ombudsman office to help individuals and employers in resolving problems. They make an annual report to Congress and submit recommendations for internal improvements.

Other agencies, such as the FBI (in the Department of Justice) must request review of planned investigations by the FISA court, but they have rarely been turned down.19 There does not seem to have been a retrospective review mechanism for the FISA court, or a retrospective review by the FISA court of FBI performance.

The president’s Privacy and Civil Liberties Oversight Board (http://privacyboard.gov/) held its first meeting with six members in March 2006. This board could be helpful in generating public trust, but concerns about its independence and efficacy were raised after its first public presentation in December 2006. If this board can promote planning, execution, and retrospective oversight, it could emerge as a positive influence on many government agencies.

Public concern about warrantless domestic surveillance has become a controversial topic. A federal judge in Michigan found in July 2006 that government surveillance required review by a FISA court. After fighting this decision, the current administration agreed to FISA court oversight for at least some of their intelligence operations, but as this report is being written, the ultimate outcome of the relevant legislative proposals is unclear.

The traditional reliance on judicial review for privacy protection remains an effective process for dealing with evolving technologies and normative expectations. The judiciary’s role in protecting the legal and privacy rights of citizens is effective because judicial decisions are a form of independent oversight that is widely respected. Furthermore, the rights it protects are established by the Constitution, which all branches of government are sworn to uphold.

Independent oversight is potentially very helpful for continuous improvement of government operations, especially when dealing with the complex issues of privacy protection. There are many forms of independent oversight and many strategies for carrying it out. Some government agencies conduct responsible independent oversight programs, but critics question their efficacy and independence. More troubling to critics are attempts to avoid, delay, or weaken independent oversight practices that are in place. Public discussion of independent oversight could help

19

Electronic Privacy Information Center, Foreign Intelligence Surveillance Act Orders 1979-2007, updated May 8, 2008. Available at http://epic.org/privacy/wiretap/stats/fisa_stats.html. Some analysts interpret this fact to suggest that the FISA application process is more or less pro forma and does not provide a meaningful check on government power in this area, while others suggest that applications are done with particular care because the applicants know the applications will be carefully scrutinized.



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