Marcy Wheeler has her usually astute analysis as to why the most powerful spy agency in the world claims it is unable to count how many Americans it is spying on.



A number of tech people are wondering if there’s some secret technical reason why NSA can’t or won’t estimate the number. But the reason is almost certainly far more cynical. In 2010 (sometime between July and October), John Bates told the NSA if they knew they were collecting content of US persons, they were illegally wiretapping them. But if they didn’t know, then they weren’t in violation.

Robert Litt, general counsel for the Office of the Director of National Intelligence, which oversees the NSA, said “there is no element of the intelligence community that under any authority is intentionally collecting bulk cellphone location information about cellphones in the United States.”

NSA officials defended the mass surveillance with the same slick and dangerous parsing of words NSA uses to mislead the Forieign Intelligence Surveillance Court (FISC) and congressional overseers.(emphasis added)

But if NSA's collecting some purportedly undefinable, but undeniably enormous, number of Americans' location data were actually "unintentional" and NSA were truly not interested in data from innocent people, then it would minimize the data rather than building additional storage facilities (costing billions of taxpayer dollars) to save it for a rainy day - potentially years later - when some government official decides a previously "innocent" person is now a suspect. (Note that the government has accused both whistleblowers and journalists of Espionage in recent months). And this is the best case scenario. Worse is that, as all of this happens in secret without meaningful Court or congressional oversight, some NSA employee ignores internal regulations and pulls Geo-location data to spy on a love interest or political opponent.

Anonymous government officials again insist that the mass surveillance is "legal," when in reality, even the most generous-to-the-government reading of the law is that the legal question is unanswered, and a sound reading is that Geo-locating innocent people without probable cause is not legal. In U.S. v. Jones, the Supreme Court unanimously held that the government could not put a GPS device on a suspect's car without probable cause, much less Geo-locating someone not suspected of any illegal activity. While the Majority opinion in Jones relied on the government's trespass on private property to invalidate the GPS tracking, it made clear the Fourth Amendment implications of electronic Geo-tracking:



It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy . . .

But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.

And, a majority of the justices agreed that the Geo-location monitoring itself implicated the Fourth Amendment. Four concurring justices agreed that:For NSA to secretly conduct GPS monitoring on a massive scale, with no definable intelligence benefit, needlessly invades the privacy of hundreds of millions of innocent people in the US and abroad.