Writing in his personal capacity, Peter Swire filed an amicus brief in the case concerning the independence of members of the Privacy and Civil Liberties Oversight Board (PCLOB). In early 2025, President Trump issued the order to remove three members of the Board – Ed Felten, Travis LeBlanc, and Sharon Bradford Franklin. The orders were not “for cause” – there was no statement of any wrongdoing by the members. In the district court, the judge found, based on the statute creating the PCLOB, that the PCLOB is an independent agency whose members can lawfully only be fired for cause. The U.S. Department of Justice appealed the case to the Court of Appeals for the District of Columbia Circuit. In addition to the brief for appellee Ed Felten and Swire’s amicus brief, 11 members of Congress also submitted an amicus brief supporting the PCLOB’s independence.
The Swire brief explains that the PCLOB is a unique agency to address the fundamental constitutional tension between liberty and security. It plays a unique role in responding to the history of constitutional violations under secret U.S. government surveillance programs, and the independence of the PCLOB is clearly established by the history of its founding statute.
There is a distinct Fourth Amendment analysis for secret foreign intelligence surveillance, supporting the independence of the PCLOB. The PCLOB oversees reasonableness of the Fourth Amendment. Changes in technology and surveillance targets are an important feature of secret government surveillance, calling for the continual review provided by the PCLOB. The independence of the PCLOB protects Fourth Amendment reasonableness and is constitutionally relevant to this case.
The U.S. government has had a longstanding and previously-unbroken position that the PCLOB is independent. Notably, the U.S government and European legal authorities have emphasized the independence of the PCLOB, in litigation before European courts and in diplomatic negotiations for the EU/U.S. Data Privacy Framework, which according to the U.S. government applies to $7 trillion of annual trade between the EU and the U.S.
The full amicus brief is available here.
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These statements are attributable only to the author, and their publication here does not necessarily reflect the view of the Cross-Border Data Forum or any participating individuals or organizations.
