The Executive Order on Enhancing Safeguards for United States Signals Intelligence Activities (EO 14086) issued by President Biden in October 2022 spotlighted a consequential position in the Intelligence Community (IC): The Civil Liberties Protection Officer (CLPO) at the Office of the Director of National Intelligence (ODNI). The CLPO and the other Privacy and Civil Liberties Officers (PCLOs) in the IC help ensure that intelligence agencies earn and retain public trust. This post will explore the relevant legal context for these officials in the U.S.
Section 3 of EO 14086 establishes a new redress process under which individuals whose data has been transferred to the U.S. can submit complaints alleging that the IC has violated their privacy. It directs the CLPO “to investigate, review and, as necessary, order appropriate remediation for qualifying complaints” (§ 3(c)(i)). As provided in Intelligence Community Directive 126 (ICD 126), Implementing Procedures for the Signals Intelligence Redress Mechanism Under Executive Order 14086, to fulfill this responsibility, the CLPO will draw on the assistance of other IC PCLOs to carry out its investigation (§ E.2.b(1)).
In addition to assisting the CLPO in investigating qualifying complaints, EO 14086 identifies PCLOs as one of the select agency officials responsible for overseeing signals intelligence activities, with oversight responsibilities that an agency cannot “impede or improperly influence” (§ 2(d)(i)). Only after the CLPO–with the assistance of the respective agency’s PCLO–has completed its review may the individual bring their complaint before the new Data Protection Review Court at the Department of Justice (28 C.F.R. § 201.6(a) (2022)). Significantly, the EO protects the CLPO from removal by the Director of National Intelligence (DNI) “for any actions taken pursuant to” performing their articulated responsibilities ensuring redress, “except for instances of misconduct, malfeasance, breach of security, neglect of duty, or incapacity” (§ 3(c)(iv)). This redress process forms the linchpin for the EU-US Data Privacy Framework, which the European Commission found to be “adequate” on July 10, 2023.
However, EO 14086 and ICD 126 did not create these positions from scratch. The ODNI CLPO and PCLOs in the IC have worked together for almost two decades to carry out essential functions to protect privacy and civil liberties and promote transparency. First, the Intelligence Reform and Terrorism Prevention Act of 2004 created the ODNI CLPO position, with the CLPO reporting directly to the DNI (Codified in 50 U.S.C. § 3029(a)). More specifically, 50 U.S.C. §3029 directs the CLPO to ensure that civil liberties and privacy are “appropriately incorporated in the policies and procedures developed for and implemented by ODNI and the elements of the intelligence community within the National Intelligence Program” (§ (b)(1)). Furthermore, the CLPO is also responsible for “review[ing] and assess[ing] complaints and other information indicating possible abuses of civil liberties and privacy” at ODNI (§ (b)(3)).
Then Intelligence Community Directive 107 (ICD 107), Civil Liberties, Privacy, and Transparency, further expanded the ODNI CLPO’s role to include serving as the Chief Transparency Officer (§ E.2). Additionally, ICD 107 also furthers the role of PCLOs at other agencies, requiring the heads of IC elements to “designate or identify at least one senior official responsible for matters involving the protection of civil liberties and privacy” and one “responsible for matters involving transparency as they relate to activities conducted by the element” (§ E.3.b-c). In accordance with this section, the individual who is the senior official responsible for the protection of civil liberties and privacy may or may not be the same individual who is the senior transparency officer.
Regarding the PCLO role, specifically, in 2007, Congress passed the Implementing Recommendations of the 9/11 Commission Act, 42 U.S.C. § 2000ee-1(a) (the 9/11 Commission Recommendations Act), which directs the Attorney General and the Secretaries of Defense, State, Treasury, Health and Human Services, Homeland Security, and the Director of National Intelligence, Central Intelligence Agency, National Security Agency, Federal Bureau of Investigation, and others designated by the Privacy and Civil Liberties Oversight Board (PCLOB) to appoint at least one senior PCLO. The Statute designates PCLOs to act as “the principal advisor” to the head of their respective department or agency on privacy and civil liberties matters, “investigate and review department, agency, or element actions, policies, procedures, guidelines, and related laws and their implementation,” and ensure that the department or agency implements “adequate procedures to receive, investigate, respond to, and redress complaints from individuals who allege” violations of their privacy or civil liberties (§ 1(a)(1)-(3)). Furthermore, like the ODNI CLPO, PCLOs “report directly to the head of the department, agency, or element” and coordinate alongside their respective Inspector General (§1(c)(1)-(2)).
Privacy and Civil Liberties Officers must also submit annual reports, known as “Section 803 reports,” on their activities to (i) “the appropriate committees of Congress,” (ii) “the head of such department agency, or element; and (iii) to the Privacy and Civil Liberties Oversight Board” (§ (f)(1)(A)). The 9/11 Commission Recommendations Act requires PCLO’s reports to include “(A) information on the number and types of reviews undertaken; (B) the type of advice provided and the response given to such advice; (C) the number and nature of the complaints received by the department, agency, or element concerned for alleged violations; and (D) a summary of the disposition of such complaints, the reviews and inquiries conducted, and the impact of the activities of such officer” (§ (f)(2)). To promote transparency, these reports can be found posted on agency websites. For example, those of the ODNI CLPO are posted here; DHS’s reports can be found here.
The increased role of these officers in providing redress for surveillance complaints in the last year further demonstrates their importance. In Protecting Privacy and Promoting Transparency in a Time of Change: My Perspective after 14 Years as Civil Liberties Protection Officer, Alex Joel emphasizes the need for adequate investment in resources for these organizations to ensure they can fulfill their missions and execute their statutory responsibilities of protecting privacy and civil liberties and promoting transparency. Our future projects will explore comparable positions that exist within other countries’ intelligence agencies.
