Trump promised to keep spying agencies in check. Then he fired the watchdogs he appointed

[ResidentialBusiness]

President Donald Trump vowed to fight government abuse and introduce more transparency, a stance that might align him with a little-known agency charged with watching over the U.S.’s powerful spying programs. Lately it’s investigated and critiqued the intelligence community’s secret terrorist watchlist, its fight against domestic extremism, and its warrantless searching of Americans’ emails. The agency, the Privacy and Civil Liberties Oversight Board, is also central to a hard-won agreement that allows U.S. companies like Meta and X to handle Europeans’ data. 

None of that stopped Trump from firing the board’s three Democratic members on his second day in office, effectively hobbling one of the few independent watchdogs over the world’s most powerful spying apparatus. On Monday two of those members fired back in a lawsuit, calling the move illegal and asking a court to reinstate them. 

“The President’s actions strike at the heart of the separation of powers,” Travis LeBlanc and Ed Felten, the former members, said in their suit, which was filed Monday in U.S. District Court for the District of Columbia. “Not only do [Trump’s] removals eradicate a vital check on the infringement of ordinary Americans’ civil liberties, they also hobble an agency that Congress created to assist it with oversight of the executive branch.”

Travis LeBlanc, an attorney nominated by President Trump to the PCLOB, was sworn in by Vice President Harris. He and Ed Felten sued Trump on Monday [Screenshot: The Biden White House]

LeBlanc and Felten were both nominated by Trump during his first term, and each had at least another year to serve. They were fired along with Sharon Bradford Franklin, who was appointed by President Joe Biden to be the board’s full-time chairwoman, and who was expected to step down anyway when her term ended on January 29.

The White House did not ask the board’s only Republican member, Beth Williams, to resign; a fifth seat is currently vacant. Without a quorum of three members, the board’s staff cannot start new reports—the bulk of the agency’s work—or complete existing ones. 

The move went largely unnoticed amid a barrage of firings, but raised alarms among civil liberties advocates on both sides of the Atlantic, especially given the prospect of the White House pursuing its political opponents. New FBI director Kash Patel, who has sought to downplay an enemies list he created in 2023, said this week that the agency would investigate its former director and Trump nemesis James Comey. Attempts by Elon Musk’s DOGE to access sensitive government databases have raised separate privacy concerns. 

“The Privacy and Civil Liberties Oversight Board is one of the only independent watchdogs over government surveillance with the power to alert Congress and the public about abuses of government power,” said Senator Ron Wyden, D-Ore., a member of the intelligence committee. “Given Donald Trump’s attempt to fire the Democratic members of the board and weaponize intelligence agencies with extreme partisan Republicans and MAGA loyalists, a functioning, independent PCLOB has never been more important.”

Since taking office, the Trump administration has pushed hard to consolidate presidential control over agencies that have typically acted independently. In addition to eighteen inspectors general, responsible for preventing waste, fraud, and abuse at various federal agencies, Trump fired the heads of other independent agencies, including the Equal Employment Opportunity Commission and the National Labor Relations Board. Trump also fired the government’s top ethics official responsible for enforcing anti-corruption laws in the White House, and removed the chair of the agency that protects federal workers, though the courts have paused those dismissals. 

The administration has also removed other officials tasked with protecting security and privacy, including all members of the Deparment of Homeland Security’s advisory boards. They included the AI Safety and Security Board and the Cyber Safety Review Board, which is responsible for reviewing cyberattacks and making concrete recommendations to government and industry. It had previously issued a report on the 2023 Microsoft hack, and was still investigating the China-backed hack of U.S. telecoms, which one senator called “the worst telecom hack in our nation’s history.” 

At the privacy and civil liberties board—known in Washington as “PCLOB”—the firings have stalled a number of ongoing investigations into U.S. surveillance programs. 

“There are several projects right now that the PCLOB is actively working on that do keep me up at night and make me concerned,” LeBlanc told journalist Brian Fung at the State of the Net conference this month. 

The board was created after September 11 to provide an added layer of oversight of the executive branch’s counterterrorism policies and to, Congress wrote, “protect the precious liberties that are vital to our way of life.” Led by a group of Presidential-appointed legal experts who are given security clearances and subpoena power, the agency advises the President, Congress, and the public about risks to Americans’ civil liberties. 

One big focus is Section 702, the law that controversially allows the FBI and other federal intelligence agencies to do “backdoor” searches of intercepted foreign communications for Americans’ data without a warrant. The law is up for reauthorization next year. 

The board’s last report on the program, in 2023, said that FBI agents had performed 5 million warrantless searches for Americans between 2020 and 2023. Among them were “tens of thousands” of baseless searches for Americans, including the improper searching of political leaders, such as members of Congress, social advocates, religious community leaders, and even individuals who had provided tips or were victims of crimes. 

“In one period alone, non-compliant queries related to civil unrest numbered in the thousands,” Leblanc said last year during a public briefing. “Thousands of U.S. persons, exercising their first amendment rights on domestic issues.”

More recently, the agency has been helping assure protections for European Union citizens, too, as part of the agreement struck in 2023 after almost a decade of negotiations and court battles over data flows. (At one point Meta threatened to pull Facebook and Instagram out of Europe.) Just as Congress ruled that TikTok could not operate in the U.S. in part due to concerns user data could flow to China, EU lawmakers agreed that U.S. companies, including Google, Meta, Amazon and X, can only process EU data with certain assurances. Those requirements include the PCLOB.

Datenschützer warnten, nun wird es ernst: Erste Schritte von #Trump gegen das #Datenschutz-Aufsichtsgremium #PCLOB gefährden das EU-U.S. Data Privacy Framework. Unternehmen drohen Unsicherheiten beim Datentransfer in die USA: https://t.co/8Xx6Veefb2 #PrivacyShield pic.twitter.com/TP2Oo6IWSf

— datenschutzticker.de (@ds_ticker) January 29, 2025

The importance of the board to the EU agreement was underscored one night in October 2020, when Congress rushed three new board members through a last-minute confirmation hearing; they had to be in Brussels the next day for an important meeting with regulators. 

“It’s clear that this [board] is a big deal to [the European Commission],” says a person close to the agency who asked for anonymity to speak candidly. “I don’t know that this was thought of” by the Trump White House, “and I can’t predict what they were thinking at all on this. I’m just telling you that that is a big, big deal.”

Mary T. Costigan, an attorney at Jackson Lewis, said in a memo earlier this month that organizations ”that rely on their DPF certification for transatlantic data transfers should consider developing a contingency plan to prevent potential disruption to the transfer of essential personal data.” 

The uncertainty about the board adds to ongoing tensions between Washington and Brussels over the EU’s tech regulations. Trump has attacked EU fines on U.S. giants, echoing complaints by Musk and Mark Zuckerberg over regulations like the Digital Services Act. 

EU Commission spokesperson Markus Lammert said last month that while the data rules remain applicable “irrespective” of the members of the PCLOB, the Commission is continuously monitoring all adequacy decisions. Earlier this month, Javier Zarzalejos, chair of the commission’s committee on civil liberties, asked the EU’s justice chief whether the firings “affect the adequacy of” the data privacy agreement. “One of the issues are the competences” of the PCLOB, he wrote.

A PCLOB spokesperson, Alan Silverleib, declined to comment on the impact of the firings on the DPF. But he tells Fast Company that even if the full board cannot issue new reports, the agency’s research continued, with its single part-time board member and a staff of around 30 lawyers, policy experts and technologists. He said the board’s remaining member and its staff could still issue their own reports.

“The Board looks forward to moving ahead on additional projects formally following the nomination, confirmation, and appointment of new Members,” he said in a statement. 

The White House hasn’t indicated when—or if—it will nominate new members to the PCLOB, who must be a mix of Democrats and Republicans and be approved by the Senate, in a process that would likely take months. A White House spokesperson did not respond to a request for comment. 

With a paltry budget of around $14 million and a staff of about 30, PCLOB was already one of the smallest federal agencies, especially relative to its sweeping mandate. (its nickname, meanwhile, is “widely understood to be one of the worst shortened names in Washington,” Williams quipped recently, “and that’s quite a feat.”) Still, privacy advocates have called the board’s behind-the-scenes investigations valuable, especially when it comes to Section 702, the surveillance law Congress will vote on when it expires next year. 

In its last report on the program, the board agreed that its databases were critical for national security but diverged over the additional protections needed when the FBI searches them for Americans. The three Democratic members urged Congress to make a significant change: require the F.B.I. to get warrants first, with exceptions for emergencies and consensual searches. (In December, a federal district judge in a terror-related case agreed that there should be a warrant requirement, calling 702 “a tool for law enforcement to run ‘backdoor searches’ that circumvent the Fourth Amendment.”)

The Democratic members’ recommendation put them at odds with the Biden White House, but in line with some Democratic civil libertarians and Republican MAGA members of Congress, as well as some Trump allies. Trump previously signed a reauthorization of Section 702 into law in 2018, but has remained a critic. Last year Congress reauthorized the program for two more years, amid last minute objections by Trump himself, who has complained that it was used to spy on his 2016 campaign. (The FBI’s surveillance of Trump campaign aide Carter Page was not conducted under Section 702, but to many in Trumpworld the case has remained a symbol of the agency’s corruption.)

Tulsi Gabbard, Trump’s pick for Director of National Intelligence, previously called for the full repeal of Section 702, which she described as “overreach.” More recently, she told senators that she supports the law, but said that Congress and the Foreign Intelligence Surveillance Court should decide whether warrants are required for data on U.S. persons. (In 2015, Gabbard, then a Democrat in the House of Representatives, also joined Sen. Wyden in sponsoring a bill that would have strengthened the PCLOB.)

Kash Patel, himself a target of FBI surveillance, has also recently argued against a “warrant requirement” for Section 702 searches. To go through the foreign surveillance data “in real time is just not comported with the requirement to protect American citizenry,” he said during his confirmation hearings. 

John Ratcliffe, Trump’s CIA director, also told the Senate he opposes a warrant requirement. Still, he added, “it’ll be incumbent on me . . . both within the administration and outside . . . [to] make sure that people understand and to dispel false narratives about how [the surevillance law] is being misused or can be misused.” 

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The firings at PCLOB were hardly the only dismissals to sharpen fears about abuses of power or retribution under the Trump White House. At the Justice Department, the acting attorney general fired more than a dozen prosecutors who worked on the criminal investigations into Trump for the special counsel, as well as more than a dozen prosecutors in the U.S. Attorney’s Office who had been hired to investigate the Jan. 6 riot. The Justice Department’s leaders also asked for the names of the thousands of agents involved in the Trump and Jan. 6 investigations at the FBI, where at least nine high-ranking officials have also been removed.

Last week a court stalled Trump’s dismissal of the government’s top ethics official, Hampton Dellinger, who leads the Office of Special Counsel, in what has become the first major test of the new administration’s effort to consolidate control over independent agencies. On Monday Dellinger announced that his office would seek to pause the mass firings of many of the estimated 200,000 federal workers who are on probation.

The cases will be reviewed by the Merit Systems Protection Board, another independent agency, which on Tuesday paused the firing of six probationary workers. That agency, too, has been targeted by the White House: its chairwoman, Cathy Harris, was recently reinstated after she sued, prompting a federal judge to temporarily block her firing. 

While PCLOB has previously had vacancies that kept it from issuing new reports, no president has previously fired a board member. The lawsuit on Monday challenges the legality of that move. “PCLOB’s structure and functions confirm that Congress intended to prevent the President from removing its members without cause,” the suit alleges, insisting that the White House must also consult with Congress first. (The case will be heard by Senior U.S. District Judge Reggie Walton, who drew criticism last year when he took the rare step of giving a TV interview decrying the rise of threats, spurred by Trump, against federal judges and their families.)

The legal complaint points to critical changes made to the board’s statute by Congress in 2007. Originally stood up under the Executive branch, the PCLOB was re-established that year as an independent agency amid concerns about its impartiality. 

The new law, the 9/11 Commission Act, deleted language from the original statute that said it “serves at the pleasure of” the President and that “[t]he Board shall perform its functions within the executive branch and under the general supervision of the President.” Its statute also requires that the board be nonpartisan, that its members be selected on nonpolitical grounds, and that “the President may remove a member of the Board only for inefficiency, neglect of duty, or malfeasance in office.” 

Computer scientist Ed Felten was nominated by President Trump to the PCLOB in 2018 [Photo: Privacy and Civil Liberties Oversight Board/Wikimedia Comons]

Even if Trump hopes to appoint loyalists to the board, the law still requires that members, typically prominent legal experts, come from different political parties. The White House could also opt to keep the board perpetually under quorum, or after appointing new members, could also choose to fire them again. 

In a letter to Congressional leadership last month, a group of 27 civil liberties groups said that the firings had already set a dangerous precedent. 

“The White House could kill any reports or findings from PCLOB it does not want issued, firing Board members to halt the release of information the White House wants covered up,” the groups, led by the Center for Democracy and Technology, wrote. “Even the mere threat of firings would chill PCLOB from properly performing its duties, with members seeking to stay in the good graces of the White House rather than acting as a vigilant watchdog.” 

Speaking at the State of the Net conference last month, Beth Williams, the sole remaining member, was asked if the firings would affect the board’s ability to be independent and effective going forward. “I don’t think it’s appropriate for me to comment on the President’s personnel decisions,” she said. 

She also downplayed the impacts of the firings. “The board is open for business,” she said, citing a recent policy that gives the board more leeway to continue operating without a quorum.

During a separate appearance at the conference, LeBlanc questioned the board’s efficacy—Williams serves only part time—and its independence. The implications of his firing and others could cost the country more than civil liberties and transatlantic data flows, he said. 

“Where independent agencies get their strength is not because there’s someone at the top that somebody else trusts,” said LeBlanc. “It is that both sides, both parties, all feel like their views are aired, and that trust in and of itself is what gives them power.”

Gutting the agency to a single member means “you only get one stream of information and communication,” and that “calls into question whether you’re getting the true story, and calls into question the credibility of the ultimate decisions or recommendations that are coming out of the agency.”

He pointed to other heavily regulated industries—transportation, elections, energy, consumer financial products—that could be undermined by regulatory instability.  

“If independent agencies no longer exist in this country, if everyone ultimately ends up serving at the pleasure of the current administration,” he said, “we lose the benefit of expertise.” 

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