The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA)
Pub. L. 108-458 (12/17/04) (236 pp. PDF)
Background. IRTPA addresses many different facets of information gathering and the intelligence community. IRPTA’s eight titles reflect its broad scope:
- Title I – Reform of the Intelligence Community
- Title II – Federal Bureau of Investigation
- Title III – Security Clearances
- Title IV – Transportation Security
- Title V – Border Protection, Immigration, and Visa Matters
- Title VI – Terrorism Prevention
- Title VII – Implementation of 9/11 Commission Recommendations
- Title VIII – Other Matters, including a requirement that the Department of Homeland Security ensure that the civil rights and civil liberties of persons are not diminished by efforts, activities, and programs aimed at securing the homeland.
The Congressional Research Service (CRS) wrote a detailed summary of the IRTPA. The Act discusses matters as diverse as the processing of security clearances, the relationship between the United States and Saudi Arabia, and the digital television conversion deadline.
General Provisions. IRTPA modified many aspects of the federal intelligence and terrorism-prevention organizations. For example, it:
- reorganized the Intelligence Community,
- established the position of Director of National Intelligence (DNI) to serve as the President’s chief intelligence advisor and the head of the Intelligence Community, and to ensure closer coordination and integration of the 16 agencies that make up the Intelligence Community,
- established the National Counterterrorism Center (NCTC) to serve as a multiagency center analyzing and integrating all intelligence pertaining to terrorism, including threats to U.S. interests at home and abroad,
- established the Privacy and Civil Liberties Oversight Board (PCLOB) subsequently made an independent federal agency by the 9/11 Commission Act. (42 U.S.C. § 2000ee). The Board has been inactive since 2008 due to unfilled vacancies on the Board. Creation of the PCLOB was one of the 9/11 Commission recommendations,
- adopted the key principles of Executive Order 13356, (4 pp. PDF) Strengthening the Sharing of Terrorism Information To Protect Americans, and directed the establishment of the Information Sharing Environment (ISE) and required the President to designate an ISE Program Manager "(PM-ISE)". After IRTPA was enacted, Executive Order 13356 was revoked and replaced by Executive Order 13388 (10/25/05) further implementing efforts to share information.
- established the Information Sharing Council (ISC) to advice the President and the Program Manager (PM-ISE) about developing ISE policies, procedures, guidelines, and standards, and to ensure proper coordination among federal departments and agencies participating in the ISE. As of 2009, the responsibilities of the ISC were assumed by the Information Sharing and Access Interagency Policy Committee (ISA IPC).
Civil Rights and Civil Liberties. IRTPA modified the mission statement of the Department of Homeland Security (DHS) by adding a requirement to “ensure that the civil rights and civil liberties of persons are not diminished by efforts, activities, and programs aimed at securing the homeland.” 6 U.S.C. § 111(b).
Title I of IRTPA, as amended, established the Privacy and Civil Liberties Oversight Board (PCLOB) as an independent Federal agency. The PCLOB is required to review proposed laws, regulations, and executive branch policies to ensure:
- that privacy and civil liberties are “appropriately considered,”
- when “providing advice on proposals to retain or enhance a particular governmental power, consider whether the department, agency or element of the executive branch concerned has explained that there is adequate supervision of the use by the executive branch of the power to ensure protection of privacy and civil liberties,”
- “that there are adequate guidelines and oversight to properly confine the use of the power,” and
- “that the need for the power, including the risk presented to the national security if the Federal Government does not take certain actions, is balanced with the need to protect privacy and civil liberties.” Pub. L. 108-458, Section 1061(c)(I)(D)(iii) (at p. 49 of 236 pp. PDF).
The PCLOB has been inactive since 2008 due to unfilled vacancies on the Board, but five members were nominated by the President in December 2011.
Congress indicated that each executive department or agency with law enforcement or antiterrorism functions should designate a privacy and civil liberties officer. Pub. L. 108-458, Section 1062 (at p. 52 of 236 pp. PDF).
IRTPA requires there to be a Civil Liberties Protection Officer within the Office of the Director of National Intelligence (ODNI). 50 U.S.C. § 403-3d. The Civil Liberties Protections Officer reports directly to the DNI and is responsible for:
- ensuring that privacy and civil liberties protections are incorporated into the ODNI’s policies and procedures,
- overseeing ODNI compliance with all laws, regulations, executive orders, and constitutional requirements concerning privacy and civil liberties,
- reviewing, assessing, and investigating any alleged abuses of privacy and civil liberties,
- ensuring that the use of technologies do not erode privacy protections related to the use, collection and disclosure of personal information,
- ensuring that personal information is handled in accordance with the fair information practices, as set out in the Privacy Act, and
- conducting privacy impact assessments. 50 U.S.C. § 403-3d(b).
The Civil Liberties Protection Officer is not an Inspector General as defined at the Inspector General Act of 1978 (USC §5a) and cannot compel agencies to disclose information and is not required to issue reports to Congress. The current CLPO is Alexander Joel, who was appointed in December, 2005.
IRTPA requires the President to:
- establish an Information Sharing Environment (ISE) for the sharing of terrorism information “in a manner consistent with national security and applicable legal standards relating to privacy and civil liberties,”
- “to the greatest extent practicable,” ensure that the ISE “incorporates protections for individuals’ privacy and civil liberties,” and
- consult with the PCLOB and develop guidelines to “protect privacy and civil liberties in the development and use of the ISE,” 6 U.S.C. § 485(b), (d).