Week 5 Readings and Videos
Intelligence Reform and Terrorism Prevention Act (IRTPA) 2004
Civil Liberties Privacy Office
The Intelligence Reform and Terrorism Prevention Act
The Intelligence Reform and Terrorism Prevention Act (Title I of Public Law 108-458; 118 Stat. 3688) amended the National Security Act of 1947 and created the position of “Civil Liberties Protection Officer” within the Office of the Director of National Intelligence. In 2005, Alexander Joel was appointed as the Civil Liberties Protection Officer, and charged with the responsibilities set forth below. These duties include ensuring that the programs and policies of the United States Intelligence Community appropriately incorporate protections of civil liberties and privacy. In addition, under Section 1062 of the Act (which Congress amended in 2007), the Civil Liberties Protection Officer oversees the issuance of reports regarding the activities of the office, including the types of reviews undertaken and the disposition of complaints received. Copies of these reports are provided to Congressional oversight committees, the Privacy and Civil Liberties Oversight Board, and are made available to the public in an unclassified format. The Act specifically prohibits reprisal against individuals who submit complaints to a privacy or civil liberties officer.
The Intelligence Reform and Terrorism Prevention Act
(Title I of Public Law 108-458; 118 Stat. 3688)
Sec. 103D of the National Security Act of 1947, codified as 50 USC 403-3d
(a) Civil Liberties Protection Officer.
(1) Within the Office of the Director of National Intelligence, there is a Civil Liberties Protection Officer who shall be appointed by the Director of National Intelligence.
(2) The Civil Liberties Protection Officer shall report directly to the Director of National Intelligence.
(b) Duties. The Civil Liberties Protection Officer shall-
(1) ensure that the protection of civil liberties and privacy is appropriately incorporated in the policies and procedures developed for and implemented by the Office of the Director of National Intelligence and the elements of the intelligence community within the National Intelligence Program;
(2) oversee compliance by the Office and the Director of National Intelligence with requirements under the Constitution and all laws, regulations, Executive orders, and implementing guidelines relating to civil liberties and privacy;
(3) review and assess complaints and other information indicating possible abuses of civil liberties and privacy in the administration of the programs and operations of the Office and the Director of National Intelligence and, as appropriate, investigate any such complaint or information;
(4) ensure that the use of technologies sustain, and do not erode, privacy protections relating to the use, collection, and disclosure of personal information;
(5) ensure that personal information contained in a system of records subject to section 552a of title 5, United States Code (popularly referred to as the “Privacy Act”), is handled in full compliance with fair information practices as set out in that section;
(6) conduct privacy impact assessments when appropriate or as required by law; and
(7) perform such other duties as may be prescribed by the Director of National Intelligence or specified by law.
(c) Use of agency Inspectors General. When appropriate, the Civil Liberties Protection Officer may refer complaints to the Office of Inspector General having responsibility for the affected element of the department or agency of the intelligence community to conduct an investigation under paragraph (3) of subsection (b).
Section 1062 — PRIVACY AND CIVIL LIBERTIES OFFICERS (as amended by Section 803 of the Implementing Recommendations of the 9/11 Commission Act of 2007, codified as 42 USC 2000ee-1).
(a) Designation and Functions—The Attorney General, the Secretary of Defense, the Secretary of State, the Secretary of the Treasury, the Secretary of Health and Human Services, the Secretary of Homeland Security, the Director of National Intelligence, the Director of the Central Intelligence Agency, and the head of any other department, agency, or element of the executive branch designated by the Privacy and Civil Liberties Oversight Board under section 1061 to be appropriate for coverage under this section shall designate not less than 1 senior officer to serve as the principal advisor to—
(1) assist the head of such department, agency, or element and other officials of such department, agency, or element in appropriately considering privacy and civil liberties concerns when such officials are proposing, developing, or implementing laws, regulations, policies, procedures, or guidelines related to efforts to protect the Nation against terrorism;
(2) periodically investigate and review department, agency, or element actions, policies, procedures, guidelines, and related laws and their implementation to ensure that such department, agency, or element is adequately considering privacy and civil liberties in its actions;
(3) ensure that such department, agency, or element has adequate procedures to receive, investigate, respond to, and redress complaints from individuals who allege such department, agency, or element has violated their privacy or civil liberties; and
(4) in providing advice on proposals to retain or enhance a particular governmental power the officer shall consider whether such department, agency, or element has established—
(A) that the need for the power is balanced with the need to protect privacy and civil liberties;
(B) that there is adequate supervision of the use by such department, agency, or element of the power to ensure protection of privacy and civil liberties; and
(C) that there are adequate guidelines and oversight to properly confine its use.
(b) Exception to Designation Authority—
(1) PRIVACY OFFICERS—In any department, agency, or element referred to in subsection (a) or designated by the Privacy and Civil Liberties Oversight Board, which has a statutorily created privacy officer, such officer shall perform the functions specified in subsection (a) with respect to privacy.
(2) CIVIL LIBERTIES OFFICERS—In any department, agency, or element referred to in subsection (a) or designated by the Board, which has a statutorily created civil liberties officer, such officer shall perform the functions specified in subsection (a) with respect to civil liberties.
(c) Supervision and Coordination—Each privacy officer or civil liberties officer described in subsection (a) or (b) shall—
(1) report directly to the head of the department, agency, or element concerned; and
(2) coordinate their activities with the Inspector General of such department, agency, or element to avoid duplication of effort.
(d) Agency Cooperation—The head of each department, agency, or element shall ensure that each privacy officer and civil liberties officer—
(1) has the information, material, and resources necessary to fulfill the functions of such officer;
(2) is advised of proposed policy changes;
(3) is consulted by decision makers; and
(4) is given access to material and personnel the officer determines to be necessary to carry out the functions of such officer.
(e) Reprisal for Making Complaint—No action constituting a reprisal, or threat of reprisal, for making a complaint or for disclosing information to a privacy officer or civil liberties officer described in subsection (a) or (b), or to the Privacy and Civil Liberties Oversight Board, that indicates a possible violation of privacy protections or civil liberties in the administration of the programs and operations of the Federal Government relating to efforts to protect the Nation from terrorism shall be taken by any Federal employee in a position to take such action, unless the complaint was made or the information was disclosed with the knowledge that it was false or with willful disregard for its truth or falsity.
(f) Periodic Reports—
(1) IN GENERAL—The privacy officers and civil liberties officers of each department, agency, or element referred to or described in subsection (a) or (b) shall periodically, but not less than quarterly, submit a report on the activities of such officers—
(A)(i) to the appropriate committees of Congress, including the Committee on the Judiciary of the Senate, the Committee on the Judiciary of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of the House of Representatives, the Select Committee on Intelligence of the Senate, and the Permanent Select Committee on Intelligence of the House of Representatives;
(ii) to the head of such department, agency, or element; and
(iii) to the Privacy and Civil Liberties Oversight Board; and
(B) which shall be in unclassified form to the greatest extent possible, with a classified annex where necessary.
(2) CONTENTS—Each report submitted under paragraph (1) shall include information on the discharge of each of the functions of the officer concerned, including—
(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.
(g) Informing the Public—Each privacy officer and civil liberties officer shall—
(1) make the reports of such officer, including reports to Congress, available to the public to the greatest extent that is consistent with the protection of classified information and applicable law; and
(2) otherwise inform the public of the activities of such officer, as appropriate and in a manner consistent with the protection of classified information and applicable law.
(h) Savings Clause—Nothing in this section shall be construed to limit or otherwise supplant any other authorities or responsibilities provided by law to privacy officers or civil liberties officers.