EFF's new lawsuit, and how the NSA is into social networking

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The government could be building a giant map of social networks using Facebook and Twitter, scraping MySpace pages, or mining the metadata associated with cellular phone calls in order to look for communication patterns. On the other hand, all of that computer power that the NSA is aggregating at the datacenters that are coming online could just be for the limited purpose of snooping voice calls and e-mail coming into and out of the US, but such narrow use is unlikely. 

What the NSA is doing with its massive and growing capabilities is still a secret, but it's probably an extension of DoD efforts at mapping social networks that extend back to the early part of the decade. A new EFF lawsuit filed this week could finally shed at least a little more light on the nature of these classified activities, so that we can know for sure whether some descendent of John Poindexter's Total Information Awareness program lives on at the NSA.

Earlier this month, the EFF filed a Freedom of Information Act request that sought to obtain the mandatory oversight records that agencies in-the-loop on these secret activities would have had to file—records that, at the very least, would indicate whether the filing agency thought these activities were legal. The government has refused to produce the relevant records, so yesterday the EFF announced that it's suing the government to get the administration to comply with the FOIA.

"By executive order, federal intelligence agencies must submit concerns about potentially illegal activity to the Intelligence Oversight Board and the Office of the Director of National Intelligence," EFF Open Government Legal Fellow Nate Cardozo said in a statement. "Intelligence agencies are given a wide berth for national security reasons, but at a minimum they're required to act within the limits of the law. These records hold important details about how well the Executive Branch's internal checks operate."

In refusing to produce the records, the Obama administration is claiming a FOIA exemption for national security reasons. But, if the acts covered in the requested documents are illegal, then this rationale won't work. "You can't claim a national security exemption for illegal acts," EFF Open Government Legal Fellow Nate Cardozo told Ars. So the EFF wants to get a judge to at least look over the documents in order to determine if they describe illegal acts because, if they do, then they'll have to be handed over to the EFF.

Since Congress doesn't know and doesn't apparently care if the NSA is doing that would've been illegal before they amended FISA last year to authorize it, the Intelligence Oversight Board is our only hope of finding out what's going on. "If Congress has been kept in the dark," Cardozo told Ars, "then the IOB is really it. So the lawsuit is intended to figure out if the executive branch's oversight machinery is functioning smoothly."

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