Congress must protect privacy rights in cybersecurity bill

Congress must include strong privacy protections in any cybersecurity legislation it adopts, a bipartisan constitutional watchdog group said in a comprehensive report released on January 27, 2012.

While acknowledging the importance of protecting government and private computer networks against cyber-attacks, the report prepared by The Constitution Project's (TCP) Liberty and Security Committee says any cybersecurity program adopted by the federal government must have clear legal safeguards to prevent unrestricted access by government officials to individuals' private information when searching network communications for harmful material.

Federal Trade Commission Report Reflects Several Recommendations Made by TCP

On March 26, 2012, the Federal Trade Commission (FTC) released the report Protecting Consumer Privacy in an Era of Rapid Change, outlining its best practices framework for companies to safeguard consumer privacy. The report proposes limiting the scope of data retention and adopting methods for “de-identifying” consumer information. On February 17, 2011, TCP had submitted recommendations for additions and changes to the FTC’s preliminary December, 2010 proposal. Based upon TCP’s Liberty and Security Committee’s report Principles for Government Data Mining, TCP recommended that companies should be required to adopt clear rationales for any data collection and implement secure storage requirements and anonymization techniques to minimize potential damage in a security breach.  TCP also urged that the FTC improve the procedures to “provide redress for users and accountability for corporations.”  Among the changes incorporated in this final report, the FTC called for greater transparency, including supporting legislation that would give consumers access to information retained by data brokers and calling on data brokers to “explore creating a centralized website” to educate consumers on their options for controlling how their data are being used.

Detainee Task Force Discuss 'Black Sites' with Lithuanian Officials

Ambassador Thomas Pickering, a member of The Constitution Project’s Task Force on Detainee Treatment, and Alka Pradhan, a task force counsel, met with Lithuanian government officials last week to discuss Lithuania’s role in the CIA’s extraordinary rendition program. "There are a number of credible reports that Lithuania housed one or more of the 'black site' detention facilities that the CIA allegedly used to interrogate, and some claim torture, individuals they thought were involved in terrorist activity against the United States," Pradhan said. "Ambassador Pickering and I wanted to get information from the Lithuanian government officials closest to the situation to help the task force ascertain the veracity of these reports," she said. Any information gleaned from their various meetings will be incorporated into the task force’s final report, set for release in early 2013. On January 13th TCP released a statement about the talks.

Defense Bill Provisions Threaten to Undermine Constitutional Traditions & Rule of Law

After weeks of threatening to veto the legislation over controversial provisions relating to detention of suspected terrorists, President Obama signed the 2012 National Defense Authorization Act (NDAA) into law on December 31^st.  TCP President Virginia Sloan said in a statement following the signing, “We remain concerned that provisions in the new law threaten to undermine our constitutional traditions and commitment to the rule of law.”  She said provisions of the law that make it difficult for the president to close the military prison at Guantánamo Bay were particularly problematic, as was another section that codifies the executive branch’s power to subject a suspected terrorist to military detention without trial until “the end of hostilities,” a point Sloan called “dangerously elusive more than a decade after the attacks of September 11, 2001.”

Despite the president’s assurances contained in a signing statement that he would interpret NDAA consistent with both the Constitution and laws of war, and would not use the law to authorize indefinite military detention at least of American citizens, Sloan wasn’t mollified.  “While the president’s pledge is a step in the right direction, it is not legally binding—either on this administration or succeeding ones,” she said.

Sloan also noted TCP’s long-standing criticism of the misuse of presidential signing statements.  “We are troubled by President Obama’s assertion that he might treat certain of NDAA’s provisions, unrelated to detention, as ‘non-binding,’ thereby effectively vetoing them without affording Congress the opportunity to override the veto,” she said.

Eminent Legal Scholars Debate: Are the President's Recent Recess Appointments Constitutional?

President Obama ignited a significant controversy when he used recess appointments on January 4, 2012, to name Richard Cordray to head the new Consumer Financial Protection Bureau and to fill three vacancies on the National Labor Relations Board. President Obama claimed that he had the power to take these actions under the authority granted to the executive in Article 2, section 2 of the U.S. Constitution. Some Republican senators and others strongly objected, saying the Senate was in "pro forma" session so the recess appointment power could not apply. On January 18, TCP hosted a debate on the issue, featuring Professors Peter M. Shane and Michael McConnell. Professor Shane is a Visiting Professor of Law at Harvard Law School, and Professor McConnell is the Richard & Frances Mallery Professor and Director of Stanford Law School Constitutional Law Center.  To listen to the debate please click here.