The Sui Generis Privacy Agency: How the United States Institutionalized Privacy Oversight After 9-11

Abstract

Privacy scholars have long noted that the United States, unlike many other countries, lacks an independent office for privacy protection. However, as part of the response to 9-11, the US Congress created several new privacy entities. These sui generis privacy offices were established to counterbalance the surveillance authority that resulted from the creation of the Department of Homeland Security and the consolidation of the intelligence agencies the federal government, as well as to advise the President on emerging privacy issues. This article looks at the Chief Privacy Officer of the Department of Homeland Security, the President's Civil Liberties and Privacy Oversight Board, and the Civil Liberties Protection Officer of the Office of the National Intelligence Director. The article explores the circumstances under which the agencies were established and their legislative mandates. It reviews their activities to date and concludes that, measured primarily against their statutory responsibilities, only the DHS Chief Privacy Officer has had any meaningful impact on the privacy practices of the federal government. The article makes specific recommendations for how each office might be more effective. In almost all instances, more transparency, regular reporting, frequent public consultation, and great independence are necessary. The article concludes that in the absence of effective oversight within federal agencies for the new powers created after September 11, the effective checks and balances are likely to be the courts and the Congress.