President Trump announced Tuesday he intends to nominate two people to serve on the quasi-dormant Privacy and Civil Liberties Oversight Board, bringing the five-member watchdog body closer to again being fully functional.
Trump nominated Ed Felten, director of Princeton University’s Center for Information Technology Policy, to one of the board’s two vacant Democratic seats and former Justice Department attorney Jane Nitze to serve as a Republican.
Nitze starred in a 2017 Judicial Crisis Network ad as a “former Obama administration attorney” reassuring “folks on the Left” about Trump’s nomination of Neil Gorsuch to serve on the Supreme Court.
Nitze clerked for Gorsuch when he was a federal appeals court judge in 2008-2009, and then for liberal Supreme Court Justice Sonia Sotomayor from 2011-2012. Sotomayor officiated Nitze’s 2013 wedding.
“I don’t think folks on the left should be concerned about Judge Gorsuch,” Nitze said in the pro-Gorsuch ad, adding: “I worked for the Obama administration. I have to say I’m 100 percent comfortable with Judge Gorsuch becoming the next Supreme Court justice.”
It’s unclear if Nitze, a 2008 Harvard Law School graduate who also taught as a Harvard law lecturer, intended to imply she was a Democratic supporter of Gorsuch. But her appearance created confusion, prompting an unnamed source to clarify to the legal blog Above the Law that her Justice Department work was in a non-political position in the Office of Legal Counsel.
After Gorsuch was confirmed to the Supreme Court, Nitze served as one of his first clerks.
A Senate Democratic staffer said Senate Minority Leader Chuck Schumer, D-N.Y., proposed Felten’s nomination, and that Nitze was a Republican nominee. Nitze declined to comment, but confirmed in a brief phone conversation she was named to a Republican seat.
Felten did not immediately respond to a request for comment on his nomination.
After the Felten and Nitze nominations, just one vacancy on the PCLOB requires a nominee. Some privacy advocates have lobbied for Georgetown University law professor Alvaro Bedoya to fill a Democratic seat, but the Senate Democratic aide would not say if Schumer offered a second name to the White House, which customarily follows the minority party request.
The PCLOB, whose positions require Senate confirmation, has had just one member since February 2017, Republican attorney Elisebeth Collins. It’s been unable to take official actions such as begin probes and issue reports since January 2017, when it fell below a three-member quorum. Since July 2016, the board has been unable to hire staff since its past chairman, David Medine, resigned.
In September, Trump nominated Adam Klein to serve as PCLOB chairman. Klein, a defender of some controversial surveillance practices, served as a clerk to former Supreme Court Justice Antonin Scalia and works at the Center for a New American Security. The Senate Judiciary Committee held a confirmation hearing in January and approved his nomination in an 18-3 vote on Feb. 15, though the full Senate still needs to act.
The PCLOB in its current form was established by 2007 legislation. It wasn’t fully functional until 2013 and took a major role reviewing programs exposed that year by whistleblower Edward Snowden. Its report on the mass collection of domestic call records played a role in the legislated demise of that program, and the board authored a lengthy report on Section 702 Internet surveillance programs.
Although a key institutional watchdog following Snowden’s revelation, the PCLOB also holds an important role under the economically significant 2016 Privacy Shield deal between the European Union and the U.S., which governs how American companies handle the data of Europeans. The agreement identifies the board as a designated review body for complaints referred by a Privacy Shield ombudsman. Privacy critics, particularly in Europe, where a court ruling killed an earlier agreement, question the adequacy of safeguards.
