Since Edward Snowden's initial revelations last year, it has become nearly an article of faith that the National Security Agency has routinely and systematically eavesdropped on the electronic communications of many or most US citizens, to the point where many people simply assume that any phone call, email, or text message they receive has probably been intercepted and analyzed by the government. However, when I look into these revelations, including tracing them back to their sources of first reporting, I usually find that what they really say falls into one or more of the following categories:
- The NSA does a lot of spying and has the capacity to collect and store vast amounts of electronic data. Most of the big headline-grabbing stories fall into this category, which seems scary but actually says very little. We should not be surprised that the NSA has a vast infrastructure devoted to signals intelligence; that is its mission. The NSA may well have the capability to turn a portion of that infrastructure toward domestic surveillance, but by itself that fact is meaningless. I could just go out and start running over people with my car; that fact is significantly less interesting than the question of whether I actually do it or not.
- The NSA casts too wide of a dragnet and/or is too sloppy with what it collects. It may well be that the NSA happens to pick up a lot of domestic communications along the way as it collects international signals, and analysts may end up paying attention to some communications they shouldn't, and I would agree that those things are bad. But incidental overreach is not in the same category as intentional overreach, or even reckless disregard. Bearing Hanlon's razor in mind, I would want to see more than this to reach any conclusions.
- Courts are too willing to sign off on blanket warrants for data collection. This certainly seems to be true, but if anything, it actually obviates the presumption of illegality, it doesn't support it. In that case, to paraphrase Michael Kinsley, the scandal isn't what's illegal—the scandal is what's legal.
Disregarding such false positives, then, what evidence is there that, currently or in the recent past, the NSA as an entity has deliberately spied on communications between US citizens that took place domestically and did not involve foreign nationals, in violation of US law?