Several of the key surveillance reforms unveiled by President
Despite Obama's plans to shift the
Constitutional analysts also question the legal underpinning of Obama's commitment to setting up an advisory panel of privacy experts to intervene in some proceedings of the secret
The secret courts now operate with only the government making its case to a federal judge for examining someone's phone data. Civil libertarians have called for a voice in the room that might offer the judge an opposing view.
"The devil is in the details of how the government collects and retains phone records," said
Obstacles to enacting Obama's plans are expected to mount quickly as administration officials and legislators grapple over what sort of entity will oversee the calling records swept up by the NSA. Obama ordered the
Privacy advocates also questioned the administration's silence on what it will do with hundreds of millions of phone records, at minimum, that are now kept on file in government inventories. Citing the NSA's plans to build a vast data storage facility in
Obama's task force, the
Who or what takes over the storage of private phone records is also at issue. Telephone company executives and their lawyers have bluntly told administration officials they do not want to become the NSA's data minders. Cellular industry executives prefer the NSA keep control over the surveillance program and would only accept changes if they were legally required and spelled out in legislation.
Even with broader legal protections to shield phone companies from liability, the corporations are wary of being forced to standardize their own data collection to conform to the NSA's needs. Phone companies already retain various forms of customer records, but the duration of their storage and the kinds of records they keep vary from less than two years, for companies including
Shifting control of phone metadata from the NSA to cellular providers would cost the government in excess of
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
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
Obama's decision to ask
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
"The question is whether there is the political willpower to do it," said
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