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Md. lawyer grapples with balance of security, privacy

WASHINGTON — David Medine was six days into his new job when a figurative bomb dropped on his desk.

David Medine

David Medine is chairman of the Privacy and Civil Liberties Board, a small government board tasked with weighing the balance between national security and Americans’ privacy. (Photo: CNS)

There was a lot of work ahead for the Bethesda-based lawyer as the newly confirmed chairman of a board tasked with weighing the balance between national security and Americans’ privacy. But Medine and his team figured they had time on their side.

That is, until Edward Snowden told the world about the National Security Agency’s bulk collection of telephone records. It was the first of many leaks to come from the former NSA analyst.

At the time, the Privacy and Civil Liberties Oversight Board, which began functioning in 2006, didn’t even have a formal email system in place.

“I thought I’d have time to build the agency,” said Medine, who met with President Barack Obama in his first month as chairman in June. It was the first time the president had ever met with the group. “Things turned out to be a lot more exciting than I imagined.”

Top of his list

As chairman of the privacy board, Medine heads a small collection of lawyers who exist within the executive branch of the U.S. government but operate as an independent board.

Analyzing sensitive programs from the intelligence community was at the top of Medine’s to-do list for the board before the Snowden leaks. He just assumed he’d go about it in a slower, quieter manner.

“I thought we would do it all in a sort of more low-key, less time-pressured way,” he said. “I think even had there not been Snowden’s unauthorized disclosures there was a lot to cover in our oversight function. I just didn’t expect it to be such a rush of activity.”

In January, just seven months after Medine started, the privacy board released a 238-page report on the NSA’s controversial program that collects and analyzes billions of phone call records. It determined that the program, which operates under the Patriot Act’s Section 215, is illegal.

To date, the board’s recommendations amount to the strongest government criticism of the program.

“We are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack,” the report said.

The NSA did not reply to inquiries about its stance on the recommendations.

Michelle Richardson of the American Civil Liberties Union said her organization “was concerned about (the privacy board’s) functioning and being understaffed…up till last May,” but that a lot of the ACLU’s concerns were answered by this year’s report.

Richardson said the ACLU agrees with the assertion that the Section 215 program has not helped deter terrorist plots. She said the privacy board is well positioned to influence NSA reform in a way that the ACLU and other civil liberties groups are not.

“The Privacy and Civil Liberties Oversight Board has a lot of sway with Congress that the advocacy community simply doesn’t have,” Richardson said. “(Medine) and the rest of the board ask hard questions and expect answers from the…government.”

Although a government agency, the privacy board has a great degree of autonomy.

“What we wanted to bring to the table is an independent, bipartisan board that didn’t answer to anyone but reported to the president, to Congress, and to the public,” Medine said. “We wanted to express our views as essentially outsiders to the intelligence community, but with high level security clearances so we can understand fully what’s going on.”

Last month, Medine testified in front of the Senate Judiciary Committee, sharing recommendations to changes in NSA programs and answering questions. The week before, Medine and his board did the same before the House Judiciary Committee.

Medine said that members of Congress have been receptive to his board’s recommendations and input.

“There has been a remarkable lack of what you may call tough questions,” said Medine of the recent hearings. “I think there is a genuine interest by members of Congress to understand better the position we’ve been taking.”

Maryland Sen. Ben Cardin’s press office said the senator would not be available to talk about Medine. However, Cardin told Capital News Service in January that he believes Congress may need to tighten the rules on data collection.

Although the five board members determined that the NSA program is illegal, they were not unanimous on all of their recommendations.

While Medine and board members Patricia Wald and James Dempsey endorsed the recommendation to terminate the program, members Rachel Brand and Elisebeth Collins Cook disagreed. The two dissenters prefer reform to termination.

Medine said that for national security and privacy issues, there aren’t any decidedly Republican or Democratic stances. In Congress, there are Democratic and Republican supporters of NSA surveillance programs and Democratic and Republican opponents.

“I think it’s healthy to have debate and discussion and it’s not even really a partisan divide,” Medine said. “The issues don’t really break down into traditional, partisan lines.”

Medine’s confirmation as chair was a long, contentious process in the Senate. He won confirmation by a party-line vote on May 7 after about a year and a half of delay.

Iowa Republican Sen. Chuck Grassley was one of Medine’s leading critics.

“I was disappointed that he failed to answer a basic yes or no question about National Security law: ‘Do you believe that we are engaged in a war on terrorism?’” said Grassley in a statement on the confirmation. “This…gives me pause — especially in light of the continued threat we face from international terrorist organizations.”

PRISM in focus

Currently, the privacy board is waiting to hear recommendations on alternatives to the Section 215 program by the director of national intelligence and the attorney general, expected to come this month.

Meanwhile, the board has turned much of its attention toward PRISM, another NSA data collection program that draws end user information from Microsoft, Google, Yahoo and Facebook, among others.

The privacy board is holding a public hearing March 19 at the Mayflower Hotel in Washington to discuss the program’s legality and consider recommendations that would help it strike a better balance between government counterterrorism efforts and American civil liberties.

While it didn’t happen in the way he envisioned, Medine said his agency has accomplished much of what he’d hoped to before the Snowden revelations, including, of course, securing formal email addresses for its members.

Prior to his nomination by Obama, Medine was a partner in the law firm WilmerHale, focusing on privacy and data security.

There, he was recognized as a patient mentor who did an “excellent job explaining the big picture,” said former co-worker Heather Zachary, who works on privacy and data security issues for the firm.

“David is one of those rare creatures who has a sharp legal mind but also is such a good-hearted person who makes you feel comfortable and part of a team,” Zachary said. “It’s not a surprise given the kind of person David is and where his interests are that he ended up where he is, doing public service.”

Medine was one of the first in government to focus on Internet privacy in the 1990s.

J. Beckwith “Becky” Burr met Medine nearly 20 years ago when both were at the Federal Trade Commission. The two put together the commission’s very first consumer protection workshops.

“He was active in the early times of the Internet data collection issue,” said Burr, now chief privacy officer and deputy general counsel at Neustar, a telecommunications company. “David was responsible for some of the earliest kinds of privacy regulations.”

“All of us in the privacy world have been dealing with the ways that communication privacy has been changing,” Burr said. “Everyone pays attention to insights from the Privacy and Civil Liberties Oversight Board.”

Burr recalls Medine as her “most important sounding board” when facing issues at WilmerHale with no precedent.

“He was the first person I’d go to (get) advice based on judgment calls when there were no black letter laws,” she said.

Medine is the third Marylander to serve in the small agency since its establishment. He follows Francis X. Taylor and Lanny Davis, who both served on the original five-member board.

“We were created…to oversee programs to make sure they strike the right balance between national security and privacy and civil liberties,” Medine said. “The secrecy report is exactly the kind of thing that (we were) expected to do and certainly the kind of thing we plan to do going forward.”

Ilana Shulevitz – CNS