Privacy and Civil Liberties

Oversight Board

First Annual Report to Congress

March 2006 – March 2007





vi 

2007 REPORT TO CONGRESS 

I. INTRODUCTION................................................................................................. 1 

II. HISTORY AND MISSION................................................................................... 4 

III. ORGANIZATION, ADMINISTRATION AND PROCESS................................ 9 

A. Necessary Administrative Actions and Budget ....................................... 9 

B. Substantive Actions to Fulfill Statutory Mandate.................................. 10 

IV. OUTREACH AND EDUCATION ..................................................................... 12 

A. The White House and Executive Office of the President ...................... 12 

B. Executive Branch................................................................................... 13 

C. Congress..................................................................................................17 

D. Media......................................................................................................18 

E. Private Sector, Non-profit, Academic, and Advocacy Groups 

and Experts....................................................................................... 18 

F. International Forums.............................................................................. 20 

V. ISSUE IDENTIFICATION, PRIORITIZATION, AND DISCUSSION............ 21 

A. Scope and Process.................................................................................. 22 

B. Specific Issues, Policies, Procedures, and Regulations ......................... 25 

1. Oversight of Existing Federal Anti-terrorism Policies 

and Programs ........................................................................... 26 

2. Examples Where the Board Has Offered Advice Regarding the 

Development of a Policy, Program, Regulation, or Statute..... 32 

3. Information Sharing .......................................................................... 35 

VI. THE YEAR AHEAD .......................................................................................... 39 

VII. CONCLUSION ................................................................................................... 42 

PRIVACY & CIVIL LIBERT IES OVERSIGHT BOARD 
1 

I. INTRODUCTION 

The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), which 

created the Privacy and Civil Liberties Oversight Board (Board), requires that “[n]ot less 

frequently than annually, the Board shall prepare a report to Congress, unclassified to the 

greatest extent possible . . . on the Board’s major activities during the preceding period.”1 

This report discusses the Board’s activities from its first meeting on March 14, 2006, at 

which the Members were sworn in and an Executive Director was appointed, through 

March 1, 2007. This report contains no classified information. 

Unlike other boards and commissions charged with addressing an issue, making 

recommendations, issuing a report and then disbanding, this Board embodies a permanent 

commitment to “ensure that concerns with respect to privacy and civil liberties are 

appropriately considered in the implementation of laws, regulations and executive branch 

policies related to efforts to protect the Nation against terrorism.”2

 The President has 

repeatedly stated that as the Federal government works to prevent acts of terror against 

the Nation, its citizens, and its interests, it must do so in compliance with the law, 

protective of the rights and liberties guaranteed by the Constitution, and consistent with 

the values we share as Americans. The Board's statutory mandate and fundamental 

purpose is to further those objectives. 

During its first year, the Board met approximately twice a month. The Board 

dedicated itself to organization, staffing, and substantive background briefings on 

significant Executive Branch anti-terrorism programs affecting privacy rights and civil 

liberties and meeting with interested members of the privacy and civil liberties 

community. These included meetings with the Attorney General, the Secretary of 

Homeland Security, the Director of National Intelligence, and the heads of the National 

Security Agency, the National Counterterrorism Center, the Federal Bureau of 

Investigation, and the Terrorist Screening Center as well as the National Security 

Advisor, the Homeland Security Advisor, the White House Chief of Staff, the White 

House Counsel, and the Information Sharing Environment Program Manager. The Board 

has been briefed at the highest level of classification on the NSA’s surveillance programs, 

the Treasury Department’s Terrorist Finance Tracking Program, and the National 

Counterterrorism Center’s National Implementation Plan on the War on Terror. While 

the Board was unable in its first year to spend as much time on evaluating and providing 

oversight of programs most affecting privacy rights and civil liberties as it would have 

liked, as this Report describes in Section VI (The Year Ahead), the Board now has the 

appropriate foundation to provide the advice and oversight required by IRTPA. 

 

1

 Pub. L. 108-458, §1061(c)(4) (Dec. 17, 2004). 

2 Id. § 1061(c)(1)(C). 
2 

In order to stand up its operation during the first year, the Board allocated its 

resources among three core areas, discussed below, to build a foundation on which to 

offer substantive advice and oversight. Activities in these areas have helped the Board 

establish its viability, subject matter expertise, and credibility. The Board unanimously 

identified substantive accomplishments in these three areas at the outset as necessary 

prerequisites for long term success and included them in its first annual agenda, adopted 

in June 2006. This first report to Congress outlines the Board’s activities in these areas: 

Organization, Administration and Process. The Board understood that, due to 

its part-time Membership, it had to establish the means and infrastructure necessary to 

help it accomplish its statutory mission. Toward that end, it has hired a professional staff, 

reached agreement with the Director of National Intelligence on the scope and logistics of 

detailing additional staff from within the intelligence community, acquired the necessary 

security clearances, built out appropriate office space with secured facilities for classified 

information, and developed a web site for communication with the public. Due to its 

position within the White House Office, the Board receives additional administrative 

support from White House staff. 

Education and Outreach. The Board has engaged policy officials and experts 

within the Executive Branch, Congress, the public, and private, non-profit, and academic 

institutions. It has taken great care and exercised due diligence to become familiar with 

the departments and agencies responsible for protecting the Nation against terrorism by 

meeting with senior officials, examining their missions and legal authorities, learning of 

their specific programs, and reviewing their operational methodologies and privacy and 

civil liberties training, reporting, and auditing programs. For example, the Board has met 

personally, among others, with the Attorney General, the Secretary of the Department of 

Homeland Security, the Director of National Intelligence, the Directors of the National 

Counterterrorism Center and National Security Agency, the Information Sharing 

Environment Program Manager, the Undersecretary of the Treasury for Terrorism and 

Financial Intelligence, and the President’s senior staff. Among other non-governmental 

experts and advocacy groups, it has met with representatives from the American Civil 

Liberties Union, the Electronic Privacy Information Center, the Center for Democracy 

and Technology, the Markle Foundation, and the American Conservative Union. It also 

held its first public forum at Georgetown University on December 5, 2006. 

As a part of this education and outreach effort, the Board has made it a priority to 

work with a new and growing network of Executive Branch homeland security 

professionals specifically dedicated to consideration of privacy and civil liberties issues. 

The Board considers one of its fundamental responsibilities to foster a sense of 

community among these new professional privacy and civil liberties officers and 

members of the relevant professions that have existed within the Federal government for 

decades – including attorneys, inspectors general, and relevant program policy officials. 

The Board intends to continue providing these offices with the necessary support to 

enable them better to accomplish their own responsibilities. 
3 

Issue Prioritization. The Board’s statutory authority is broad. The Board has 

focused on those issues that could provide the most value for the American people, the 

President, and the Executive Branch. Policies and programs warranting the Board’s 

attention will evolve over time. Identification of these priorities will necessarily change 

as new initiatives are considered, developed, and implemented. This report outlines the 

process and consideration undertaken by the Board in developing and reviewing those 

issues. 

With these foundational accomplishments behind it, the Board stands at the 

beginning of its second year well equipped to address further the substantive issues of its 

statutory mandate. 
4 

II. HISTORY AND MISSION 

Following the attacks of September 11, 2001, Congress and the President 

established the National Commission on Terrorist Attacks on the United States (9/11 

Commission or Commission), a bipartisan panel charged with investigating the events of 

9/11 and offering “recommendations designed to guard against future attacks.”3 As the 

Commission acknowledged, many of its recommendations “call[ed] for the government 

to increase its presence in our lives – for example, by creating standards for the issuance 

of forms of identification, by better securing our borders, by sharing information gathered 

by many different agencies.”4 However, the Commission also noted that “[t]he choice 

between security and liberty is a false choice, as nothing is more likely to endanger 

America’s liberties than the success of a terrorist attack at home.”5 Consequently, the 

Commission also recommended the creation of “a board within the Executive Branch to 

oversee . . . the commitment the government makes to defend our civil liberties.”6 In 

order to implement the Commission’s numerous recommendations, Congress passed and 

President Bush signed the Intelligence Reform and Terrorism Prevention Act of 2004.7

 

Among other actions – including reshaping the intelligence community under one 

Director of National Intelligence8

 – IRTPA authorized the creation of the Privacy and 

Civil Liberties Oversight Board. 

IRTPA requires the Board to “ensure that concerns with respect to privacy and 

civil liberties are appropriately considered in the implementation of laws, regulations, and 

executive branch policies related to efforts to protect the Nation against terrorism.”9

 In 

carrying out this mandate, the Board has two primary tasks. First, it must “advise the 

President and the head of any department or agency of the Executive Branch to ensure 

that privacy and civil liberties are appropriately considered in the development and 

implementation”10 of “laws, regulations, and executive branch policies related to efforts 

to protect the Nation from terrorism.”11 Second, it must exercise oversight by 

 

3 National Commission on Terrorist Attacks on the United States, available at

http://www.9-11commission.gov/about/index.htm (last accessed Nov. 1, 2006). 

4

 THE 9/11 COMMISSION REPORT, 393-94 (2004), available at http://www.9-

11commission.gov/report/911Report.pdf (last accessed Nov. 1, 2006). 

5 Id. at 395. 

6 Id. 

7

 Pub. L. 108-458 (Dec. 17, 2004). 

8 Id. § 1001 et seq. 

9 Id. § 1061(c)(3). 

10 Id. § 1061(c)(1)(C) (emphasis added). 

11Id. § 1061(c)(1)(B). 
5 

“continually review[ing] regulations, executive branch policies, and procedures . . . and 

other actions by the executive branch related to efforts to protect the Nation from 

terrorism to ensure that privacy and civil liberties are protected.”12 The statute expressly 

requires the Board to advise13 and oversee14 the creation and implementation of the 

Information Sharing Environment (ISE). 

In order to offer informed advice and oversight, the Board may access “from any 

department or agency of the executive branch, or any Federal officer or employee of any 

such department or agency[,] all relevant records, reports, audits, reviews, documents, 

papers, recommendations, or other relevant material, including classified information 

consistent with applicable law.”15 And to allow Board Members timely access to 

classified materials to carry out their mandate, the statute requires “appropriate 

departments and agencies of the executive branch [to] cooperate with the Board to 

expeditiously provide Board members and staff with appropriate security clearances.”16 

The Board may also demand that persons other than departments, agencies, and elements 

of the Executive Branch provide “relevant information, documents, reports, answers, 

records, accounts, papers, and other documentary and testimonial evidence.”17 If a 

Federal agency, official, or other relevant persons choose not to produce information 

requested by the Board, the Board may pursue a remedy by notifying the Attorney 

General or the head of the relevant agency. The Attorney General may then “take such 

steps as appropriate to ensure compliance” with the Board’s request, including issuing 

subpoenas.18 Although the Board may have general access to “materials necessary to 

carry out its responsibilities,”19 materials may be withheld if “the National Intelligence 

Director [sic], in consultation with the Attorney General, determines that it is necessary . . 

. to protect the national security interests of the United States”20 or if the Attorney 

General determines that it is necessary to withhold information “to protect sensitive law 

enforcement or counterterrorism information or ongoing operations.”21 

 

12 Id. § 1061(c)(2)(A). 

13 Id. § 1061(d)(2). 

14 Id. § 1061(c)(2)(B). 

15 Id. § 1061(d)(1)(A). 

16 Id. § 1061(h). 

17 Id. § 1061(d)(1)(D)(i). 

18 Id. § 1061(d)(2)(B). 

19 Id. § 1061(d)(1). 

20 Id. § 1061(d)(4)(A). 

21 Id. § 1061(d)(4)(B). 
6 

As shown in the Board’s location, assigned roles, and authority, IRTPA did not 

create an independent watchdog entity in the nature of an inspector general.22 Rather, the 

statute created a Board that operates within the Executive Office of the President and 

ultimately reports to the President. The statute requires the Board to produce an annual 

report to Congress only “on [its] major activities”23 – not on all of its internal 

deliberations and recommendations. The statute expressly places the Board within the 

Executive Office of the President (EOP), an office whose sole purpose is to support the 

Executive. Consistent with that placement and with the goal of offering candid advice, 24

the President has located the Board even more closely to him by placing it within the 

White House Office (WHO). As the statute explicitly acknowledges, all five Board 

Members (like other EOP and WHO employees) serve at the pleasure of the President.25 

By empowering the Board with broad access to records, IRTPA has created a Board that 

can offer a distinctly independent perspective to the President, along with oversight of 

executive agencies. 

The Board acts in concert with a robust and developing privacy and civil liberties 

(PCL) infrastructure that is already operating throughout the Federal government, 

including offices within the Department of Homeland Security (DHS), the Department of 

Justice (DOJ), and the Office of the Director of National Intelligence (ODNI).26 In most 

cases, these PCL offices are headed by officials with direct access to their agency heads. 

They are primarily staffed by diligent career civil servants who focus on and provide an 

additional degree of continuity regarding the appropriate consideration of privacy and 

civil liberties. As discussed below, the Board intends to provide a coordinating role for 

these PCL offices and will also assist in addressing unique problems that require 

government-wide coordination or specific White House involvement.27 

IRTPA also sets the qualifications of the Board’s Members. The President must 

appoint as Members “trustworthy and distinguished citizens outside the Federal 

Government who are qualified on the basis of achievement, experience, and 

 

22 See, e.g., the Federal Inspector General Act of 1978, 5 U.S.C. Appx § 1 et seq. 

23 IRTPA § 1061(c)(4). 

24 Although the statute subjects the Board to the Freedom of Information Act (FOIA), see

id. § 1061(i)(2), the regular exemptions to FOIA disclosure still apply. See 5 U.S.C. § 

552(b). 

25 IRTPA § 1061(e)(1)(E) (“The chairman, vice chairman, and other members of the 

Board shall each serve at the pleasure of the President.”). 

26 In IRTPA, Congress expressed its sense “that each executive department or agency 

with law enforcement or antiterrorism functions should designate a privacy and civil 

liberties officer.” Id. § 1062. 

27 Infra Part V.B.2. 
7 

independence.”28 Both the Chairman and Vice Chairman of the Board also require 

Senate confirmation.29 To these ends, President Bush appointed the following 

individuals as Members: 

• Carol E. Dinkins, Chairman – Formerly served as Deputy Attorney General and 

Assistant Attorney General in charge of the Department of Justice’s Environment 

and Natural Resources Division. She is a partner with Vinson & Elkins, L.L.P. in 

its Houston, TX office. 

• Alan Charles Raul, Vice Chairman – Former General Counsel of both the U.S. 

Department of Agriculture and the Office of Management and Budget as well as 

Associate White House Counsel to President Reagan. He is a noted expert and 

author on privacy, data protection, and information security. He is a partner in 

Sidley Austin’s Washington, DC office. 

• Lanny J. Davis – Served as Special Counsel to President Bill Clinton and is a 

noted author and frequent television commentator. He is a partner in Orrick, 

Herrington and Sutcliffe’s Washington, DC office. 

• Theodore B. Olson – Served as U.S. Solicitor General from 2001 until 2004 and 

as Assistant Attorney General for the Office of Legal Counsel from 1981 until 

1984. Mr. Olson is one of the Nation’s premier appellate and Supreme Court 

advocates and is a partner in Gibson, Dunn and Crutcher’s Washington, DC 

office. 

• Francis X. Taylor – A retired Brigadier General with the U.S. Air Force and 

former Commander of the Air Force Office of Special Investigation. He 

also served as Assistant Secretary of State for Diplomatic Security and U.S. 

Ambassador at Large for Counterterrorism. He is presently the Chief Security 

Officer for the General Electric Company. 

On February 17, 2006, the Senate confirmed Chairman Dinkins and Vice 

Chairman Raul. All five Members were sworn into office and held their first meeting on 

March 14, 2006. In taking office, the Board effectively took the place of the President’s 

Board on Safeguarding Americans’ Civil Liberties (President’s Board), which the 

President created by Executive Order in 2004.30 The President’s Board was chaired by 

the Deputy Attorney General and consisted of 22 representatives from the Departments of 

State, Defense, Justice, Treasury, Health and Human Services, and Homeland Security, 

 

28 IRTPA § 1061(e)(1)(C). 

29 Id. § 1061(e)(1)(B). 

30 See EO 13353 (Aug. 27, 2004). 
8 

the Office of Management and Budget, and the Intelligence Community.31 Following the 

enactment of IRPTA and the creation of the Board, the President’s Board ceased to meet 

and transferred its papers to Board staff. 

In addition to IRTPA, the Board works within the legal framework that guides all 

efforts to protect the Nation against terrorism.32 Consequently, the Board has gathered 

and familiarized itself with relevant seminal documents and authorities that impact its 

mission.33 

 

31 The President’s Board met as a full group six times and organized itself into six 

subcommittees. The six subcommittees were Investigative Legal Authorities, Redress 

Systems, Data Collection and Sharing Standards, Engagement with Arab-American 

Communities, Public Outreach, and Policies and Procedures. 

32 See, e.g., IRTPA § 1061(d)(1) (allowing the Board to obtain documents subject to the 

statute’s restrictions and “to the extent permitted by law”). 

33 This list includes, but is not necessarily limited to: U.S. CONSTITUTION; Foreign 

Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. § 1801 et seq.; Strengthening the 

Sharing of Terrorism Information to Protect Americans, EO 13388, 70 

Fed. Reg. 62023 (Oct. 27, 2005); Strengthening the Sharing of Terrorism Information to 

Protect Americans, EO 13356 (Aug. 27, 2004), 69 Fed. Reg. 53599 (Sept. 1, 2004); 

Strengthened Management of the Intelligence Community, EO 13355 (Aug. 27, 2004), 69 

Fed. Reg. 53593 (Sept. 1, 2004); National Counterterrorism Center, EO 13354 (Aug. 27, 

2004), 69 Fed. Reg. 53589 (Sept. 1, 2004); Establishing the President’s Board on 

Safeguarding Americans’ Civil Liberties, EO 13353 (Aug. 27, 2004), 69 Fed. Reg. 53585 

(Sept. 1, 2004); Conduct of Intelligence Activities, EO 12333, 46 Fed. Reg. 59941 (1981); 

Memoranda from the President to Congress and Executive Departments and Agencies: 

Guidelines and Requirements in Support of the Information Sharing Environment (Dec. 

16, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051216-

10.html (last accessed Jan. 4, 2006); THE 9/11 COMMISSION REPORT; COMMISSION ON THE 

INTELLIGENCE CAPABILITIES OF THE UNITED STATES REGARDING WEAPONS OF MASS 

DESTRUCTION: REPORT TO THE PRESIDENT OF THE UNITED STATES (March 31, 2005). 
9 

III. ORGANIZATION, ADMINISTRATION AND PROCESS 

 The Board has established and instituted the means and infrastructure to support it 

in accomplishing its statutory mission. As mentioned previously, the Board operates 

within the White House Office, a unit within the Executive Office of the President. 

Given this placement, the Board follows established White House Office policies in 

carrying out its administrative and budgetary responsibilities. 

A. Necessary Administrative Actions and Budget

In order to manage its everyday affairs, the Board has hired a full-time staff. As 

an initial matter, it hired an Executive Director, Mark A. Robbins, who previously served 

as General Counsel of the U.S. Office of Personnel Management. Shortly thereafter, it 

hired a Deputy Executive Director and Counsel, Seth M. Wood, and a Staff Assistant, 

John V. Coghlan. The Board’s staff communicates on a daily basis with all Members and 

regularly reports its activities to the Board. Staff – in conjunction with the Office of 

Government Ethics34 and ethics counsel within the White House Counsel’s office – have 

identified and clarified the relevant legal, ethical, and financial rules and guidelines 

applicable to special government employees,35 as defined by law. The Members have 

entered into ethics agreements that ensure that their activities on behalf of clients and 

employers do not conflict with their service on the Board. 

The Board has also begun the process of securing detailees from other agencies.36 

The former Director of National Intelligence determined that a detail assignment to the 

Board for a period of one year will fulfill the “joint duty” requirement for professional 

advancement within the intelligence community and requested that each of the 16 

intelligence agencies reporting to ODNI propose candidates for such a detail 

 

34 Members and staff have held two formal meetings with the Office of Government 

Ethics and have sought informal advice as needed. 

35 Due to their part-time status, Board Members are classified as special government 

employees. 18 U.S.C. § 202(a) (defining a “special government employee” as one “who 

is retained, designated, appointed, or employed to perform, with or without 

compensation, for not to exceed one hundred and thirty days during any period of three 

hundred and sixty-five consecutive days”). In order to determine a Member’s 

employment status, staff has established a process for reporting and recording the time 

Members spend on Board activity. 

36 IRTPA § 1061(g)(2). 
10 

assignment.37 The Board is not required to reimburse home agencies for detailees under 

the provisions of IRTPA.38

As a WHO unit, the Board did not have to hire separate staff dedicated to press 

and communications, legislative affairs, administration, or information technology but 

instead has utilized the services of the relevant components of the White House Office. 

The Board’s administrative support staff has been integrated into the regular operations 

of the WHO and attends regularly-scheduled meetings with the White House Office of 

Management and Administration. 

IRTPA requires the Board to adopt rules and procedures for physical, 

communications, computer, document, personnel, and other security in relation to the 

work of the Board.39 As a WHO unit, the Board adopted the existing rules and 

procedures of the EOP. 

Staff has carried out other necessary duties to allow Board Members full access to 

the potentially classified and otherwise sensitive documents necessary to complete their 

statutory obligations. For example, working with the relevant Executive authorities, 

Members and staff have obtained Top Secret/SCI clearances. Staff and the Office of 

Administration have also constructed appropriate office space to house the Board’s 

operations within the White House complex. This suite includes secure facilities for the 

review and storage of classified information, as well as secure telephone and fax lines. 

The Chairman, Vice Chairman, and Board staff were issued passes that allow them 

general access to the White House complex. 

B. Substantive Actions to Fulfill Statutory Mandate

In carrying out its substantive statutory mandates, the Board has formally met 23 

times in its first year. All but five of these meetings occurred in person, and all but two 

had unanimous attendance. All meetings took place in or around Washington, DC – 

within the White House complex, at various departments and agencies, and one meeting 

at Georgetown University. To place the activity of the Board’s part-time membership in 

perspective, the Board has formally met an average of about once every two weeks. 

Members always remain in near-constant communication with each other and the staff 

through e-mail and telephone. In the first few months of operation, the Board adopted a 

number of formative procedures and policies, including issue prioritization, everyday 

operations, public communications, and analytical methodologies. 

 

37 IRTPA also authorizes the Board to hire the services of consultants as necessary. Id. § 

1061(g)(3). 

38 Id. § 1061(g)(2). 

39 Id. § 1061(h).
11 

As an initial matter, the Board adopted its first annual agenda. The agenda 

functioned as a business plan by allocating responsibility for tasks among staff and 

setting expectations regarding how the Board would function. It also served as a 

substantive agenda by laying out an initial list of issues on which the Board agreed to 

focus its energies. The Board adopted a communications plan that laid out a strategy for 

engaging the public through direct means (such as a website and publications in the 

Federal Register) and through media outlets (both traditional and emerging). As part of 

its direct communication strategy, the Board approved the creation of a web site – 

www.privacyboard.gov – to discuss the Board’s history, mission, and activities and 

provide the public access to Board Member biographies, Board statements, and other 

related documents. The web site also serves as a means by which the public may contact 

the Board. 

The Board also developed a series of preliminary processes, procedures, and 

methods by which it could fulfill its advice and oversight responsibilities to the President 

and Executive Branch agency heads. Of greatest importance, it agreed upon a 

methodology for analyzing and evaluating proposed programs. It established both a 

regular means for Board staff to report their activities to the Members and a means of 

discussing issues and offering possible actions for the Board to take. It also adopted a set 

of White House Security Guidelines. These processes and templates are discussed in 

greater detail in Section V.A. 
12 

IV. OUTREACH AND EDUCATION 

The Board moved immediately to establish lines of communication within and 

outside the Federal government, to educate itself on relevant issues of interest and 

concern relating to efforts to protect the Nation against terrorism, and to educate others 

on its mission and oversight and advisory roles. 

A. The White House and Executive Office of the President

In order to obtain the most complete, real-time access to information regarding 

proposed and operational anti-terror programs, the Board has had to establish trust and 

credibility between itself and the relevant members of the Executive Branch. To that end, 

the Board has developed a sound, regular, and productive working relationship with the 

President’s most senior advisors tasked with anti-terrorism responsibilities. This 

relationship has put the Board in a position to integrate itself into the policymaking 

process and obtain the necessary support from the Administration to offer meaningful 

advice. 

The Board has met personally with the following principal senior White House 

officials: 

• The current Chief of Staff and the former Chief of Staff 

• The National Security Advisor 

• The Homeland Security and Counterterrorism Advisor 

• The current Counsel to the President and the former Counsel to the President 

• The Staff Secretary 

• The General Counsel of the Office of Management and Budget 

• The Chairman of the Intelligence Oversight Board 

These meetings have allowed the Board to forge strong working relationships 

with agencies and offices within the Executive Office of the President, including the 

National Security Council, Homeland Security Council, Office of Management and 

Budget, Office of the Counsel to the President, and the President’s Foreign Intelligence 

Advisory Board and Intelligence Oversight Board, among others. Additionally, the 

Board’s professional staff meets weekly with an EOP working group that consists of 
13 

commissioned officer representatives from the Office of the White House Chief of Staff, 

the National Security Council, the Homeland Security Council, the Office of the Counsel 

to the President, the Office of Legislative Affairs, the Office of Communications, and the 

Office of Management and Budget. 

B. Executive Branch

The Board has also met with senior administration officials throughout the 

Executive Branch who have responsibilities for developing and implementing war-onterrorism policies and strategies. These officials include: 

• The Attorney General 

o The Deputy Attorney General 

o The Assistant Attorney General for Legal Policy 

o The Assistant Attorney General for National Security 

o The Acting-Assistant Attorney General for Legal Counsel 

• The Secretary for Homeland Security 

• The Under Secretary of the Treasury for Terrorism and Financial Intelligence 

o The Assistant Secretary of the Treasury for Intelligence and Analysis 

• The former Director of National Intelligence 

o The former Principal Deputy Director of National Intelligence 

o The Information Sharing Environment (ISE) Program Manager 

o The ODNI General Counsel 

• The FBI Director 

• The Director of the National Security Agency 

o The former National Security Agency Inspector General 
14 

o The Director of Signals Intelligence 

o The National Security Agency General Counsel 

• The Director of the National Counterterrorism Center 

o The Deputy Director for Strategic Operational Planning 

• The former Director of the Terrorist Screening Center 

The Board and its staff have made repeated visits to a number of government 

facilities to observe how those agencies operate, develop anti-terror policies, and train 

their employees to protect privacy and civil liberties. On-site visits also tend to promote 

a high-quality dialogue between Board Members and advisors. Consequently, the Board 

has personally visited the Department of Justice, the Department of Homeland Security, 

the National Security Agency, the National Counterterrorism Center, the Terrorist 

Screening Center, the Federal Bureau of Investigation, and the Department of Defense 

Counterintelligence Field Activity Office. 

Perhaps most importantly, the Board has established strong working relationships 

with the developing privacy and civil liberties offices within the government. These 

offices and officers advance privacy and civil liberties at the ground level and generally 

have the greatest practical impact on the development and implementation of policies 

within their respective agencies. The privacy and civil liberties offices with which the 

Board works most closely include those at the Department of Justice, the Department of 

Homeland Security, and the Office of the Director of National Intelligence. These 

officials have likewise developed lines of communication and authority within their 

organizations’ structure. 

These relationships allow the Board to encourage the sharing of information and 

best practices among those offices. The relationships have also allowed the Board to 

coordinate and offer assistance when the privacy or civil liberties officers encounter 

problems. The Board has helped and will continue to help coordinate and foster the 

development of a privacy and civil liberties infrastructure throughout the Executive 

Branch. Before discussing the Board’s activities, including its review of specific issues, 

policies, and procedures as described in Part V, infra, the Board wishes to summarize 

some of the major activities of the PCL offices with which it has most closely worked 

over the past year. 
15 

• Department of Justice: Like the Board, over the past year the DOJ Privacy and 

Civil Liberties Office has also begun its initial work in earnest. The Violence 

Against Women and Department of Justice Reauthorization Act of 200540

required the Attorney General to appoint a senior official to assume primary 

responsibility for privacy policy. The Attorney General appointed the 

Department’s first Chief Privacy and Civil Liberties Officer on February 21, 

2006. Placed within the Office of the Deputy Attorney General, the DOJ Privacy 

Office considers issues relating to the Privacy Act, privacy and civil liberties, and 

e-government compliance. Among other activities, this office joined DHS and 

other Federal entities in the delegation that represented the United States in 

negotiations with the European Union regarding the transfer of Passenger Name 

Record (PNR) information from Europe to the Bureau of Customs and Border 

Protection. In participating in these negotiations, this delegation helped ensure 

that all parties adequately considered privacy and civil liberties interests. In 

conjunction with the ODNI Civil Liberties and Privacy Office, the DOJ Privacy 

Office also helped draft privacy guidelines governing the ISE. The office has also 

worked with the Board and other privacy and civil liberties offices to assist in 

drafting a Memorandum of Understanding that will establish standardized 

procedures to address complaints regarding air travel watch lists. 

• The Office of the Director of National Intelligence: Like the Board, the ODNI 

Civil Liberties and Privacy Office (CLPO) came into existence with the passage 

of IRTPA. The statute requires CLPO to ensure that civil liberties and privacy 

protections are appropriately incorporated into the policies of the ODNI and the 

intelligence community, oversee compliance by the ODNI with legal 

requirements relating to civil liberties and privacy, review complaints about 

potential abuses of privacy and civil liberties in ODNI programs and activities, 

and ensure that technologies sustain and do not erode privacy. The Director of 

National Intelligence appointed the Civil Liberties Protection Officer to lead the 

CLPO. In addition to completing a number of necessary stand-up requirements, 

the ODNI has, through the work of the CLPO, established internal ODNI policy 

for protection of privacy and civil liberties. In addition, the CLPO has identified a 

senior official at each intelligence agency to serve as the focal point of privacy 

and civil liberties issues at that agency. Perhaps most importantly, the CLPO codrafted the privacy protection guidelines that govern the Information Sharing 

Environment and is co-chairing the process for ensuring that agencies have 

sufficient guidance and support to implement the guidelines effectively and 

consistently. Moreover, the CLPO has conducted numerous reviews of 

intelligence community programs and activities, helped shape significant policies 

and guidelines, and established procedures for community personnel to provide 

the CLPO with information about possible privacy and civil liberties abuses. 

 

40 Pub. L. 109-162 (Jan. 5, 2006). 
16 

• The Department of Homeland Security: The DHS Privacy Office is the first 

statutorily created privacy office41 within the Federal government dedicated to the 

oversight of privacy protections. As such, the Chief Privacy Officer serves as the 

primary advisor on privacy matters and, by designation, departmental disclosure 

matters to the Secretary of Homeland Security. In addition to privacy policy 

advice, the DHS Privacy Office works (1) to assure that the use of technologies 

sustain and do not erode privacy protections; (2) to assure that personal 

information contained in Privacy Act systems of records is handled in full 

compliance with fair information practices; (3) to evaluate legislative and 

regulatory proposals involving personal information within federal government; 

(4) to conduct privacy impact assessments of proposed rules of DHS; (5) to 

coordinate with the Officer for Civil Rights and Civil Liberties; and (6) to prepare 

an annual report to Congress on activities of the Department that affect privacy. 

The Privacy Office is structured into two functional components: privacy and 

freedom of information. The freedom of information component addresses issues 

to include FOIA and Privacy Act requests and appeals and FOIA policy and 

regulations. The privacy component addresses the above statutory and policybased responsibilities, in a collaborative environment, to include Compliance; 

International Privacy Policy; Legislative and Regulatory Affairs; and Technology. 

Much of the Privacy Office work focused on developing a compliance framework 

for the Privacy Act and E-Government Act. This effort standardized and 

harmonized privacy compliance concerning Privacy Impact Assessment (PIA) 

and System of Records Notice (SORN) reporting requirements. Both documents 

require agencies to complete an analytical template that describes the intended 

benefits of a particular program or change, the possible privacy concerns or risks 

generated by such a program or change, and how the agency mitigates privacy 

risks. Operationally, the Privacy Office provided privacy advice regarding the 

Secure Flight program, reviewed the implementation of the arrangement to 

transfer PNR information from air carriers in the European Union to the Bureau 

of Customs and Border Protection, participated with DOJ and DHS Privacy and 

Civil Liberties officers in drafting the ISE Privacy Guidelines, and advised DHS 

on privacy issues concerning data governance and data security. 

The DHS Office for Civil Rights and Civil Liberties (CRCL) has a relatively 

broad responsibility to ensure that DHS programs and activities comply with 

constitutional, statutory, regulatory, policy, and other requirements related to civil 

rights and civil liberties. It also must investigate complaints that allege possible 

abuses of civil rights or civil liberties. The CRCL is led by the Officer for Civil 

Rights and Civil Liberties. Of specific relevance to the Board, the CRCL has 

focused a great deal of its efforts on resolving complaints arising from the use of 

aviation watch lists. Along these same lines, the CRCL has worked with the 

 

41 Pub. L. 107-296, § 222 (Nov. 25, 2002) (codified at 6 U.S.C. § 142). 
17 

Board and other privacy officers to develop a standardized procedure – to be 

embodied in a Memorandum of Understanding – to resolve watch list complaints. 

The Departments of State, Treasury, and Defense have also designated officials to 

act as privacy points of contact for the Board. The Board anticipates and looks forward 

to building similar working relationships with other privacy and civil liberties offices 

throughout the Executive Branch. 

C. Congress

Board Members and the White House Office of Legislative Affairs have reached 

out to Senators and Representatives to brief them on the Board’s mission, priorities, and 

activities, as appropriate. The Chairman and Vice Chairman have responded to all 

Congressional requests for testimony. The Board has also authorized its Executive 

Director to ensure that appropriate lines of communication and information exist between 

it and Congress. These Congressional interactions include the following: 

• On November 8, 2005, Carol Dinkins and Alan Raul testified at their 

confirmation hearing before the Senate Judiciary Committee. Prior to their 

confirmation hearing, they conducted courtesy visits with Senators John Cornyn, 

Richard J. Durbin, Edward M. Kennedy, Jeff Sessions, and Arlen Specter. 

• On May 4, 2006, the Executive Director met with a bipartisan group of staff from 

the House Permanent Select Committee on Intelligence. 

• On June 6, 2006, Chairman Dinkins and Vice Chairman Raul testified before the 

House Government Reform Subcommittee on National Security, Emerging 

Threats, and International Relations. 

• On August 10, 2006, the Executive Director met with majority staff from the 

Senate Committee on Homeland Security and Governmental Affairs. 

• On November 3, 2006, the Executive Director met with minority staff from the 

Senate Judiciary and Senate Homeland Security and Governmental Affairs 

Committees. 

• The Executive Director worked with Senate Judiciary Committee staff regarding 

certain administrative matters relating to confirmation materials. 

• On November 27, 2006, Carol Dinkins, Alan Raul and Lanny Davis briefed 

bipartisan staff from the Senate Judiciary, Intelligence and Homeland Security 

Committees. 
18 

• On December 13, 2006, the Executive Director met with staff of Representatives 

Shays, Maloney, and Thompson. 

• On December 19, 2006, Member Lanny Davis and the Executive Director met 

with staff to Senators Lieberman and Durbin. 

• On February 8, 2007, the Executive Director met with minority staff of the House 

Judiciary Subcommittee on Crime, Terrorism and Homeland Security. 

• The Board has either corresponded with individual Members of Congress or been 

the subject of correspondence between Members and the Executive Office of the 

President on a number of occasions since enactment of the Intelligence Reform 

and Terrorism Prevention Act of 2004.42 

D. Media 

The Board works in coordination with the White House Communications and 

Press offices. On September 10, 2006, Members Lanny Davis and Ted Olson appeared 

on a Discovery Channel special hosted by Ted Koppel entitled The Price of Security. 

Members of the media were invited to attend the Board’s December 5 2006 public 

meeting, and Board Members gave numerous interviews following that event. 

Additionally, media representatives are encouraged to monitor the Board’s web page 

(www.privacyboard.gov) for activities and statements. The Board has been the subject of 

numerous articles nation wide in the press and on-line. Members believe they have 

responded to all requests for interviews or comments. 

E. Private Sector, Non-profit, Academic, and Advocacy Groups and Experts

The Board has set as a high priority engaging in a productive and ongoing 

dialogue with privacy, non-profit, and academic organizations within the privacy and 

civil liberties community. These conversations have helped identify issues important to 

the community, exchange ideas regarding how to craft anti-terrorism policies and 

procedures, and establish trust between the Board and the community. For example, the 

Board has strived to communicate regularly with the co-chairs of the 9/11 Commission, 

Governor Thomas Kean and Congressman Lee Hamilton.43 Chairman Dinkins and Vice 

42 The Board and its activities have been referenced in two Congressional reports: (1) 

House Permanent Select Committee on Intelligence Oversight Subcommittee’s report: 

Initial Assessment on the Implementation of the Intelligence Reform and Terrorism 

Prevention Act of 2004 (July 2006); and (2) Government Accountability Office report: 

Terrorist Watch List Screening: Efforts to Help Reduce Adverse Effects on the Public

(September 2006). 

43 As noted previously, the Commission’s recommendations led to the Board’s creation. 
19 

Chairman Raul met collectively with Governor Kean and Congressman Hamilton and 

apprised them of the Board’s major activities. They have also held individual telephone 

conferences with Governor Kean and Congressman Hamilton. Following the December 

telephone conference, Congressman Hamilton requested the Board’s executive director to 

contact him every 60 days with additional updates on the Board’s efforts. In addition, the 

Board’s executive director has met with former Commission executive director Philip D. 

Zelikow and Commission General Counsel Daniel Marcus. The Board is dedicated to 

meeting the letter and spirit of the 9/11 Commission’s recommendations, consistent with 

its statutory authority, and looks forward to continued contact with the Commission’s cochairs. 

Additionally, the Chairman and Vice Chairman met with representatives from the 

American Civil Liberties Union and the Center for Democracy and Technology within 

the first two months of the Board’s operation. The Board also has held meetings with: 

the American Conservative Union, the Center for Strategic and International Studies, the 

Electronic Privacy Information Center and the Privacy Coalition, the Markle Foundation, 

the Cato Institute, the Heritage Foundation, the Liberty Coalition, and the National 

Institute of Standards and Technology. Board representatives have appeared at the 

Progress and Freedom Foundation’s Annual Aspen Summit, the U.S. Army Judge 

Advocate General’s School Advanced Intelligence Law Conference, and the Intelink and 

the Information Sharing Conference and Technology Exposition. 

The Board has also appeared before or participated in advisory committees and 

workshops conducted by DHS (the Data Privacy and Integrity Advisory Committee), 

ODNI (Privacy Protection Technologies Workshops hosted by ODNI and the Disruptive 

Technologies Office), DOJ (Intergovernmental Privacy Issues Forum and Global Justice 

Information Sharing Initiative, Global Advisory Committee), American University 

(Masters of Public Administration Seminar on Separation of Powers), and National 

Academies of Science (Committee on Technical and Privacy Dimensions of Information 

for Terrorism Prevention and other National Goals). 

On December 5, 2006, Georgetown University’s Institute for International Law 

and Politics hosted the Board’s seventeenth meeting, a public forum discussion between 

the Board, privacy and civil liberties advocacy groups, academicians, and the public. The 

Board was joined by the Civil Liberties Protection Officer at the Office of the Director of 

National Intelligence, the Chief Privacy and Civil Liberties Officer at the Department of 

Justice, and the Officer for Civil Rights and Civil Liberties at the Department of 

Homeland Security. Panelists included Caroline Fredrickson, Director of the Washington 

Legislative Office of the American Civil Liberties Union; David Keene, Chairman of the 

American Conservative Union and Co-chair of the Constitution Project’s Liberty and 

Security Initiative; Marc Rotenberg, Executive Director of the Electronic Privacy 

Information Center; Michael Ostrolenk, Co-founder and National Director of the Liberty 

Coalition; Brian Walsh, Senior Legal Research Fellow at the Heritage Foundation; James 

Dempsey, a member of the Markle Foundation Task Force on National Security in the 
20 

Information Age; Fred Cate, Distinguished Professor and Director for the Center for 

Applied Cybersecurity Research at Indiana University; Peter Swire, the C. William 

O’Neill Professor of Law at Ohio State University and former Chief Counselor for 

Privacy in the U.S. Office of Management and Budget under President Clinton; Neal K. 

Katyal, Professor of Law at Georgetown University; and Anthony Clark Arend, Professor 

of Government and Foreign Service and Director of the Institute for International Law 

and Politics at Georgetown University. 

F. International Forums 

As appropriate, the Board intends to participate in international discussions on 

issues of relevance and interest. For example, Vice Chairman Alan Raul represented the 

Board as a member of the U.S. delegation to the 28th International Data Protection and 

Privacy Commissioners’ Conference in London on November 2 and 3, 2006. This is an 

annual gathering of the various European Union and other International Data Protection 

officers. The U.S. has observer status to this conference. The delegation is led by the 

Department of Homeland Security and also includes representatives from the Department 

of Justice and Federal Trade Commission. 
21 

V. ISSUE IDENTIFICATION, PRIORITIZATION, AND 

DISCUSSION 

As previously explained, IRTPA vests the Board with the broad mandate to 

provide advice and oversight concerning “regulations, executive branch policies, and 

procedures (including the implementation of such regulations, policies, and procedures), 

related laws pertaining to efforts to protect the Nation from terrorism, and other actions 

by the executive branch related to efforts to protect the Nation from terrorism.”44 

Consistent with these statutory responsibilities, the Board considered how it could set its 

scope, agenda, and methodology in order to advise the President in as effective a manner 

as possible and in a manner that will bring the greatest value to the American people. To 

these ends, the Board began to identify and evaluate proposed and existing programs and 

policies that fall within its statutory mandate. Obviously, the list of policies and 

programs warranting the Board’s attention will evolve over time. Additionally, as new 

policies are considered, developed, and implemented, the Board’s identification of 

priorities will necessarily change as well. 

As a general matter, the Board encounters and engages issues using one of three 

approaches: 

• Vertical Review: At the direction of the President, through the request of an 

Executive Branch department or agency head, or as a result of self-initiation, the 

Board engages in an in-depth review and analysis of a particular policy or 

program. 

• Horizontal Review: The Board examines an issue as part of existing policy 

development and implementation processes within the Executive Office of the 

President and the Executive Branch. The Office of Management and Budget 

(OMB) has integrated the Board into the Legislative Referral Memorandum 

(LRM) process. Through this process, the Board reviews Administration-wide 

policies, regulations, and programs that involve its statutory mission. 

• Initial Spot Review: The Board informally gathers basic information on a policy, 

program, or issue that Board Members believe could implicate privacy and civil 

liberties concerns. This approach allows the Board to determine whether a more 

formal review is necessary. 

 

44 IRTPA § 1061(c)(2)(A). 
22 

A. Scope and Process

In construing the mandate contained in IRTPA, the Board has initially determined 

that it will focus its efforts on issues concerning U.S. Persons45 or occurring on American 

soil. As a result, it will not evaluate specific issues associated with the uniformed 

services’ efforts against terrorism or activities directed against non-U.S. persons abroad. 

IRTPA instructs the Board to ensure the consideration and protection of “privacy and 

civil liberties” but neither defines this phrase nor guides the Board in determining whose 

privacy and civil liberties should warrant the Board’s attention. In order to maximize the 

Board’s effectiveness and to prevent the diffusion of its limited resources across too 

many programs, the Board has elected to concentrate on the United States and U.S. 

Persons.46 

In making this decision, the Board considered the structure and purpose of 

IRTPA, its legislative history, common canons of statutory construction, and how to 

carry out its statutory mandate most effectively. As an initial matter, the Congressional 

findings in IRTPA concerning the Board suggest that “privacy and civil liberties” should 

have a domestic focus by “call[ing] for an enhanced system of checks and balances to 

protect the precious liberties that are vital to our way of life.”47 IRTPA – particularly the 

title that contains the Board48 – has a domestic focus,49 does not generally address 

military or diplomatic actions abroad, and does not reference interrogation, non-U.S. 

detention, or rendition practices. 

 

45 A “U.S. Person” is defined, inter alia, as a United States citizen or a lawful permanent 

resident alien. See, e.g., 50 U.S.C. § 1801(i); Executive Order 12333 § 3.4(i). 

46 The Board reserves the right to revisit this determination as circumstances or events 

may warrant. 

47 IRTPA § 1061(a)(2) (emphasis added). Indeed, the findings preceding the formal 

creation of the Board link the operation of the Board to the “potential shift of power and 

authority to the Federal Government . . . [i]n conducting the war on terrorism.” Id. § 

1061(a)(1). 

48 Title I – the portion of the Reform Act where Congress placed the Board – largely 

confines itself to organizational and structural matters. 

49 For example, the statute attempts to improve national security through a variety of 

actions, including restructuring the Federal intelligence-gathering apparatus, id. §§ 1011-

1023, strengthening security measures for cargo, id. §§ 4051-54, transportation, id. §§ 

4011-29, and border enforcement, id. §§ 5101-5204, and reforming certain immigration 

laws. Id. §§ 5401-5506.
23 

Legislative history – in the form of the 9/11 Commission Report and in Senate 

debate accompanying passage of IRTPA – also contains a domestic focus. In its preface 

to recommending the creation of the Board, the Commission Report highlighted the 

impact of its recommendations on U.S. Persons’ rights: “Many of our recommendations 

call for the government to increase its presence in our lives – for example, by creating 

standards for the issuance of forms of identification, by better securing our borders, by 

sharing information gathered by many different agencies.”50 The Commission connected 

this potential harm to domestic liberties to the Board’s charge: “At this time of increased 

and consolidated government authority, there should be a board within the executive 

branch to oversee adherence to the guidelines we recommend and the commitment the 

government makes to defend our civil liberties.”51 Similarly, during debate on the 

IRTPA conference report, numerous Senators emphasized what one characterized as 

Congress’ desire to “protect the lives of Americans, and [to] protect their liberties. That 

is what the Board is setting out to do.”52 

Certain canons of statutory construction, including the presumption against 

extraterritoriality,53 also suggest that IRTPA’s provisions authorizing the Board should 

not reach beyond the Nation’s borders. Additionally, the Board is reluctant to oversee 

traditional Commander-in-Chief authorities – including combat operations – without a 

specific and express legislative mandate. 

 

50 9/11 COMMISSION REPORT at 393-94 (emphasis added). 

51 Id. at 395 (emphasis added). 

52 Debate on the Conference Report of the Intelligence Reform and Terrorism Prevention 

Act of 2004, 150 Cong Rec 11939, 11949 (Dec. 8, 2004) (statement of Senator Durbin) 

(emphases added); see also id. at 11939 (“The creation of this Board is intended to ensure 

that at the same time we enhance our Nation's intelligence and homeland defense 

capabilities, we also remain vigilant in protecting the civil liberties of Americans.”) 

(statement of Senator Dodd) (emphasis added); id. at 11978 (“The bill provides 

protections for the rights of Americans by creating a Privacy and Civil Liberties 

Oversight Board . . . .”) (statement of Senator Mikulski) (emphasis added); id. (“While 

Americans are more willing to give up some of their privacy after 9/11, necessary 

intrusions must be carefully balanced against the rights of U.S. citizens and I believe the 

Board will help maintain the balance.”) (statement of Senator Reed) (emphasis added). 

53 See, e.g., Small v. United States, 544 U.S. 385, 388-89 (2005) (noting that courts begin 

with “legal presumption that Congress ordinarily intends its statutes to have domestic, not 

extraterritorial, application”); Arc Ecology v. United States Dep’t of the Air Force, 411 

F.3d 1092, 1097 (9th Cir. 2005) (“Courts must assume that Congress legislates with 

knowledge of the presumption that a statute is primarily concerned with domestic 

conditions.”) (internal quotation marks omitted). 
24 

Moreover, construing the scope of the Board’s mandate substantially implicates 

questions regarding how best to allocate time and resources. The Board has decided to 

use these resources in a manner to serve the greatest number of United States citizens and 

other U.S. Persons. Congress stands in a stronger position to oversee American antiterrorism activities conducted abroad than the Board or its Members. 

In addition to determining the general reach of its mandate, the Board established 

a standardized means to evaluate how well privacy and civil liberties have been 

considered in the development and implementation of anti-terrorism policies and 

programs. To that end, the Board has developed an “issues and process analysis 

methodology” that will bring full and consistent consideration of all issues that come 

before it.54 This methodology allows the Board to consider separate substantive 

questions and the extent to which privacy and civil liberty officers within the relevant 

agency have meaningfully participated in the development and implementation of the 

policy or program. The methodology takes into account five large issues, as well as a 

number of subsidiary questions, including: 

• The scope of the program 

• The program’s legal basis 

• How the program supports efforts to protect the Nation against terrorism from the 

perspective of managing risk to privacy or to survival 

• The extent to which officials within the relevant department or agency analyzed 

the privacy and civil liberties interests implicated by the policy, program or issue, 

including factors such as 

o Privacy: How does the program affect individuals’ ability to control how 

personal information about them is collected, used, maintained, or 

shared? 

o Fairness: Does the program treat individuals fairly at every step? 

 

54 The Board wishes to acknowledge and thank Jim Harper, Director of Information 

Policy Studies at the Cato Institute, and the Department of Homeland Security Data 

Privacy and Integrity Advisory Committee, on which Mr. Harper sits, for their guidance 

and earlier work product, upon which much of this is based. See, e.g., Framework for 

Privacy Analysis of Programs, Technologies, and Applications, Department of Homeland 

Security Data Privacy and Integrity Advisory Committee, Report No. 2006-01 (March 7, 

2006), available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_advcom_03-

2006_framework.pdf (last accessed Jan. 29, 2007). 
25 

o Civil Liberties: Does the program limit individual civil liberties in some 

dimension? What specific Constitutional or statutory interests are 

affected? 

o Respect for the Individual: Does the program adequately preserve, to 

the extent possible, human dignity, autonomy, freedom of thought, 

expression and association?

o Data Security: How is personal information secured against threats to 

privacy and integrity? 

• Processes employed by the government to review privacy and civil liberties 

interests. This factor considers the existence and format of review procedures, 

how the government ensures that employees follow these procedures, the training 

required of employees, and how the government updates its policies. 

With respect to internal deliberations, the Board has formalized procedures to 

allocate work and assignments among Board Members. For example, these procedures 

have allocated assignments to: Vice Chairman Raul to coordinate the Board’s efforts 

concerning watch list redress procedures; Vice Chairman Raul and Member Davis to 

examine the NSA’s surveillance activities; Member Frank Taylor to examine the 

Department of Defense Counterintelligence Field Activity (CIFA) TALON program; and 

Member Davis to examine elements of the reauthorized USA PATRIOT Act. 

The Board has also developed a standardized format for reporting internal 

deliberations and investigations and offering recommendations to the full Board. This 

report format includes background information, the legal authority underlying a given 

program or policy, the existing privacy and civil liberties infrastructure, benefits of the 

program or policy, privacy concerns, sources consulted, an evaluation of the 

consideration of privacy and civil liberties interests in the development or 

implementation of the program or policy, and recommendations to the Board. These predecisional reports are considered by the full membership of the Board at its regular 

meetings. 

B. Specific Issues, Policies, Procedures, and Regulations

Employing this standardized methodology and operating within its statutory mandate, 

the Board has evaluated numerous proposed and currently existing terrorism-prevention 

policies, regulations, statutes, and other Executive actions. Some issues came to the 

Board’s attention through its numerous meetings with privacy advocacy organizations, 

Executive officials, and Congressional leaders. The Board engaged other issues because 

media reports brought them to its attention, and other matters arose simply because the 

Board has begun to integrate itself into the regular Executive decision-making and policy 
26 

implementation processes. In all of its efforts, the Board has had the opportunity to ask 

whatever questions it desired and has received answers to those questions. The following 

list of matters on which the Board has offered advice and oversight is intended not to be 

exhaustive but rather to offer a representative sample of issues that the Board has 

considered during its relatively brief existence. The Board is careful below not to 

reference facts, issues, or materials of a classified nature.

1. Oversight of Existing Federal Anti-terrorism Policies and Programs

The Board has begun its efforts to review some of the Federal government’s most 

sensitive and far-reaching surveillance programs. As discussed below in greater detail, 

these programs include National Security Agency surveillance programs (such as the 

former Terrorist Surveillance Program (TSP) and the current program governed by the 

Foreign Intelligence Surveillance Court) and the Terrorist Finance Tracking Program 

(TFTP). The Board also has received initial briefings on the National Implementation 

Plan (NIP). 

At its first meeting on March 14, 2006, the Board determined that it would have 

an on going interest in monitoring the government’s various surveillance programs. In 

order to bring any kind of value to their analysis, however, the Members decided that 

they first had to understand fully the scope of the government’s efforts to protect the 

Nation against terrorism. Consequently, the Board undertook an extensive effort of 

educational due diligence. The Board believes that receiving premature briefings on any 

specific program without understanding the full context in which that program operates 

would not serve to help it fulfill its statutory mission. 

The Board has taken great care and exercised due diligence to become familiar 

with the departments and agencies responsible for protecting the Nation against terrorism. 

The Board has examined the agencies’ and departments’ mission and legal authorities, as 

well as their operational methodologies and privacy and civil liberties training, reporting, 

and auditing programs.55 

Following the Board’s educational efforts, and with the support of the Attorney 

General, the Director of National Intelligence, and the President’s Chief of Staff, the 

Board formally requested a briefing on the TSP and TFTP in September 2006. The 

President’s approval followed promptly, and the briefings were immediately scheduled. 

 

55 For example, the Board’s Vice Chairman and Executive Director attended a session of 

the standard National Security Agency employee privacy training given to all new 

employees and once every other year to all current employees. This training is based, 

among other authorities, on the requirements of U.S. Signals Intelligence Directive 18, 

which regulates the collection and use of information on U.S. Persons within the signals 

intelligence community. 
27 

• Terrorist Surveillance Program and January 10, 2007 Orders of 

the Foreign Intelligence Surveillance Court

The Board devoted substantial time and focus in its first year of 

operation to reviewing anti-terrorist surveillance conducted by the 

National Security Agency (NSA) and the Terrorist Surveillance 

Program (TSP) described by the President on December 17, 

2005.56 The TSP involved surveillance of communications where 

one party to the communication is outside the United States and 

the government has probable cause to believe that at least one 

party to the communication is a member or agent of al Qaeda, or 

an affiliated terrorist organization. 

The Board’s review of the NSA’s surveillance activities was 

conducted in the course of various briefings by senior NSA 

personnel, including the Director, and through briefings, 

questioning, and other interaction with analysts and program 

operators. Board members repeatedly visited NSA and observed 

the physical operations where the relevant surveillance is 

conducted. In particular, the Board reviewed material supporting 

the government’s determination that there was probable cause to 

believe that at least one of the parties to a surveilled 

communication was a member or agent of al Qaeda or an affiliated 

terrorist organization. 

The Board also received briefings and had opportunities to 

question NSA lawyers from the Office of General Counsel, 

Inspector General officials, and other knowledgeable personnel. 

The Board discussed TSP with the Attorney General, the Acting 

Assistant Attorney General for the Office of Legal Counsel, and 

the current and former Counsel to the President, among other 

knowledgeable officials in the Executive Branch. 

The Board was briefed on the multiple levels of review, approval 

and oversight for conducting this surveillance. At the NSA, 

operators must carefully justify tasking requests, and multiple 

levels of review and approval are required to initiate collection. 

Ongoing audits and legal reviews are conducted by the NSA’s 

Office of Inspector General, General Counsel, and Signals 

 

56 As noted below, the Board reviewed the operations of both the TSP (which has now 

ceased) and the surveillance program governed by the Foreign Intelligence Surveillance 

Court (FISC). 
28 

Intelligence Directorate Office of Oversight and Compliance. No 

surveillance may be conducted without leaving a reviewable audit 

trail that can be and routinely is subject to extensive continuing 

examination by Inspector General and Compliance staff. 

In addition, the members of the Board reviewed U.S. Signals 

Intelligence Directive 18 (USSID 18), which reflects the classified 

guidelines established by the NSA and approved by the Attorney 

General pursuant to Executive Order 12333 to ensure that 

information about U.S. Persons is protected from improper or 

excessive collection, dissemination and distribution.57 The NSA 

requires all of its personnel holding security clearances authorizing 

access to certain information to participate in extensive USSID 18 

training upon the initiation of access and every two years during 

which they continue to have access. The Vice Chairman and 

Executive Director participated in the full USSID 18 training 

received by NSA personnel in order to examine the extent and 

quality of the training and to assess awareness of the need to 

protect the privacy and civil liberties interests of U.S. Persons 

among NSA personnel with access to sensitive information. 

On January 17, 2007, the Attorney General notified Senators 

Leahy and Specter that a Judge of the Foreign Intelligence 

Surveillance Court (FISC) had issued orders authorizing the 

Government to target for collection international communications 

into or out of the United States where there is probable cause to 

believe that at least one party to the communication is a member or 

agent of al Qaeda or an affiliated terrorist organization (FISC 

Orders). As a result of the FISC Orders, any electronic 

surveillance that was conducted under the TSP is now conducted 

subject to the approval of the FISC. After the FISC Orders were 

issued, the Board was extensively briefed by both the Department 

of Justice and NSA regarding this development. Members of the 

Board also have studied the classified FISC Orders themselves and 

closely reviewed the classified material submitted to the FISC in 

connection with the Orders, including the applications, legal 

memoranda, and supporting declarations. 

While the details of the FISC Orders remain classified, we can 

report in an unclassified format that as a result of the Orders the 

 

57 See, e.g., EO 12333 § 2.4 (“Agencies within the Intelligence Community shall use the 

least intrusive collection techniques feasible within the United States or directed against 

United States persons abroad.”). 
29 

relevant surveillance is subject both to extensive ongoing 

Department of Justice review and to the approval of the FISA 

Court. The Department of Justice’s responsibilities for 

implementing the Orders are carried out by the new National 

Security Division in the Department of Justice. 

Based upon its review, the Board has concluded that the Executive 

Branch’s conduct of these surveillance activities appropriately 

considers and reasonably protects the privacy and civil liberties of 

U.S. Persons. As a result of the new FISA Court Orders, the 

highly regimented Executive Branch process of justification, 

review, approval, and auditing has been further augmented by 

court supervision. This provides reasonable assurance that 

national security and privacy and civil liberties interests are 

appropriately balanced. The Board found no evidence or 

reasonable basis to believe that the privacy and civil liberties of 

U.S. Persons are improperly threatened or impinged under the 

surveillance conducted by the Executive Branch, either under the 

TSP or subsequently under the new FISC Orders. In the opinion of 

the Board, it appears that the officials and personnel who were 

involved in conducting the TSP, and who now are responsible for 

implementing surveillance under the FISC Orders, are significantly 

aware and respectful of U.S. Constitutional and legal rights and 

protections for U.S. Persons, and they are actively committed to 

protecting privacy and civil liberties of U.S. Persons in conducting 

such surveillance. 

The Board notes that it was not involved in and has taken no 

position on the original design or legal authorization of the TSP. 

The Board believes that it is appropriate for it to provide 

continuing advice and oversight with respect to NSA’s surveillance 

activities. 

• National Implementation Plan

On November 28, 2006, at the National Counterterrorism Center 

(NCTC), the Board was briefed on the National Implementation 

Plan (NIP). This plan was approved by the President in June 2006 

and is intended to coordinate and integrate all instruments of 

national power in a unified effort to protect the Nation against 

terrorism. Toward that end, it assigns hundreds of specific tasks to 

various Federal departments and agencies. Participating 

departments and agencies are now adopting and implementing 

their own supporting plans, and an annual strategic review of the 
30 

entire NIP is in progress. The Board is working with NCTC to 

ensure that it has access to NIP tasks and activities that could raise 

privacy or civil liberties concerns. 

• Terrorist Finance Tracking Program

Also on November 28, at the Treasury Department, the Board was 

briefed on the Terrorist Finance Tracking Program (TFTP) by the 

Under Secretary for Terrorism and Financial Intelligence and the 

Assistant Secretary for Intelligence and Analysis. Under this 

program, intelligence analysts review records acquired through 

administrative subpoenas from the Society for Worldwide 

Interbank Financial Telecommunication to locate financial 

connections to known or suspected terrorists. This program also 

predates the Board’s existence. 

In each briefing, Board members were free to engage in a probing inquiry and ask 

unfettered questions, all of which were answered. Following each briefing, the Board 

met to consider further areas of inquiry, additional issues associated with these specific 

programs to address, and underlying documents to review. Chairman Carol Dinkins has 

requested Vice Chairman Alan Raul and Member Lanny Davis to coordinate continuing 

activities with NSA and Member Frank Taylor to coordinate continuing activities with 

regard to the National Implementation Plan. These initial briefings were the beginning of 

the Board’s review of these specific programs, not the totality of its involvement. 

In addition to these three anti-terror programs – NIP, TFTP, and NSA surveillance 

activities – the Board examined a variety of other programs and policies: 

• Department of Defense CIFA TALON Program

At the direction of the Board, Member Francis X. Taylor reviewed 

the Department of Defense Counterintelligence Field Activities 

(CIFA) Threat and Local Observation Notices (TALON) program. 

Within the last year, certain media reports alleged that the CIFA, 

through the TALON program, had monitored and collected 

information on U.S. Persons arising out of domestic activities that 

did not appear to present a threat to national security. During a 

May meeting of the Board, Chairman Carol E. Dinkins asked 

Member Taylor to gather background information on the alleged 

inappropriate activities, determine whether DOD had responded to 

such reports and the results of that response, and make 

recommendations as to whether additional review by the full Board 

was required. In carrying out the Chairman’s charge, Member 
31 

Taylor and Board staff met frequently with those who 

implemented and continue to oversee CIFA. Senior policy 

officials fully answered the Board’s questions and provided any 

materials that were requested. At the conclusion of its 

investigation, the Board determined that a lack of clear guidance 

from the Deputy Secretary at the time the program was established 

and the absence of a designated TALON program manager 

resulted in an ambiguous program implementation and the 

improper and unauthorized collection and retention of information 

on U.S. Persons. The Board also reviewed and endorsed the steps 

that DOD took prior to the Board’s investigation to correct these 

concerns. For example, the Deputy Secretary had ordered an 

immediate review of the program and issued additional guidance to 

clarify the TALON program’s scope and to emphasize that the 

program would be conducted in full compliance with DOD 

policies and procedures regarding the collection of information on 

U.S. Persons. CIFA also has purged the TALON system of any 

inappropriately collected and retained information. 

• Department of State E-Passport Program

The Board reviewed efforts by the Department of State to 

distribute a passport containing an embedded data chip that holds 

personal information on the passport holder. The Board concluded 

that the current design of the passport does not pose substantial 

privacy concerns because (1) the information contained on the chip 

is identical to that contained in the actual passport; (2) such 

information is useless without an actual physical passport; (3) the 

passport utilizes substantial security protocols (anti-skimming 

technology, a unique PIN, and a varying identifier that prevents 

continuous tracking of the chip) to prevent someone from 

accessing that information remotely and from following an 

individual; and (4) the chip is engineered in a way that would 

require the State Department to recall and reissue passports before 

it could add more information on the chip (thereby preventing the 

government from easily amending the current contents of the 

passport). The Board stated that it would revisit this issue in the 

event the State Department desired to alter the program by 

including more information on the chip (such as new biometric 

measures like an iris or fingerprint scan that are in addition to the 

existing digital photograph that enables the biometric comparison 

using facial recognition technology), altering its border inspection 

procedures (e.g., to allow a chip to act as a proxy for a physical 

passport), or changing the schematics of the chip. 
32 

• Passenger Name Recognition 

The Board was briefed on U.S. negotiations with the E.U. over the 

collection and dissemination of passenger name records for flights 

between the two jurisdictions. The briefing provided the Board 

with substantive discussions of the negotiations, as well as how 

privacy and civil liberties officers within DOJ and DHS were 

involved in those negotiations. The Board is satisfied with the 

significant role these privacy and civil liberties officers played in 

these negotiations. 

• Department of Homeland Security US-VISIT Program

The Board is currently examining the privacy and civil liberties 

protections contained in the US-VISIT program. US-VISIT 

facilitates a process that collects and retains biometric and 

biographic information regarding aliens who enter and leave the 

country and who apply for immigration benefits. Although the 

program largely concerns non-U.S. person aliens, a proposed 

rulemaking would extend its reach to include all aliens, including 

Legal Permanent Residents (who qualify as U.S. Persons). The 

greatest civil liberties questions center on how information 

collected as part of US-VISIT will be shared within the 

government and with outside entities. 

• USA PATRIOT Act Review

The 2006 reauthorization of the USA PATRIOT Act included over 

30 new civil liberties protections. Member Lanny Davis visited 

the Department of Justice on November 17, 2006 to be briefed on 

these new protections by staff with the new National Security 

Division. Member Davis has been tasked by the Board to continue 

working with the Department of Justice to monitor implementation 

and operation of these protections. 

2. Examples Where the Board Has Offered Advice Regarding the 

Development of a Policy, Program, Regulation, or Statute

• Watch List Redress

At the request of the Board, Vice Chairman Alan Raul has 

undertaken the coordination of efforts among the various relevant 

Federal departments and agencies to establish a formalized, 
33 

unified, and simplified redress procedure for individuals with 

adverse experiences with the government’s watch list or during 

screening processes. Both government officials and nongovernmental advocacy experts repeatedly raised this issue as an 

area where the Board could bring focus, organization and 

prioritization. 

The Terrorist Screening Center (TSC) is charged with maintaining 

the U.S. government’s consolidated terrorist watch list, which 

contains the identifying information of all known or appropriately 

suspected terrorists. Thirteen months after the Center began 

operations, it established a formal watch list redress process. The 

process allowed agencies that used the consolidated terrorist watch 

list data during a terrorism screening process (screening agencies) 

to refer individuals’ complaints to the TSC when it appeared those 

complaints were watch list-related. The goal of the redress process 

is to provide timely and fair review of individuals’ complaints and 

to identify and correct any data errors, including errors in the 

terrorist watch list itself. 

TSC’s redress process consists of a procedure to receive, track, and 

research watch list-related complaints and to correct the watch list 

or other data that caused an individual unwarranted hardship or 

difficulty during a screening process. Throughout 2005, TSC 

worked closely with screening agencies to establish a standardized 

process for referral of and response to public redress complaints. 

TSC also worked with federal law enforcement agencies and the 

Intelligence Community, each of which may nominate individuals 

to the watch list, to review the redress complaint of any individual 

on the terrorist watch list, evaluate whether that person was 

properly listed and that the associated information was correct, and 

make any corrections which were appropriate, including removal 

from the watch list when warranted. 

In the fall of 2005, TSC undertook to document formally the 

participating agencies’ mutual understanding of their obligations 

and responsibilities arising out of the watch list redress process. 

Competing priorities within participating agencies, however, 

slowed progress. On June 20, 2006, Vice Chairman Raul 

convened a meeting of all relevant agencies and called for a 

renewed effort to prioritize this project. In attendance were 

representatives from the Departments of State, Defense, Treasury, 

Justice, and Homeland Security, the Office of the Director of 
34 

National Intelligence, the CIA, the FBI, the National 

Counterterrorism Center, and TSC. 

The resulting draft Memorandum of Understanding (MOU) is a 

constructive and positive step intended to secure a commitment 

from these agencies that participate in the watch list process to 

engage actively in and support the redress process. The MOU 

resulted from a six-month period of negotiations between the 

agencies mentioned previously. Vice Chairman Raul convened a 

final working group meeting on November 30, 2006; in January 

2007, a final draft of the MOU was approved and submitted for the 

signature of the heads of these agencies. 

The MOU sets forth the existing multi-agency redress process in 

significant detail, from receipt of an individual’s complaint to the 

response sent by the screening agency. Among other things, the 

MOU establishes obligations for all parties to secure personal 

information, update and correct their own record systems, and 

share information to ensure redress complaints are resolved 

appropriately. Each participating agency must also commit to 

providing appropriate staff and other resources to make sure the 

redress process functions in a timely and efficient manner. Finally, 

each agency must designate a senior official who is responsible for 

ensuring the agency’s full participation in the redress process and 

overall compliance with the MOU. 

Once the MOU has been executed and implemented, the Board 

intends to continue efforts to bring all possible transparency and 

public understanding to this process. 

• Department of Defense Report of the Technology and Privacy 

Advisory Committee

In September 2006, the Department of Defense forwarded to the 

Board the recommendations of the March 2004 Report of the 

Technology and Privacy Advisory Committee (TAPAC) to the 
35 

Secretary of Defense.58 Five of the twelve recommendations 

required action on a government-wide basis beyond the authority 

of the Department of Defense. The Board is currently evaluating 

that Report to determine the extent to which the government has 

already implemented those recommendations and what additional 

steps the government should take to complete those 

recommendations. 

• Administration Clearance Processes

As mentioned above, the Board has been fully integrated into the 

various Administration and Executive Branch program and policy 

clearance processes, including the OMB Legislative Referral 

Memorandum (LRM) process. As such, it regularly receives and is 

invited to comment on policy initiatives, programs, regulations, 

proposed legislation, and public remarks by agency officials that 

may have privacy or civil liberties implications. 

3. Information Sharing 

IRTPA called for the creation of the Information Sharing Environment (ISE). 

The ISE is an approach that facilitates the sharing of information relating to terrorism by 

putting in place the processes, protocols, and technology that enable the sharing of this 

information among Federal, State, local, tribal and private sector entities and foreign 

partners. The ISE brings together, aligns and builds upon existing information sharing 

policies, business processes and technologies (systems), and promotes a culture of 

information sharing through increased collaboration. IRTPA also established the 

Program Manager for the Information Sharing Environment with government-wide 

authority to plan, oversee, and manage the ISE. The Program Manager assists the 

President and government agencies in the development and operation of the ISE and 

monitors and assesses its progress. 

 

58 Safeguarding Privacy in the Fight against Terrorism (March 2004), available at

http://www.cdt.org/security/usapatriot/20040300tapac.pdf (last accessed Dec. 29, 2006). 
36 

To guide efforts to establish the ISE and implement the requirements of IRTPA, 

on December 16, 2005, the President issued a Memorandum to the Heads of Executive 

Departments and Agencies. This Memorandum delineated two requirements and five 

guidelines that prioritize efforts that the President believes are most critical to the 

development of the ISE and assigns Cabinet officials responsibility for resolving some of 

the more complicated issues associated with information sharing. The five guidelines 

are: (1) Set Standards for How Information is Acquired, Accessed, Shared, and Used 

within the ISE; (2) Create Common Framework for Sharing Information Between and 

Among Federal Agencies and State, Local and Tribal Governments, Law Enforcements 

Agencies and the Private Sector; (3) Standardize Procedures for Sensitive But 

Unclassified Information; (4) Facilitate Information Sharing with Foreign Partners; and 

(5) Protect the Information Privacy Rights and Other Legal Rights of Americans. 

IRTPA required that these guidelines be drafted and implemented in consultation 

with the Board. And with regard to all five sets of guidelines, the Board’s Executive 

Director is a member of the White House Information Sharing Policy Coordination 

Committee which sits above all the working groups and directly below the Deputies and 

Principals Committees. 

The President assigned various agencies the lead in developing the five sets of 

guidelines. The Department of Justice and the Office of the Director of National 

Intelligence were jointly assigned the lead in developing Guideline 5, now referred to as 

the ISE Privacy Guidelines. Within those agencies, the lead was assigned to the DOJ 

Chief Privacy and Civil Liberties Officer and ODNI’s Civil Liberties Protection Officer. 

This ISE Privacy Guidelines drafting group spent April through November 2006 

soliciting comments and working with the Program Manager and White House staff, 

including Homeland Security Council staff and Board staff. 

On May 16, 2006, the Board held its fourth meeting and, among other things, was 

briefed on the ISE by the Program Manager for the Information Sharing Environment. 

On June 26, at the Board’s eighth meeting, the working group leaders briefed the Board 

specifically on the ISE Privacy Guidelines. 

On November 16, 2006, the Director of National Intelligence sent to Congress the 

ISE Implementation Plan, which discusses how to bring about an information sharing 

environment. Although the parameters of the plan were adopted in December 2005 prior 

to the Board's existence, the Board’s Executive Director did offer substantive advice 

regarding its content. On November 22, 2006, the President approved the Guidelines 1, 

2, 4, and 5 reports, including the recommendation that the ISE Privacy Guidelines be 

issued. These were subsequently released to the public by the Program Manager. 
37 

The ISE Privacy Guidelines (Protect the Information Privacy Rights and Other 

Legal Rights of Americans) work in conjunction with the other information sharing 

guidelines, requiring each set to address its specific area of interest in a manner that 

protects the privacy rights and civil liberties of Americans. The guidelines must also 

implement provisions of Executive Order 13388, which requires agencies to “protect the 

freedom, information privacy, and other legal rights of Americans” while sharing 

terrorism information. 

The ISE Privacy Guidelines regulations establish an information sharing 

framework that balances the dual imperatives of sharing information and protecting 

privacy by establishing uniform procedures to implement required protections in unique 

legal and mission environments. In addition, the framework establishes an ISE privacy 

governance structure for compliance. The framework attempts to strike a balance 

between consistency and customization, substance and procedure, and oversight and 

flexibility. It also builds upon existing resources within Executive agencies and 

departments for implementation. 

The ISE Privacy Guidelines are based on a set of core principles that requires 

agencies to: identify any privacy-protected information to be shared; enable other 

agencies to determine the nature of the information and whether it contains information 

about U.S. Persons; assess and document applicable legal and policy rules and 

restrictions; put in place accountability and audit mechanisms; implement data quality 

and, where appropriate, redress procedures; and identify an ISE Privacy Official to ensure 

compliance with the guidelines. 

The ISE Privacy Guidelines regulations also require Federal departments and agencies 

to designate an ISE Privacy Official to oversee the full implementation of the privacy 

regulations. The ISE Privacy Official is the department or agency’s senior privacy official (as 

designated by statute or executive order, or as otherwise identified in response to OMB 

Memorandum M-05-08 dated February 11, 2005). If a different official would be better 

situated to perform this role, he or she may be so designated by the head of the agency. 

The ISE Privacy Guidelines also provide for an ISE Privacy Guidelines Committee, 

consisting of the ISE Privacy Officials of the departments and agencies comprising the 

Information Sharing Council (ISC), and chaired by a senior official designated by the Program 

Manager. Working closely with the Privacy and Civil Liberties Oversight Board as it 

exercises its oversight mission, the committee will seek to ensure consistency and 

standardization in implementation, as well as serve as a forum to share best practices and 

resolve inter-agency issues. The ISE Privacy Guidelines Committee will continually refine its 

guidance as the ISE develops and as specific sharing mechanisms are institutionalized. The 

Program Manager has designated the DOJ Chief Privacy and Civil Liberties Officer and 

ODNI’s Civil Liberties Protection Officer to serve as co-chairs of this ISE Privacy Guidelines 

Committee, which will include the Board’s Executive Director as a member. 
38 

The Board instructed its staff to meet with the Program Manager and provide options 

concerning its on going oversight role and how that role can be most effectively and 

efficiently exercised. 
39 

VI. THE YEAR AHEAD 

After working to establish the foundation discussed throughout this report, the 

Board looks forward to continuing to fulfill its statutory responsibilities in the upcoming 

year. The Board intends to utilize the knowledge and trust built over the last year to 

engage, as time and resources allow, issues that will have the greatest impact on the 

greatest number of U.S. Persons. While it is impossible to foresee all issues that may 

arise in the coming year warranting the Board’s attention, issues which the Board 

presently intends to pursue include: 

• Information Sharing Environment (ISE). As discussed above, the Board is 

specifically charged with responsibility for reviewing the terrorism information 

sharing practices of Executive Branch departments and agencies to determine 

adherence to guidelines designed to appropriately protect privacy and civil 

liberties. Accordingly, the Board was integrated into the process chaired by the 

Program Manager for the development and implementation of appropriate 

information sharing guidelines for Federal departments and agencies. The Board 

will work with the Program Manager to institutionalize its implementation 

oversight role. 

• Government surveillance operations. The Board will continue to exercise its 

oversight role over terrorist surveillance. 

• Terrorist watch list issues. The Board played a role in coordinating efforts among 

the various Federal departments and agencies to establish a unified, simplified 

redress procedure for individuals with adverse experiences during screening 

processes. The execution of an interagency memorandum of understanding on 

redress procedures is only a first step in establishing a simple, transparent process. 

The Board will continue its efforts to promote this process. 

• USA PATRIOT Act and National Security Letters (NSLs). The 2006 

reauthorization included over thirty new civil liberties protections. The Board 

will work with the Department of Justice to monitor implementation of these 

protections. 

• Federal data analysis and management issues. Board Members intend to enhance 

significantly their understanding of issues associated with data mining activities, 

data sharing practices, and governmental use of commercial databases. This level 

of understanding will assist the Board in its review of many Federal anti-terrorism 

programs. Toward this end, the Board will follow up on recommendations of the 

March 2004 report of the Technology and Privacy Advisory Committee (TAPAC) 

to the Secretary of Defense, Safeguarding Privacy in the Fight Against Terrorism. 

• U.S. Persons Guidelines. These guidelines limit the government’s ability to 

collect, retain, and distribute intelligence information regarding U.S. Persons. 
40 

These guidelines are applicable to agencies in the intelligence community 

pursuant to Executive Orders 12333 and 13284. As was noted in the 2005 report 

to the President on Weapons of Mass Destruction, these rules are complicated, 

subject to varying interpretations, and substantially different from one agency to 

another. The Attorney General and the Director of National Intelligence have 

established a staff level working group to review these guidelines and propose 

appropriate reforms. The Board intends to participate in this process. 

• State and local fusion centers. State and local law enforcement entities are 

establishing joint centers where they share information and data of value to their 

common missions. Federal agencies are developing partnerships with these 

centers. The Board will review these sharing practices to ensure that privacy 

rights and civil liberties concerns are taken into appropriate consideration. 

• National Implementation Plan (NIP). The National Counterterrorism Center is 

presently conducting the first strategic review of the NIP. The Board is interested 

in the results of this review and actions taken as a result of its findings and 

recommendations. The Board will also continue to monitor those on-going NIP 

tasks and activities that might raise privacy or civil liberties concerns. 

• Department of Homeland Security Automated Targeting System (ATS). ATS is a 

decision support tool used by Customs and Border Protection to assist in making a 

threshold assessment in advance of arrival into the U.S. based on information that 

DHS would otherwise collect at the point of entry. The Board intends to review 

this system. 

• Material Witness Statute. As a result of concerns raised at its December 5, 2006 

Georgetown University forum, the Board will investigate public expressions of 

concern over how this statute is being used in Federal anti-terrorism efforts 

The Board will continue its efforts to reach out to those Administration officials 

with significant responsibilities in protecting the Nation against terrorism. To that end, 

the Board looks forward to meeting with the Secretaries of State and Defense, the new 

Director of the Central Intelligence Agency, and the new director of the Terrorism 

Screening Center. 

Administratively, the Board will focus on further developing its staff resources by 

supplementing the permanent staff with detailees from the intelligence, law enforcement, 

and technology communities. Depending on developing priorities, the Board intends to 

bring in six detailees for terms of six months to one year. 

In addition, recognizing the value and benefit of the public dimension to its 

responsibilities, the Board will conduct a continuing series of open public forums, 

perhaps around the country, that will allow interested American citizens to express their 
41 

concerns with regard to privacy and civil liberties implications in the war against 

terrorism. 

Finally, the Board understands that it may adjust its agenda based on evolving 

issues and concerns - whether those issues are brought before the Board through its 

internal role within the Executive Office of the President or through public comment. 
42 

VII. CONCLUSION 

Standing up any new institution takes vision, energy, and commitment. The 

Board believes it has made substantial solid progress over the past year in setting 

priorities and integrating itself into existing Executive Branch policy formulation and 

implementation procedures. The Board is pleased with the enthusiasm and level of 

support it is receiving, both substantively and administratively, from White House staff, 

the Executive Office of the President and other Federal departments and agencies 

essential to the protection of privacy and civil liberties. 

Most importantly, as mentioned several times in this report, the Board has 

established a sound and productive working relationship with the growing universe of 

privacy and civil liberties professionals within the Executive Branch. Working together, 

these professionals and the Board are developing a system of mutual trust and support. 

This relationship is fundamental to the Board’s ability to fulfill its role of providing 

constructive, objective advice to the President and relevant agency heads. 

 The American people expect the Federal government to protect them from 

terrorism, and to do so consistent with the Constitution and important American values. 

The Privacy and Civil Liberties Oversight Board is one of many checks and balances 

existing within the Federal government to help promote this. It is not a substitute for the 

President’s responsibility to preserve, protect, and defend the Constitution of the United 

States or the oversight roles exercised by Congress. Instead, it is a significant new body 

within the Federal government in a position of trust and proximity to the President that 

can offer an objective assessment of policy initiatives. 

The Board Members take their statutory mission and responsibilities seriously and 

look forward to working with the Executive Branch and Congress59 in fulfilling them in 

the upcoming year. 

 

59 The 110th Congress is considering whether the Board’s present construct, as 

established by IRTPA, warrants modification. Pending legislative initiatives would 

remove the Board from the Executive Office of the President, make it an independent 

agency within the Executive Branch, and provide it with subpoena power. Other 

proposed changes would keep the Board within the EOP but would require all Members 

to be nominated by the President and confirmed by the Senate to staggered six-year 

terms, with the Chairman assuming a full-time appointment.