On July 12, 2018, the American Civil Liberties Union filed a Freedom of Information Act request seeking the release of a report by the Privacy and Civil Liberties Oversight Board (“PCLOB”) on the handling of personal information as a part of U.S. intelligence activities. The ACLU’s FOIA request follows the EU Parliament’s call on July 5, 2018 to suspend the EU-U.S. Privacy Shield based in part on the PCLOB report being withheld.

The PCLOB is an independent federal privacy watchdog agency within the executive branch, originally formed in 2004 as recommended by the 9/11 Commission Report. In 2014, President Obama issued a policy directive that, among other things, extended certain protections over the handling of personal information in intelligence gathering to non-citizens abroad. The directive, PPD-28, also requested the PCLOB prepare a report on the implementation of these new protections.

The PCLOB completed its report at the end of 2016 and delivered it to the White House and to the congressional intelligence committees. Since then, the Trump Administration has asserted presidential privilege over the report and refused to release a declassified version.

On July 5, 2018, the EU Parliament issued a non-binding resolution calling for the Privacy Shield to be suspended by September 1, 2018, unless the U.S. becomes “fully compliant” with the requirements of Privacy Shield. The Privacy Shield, which King & Spalding has reported on in the past, is a framework to allow U.S. companies to access and transfer personal data belonging to EU citizens under EU privacy laws. In its resolution, the EU Parliament held that the current Privacy Shield arrangement fails to “provide the adequate level of protection required by Union data protection law and the EU Charter.”  The resolution points to various weaknesses in U.S. protections over Privacy Shield data. Specifically, the resolution indicates that PPD-28 is “one of the central elements on which the Privacy Shield is built,” and calls for the release of the PCLOB report.

Only a week after the EU Parliament resolution, the ACLU filed and publicized a FOIA request for the PCLOB report. The ACLU noted that in addition to EU authorities, others, including Senator Ron Wyden (D-OR), have called for the release of the report. Attorney Ashley Gorski of the ACLU echoed the concerns of the EU Parliament, noting that the report is the only way for the public “to understand how the government is applying [PPD-28’s] minimal privacy safeguards on” intelligence-gathering activities.

The full text of PPD-28 is available here. The ACLU’s FOIA request is available here. The EU Parliament’s resolution is available here.