The lovely catch 22 of living in the age of mass surveillance is that the NSA isn"t even sure when it"s illegally spying on you. To determine whether its activities are illegal, the NSA would have to conduct additional, also illegal surveillance. And so Americans are being illegally spied on, but no one knows how often this happens, why it happens, or how it happens.
Under Section 702 of the Foreign Intelligence Surveillance Act, the US is allowed to conduct surveillance on foreign nationals, but surveillance of "American persons" (citizens and Green Card holders) is illegal. The Snowden revelations showed that communications by Americans were regularly swept up regardless, and a court opinion from earlier this year confirmed that much of this collection was illegal and inappropriate.
For years, groups like the American Civil Liberties Union have demanded that the NSA produce figures about the number of Americans whose communications are inappropriately swept up in the NSA"s bulk surveillance programs, and Congress has recently begun asking for similar figures. Don"t expect to ever get them.
Wednesday, Director of National Intelligence Daniel Coats told the Senate Intelligence Committee that the NSA believes it is impossible to determine how often it is breaking the law.
"The NSA has made herculean, extensive efforts to devise a counting strategy that would be accurate and would respond to the question [about surveillance of US persons]," Coats said. "It remains infeasible to generate an exact, accurate, meaningful, and responsive methodology that can count how often a US person"s communications may be collected under 702."
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