Meanwhile, in that Other Fin de Bush Administration Collapse…


Ars Technica's Julian Sanchez (a reason contributing editor) has an important piece on the Electronic Frontier Foundation's new lawsuit against the NSA and computer eavesdropping.

The plaintiffs are the same as those in the telecom case, Hefting v. AT&T, with one more added for good measure. All are ordinary citizens of a "nationwide class of customers of all AT&T residential phone and internet service providers," and their standing to bring suit relies not on any contention that they were specific targets of NSA surveillance, but on the claim that the government was indiscriminately vacuuming up vast quantities of data, to be filtered by the government according to algorithms known only to them.

This claim rests in large part on evidence provided by AT&T whistleblower Mark Klein, who has provided documentation attesting to the existence of a secret room in AT&T's Folsom Street facility in San Francisco, where fiber optic cables were diverted through a sophisticated Naurus traffic analysis machine. As EFF attorney Cindy Cohn notes, this is a hub facility through which both purely domestic and international traffic are routed, whereas a program targeting exclusively international or domestic-to-foreign communications should be situated at the point where "the wire hits the beach." The Folsom Street room is believed to be only one of many similar interception stations. According to a March report in the Wall Street Journal, "current and former intelligence officials confirmed a domestic network of hubs, but didn't know the number."

This is where things get murky.

The case EFF plans to make—and, indeed, their plaintiffs' standing to bring suit—rests on the premise that the wholesale diversion of domestic communications to the government's filtering device in itself constitutes a search or seizure beyond the bounds of both the Fourth Amendment and federal wiretap statutes—including the new FISA Amendments Act, which gave the Attorney General broad discretion to authorize the collection of communications, including domestic-to-international communications, provided the "target" of the investigation is a foreign person or group.

Whole thing here.