Privacy Paradox

Trump Nominates Two New Members to the Privacy and Civil Liberties Oversight Board

By Matthew Kahn
Tuesday, March 13, 2018, 5:09 PM

The White House announced two nominations Tuesday for positions on the Privacy and Civil Liberties Oversight Board (PCLOB). Pending confirmation, Jane Nitze and Ed Felten would join Adam Klein, whom the president nominated to chair the board in August.

Nitze has clerked for Justices Sonia Sotomayor and Neil Gorsuch, the latter both after his elevation to the Supreme Court and during Gorsuch's time on the U.S. Court of Appeals for the Tenth Circuit. Nitze was an attorney in the Office of Legal Counsel during the Obama administration. Felten is a computer science and public policy professor at Princeton University and previously was chief technologist at the Federal Trade Commission under President Obama.

The five-member Privacy and Civil Liberties Oversight Board requires a three-member quorum to take any formal action. But when former member Rachel Brand left in February 2017 after her nomination to be associate attorney general, the board was left with only one member, Elisebeth Collins. The state of paralysis became so bad that, in April 2017, Lawfare's Bobby Chesney questioned the normative and legal propriety of the White House's persistent failure to appoint new officers.

If Klein, Nitze and Felten are all confirmed, the board would not be at full strength but at least could convene a quorum. Although Klein received a hearing before the Senate Judiciary Committee in February, both the committee and the full Senate have yet to vote on his nomination. At this rate, it may take a while before the Privacy and Civil Liberties Oversight Board can return to its work.