CHARLES

E. GRASSLEY,

ORRIN G. HATCH, UTAH
JEFF SESSIONS, ALABAMA
LINDSEY O. GRAHAM, SOUTH CAROLINA
JOHN CORNYN, TEXAS
MICHAEL S. LEE, UTAH
TED CRUZ, TEXAS
JEFF FLAKE, ARIZONA
DAVID VinER,
LOUISIANA
DAVID A. PERDUE, GEORGIA
THOM TILLIS, NORTH CAROLINA

KRISTINE

IOWA,

CHAIRMAN

PATRICK J. LEAHY, VERMONT
DIANNE FEINSTEIN, CALIFORNIA
CHARLES E. SCHUMER, NEW YORK
RICHARD J. DURBIN, ILLINOIS
SHELDON WHITEHOUSE,
RHODE ISLAND
AMY KLOBUCHAR,
MINNESOTA
AL FRANKEN, MINNESOTA
CHRISTOPHER
A. COONS, DELAWARE
RICHARD BLUMENTHAL,
CONNECTICUT

tlnitro ~Ultcs ~cnatc
COMMITTEE

ON THE JUDICIARY

WASHINGTON,

DC 20510-6275

KOLAN L. DAVIS, Chief Counsel and Staff Director
J. LUCIUS, Democratic Chief Counsel and Staff Director

July 13,2016
The Honorable Richard Burr
Chairman
Select Committee on Intelligence
United States Senate
Washington, DC 20510
The Honorable Dianne Feinstein
Vice Chairman
Select Committee on Intelligence
United States Senate
Washington, DC 20510
Dear Chairman Burr and Vice Chairman Feinstein:
I write to express serious concerns about provisions contained in both Senate and House
intelligence authorization bills that would undermine the authority of the Privacy and Civil
Liberties Oversight Board (PCLOB),
In the Senate, the Judiciary Committee has primary jurisdiction over the PCLOB. PCLOB
nominees are referred to the Judiciary Committee, as is legislation focused on the PCLOB. For
example, in the last Congress and in this Congress, the Strengthening Privacy, Oversight, and
Transparency Act (S. 1337 (114th Cong.); S. 2903 (113th Cong.j), a bill to reform the PCLOB,
was referred to the Judiciary Committee. Further, the PC LOB is not part of the National
Intelligence Program that is traditionally the focus of the intelligence authorization bills.
Nonetheless, a pattern is emerging of the Senate Intelligence Committee considering and
adopting behind closed doors provisions that undermine the PCLOB. Last year the Intelligence
Authorization Act for FY 2016 included a provision limiting the PCLOB's access to certain
information. Unfortunately, that legislation was ultimately included in the FY 2016 omnibus
appropriations bill, making it impossible to strip this controversial provision. This year, the
House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee
on Intelligence (SSCI) have each included harmful PCLOB provisions in versions of the
Intelligence Authorization Act for Fiscal Year 2017, H.R. 5077 and S. 3017.
HPSCI is evidently asserting jurisdiction to authorize the annual spending of the PCLOB. But
the way it has done so appears designed to undercut and possibly eliminate the Board
altogether. Section 303 of the House bill sets an authorization level of roughly $10 million for

 The Honorable Richard Burr
The Honorable Dianne Feinstein
Page 2 of3
the PCLOB in FY 2017, but repeals its spending authorization for future years. It further states
that without a specific authorization of appropriations in subsequent years, the PCLOB may not
expend any additional appropriated funds. This provision is entirely unnecessary, as existing law
already authorizes appropriations for the PCLOB going forward. But more than that, this
provision has the potential to cut offPCLOB funding in the future. This provision requires that
Congress pass a new authorization for appropriations every year for the PCLOB in order for the
PC LOB to continue to expend appropriated funds. But the PCLOB is not subject to an annual
authorization bill. In fact, the only authorization bill that consistently passes Congress every
year is the National Defense Authorization Act. Intelligence authorization bills are neither the
appropriate vehicle for authorizing spending for the PCLOB, nor do they pass every year. Under
the House bill, if PCLOB spending were not specifically authorized next year, it appears possible
that the PCLOB would be unable to expend appropriated funds. This is completely
unacceptable.
Section 603 of the Senate legislation likewise raises serious concerns. It would unnecessarily
constrain the PCLOB to scrutinizing only programs that implicate the privacy rights of U.S.
persons. But many national security and intelligence programs can impact the privacy and civil
liberties of both U.S. persons and non-U.S. persons, and in some cases, it may be unclear
whether the rights of U. S. persons are affected. The PCLO B itself raised significant concerns
about the effect of this provision on their current activities. It explained that it would be
prohibited from "weighing in on matters where the President or elements of the Intelligence
Community have specifically solicited the Board's advice on issues concerning non-U.S.
persons," such as Presidential Policy Directive 28. As made clear by the bipartisan Board's
statement opposing this provision, drawing this artificial line is counter-productive and entirely
unnecessary. Additionally, this section of the Senate bill eliminates the PCLOB's future
spending authorization - although I understand this may not have been intended.
Both the Senate and House bills also included identical provisions (Section 601 and Section 307,
respectively) that mandate that the PCLOB keep the Director of National Intelligence, the heads
of other intelligence agencies, and the intelligence committees "fully and currently informed" of
its activities. This misguided provision would undermine the independence of PC LOB. As the
PCLOB itself explained, while it already keeps the Intelligence Community informed of its
reviews, "it would be improper for the Board, as the oversight agency, to be required to report to
the agencies over which it has oversight." With respect to congressional reporting, the PCLOB
is already required to report twice a year with a "description of the major activities of the Board"
to several congressional committees - including the Senate and House Judiciary Committees,
Senate Homeland Security and Governmental Affairs Committee, House Oversight and
Government Reform Committee, House Homeland Security Committee, Senate Select
Committee on Intelligence, and the House Permanent Select Committee on Intelligence. 42
U.S.C.2000ee(e). The additional reporting required by these bills is duplicative and should not
be directed only to the Intelligence Committees.
The PCLOB has served a valuable role in reviewing government surveillance programs and
recommending reforms that have largely been implemented by the executive branch. It is
particularly inappropriate to debate and report legislation in a closed markup that is designed to

 The Honorable Richard Burr
The Honorable Dianne Feinstein
Page 3 of3
diminish the authority of a public, independent oversight board. Congress should be enhancing
its role, not undercutting it.
As the intelligence authorization bill proceeds, I request that you remove provisions limiting the
PCLOB's important oversight role, and I strongly object to those in the House bill as Ranking
Member of the authorizing committee. If Senators on the Senate or House Intelligence
Committees wish to make changes to the PCLOB's authority, including its scope and funding
authorization, they are free to introduce legislation, which would then be referred to the Judiciary
Committee to consider in a public setting.
Sincerely,

United States Senator