I 

109TH CONGRESS 

1ST SESSION H. R. 1310

To amend the Intelligence Reform and Terrorism Prevention Act of 2004 

with respect to the Privacy and Civil Liberties Oversight Board, and 

for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 15, 2005

Mrs. MALONEY (for herself, Mr. UDALL of New Mexico, Mr. SHAYS, Ms. CARSON, Mr. SANDERS, Mr. CASE, Mr. FILNER, Mr. CUMMINGS, Mr. HONDA, 

Ms. BALDWIN, Ms. MCCOLLUM of Minnesota, Mr. GEORGE MILLER of 

California, Mr. PALLONE, Mr. BAIRD, Mr. OWENS, Ms. WOOLSEY, Mr. 

GONZALEZ, Mrs. DAVIS of California, Mr. ISRAEL, Ms. WATSON, Ms. 

LEE, Mr. WEXLER, Mr. SCOTT of Virginia, and Mr. VAN HOLLEN) introduced the following bill; which was referred to the Committee on Government Reform, and in addition to the Committees on the Judiciary, Homeland Security, and Select Intelligence (Permanent Select), for a period to 

be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee 

concerned 

A BILL

To amend the Intelligence Reform and Terrorism Prevention 

Act of 2004 with respect to the Privacy and Civil Liberties Oversight Board, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Protection of Civil Lib3 erties Act’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds the following: 

6 (1) On July 22, 2004 the National Commission 

7 on Terrorist Attacks Upon the United States issued 

8 a report that included 41 specific recommendations 

9 to help prevent future terrorist attacks, including de10 tails of a global strategy and government reorganiza11 tion necessary to implement that strategy. 

12 (2) One of the recommendations focused on the 

13 protections of civil liberties. Specifically the following 

14 recommendation was made: ‘‘At this time of in15 creased and consolidated government authority, 

16 there should be a board within the executive branch 

17 to oversee adherence to the guidelines we rec18 ommend and the commitment the government makes 

19 to defend our civil liberties.’’. 

20 (3) The report also states that ‘‘the choice be21 tween security and liberty is a false choice, as noth22 ing is more likely to endanger America’s liberties 

23 than the success of a terrorist attack at home. Our 

24 History has shown that the insecurity threatens lib25 erty at home. Yet if our liberties are curtailed, we 

26 lose the values that we are struggling to defend.’’. 
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1 (4) On December 17, 2004, Public Law 108–

2 458, the National Intelligence Reform Act, was 

3 signed into law. This law created a civil liberties 

4 board that does not have the authority necessary to 

5 protect civil liberties. 

6 SEC. 3. MAKING THE PRIVACY AND CIVIL LIBERTIES OVER7 SIGHT BOARD INDEPENDENT. 

8 Section 1061(b) of the Intelligence Reform and Ter9 rorism Prevention Act of 2004 is amended by striking 

10 ‘‘within the Executive Office of the President’’ and insert11 ing ‘‘as an independent agency within the Executive 

12 branch’’. 

13 SEC. 4. REQUIRING ALL MEMBERS OF THE PRIVACY AND 

14 CIVIL LIBERTIES OVERSIGHT BOARD BE CON15 FIRMED BY THE SENATE. 

16 Subsection (e) of section 1061 of the Intelligence Re17 form and Terrorism Prevention Act of 2004 is amended 

18 to read as follows: 

19 ‘‘(e) MEMBERSHIP.—

20 ‘‘(1) MEMBERS.—The Board shall be composed 

21 of a full-time chairman and 4 additional members, 

22 who shall be appointed by the President, by and 

23 with the advice and consent of the Senate. 

24 ‘‘(2) QUALIFICATIONS.—Members of the Board 

25 shall be selected solely on the basis of their profes-
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1 sional qualifications, achievements, public stature, 

2 expertise in civil liberties and privacy, and relevant 

3 experience, and without regard to political affiliation, 

4 but in no event shall more than 3 members of the 

5 Board be members of the same political party. The 

6 President shall, before appointing an individual who 

7 is not a member of the same political party as the 

8 President consult with the leadership of that party, 

9 if any, in the Senate and House of Representatives. 

10 ‘‘(3) INCOMPATIBLE OFFICE.—An individual 

11 appointed to the Board may not, while serving on 

12 the Board, be an elected official, officer, or employee 

13 of the Federal Government, other than in the capac14 ity as a member of the Board. 

15 ‘‘(4) TERM.—Each member of the Board shall 

16 serve a term of six years, except that—

17 ‘‘(A) a member appointed to a term of of18 fice after the commencement of such term may 

19 serve under such appointment only for the re20 mainder of such term; 

21 ‘‘(B) upon the expiration of the term of of22 fice of a member, the member shall continue to 

23 serve until the member’s successor has been ap24 pointed and qualified, except that no member 

25 may serve under this subparagraph—
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1 ‘‘(i) for more than 60 days when Con2 gress is in session unless a nomination to 

3 fill the vacancy shall have been submitted 

4 to the Senate; or 

5 ‘‘(ii) after the adjournment sine die of 

6 the session of the Senate in which such 

7 nomination is submitted; and 

8 ‘‘(C) the members initially appointed under 

9 this subsection shall serve terms of two, three, 

10 four, five, and six years, respectively, from the 

11 effective date of this Act, with the term of each 

12 such member to be designated by the President. 

13 ‘‘(5) QUORUM AND MEETINGS.—The Board 

14 shall meet upon the call of the chairman or a major15 ity of its members. Three members of the Board 

16 shall constitute a quorum.’’. 

17 SEC. 5. SUBPOENA POWER FOR THE PRIVACY AND CIVIL 

18 LIBERTIES OVERSIGHT BOARD. 

19 Section 1061(d) of the Intelligence Reform and Ter20 rorism Prevention Act of 2004 is amended—

21 (1) so that subparagraph (D) of paragraph (1) 

22 reads as follows: 

23 ‘‘(D) require, by subpoena issued at the di24 rection of a majority of the members of the 

25 Board, persons (other than departments, agen-
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1 cies, and elements of the executive branch) to 

2 produce any relevant information, documents, 

3 reports, answers, records, accounts, papers, and 

4 other documentary or testimonial evidence.’’; 

5 and 

6 (2) so that paragraph (2) reads as follows: 

7 ‘‘(2) ENFORCEMENT OF SUBPOENA.—In the 

8 case of contumacy or failure to obey a subpoena 

9 issued under paragraph (1)(D), the United States 

10 district court for the judicial district in which the 

11 subpoenaed person resides, is served, or may be 

12 found may issue an order requiring such person to 

13 produce the evidence required by such subpoena.’’. 

14 SEC. 6. REPORTING REQUIREMENTS. 

15 (a) DUTIES OF BOARD.—Paragraph (4) of section 

16 1061(c) of the Intelligence Reform and Terrorism Preven17 tion Act of 2004 is amended to read as follows: 

18 ‘‘(4) REPORTS.—

19 ‘‘(A) RECEIPT, REVIEW, AND SUBMIS20 SION.—

21 ‘‘(i) IN GENERAL.—The Board shall—

22 ‘‘(I) receive and review reports 

23 from privacy officers and civil liberties 

24 officers described in section 212; and 
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1 ‘‘(II) periodically submit, not less 

2 than semiannually, reports to the ap3 propriate committees of Congress, in4 cluding the Committees on the Judici5 ary of the Senate and the House of 

6 Representatives, the Committee on 

7 Homeland Security and Governmental 

8 Affairs of the Senate, the Committee 

9 on Government Reform of the House 

10 of Representatives, the Select Com11 mittee on Intelligence of the Senate, 

12 and the Permanent Select Committee 

13 on Intelligence of the House of Rep14 resentatives, and to the President. 

15 Such reports shall be in unclassified form 

16 to the greatest extent possible, with a clas17 sified annex where necessary. 

18 ‘‘(ii) CONTENTS.—Not less than 2 re19 ports the Board submits each year under 

20 clause (i)(II) shall include— 

21 ‘‘(I) a description of the major 

22 activities of the Board during the pre23 ceding period; 

24 ‘‘(II) information on the findings, 

25 conclusions, and recommendations of 
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1 the Board resulting from its advice 

2 and oversight functions under sub3 section (c); 

4 ‘‘(III) the minority views on any 

5 findings, conclusions, and rec6 ommendations of the Board resulting 

7 from its advice and oversight func8 tions under subsection (c); and 

9 ‘‘(IV) each proposal reviewed by 

10 the Board under subsection (c)(1) 

11 that the Board advised against imple12 menting, but that notwithstanding 

13 such advice, was implemented. 

14 ‘‘(B) INFORMING THE PUBLIC.—The 

15 Board shall— 

16 ‘‘(i) make its reports, including its re17 ports to Congress, available to the public 

18 to the greatest extent that is consistent 

19 with the protection of classified informa20 tion and applicable law; and 

21 ‘‘(ii) hold public hearings and other22 wise inform the public of its activities, as 

23 appropriate and in a manner consistent 

24 with the protection of classified informa25 tion and applicable law.’’. 
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1 (b) PRIVACY AND CIVIL LIBERTIES OFFICERS.—Sec2 tion 1062 of the Intelligence Reform and Terrorism Pre3 vention Act of 2004 is amended to read as follows: 

4 ‘‘SEC. 1062. PRIVACY AND CIVIL LIBERTIES OFFICERS. 

5 ‘‘(a) DESIGNATION AND FUNCTIONS.—The Attorney 

6 General, the Secretary of Defense, the Secretary of State, 

7 the Secretary of the Treasury, the Secretary of Health and 

8 Human Services, the Secretary of Homeland Security, the 

9 National Intelligence Director, the Director of the Central 

10 Intelligence Agency, any other entity within the intel11 ligence community (as defined in section 3 of the National 

12 Security Act of 1947 (50 U.S.C. 401a)), and the head of 

13 any other department, agency, or element of the executive 

14 branch designated by the Privacy and Civil Liberties Over15 sight Board to be appropriate for coverage under this sec16 tion shall designate not less than 1 senior officer to— 

17 ‘‘(1) assist the head of such department, agen18 cy, or element and other officials of such depart19 ment, agency, or element in appropriately consid20 ering privacy and civil liberties concerns when such 

21 officials are proposing, developing, or implementing 

22 laws, regulations, policies, procedures, or guidelines 

23 related to efforts to protect the Nation against ter24 rorism; 
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1 ‘‘(2) periodically investigate and review depart2 ment, agency, or element actions, policies, proce3 dures, guidelines, and related laws and their imple4 mentation to ensure that such department, agency, 

5 or element is adequately considering privacy and 

6 civil liberties in its actions; 

7 ‘‘(3) ensure that such department, agency, or 

8 element has adequate procedures to receive, inves9 tigate, respond to, and redress complaints from indi10 viduals who allege such department, agency, or ele11 ment has violated their privacy or civil liberties; and 

12 ‘‘(4) in providing advice on proposals to retain 

13 or enhance a particular governmental power the offi14 cer shall consider whether such department, agency, 

15 or element has established— 

16 ‘‘(A) that the power actually enhances se17 curity and the need for the power is balanced 

18 with the need to protect privacy and civil lib19 erties; 

20 ‘‘(B) that there is adequate supervision of 

21 the use by such department, agency, or element 

22 of the power to ensure protection of privacy and 

23 civil liberties; and 

24 ‘‘(C) that there are adequate guidelines 

25 and oversight to properly confine its use. 
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1 ‘‘(b) EXCEPTION TO DESIGNATION AUTHORITY.— 

2 ‘‘(1) PRIVACY OFFICERS.—In any department, 

3 agency, or element referred to in subsection (a) or 

4 designated by the Board, which has a statutorily 

5 created privacy officer, such officer shall perform the 

6 functions specified in subsection (a) with respect to 

7 privacy. 

8 ‘‘(2) CIVIL LIBERTIES OFFICERS.—In any de9 partment, agency, or element referred to in sub10 section (a) or designated by the Board, which has a 

11 statutorily created civil liberties officer, such officer 

12 shall perform the functions specified in subsection 

13 (a) with respect to civil liberties. 

14 ‘‘(c) SUPERVISION AND COORDINATION.—Each pri15 vacy officer or civil liberties officer described in subsection 

16 (a) or (b) shall— 

17 ‘‘(1) report directly to the head of the depart18 ment, agency, or element concerned; and 

19 ‘‘(2) coordinate their activities with the Inspec20 tor General of such department, agency, or element 

21 to avoid duplication of effort. 

22 ‘‘(d) AGENCY COOPERATION.—The head of each de23 partment, agency, or element shall ensure that each pri24 vacy officer and civil liberties officer— 
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1 ‘‘(1) has the information, material, and re2 sources necessary to fulfill the functions of such offi3 cer; 

4 ‘‘(2) is advised of proposed policy changes; 

5 ‘‘(3) is consulted by decisionmakers; and 

6 ‘‘(4) is given access to material and personnel 

7 the officer determines to be necessary to carry out 

8 the functions of such officer. 

9 ‘‘(e) REPRISAL FOR MAKING COMPLAINT.—No ac10 tion constituting a reprisal, or threat of reprisal, for mak11 ing a complaint or for disclosing information to a privacy 

12 officer or civil liberties officer described in subsection (a) 

13 or (b), or to the Privacy and Civil Liberties Oversight 

14 Board, that indicates a possible violation of privacy protec15 tions or civil liberties in the administration of the pro16 grams and operations of the Federal Government relating 

17 to efforts to protect the Nation from terrorism shall be 

18 taken by any Federal employee in a position to take such 

19 action, unless the complaint was made or the information 

20 was disclosed with the knowledge that it was false or with 

21 willful disregard for its truth or falsity. 

22 ‘‘(f) PERIODIC REPORTS.— 

23 ‘‘(1) IN GENERAL.—The privacy officers and 

24 civil liberties officers of each department, agency, or 

25 element referred to or described in subsection (a) or 
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1 (b) shall periodically, but not less than quarterly, 

2 submit a report on the activities of such officers— 

3 ‘‘(A)(i) to the appropriate committees of 

4 Congress, including the Committees on the Ju5 diciary of the Senate and the House of Rep6 resentatives, the Committee on Homeland Secu7 rity and Governmental Affairs of the Senate, 

8 the Committee on Government Reform of the 

9 House of Representatives, the Select Committee 

10 on Intelligence of the Senate, and the Perma11 nent Select Committee on Intelligence of the 

12 House of Representatives; 

13 ‘‘(ii) to the head of such department, agen14 cy, or element; and 

15 ‘‘(iii) to the Privacy and Civil Liberties 

16 Oversight Board; and 

17 ‘‘(B) which shall be in unclassified form to 

18 the greatest extent possible, with a classified 

19 annex where necessary. 

20 ‘‘(2) CONTENTS.—Each report submitted under 

21 paragraph (1) shall include information on the dis22 charge of each of the functions of the officer con23 cerned, including— 

24 ‘‘(A) information on the number and types 

25 of reviews undertaken; 
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1 ‘‘(B) the type of advice provided and the 

2 response given to such advice; 

3 ‘‘(C) the number and nature of the com4 plaints received by the department, agency, or 

5 element concerned for alleged violations; and 

6 ‘‘(D) a summary of the disposition of such 

7 complaints, the reviews and inquiries conducted, 

8 and the impact of the activities of such officer. 

9 ‘‘(g) INFORMING THE PUBLIC.—Each privacy officer 

10 and civil liberties officer shall— 

11 ‘‘(1) make the reports of such officer, including 

12 reports to Congress, available to the public to the 

13 greatest extent that is consistent with the protection 

14 of classified information and applicable law; and 

15 ‘‘(2) otherwise inform the public of the activi16 ties of such officer, as appropriate and in a manner 

17 consistent with the protection of classified informa18 tion and applicable law. 

19 ‘‘(h) SAVINGS CLAUSE.—Nothing in this section shall 

20 be construed to limit or otherwise supplant any other au21 thorities or responsibilities provided by law to privacy offi22 cers or civil liberties officers. 

23 ‘‘(i) PROTECTIONS FOR HUMAN RESEARCH SUB24 JECTS.—The Secretary of Homeland Security shall ensure 

25 that the Department of Homeland Security complies with 
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1 the protections for human research subjects, as described 

2 in part 46 of title 45, Code of Federal Regulations, or 

3 in equivalent regulations as promulgated by such Sec4 retary, with respect to research that is conducted or sup5 ported by such Department.’’. 

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