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Shifting control of phone metadata from the NSA to cellular providers would cost the government in excess of $60 million, according to government estimates. But phone executives say the need to build new technical infrastructure and add more staff to contend with records demands would cost far more.
Legal experts say that hiring a private business or creating a new independent entity to store and oversee the NSA's phone records is an even greater hurdle. It is unclear whether the government could hire a private contractor or create a quasi-private data storage entity along the lines of the Federal National Mortgage Association, or Fannie Mae, the government-sponsored mortgage enterprise.
Hiring an outside private firm might not quell public mistrust, considering the recent widespread hacking into Target and other companies, experts said. Choosing a private contractor could backfire if the process mirrors the chaos of the government's health care website's early days. And relying on a quasi-government agency might also fail to bolster public confidence.
"Unless this is very carefully drafted, the public is going to pick this apart from Day One," said Stewart Baker, a national security law expert and former senior Bush administration official.
Obama's decision to ask Congress to authorize a panel of privacy advocates to weigh in at times during secret FISA court proceedings has triggered a roiling debate among constitutional lawyers, government counsels and privacy advocates. Legislators in the Senate and House have already drafted several rival bills creating similar independent advocates, but critics worry that none of the current proposals would pass constitutional scrutiny.
Government lawyers have been openly skeptical about the proposals and several former Bush administration attorneys who were involved in the FISA process have also raised a thicket of warnings. They question how the office of the public advocate would be set up and raise constitutional concerns about whom the advocates would represent and how they would obtain secret clearances to look at some of the government's most sensitive classified documents.
"This is very limited way of trying to build public trust," Baker said. "But the costs in terms of confusion and additional parties who would have to be given secret clearances would be very high."
The notion drew heavy fire from the federal judiciary. U.S. District Judge John D. Bates, the administrative judge of the U.S. court system and previously chief judge of the FISA court, said any outside advocate group could not effectively provide the court with independent factual investigations necessary for highly classified national security cases or create a truly adversarial process.
Congress' ongoing political paralysis could also threaten the chances for swift passage of the novel legal experiment, and Senate and House elections this fall could add to the hurdles facing legislators trying to carve out a realistic compromise.Next Page >
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