Groups Oppose Current Senate Cybersecurity Bills Based on Threats to Privacy and Civil Liberties

Privacy and civil liberties groups from across the ideological spectrum wrote to Congress in May expressing their deep concerns with the Cyber Security Act of 2012, S.2105, sponsored by Senators Lieberman and Collins, and with the SECURE IT Act of 2012, S. 2151, whose lead sponsor is Senator McCain. Over 30 groups joined each letter, urging senators to vote against the bills in their current forms, and to support significant amendments addressing fundamental privacy and civil liberties concerns identified in their letters. The bills, which are expected to be debated by the Senate in coming weeks, are meant to improve cybersecurity by allowing companies - such as Facebook, Microsoft, and Verizon - to share information about their customers with the government, in an effort to collaboratively identify and address cyber threats. However, the bills do not incorporate sufficient privacy safeguards, or adequate oversight or accountability provisions. To learn more about the constitutional threats posed by cybersecurity proposals and recommendations for addressing them, read TCP's bipartisan Liberty and Security Committee report Recommendations for the Implementation of a Comprehensive Constitutional Cybersecurity Policy.

Conservatives Urge Senate Committee to Approve Privacy Oversight Board Nominees

On May 9, concerned conservatives wrote to the Senate Judiciary Committee asking them to approve the bipartisan slate of five candidates nominated for the Privacy and Civil Liberties Oversight Board (PCLOB).  Created based on the recommendations of the bipartisan 9/11 Commission, the PCLOB is designed to oversee national security programs and to ensure that they incorporate proper safeguards for privacy and civil liberties. Signatories – including former Republican Congressman Asa Hutchinson, former Director of the FBI William S. Sessions, and former Chairman of the American Conservative Union David A. Keene – wrote, “We are deeply troubled by the fact that it has been almost five years since Congress enacted legislation to create an independent PCLOB…yet the Board has not yet come into existence.”  The fact that nominees have not been confirmed has become an even more pressing problem in recent months as Congress considers cybersecurity legislation. Both of the lead cybersecurity bills in the Senate would rely on the PCLOB for oversight of the cybersecurity program.

GAO Report Shows Indigent Defense Gets Shortchanged on Federal Grants

Almost none of the money that the federal government provides to state and local governments for justice system improvements goes to helping to defend poor people, a new study from the Government Accountability Office shows. According to the report, almost half the money block granted to the states under the Byrne Justice Assistance Grant Program grants goes to fund law enforcement and prosecution activities, with less than one percent being used for public defenders or other private lawyers appointed to assist those who cannot afford legal representation on their own.  This bears out claims that supporters of indigent defense have made for years that there is an enormous disparity between federal support for prosecutors and defenders. In a statement, TCP President Virginia Sloan discusses what needs to be done moving forward.  TCP’s seminal report on problems in the indigent defense system, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel, provides a number of recommendations to improve access to quality counsel.

CISPA Passes House Without Essential Privacy Protections

On April 26, the House passed the Cyber Intelligence Sharing and Protection Act of 2011 (CISPA), H.R. 3523. The bill would allow the government and private sector to exchange information about cyber threats. Although the House did pass several amendments supported by TCP to strengthen privacy protections, the bill still lacks critical safeguards necessary to protect Americans’ privacy rights and civil liberties.

In particular, CISPA would allow private information to be shared with military agencies including the NSA and it lacks provisions to ensure that personal information shared with the government is stripped when possible.  In a recent letter to members of Congress TCP and a coalition of alarmed privacy and civil liberties groups wrote, “We are gravely concerned that this bill will allow companies that hold very sensitive and personal information to liberally share it with the government, which could then use the information without meaningful oversight for purposes unrelated to cybersecurity.” President Obama’s senior advisors have said that they will recommend he veto the bill if these concerns are not addressed.

With the passage of H.R. 3523, the debate on cybersecurity now shifts to the Senate, where the lead bill is S.2105, co-sponsored by Senators Lieberman and Collins. To learn more about how cybersecurity legislation can incorporate privacy safeguards read these Frequently Asked Questions and TCP’s report Recommendations for the Implementation of a Comprehensive and Constitutional Cybersecurity Policy. Or take a look at video from our Capitol Hill briefing on CISPA.

Prosecutors Repeatedly Fail in Obligation to Disclose Evidence, Congress Urged to Act

As recent, highly-publicized cases make clear, too often federal prosecutors fail to disclose to defendants favorable information in violation of constitutional, legal and ethic requirements. In an April 19th letter, TCP Board Chairman Stephen F. Hanlon and President Virginia Sloan urged Attorney General Eric Holder to support legislation that would clarify the obligations of all federal prosecutors to disclose favorable information. Additionally, TCP has assembled more than 140 criminal justice experts, including more than 100 former federal prosecutors, who agree that self-regulation by the Justice Department has failed, and that it is time for Congress to pass legislation to correct the culture of nondisclosure that persists at the Department of Justice. TCP’s Board of Directors also released a statement, adding their voices to the campaign for congressional intervention.

Two GITMO Inmates Freed, Release Seven Years Overdue

TCP welcomed the announcement that two Chinese Muslims -- known as Uighurs -- were released from detention at Guantanamo Bay by the Department of Defense for settlement in El Salvador.

What have we been up to? Annual Report Released

TCP marks its fifteenth year in 2012 and it is with pride that we look back on the many challenges we have faced head-on during that time.  

 This past year was no exception, as we continued to fight to safeguard America's founding charter. In 2011, we issued two major reports, sponsored and participated in numerous public education events, filed several groundbreaking amicus curiae briefs, and worked with policymakers at the federal and state level to protect the rule of law and reform our criminal justice system.  

 Whether you are a longtime supporter of TCP's mission or you are new to our cause, we hope that you will take a moment to read our latest annual report and learn more about the highlights of 2011 and our ongoing initiatives.

Podcast: Experts Debate Supreme Court Decisions in Access to Effective Counsel Cases

On Tuesday, April 3, TCP and The Federalist Society hosted a teleforum debate about the Supreme Court decisions in Lafler v. Cooper, Missouri v. Frye, Maples v. Thomas and Martinez v. Ryan and the impact of these decisions on our criminal justice system. Mr. George Kendall, Of Counsel at Squire Sanders, and Mr. Dean Mazzone, Chief of the Enterprise and Major Crimes Division of the Massachusetts Attorney General’s Office, offered their views. The panel was moderated by Dean Reuter of The Federalist Society. Listen to the debate online.

TCP Says NIST Privacy Controls a Positive Step, Should be Strengthened

2012 Constitutional Champions - Gala and Award Reception

On March 29, TCP supporters – friends new and old, conservative and liberal – came together to honor TCP’s 2012 Constitutional Champions David A. Keene, former chairman of the American Conservative Union, and the Digital Due Process Coalition, a diverse coalition of technology companies, privacy advocates, and think tanks. Al Hunt, executive editor of Bloomberg News, and Judy Woodruff, senior correspondent for “PBS NewsHour” presided over the event as masters of ceremony, and eloquent and heartfelt introductions were made by TCP Board Members Mickey Edwards and Morton Halperin. If you missed the event, video of the award presentations is available online and pictures of the evening are posted on Facebook. The ceremony and atmosphere of the gala were also described in a recent Washington Times article. TCP would like to thank everyone who attended and give special thanks to our sponsors who made the evening possible.

TCP Scholar Honored by American Political Science Association

Louis Fischer, Scholar-in-Residence at The Constitution Project, was recently awarded the 2012 Hubert H. Humphrey Award, bestowed annually by the American Political Science Association. The award is granted to a political scientist who has made significant contributions to public service. Dr. Fischer is a preeminent scholar in constitutional law, war powers, budget policy, executive-legislative relations, and judicial-congressional relations, and he has testified before Congress about 50 times and authored more than 400 articles.

TCP Welcomes Hearing on Privacy Oversight Board Nominations

The Senate Committee on the Judiciary held a hearing on nominations to the Privacy and Civil Liberties Oversight Board (PCLOB) on Wednesday, April 18, 2012. “Though long overdue, we welcome the announcement that the confirmation process is underway,” said Sharon Bradford Franklin, TCP’s senior counsel. TCP has long urged the President to nominate and the Senate to confirm a slate of nominees to staff the Board.  Most recently, TCP led a coalition of twenty groups that pressed the Senate Judiciary Committee to move forward with the confirmation process for Board nominees.

Created on the recommendation of the 9/11 Commission, the PCLOB was designed to play a vital, independent role in overseeing the privacy and civil liberties implications of national security programs and policies. However, although Congress created the Board in its current independent form in 2007, it was not until late last year that the president finally nominated a full slate of five members. As a result, the Board has existed in name only. Once the members are finally confirmed, the Board can begin the important task of providing independent oversight for national security programs and policies.

TCP Endorses Sen. Murkowski's Fairness in Disclosure of Evidence Act

On March 15, The Constitution Project (TCP) endorsed the Fairness in Disclosure of Evidence Act, legislation introduced by Senator Lisa Murkowski (R-AK) requiring federal prosecutors to turn over to defendants all evidence favorable to their cases, and providing appropriate penalties when they don't. TCP believes the legislation is needed to address the "persistent problems with discovery in the federal criminal justice system" that arise when federal prosecutors fail in their constitutional duty to hand over evidence that might help lawyers for an accused person mount an effective defense. "The passage of this legislation will ensure that defendants have access to all favorable information, including information to which they are constitutionally entitled, and will create greater consistency by eliminating disparities in the way federal prosecutors determine what information they are required to disclose," TCP President Virginia Sloan said. On March 15, TCP released a statement from close to 150 criminal justice experts, including a number of former federal prosecutors, calling on Congress to adopt legislation to address the problem. An article written by Ms. Sloan titled "Congress Must Act to End Prosecutorial Misconduct," also appeared on the Huffington Post.

TCP Joins Call for Transparency in Defense Authorization Legislation

The Constitution Project has joined with 25 other civil and human rights, taxpayer, and good government organizations from across the ideological spectrum to call for more openness in the legislation that allocates funds to the national defense budget. The National Defense Authorization Act (NDAA) last year authorized more than $662 billion of taxpayer dollars for FY 2012, but was drafted and debated behind closed doors in the Senate Armed Services Committee (SASC).  The “Open NDAA” campaign urges Senators to shine a light on the defense budget by making the draft bill and amendments available in advance of the markup, as well as opening the markup—or committee votes—to the public.  In stark contrast to the Senate, the NDAA markup in the House of Representatives already is open to the public. For more information, visit www.OpenNDAA.org.

Drones Surveillance in U.S. Poses Substantial Threat to Privacy – TCP Urges FAA to Act

The increased use of aerial surveillance drones poses a significant threat to the privacy of United States residents. Experts estimate that as many as 30,000 new aerial drones could be launched in the United States over the next decade, and some of these drones have the ability to stealthily track multiple targets over a vast distance without being detected. In a recent petition, TCP – in conjunction with more than thirty other human rights, technology, and civil liberties organizations – urged the Federal Aviation Administration to conduct a notice and comment rulemaking on the impact of such surveillance drones in the United States on privacy and civil liberties. The petition also emphasized the importance of reporting on the proposed use and retention of data acquired by drone operators.