SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2016, Issue No. 52
June 20, 2016

Secrecy News Blog: http://fas.org/blogs/secrecy/

2017 INTEL BILL WOULD CONSTRAIN PRIVACY BOARD

The jurisdiction of the Privacy and Civil Liberties Oversight Board (PCLOB) would be restricted for the second year in a row by the Senate Intelligence Committee version of the FY2017 Intelligence Authorization Act (S.3017). Section 603 of the Act would specifically limit the scope of PCLOB's attention to the privacy and civil liberties "of United States persons."

Internal disagreements over the move were highlighted in the Committee report published last week to accompany the text of the bill, which was reported out of Committee on June 5.

"While the PCLOB already focuses primarily on U.S. persons, it is not mandated to do so exclusively," wrote Senators Martin Heinrich and Mazie K. Hirono in dissenting remarks appended to the report. "Limiting the PCLOB's mandate to only U.S. persons could create ambiguity about the scope of the PCLOB's mandate, raising questions in particular about how the PCLOB should proceed in the digital domain, where individuals' U.S. or non-U.S. status is not always apparent. It is conceivable, for example, that under this restriction, the PCLOB could not have reviewed the NSA's Section 702 surveillance program, which focuses on the communications of foreigners located outside of the United States, but which is also acknowledged to be incidentally collecting Americans' communications in the process," they wrote.

"Over the past three years, the Privacy and Civil Liberties Oversight Board has done outstanding and highly professional work," wrote Sen. Ron Wyden in his own dissent. "It has examined large, complex surveillance programs and evaluated them in detail, and it has produced public reports and recommendations that are quite comprehensive and useful. Indeed, the Board's reports on major surveillance programs are the most thorough publicly available documents on this topic. My concern is that by acting to restrict the Board's purview for the second year in a row, and by making unwarranted criticisms of the Board's staff in this report, the Intelligence Committee is sending the message that the Board should not do its job too well."

In support of the provision, the report said that "The Committee believes it is important for the Board to consider the privacy and civil liberties of U.S. Persons first and foremost when conducting its analysis and review of United States counterterrorism efforts."

But the PCLOB already considers U.S. person privacy "first and foremost." And the language of the Senate bill does not appear to permit even "secondary" consideration of the privacy of non-U.S. persons. Last year, the FY2016 intelligence authorization bill barred access by the Board to information deemed relevant to covert action.

On June 16, Sen. Patrick Leahy paid tribute to retiring PCLOB chair David Medine on the Senate floor. "[PCLOB] reports and Mr. Medine's related testimony before the Senate Judiciary Committee have been tremendously beneficial to Congress and the American people in examining government surveillance programs," he said.

GROWING DISTRICT COURT VACANCIES, AND MORE FROM CRS

The number of vacancies in U.S. district courts around the country increased by a hefty 71% from the beginning of the Obama Administration (when there were 41 vacancies) until June 1 of the Administration's eighth year (when there were 70 vacancies), according to a new analysis from the Congressional Research Service.

By contrast, the number of district court vacancies decreased in both the GW Bush and Clinton Administrations during comparable periods, CRS found. See U.S. District Court Vacancies: Overview and Comparative Analysis, CRS Insight, June 15, 2016:

However, the number of circuit court vacancies during the Obama Administration did decrease from 13 in January 2009 to 9 in June 2016, a separate CRS analysis found. See U.S. Circuit Court Vacancies: Overview and Comparative Analysis, CRS Insight, June 15, 2016:

Other new and updated reports from the Congressional Research Service last week include the following.

The governor of Florida asked President Obama to declare an emergency under the Stafford Act in response to the June 12 Orlando shooting. "The governor's request is the first instance of [such] a request being made for a mass shooting event," CRS said. See Stafford Act Assistance and Acts of Terrorism, CRS Insight, June 15, 2016:

Orlando Nightclub Mass Shooting: Gun Checks and Terrorist Watchlists, CRS Insight, June 16, 2016:

Declining Dynamism in the U.S. Labor Market, CRS Insight, June 15, 2016:

North American Leaders' Summit, CRS Insight, June 16, 2016:

Judiciary Appropriations, FY2017, June 16, 2016:

Trends in Child Care Spending from the CCDF and TANF, June 16, 2016:

1st Circuit Green Lights Suit against Mobile App for Violating Video Privacy Law, CRS Legal Sidebar, June 16, 2016:

Energy Tax Policy: Issues in the 114th Congress, updated June 15, 2016:

Navy Ship Names: Background for Congress, updated June 16, 2016:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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