEY. Okay. Judge Wald. 

Judge WALD. I think that is a very complex question, and I 

would only note that I think the administration’s legal memorandum or basis has not been made public yet, so I do not really 

know what their thinking is. I can only add that in my two years’ 

experience abroad with international law in the International Tribunal, I realize that even international law has tried to catch up 

with new developments and does not have a yes or no answer very 

clearly. 

Senator GRASSLEY. Along the same line—and this is in regard to 

whether you think the board has certain powers—do you believe 

the board would have the power to declare the President’s actions 

in targeting American citizens abroad is a violation of constitutional civil rights? Mr. Medine. 

Mr. MEDINE. The board is tasked with providing oversight and 

advice, and so I do not think the board can really make affirmative 

decisions or mandates but can give its advice and its views on 

those kinds of questions, and would do so, obviously, very cautiously and carefully. 

Senator GRASSLEY. Mr. Dempsey. 

Mr. DEMPSEY. Yes, Senator, I agree with that. I honestly do not 

know that we are going to be—if confirmed and if the board comes 

into existence, I do not know that we will be making declarations 

at all, and any advice we give is going to be very deliberative and 

based upon the evidence that we acquire. 

Senator GRASSLEY. Ms. Cook. 
372 

Ms. COOK. I agree with what has been said. I would also note 

that the statute does contemplate a situation in which the board 

does give advice and that advice is disregarded. The recourse for 

the board at that point is to report back to Congress. It is not a 

declaration. It is a report to Congress. 

Senator GRASSLEY. Ms. Brand. 

Ms. BRAND. I agree. The statute charges us with providing advice 

and expressing opinions, but it does not give us any authority to 

declare something unconstitutional beyond that. 

Senator GRASSLEY. Judge Wald. 

[No response.] 

Senator GRASSLEY. Okay. Then this question is more pointed. Do 

you support Attorney General Holder’s public statement that due 

process does not necessarily include judicial process when it comes 

to national security? What national security matters require judicial process and which ones do not? Mr. Medine. 

Mr. MEDINE. As I have said, if confirmed, those are the kinds of 

issues we would have to look into very carefully, again, with the 

benefit of legal memoranda, confidential information, and our deliberations. So I am not prepared to answer that right now. 

Senator GRASSLEY. Okay. Mr. Dempsey. 

Mr. DEMPSEY. Yes, I am sorry, Senator. Again, I am going to 

have to say that that is—— 

Senator GRASSLEY. Okay. Ms. Cook. 

Ms. COOK. I would defer this question as well. 

Senator GRASSLEY. Ms. Rachel—or Ms. Brand. 

[Laughter.] 

Ms. BRAND. I guess I would say that where process is due is very 

dependent upon the circumstances, so it is hard to answer that category. 

Senator GRASSLEY. Judge Wald. 

Judge WALD. Ms. Brand’s answer, there are many situations in 

which due process does not require a judicial type process, but 

what they are would depend completely on the facts and circumstances. 

Senator GRASSLEY. Okay. A lead-in to the next question. The 9/ 

11 Commission found that the wall created in the 1990s by DOJ 

and memorialized by the Gorelick memo was a root cause of the 

failure to connect the dots. This memo limited use of information 

from foreign intelligence investigations in criminal cases and was 

misapplied and misinterpreted across the government. Breaking 

down that wall has been one of the great successes of the post-9/ 

11 reorganization. In addition, the 9/11 Commission found that the 

stovepiping of information among national security agencies was 

harmful to finding, tracking, and capturing terrorists, but the new 

age of information sharing has raised civil liberties and privacy 

concerns that the board is empowered to investigate. 

So, again, to each of you, as we did previously, we will start with 

Mr. Medine, how will you ensure that none of your work contributes to the creation of a new wall between law enforcement and intelligence? 

Mr. MEDINE. Senator, if confirmed, we would take our responsibilities very seriously that our actions would have great consequences. And so we are very sensitive to the motivations behind 
373 

information collection. And so in the course of balancing privacy 

and civil liberties, at least I personally accept the views of the 9/ 

11 Commission which said it is a false conflict to say we cannot 

have both security and privacy. So, if confirmed, our goal would be 

to work with the intelligence agencies to gather the information 

they need to do their mission, but at the same time take into account privacy and civil liberties. 

One of the best ways to do that is at the design stage, and the 

board, we hope, could be a resource if set up to help the agencies 

accomplish their goals but at the same time protect privacy. 

Senator GRASSLEY. I guess I would ask each of you, Mr. Dempsey 

on through, to comment if you have got anything to add or disagreement with what was said. 

Mr. DEMPSEY. Certainly nothing to disagree with. I would just 

add that my view is that the wall is properly down, should remain 

down, that as you say it had become perverted. In my view, it 

served neither clearly national security nor did it really provide 

adequate—or any protection, really, for civil liberties. So we need 

to keep it down and find the ways other than that wall to protect 

the interest at stake here. 

Senator GRASSLEY. Ms. Cook. 

Ms. COOK. I agree with Mr. Dempsey’s position here. In 2001, 

Congress spoke to this issue and took down the statutory basis for 

the wall. It has taken more than a decade, I think, of development 

of information-sharing policies, the development of which is also reflected in the statute setting up this board for our government to 

attempt to turn in a different direction akin to an aircraft carrier. 

So I think, if confirmed, we should be extraordinarily careful about 

taking actions or giving advice moving the other direction. 

Senator GRASSLEY. Ms. Brand. 

Ms. BRAND. I completely agree, and I would just add that it is 

important to remember how difficult it was to change the culture 

toward an information-sharing culture within the government, and 

so anything that would go in the other direction would be damaging. 

Senator GRASSLEY. Judge Wald. 

Judge WALD. I think I am already on record as a member of 

President Bush’s intelligence capabilities in which we looked at 

this problem and agreed with everything that my colleagues have 

said. 

Senator GRASSLEY. And, again, with the same lead-in that I 

gave, this would be the last question on this issue. Many 

cybersecurity bills limit the use of cyber threat information for purposes outside cybersecurity, including national security and counterintelligence. Do you support re-creating the wall as part of 

cybersecurity legislation? Mr. Medine. 

Mr. MEDINE. Senator, I have not really examined that question 

as much, and so I do not have a position on that at this moment. 

Senator GRASSLEY. If that is true for all of you—well, I better let 

you speak for yourself. Mr. Dempsey. 

Mr. DEMPSEY. I think we want to look at the cybersecurity issue 

very carefully. I think that Congress is going to have a say on that 

issue, I think, before this board comes into creation, and we will 
374 

work with the authorities and decisions that Congress makes on 

that cybersecurity legislation. 

Senator GRASSLEY. Okay. Ms. Cook. 

Ms. COOK. I agree with Mr. Dempsey that to the extent that 

Congress speaks specifically on this issue, that is our mandate. In 

the absence of specific direction, I anticipate that, if confirmed, we 

would follow the direction in the statute for this board as to how 

to approach these types of questions and the balancing that must 

be undertaken. 

Senator GRASSLEY. Ms. Brand. 

Ms. BRAND. I have nothing to add to that. 

Senator GRASSLEY. And Judge Wald. 

Judge WALD. Nothing to add. 

Senator GRASSLEY. Okay. I am going to submit the rest of my 

questions in writing. Maybe based upon what other Members ask 

you, I may submit some questions for answer in writing, and I am 

going to go up to the Agriculture Committee. 

Senator FRANKEN. [presiding.] You do that. It is important. 

Thank you all. I am sorry I missed your testimony. I read it, 

though, and thank you all for being here. I want to thank the 

Ranking Member for holding down the fort here. 

Over the past 20 or 30 years, the ability of our government to 

monitor the everyday lives of our citizens has just exploded, and 

our privacy laws have not kept up. Today, right now, the police can 

track an American citizen through his cell phone without a warrant. The FBI is rolling out a facial recognition program. The FAA 

is expanding the use of pilotless drone for the government and the 

private sector without privacy safeguards. If anyone had predicted 

this in 1980 or 1990, they would have been told that they were 

reading too much science fiction. 

Unfortunately, since 2008, there really has been no such thing as 

the Privacy and Civil Liberties Oversight Board. This is really a 

bad thing, because we need this board. And though the PCLOB 

was established to prevent abuses of civil liberties in our war 

against terror, I hope and expect that we will see its mission expand beyond that. Because of that, my questions are going to go 

a little further afield than just the war on terror. 

My first question is for all of the nominees. Right now, the House 

and Senate are considering various cybersecurity bills, as the 

Ranking Member just mentioned. Some of these proposals would 

allow private companies to share threat information pulled from 

their customers’ communications and files directly with the National Security Agency, which, as you know, is part of our Nation’s 

military. These proposals also protect these companies from almost 

any legal liability for doing so. 

Do you think it is a good idea—and this is for all of you. Do you 

think it is a good idea to allow private companies to directly share 

and share with immunity information from their customers’ communications with our Nation’s military? Specifically, do you think 

this would be sufficiently protective of Americans’ civil liberties? 

We will start with Mr. Medine. 

Mr. MEDINE. Thank you, Senator. The cybersecurity threats are 

certainly very real to our critical infrastructure and to many of our 

companies, and so it is understandable that the Congress would 
375 

want to take a very close look at that. I have not had a chance to 

balance the various issues you have raised, but I would note that 

several of the bills that are pending would create a role for the 

PCLOB, as we call it, the Privacy and Civil Liberties Oversight 

Board, to give oversight to the privacy issues that are raised by information sharing between the private sector and the government. 

And so if we are confirmed and if the legislation is adopted, we— 

at least I—could speak for myself. I would be happy to have that 

as a charge to oversee that process and make sure that privacy and 

civil liberties are protected when that information is shared. 

Senator FRANKEN. Does anyone have a specific thought other 

than if you are confirmed that you would look at this? Anybody 

want to go beyond that at all, explore the idea at all, what the 

issues might be in a very noncommittal way so that you do not ruin 

your chances of being confirmed? 

[Laughter.] 

Mr. DEMPSEY. Senator, even despite that warning, I will rise to 

the bait a little bit here to say the following: As I said to Senator 

Grassley, if confirmed and if this board comes into creation, we will 

work with whatever Congress creates, and to the extent that the 

Congress authorizes information sharing—and I believe that any 

legislation that passes will include and probably should include information-sharing authority—we will work—certainly I commit to 

work within that framework and to make it work effectively. 

I think a separate question is what about between now and the 

time that legislation is enacted, and as I said to Senator Grassley, 

I think that in all likelihood that legislative process will play itself 

out before this board, even if we are confirmed, before this board 

would have an opportunity to weigh in on the legislation. 

The issues you raise are certainly the key issues to be addressed. 

My own view is that a scheme can be drafted that permits more 

information sharing than is currently permitted without it becoming a flow of information to the government that we would find undesirable. Again, my own view is that what I would call peer-topeer sharing, that is, between the companies, is very important so 

that they can improve their own defenses. It is also important to 

get some of the information from the government to the private 

sector companies so that they can improve their capabilities based 

upon some of the unique insights that the government has. 

The hardest element of information sharing is private sector back 

to the government. But there is a role for the government to play, 

and there is some information clearly which, when the private sector sees it, in my view, should appropriately be shared with the 

government. And if we can properly define what that is, I think we 

can advance the issue of cybersecurity, which is so important to 

many Senators and to the country, and at the same time have the 

kinds of limits and checks and balances. 

Senator FRANKEN. Ms. Cook. 

Ms. COOK. The statute, as currently drafted, is focused on government action, and as a general matter, I think it is always legitimate to ask questions about whether government should have access to information and what it does with that information once it 

has that information. 
376 

That said, it is very difficult sitting here today to opine on specific circumstances because, as I understand it, much of the threat 

is classified. Much of what the agencies, what the government is 

actually facing is not public. So, if confirmed, I think we would 

have to do two things: one, meet with these folks to understand the 

threat that they are facing; and, two, listen to their thoughts on 

how they currently anticipate responding to those threats. 

Senator FRANKEN. Judge Wald. 

Judge WALD. Senator, I would just add that—you asked if we 

thought it was a good idea to have this kind of channeling. Obviously, at least obvious to me, it is not a yes and no answer. You 

were not present, I think, earlier, but I suggested that from point 

of view much of it would depend on questions which I think some 

of the legislation in varying ways tends to answer, like, you know, 

who collects it, what is collected, what are the minimization or 

anonymization requirements, how long will it be kept, where can 

it be shared once it is retained. Many of those questions, I think, 

are the ones which will decide—we certainly—I think few of us 

would say a carte blanche kind of regime would be an optimal one. 

Senator FRANKEN. Thank you, Judge Wald. I was not looking for 

a carte blanche. I was looking more for your thoughts about that. 

Judge WALD. I understand. 

Senator FRANKEN. And I appreciate that. 

Ms. Brand. 

Ms. BRAND. I echo actually what Judge Wald said. You referred 

to the content of communications, and in the electronic surveillance 

area, the contents communications are the most heavily protected 

thing, and rightfully so. 

Now, I have not studied the provisions of the cybersecurity legislation, so I do not know exactly how it provides for sharing, but as 

Ms. Cook said, one of the first things I would want to do, if confirmed, would be to better understand what the threat is that the 

government is facing and what the need for that sharing is, and 

then also look at the details of the legislation in terms of what protections are provided. 

Senator FRANKEN. Very good. Thank you. 

Ms. Brand, in 2005, you wrote an op-ed in USA Today that offered a strong defense of the government’s use of national security 

letters. You argued that these letters can only be used to obtain information related to an international terrorism investigation or espionage investigations, not for criminal investigations. As you 

know, the DOJ’s Inspector General issued a number of scathing reports on the FBI’s use of national security letters. These reports 

uncovered widespread abuse of this authority and indicated that 

many of the 143,000 letters that were issued between 2003 and 

2005 pertained to U.S. citizens who were not subject to any national security investigation. 

Ms. Brand, given the IG’s findings of widespread abuse of national security letters, would you like to re-evaluate your statement 

that they were ‘‘carefully, lawfully, and consistent with civil liberties’’ ? 

Ms. BRAND. Well, thank you, Senator Franken. A couple of 

points. 
377 

There is a difference between the provisions of law and how they 

are implemented, and so I read that op-ed before the things that 

you mentioned came to light. Looking at the NSL statutes themselves, they contain many protections, and they are limited in the 

way that I wrote in that op-ed. As the Inspector General mentioned, there were some problems, significant problems with the 

way the NSLs were being used. My understanding—and this is 

after I left the government. My understanding is that those problems have been addressed and that the more recent IG reports reflect that they have been addressed adequately. So, again, there is 

a difference between the law and how it is implemented. 

Senator FRANKEN. Okay. Well, thank you. That is a fair answer. 

Mr. Dempsey, in April of last year, the Department of Justice reported that the FBI made over 24,000 national security letter requests pertaining to 14,000 U.S. persons in 2010. In 2009, these requests only involved 6,000 people, so the 2010 numbers are more 

than double the level of 2009. This strikes me as very problematic, 

especially because when I asked the Attorney General about this 

trend, he stated, ‘‘To the extent these numbers may indicate an upward trend, we are unable to explain the increase because we do 

not collect statistics or other information that would enable us to 

discern the reasons for this increase.’’ 

This kind of bothers me given the IG reports that uncovered 

widespread abuse. Mr. Dempsey, what role do you think the board 

can play to bring greater transparency to the use of this powerful 

tool? 

Mr. DEMPSEY. Well, that is a good question, and I think, you 

know, the NSL authority is one of the authorities that I think is 

potentially within the scope of the board’s authority, should we be 

confirmed. As Mr. Medine has said, we will have to carefully 

prioritize our issues. I think we will have and should have and the 

statute contemplates that a board such as this would have access 

to additional information. And I think we have to, if confirmed, dig 

in on certain issues. I am certainly hearing from you that the national security letter authority remains of concern to you, and that 

is important. 

So at this point, all I can say is that—— 

Senator FRANKEN. Is it important to you because it is important 

to me? 

Mr. DEMPSEY. Well, it is important to me independently. 

Senator FRANKEN. Oh, good. Or maybe that is not so good. 

Mr. DEMPSEY. I have testified in the past on the issue, spent considerable time thinking about how that authority could be best defined and best used. I think it merits some—may merit some probing. 

Senator FRANKEN. Okay. Well, let us move on. 

Mr. Dempsey, if you look at a record of someone’s location, you 

can figure out where they go to church, where their kids go to 

school, what they do after work. This is sensitive information. You 

can put together who they are, I guess, from that. Thankfully, after 

the Jones case, police departments around the country will likely 

need to get a warrant before they install a GPS tracking device on 

someone’s car. But recently the ACLU released a report showing 

that police departments around the country are not just tracking 
378 

people’s care; they are also getting detailed reports of people’s 

movements from their smartphones and cell phones. The ACLU 

also found that police departments are usually not getting warrants. They are getting the information through a court order, or 

they are just issuing subpoenas for it. 

Mr. Dempsey, what do you think about this discrepancy? If I 

need to get a warrant to track you in your car, shouldn’t I have 

to get a warrant to track your cell phone? And if anyone else wants 

to weigh in on that, please feel free. 

Mr. DEMPSEY. Certainly that is my personal view, and I have 

testified to that effect before this Committee. Certainly in the 

criminal law enforcement context, I think there is a separate question about how location tracking should work under FISA, and I 

think the first question would be how does it work under FISA, 

and I have literally no insight of how FISA applies to location 

tracking. I could speculate from a reading of the law, but in terms 

of how it is applied, I really have no idea. If confirmed, we might 

want to take a look at those issues. 

So on the law enforcement side, I have testified that a warrant 

is appropriate. Now, in terms of what position the board would 

take, I am one person. I will bring—undoubtedly, I will bring that 

position to the board if we choose to deliberate on that. I will also, 

if confirmed, listen very, very carefully, as I always do, listen very 

carefully to the concerns and interest and needs from the executive 

branch. 

Senator FRANKEN. Is there anyone else who would like to weigh 

in on that? 

Judge WALD. I would just say that I think that the pervasiveness 

of cell phones in our society—you cannot walk down Connecticut 

Avenue without everybody having one at their ear—would make 

the question of regulation following the Jones act a very plausible 

one. And I would think that actually it would be among a list that 

we would consider when we are considering priorities after we get 

together. 

I think I am also on record as having signed a report which was 

in accord with Mr. Dempsey. 

Senator FRANKEN. Thank you, Your Honor. Thank you, Former 

Your Honor. 

Oh, by the way, Ms. Brand, are you ‘‘Your Honor’’ now, or what 

are you? 

Ms. BRAND. ‘‘Ms. Brand’’ is just fine. 

Senator FRANKEN. Okay. Ms. Brand, I understand that you graduated from the University of Minnesota, Morris. Is that correct? 

Ms. BRAND. I did. 

Senator FRANKEN. Okay. So my chief of staff or my State director 

in Minnesota also graduated from there. In fact, we have something of what we call the ‘‘Morris Mafia’’ in my office in St. Paul. 

That is a great school. 

Ms. BRAND. Yes, I agree. 

Senator FRANKEN. I just—that was a waste of time. 

[Laughter.] 

Senator FRANKEN. No, it was not. 

Mr. Medine, the Privacy and Civil Liberties Oversight Board is 

basically an independent oversight body, but unlike Congress, you 
379 

cannot pass laws to address the problems that you see, and unlike 

the DOJ or the Federal Trade Commission or the Federal Communications Commission or any other federal enforcement agency, you 

also cannot bring a lawsuit to enforce your findings. 

Mr. Medine, if you are confirmed as Chair of the Privacy and 

Civil Liberties Oversight Board, what will you do to make sure that 

your findings are taken seriously? Would you ever consider resigning your post in protest, as Lanny Davis did in May 2007, if you 

felt that the executive branch was infringing upon the civil liberties 

of Americans? 

Mr. MEDINE. There are a number of ways that the board, if we 

are confirmed, would address those issues. One is to involve the 

public. We may not be able to issue regulations or engage in litigation, but we do have the authority to speak to the public and the 

Congress to express our views. We are required and would be 

happy, if confirmed, to report twice a year to the Congress, largely 

in an unclassified forum, or classified if necessary. We are directed 

to and would look forward to holding public hearings to involve the 

public in our efforts. But, most importantly, to blow the whistle if 

we see a problem out there and raise concerns, either within the 

executive branch, in a classified forum if necessary, but ideally in 

as unclassified a forum as possible to alert the public and have the 

powers of suasion and influence bring to bear on these issues. 

In terms of matters of principle, I think the issue that Lanny 

Davis faced was that the board was inside the White House, and 

I think the Congress has addressed that by making us an independent agency so we are not subject to undue influence by outside 

parties, and we as a bipartisan independent group can feel free to 

express our views with a term of office that ensures us some security, as you have as well, to express views about what we think are 

privacy and civil liberties concerns. 

Senator FRANKEN. Good point. 

Judge Wald, by statute, the purpose of the Privacy and Civil Liberties Oversight Board is to ensure that privacy and civil liberties 

are ‘‘appropriately considered’’ in the development and implementation of laws, regulations, and executive branch policies. Unfortunately, the implementing statute of the PCLOB never really defines what constitutes appropriate consideration of privacy and 

civil liberties. 

Judge Wald, what do you think is involved in making sure that 

privacy and civil liberties are appropriately considered in developing legislation? And how might you act? 

Judge WALD. Senator, it is one of our greatest challenges, if confirmed, and I believe that one route we might consider, and I hope 

consider seriously, would be to engage in an intensive effort of contact with all of the agencies and related branches, whatever, bureaus, et cetera, that will be involved in the overall counterterrorism effort and try to establish from the very beginning—I do not 

mean this to sound like apple pie, but to engage with them in what 

I hope would be a trust-building effort so that they realize that we 

want to be of help to them, we want to add value to their operations, we are not headed toward waiting for them to develop 

something and then come in on a ‘‘gotcha’’ basis and say, ‘‘We 

gotcha.’’ But, rather, that as we move along, as Mr. Dempsey sug-
380 

gested, there may be technological solutions to some of these problems. There may be alternatives. But I think based on my own experience in government and even in courts, the whole business of 

engaging with people, listening to their problems, adding your 

piece, knowing that they can trust you to the degree where sometimes honest differences will come out, and those I expect the board 

will have to pursue its independent status and will take strong 

stands on what it believes in and try to carry them upward 

through the hierarchy, and if not, over to Congress. 

But I do believe working from the bottom up and building these 

relationships with the related agencies would be key to making 

sure that these considerations come in from the very beginning. 

Senator FRANKEN. Well, thank you, Judge, and thank you all. 

I have a statement in support of Elisebeth Collins Cook that we 

will enter into the record. 

[The statement appears as a submission for the record.] 

Senator FRANKEN. Those are my questions for now. I will submit 

more questions in writing for the record. 

Senator FRANKEN. I sincerely hope that we can act on your nominations promptly. The hearing record will be open for a week for 

questions and other materials. Thank you all for your testimony 

and for being here. 

This hearing is adjourned. 

[Whereupon, at 11:30 a.m., the Committee was adjourned.] 
(381) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED STATEMENT OF CHAIRMAN PATRICK LEAHY
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QUESTIONS 

QUESTIONS SUBMITTED BY SENATOR LEAHY FOR DAVID MEDINE
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QUESTIONS SUBMITTED BY SENATOR LEAHY FOR JAMES DEMPSEY
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QUESTIONS SUBMITTED BY SENATOR GRASSLEY FOR DAVID MEDINE
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QUESTIONS SUBMITTED BY SENATOR GRASSLEY FOR DAVID MEDINE, JAMES DEMPSEY, 

RACHEL BRAND, ELISEBETH COLLINS COOK, AND PATRICIA WALD
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QUESTIONS SUBMITTED BY SENATOR KLOBUCHAR FOR DAVID MEDINE, JAMES

DEMPSEY, RACHEL BRAND, ELISEBETH COLLINS COOK, AND PATRICIA WALD
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QUESTIONS SUBMITTED BY SENATOR LEAHY FOR DAVID MEDINE
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ANSWERS 

RESPONSES BY DAVID MEDINE TO QUESTIONS SUBMITTED BY SENATOR GRASSLEY
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RESPONSES BY DAVID MEDINE TO QUESTIONS SUBMITTED BY SENATOR GRASSLEY
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RESPONSES BY JAMES DEMPSEY TO QUESTIONS SUBMITTED BY SENATORS LEAHY, 

GRASSLEY, AND KLOBUCHAR
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RESPONSES BY ELISEBETH C. COOK TO QUESTIONS SUBMITTED BY SENATORS

GRASSLEY AND KLOBUCHAR
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RESPONSES BY RACHEL L. BRAND TO QUESTIONS SUBMITTED BY SENATORS GRASSLEY

AND KLOBUCHAR
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RESPONSES BY PATRICIA M. WALD TO QUESTIONS SUBMITTED BY SENATORS GRASSLEY

AND KLOBUCHAR
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MISCELLANEOUS ADDITIONAL MATERIAL SUBMITTED FOR 

THE RECORD 

JOINT LETTER TO SENATORS LEAHY AND GRASSLEY FROM SEVERAL ORGANIZATIONS; 

DATED APRIL 17, 2012 
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