Spying on Americans

America is waking up to what's legal.

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(Mladen Antonov/AFP via Getty Images)
A privacy activist encourages the NSA to "stop spying" during a protest in downtown Washington, D.C., July 04, 2013.

It wasn't all that long ago that the U.S. Director of National Intelligence, James Clapper, testified before Congress that the National Security Agency wasn't "wittingly" spying on millions of Americans.

Shortly after The Guardian and The Washington Post broke stories about NSA's technology capabilities based on classified documents and slides provided to them by former NSA contractor Edward Snowden, Clapper said "no, sir" in his answer to Sen. Ron Wyden, D-Ore., who had asked the question: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"

Clapper later sent a letter to the Senate Intelligence Committee on June 21, clarifying his answer and stating he'd misunderstood the question he'd been asked, "I have thought long and hard to re-create what went through my mind at the time," Clapper wrote. "My response was clearly erroneous – for which I apologize."

Nearly all of this has now been forgotten – thanks to Snowden's relentless pursuit of both a hideout and fame, as opposed to whether America's national security apparatus and modern technology is being used to keep track of Americans. NSA is almost assuredly breathing a sigh of relief at this turn of events.

[READ: National Intelligence Director Apologizes for Lying to Congress About NSA Surveillance]

What has been quite lost in the new Snowden drama and long-distance courtship with Nicaragua's Daniel Ortega and Venezuela's Nicolas Maduro is what was apparent in the slides and documents he released. Simply because the technology is capable of doing so – and because the safeguards in place to keep it from doing so are limited or even nonexistent – the NSA's filtering technology does spy on Americans. It may be inadvertent, it may just be data collection, and it may be mostly benign – but it's still spying.

Clapper was technically correct that nothing has been put in place to specifically or deliberately spy on and target individual Americans. But news stories from the Guardian about both the PRISM operation at NSA, as well as the TEMPORA program that British intelligence agency GCHQ was using to tap into fiber optic cables, phone calls, Internet traffic, Facebook posts and emails – and which it was sharing in real time so that dozens of NSA analysts could sift through the massive data streams – paints a clear picture.

In short, Americans' private activities via mobile and Internet sites were pulled into the massive needle-in-the-haystack sorting machine that highly sophisticated computer software technology now makes possible. It's legal. It's designed to identify security concerns. It's been successful in stopping potential threats. But Americans are being spied on in the interest of national security nevertheless.

[BROWSE: Cartoons on the NSA Surveillance Scandal]

The real question at this point is NSA's intention. What does it intend to do with vast streams of private information on Americans that it filters each day? Because there's no easy way around the logic of what's emerged in the past few weeks - the technology exists to filter out specific information on Americans on U.S. soil, it's permissible by law, and it's being done.

The good news is that Snowden's leaks to both the Post and the Guardian on PRISM and TEMPORA have sparked a much-needed debate about the pervasive nature of technology and its relationship to our basic rights – specifically, our privacy.

What has emerged – painfully, chaotically and in the same sort of data torrent that NSA and other intelligence agencies regularly filter on a daily basis – is a truer picture of how security agencies do, in fact, sweep up massive amounts of information about Americans in order to identify security threats.

"What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls and the NSA cannot target your emails," President Barack Obama said in his June 17 interview on PBS's "Charlie Rose Show."

[ALSO: After NSA Surveillance, Protesters Rally In Dozens of Cities to 'Restore the Fourth']

While this is certainly true, it also begs the much larger question at hand – while it may not be legal or acceptable to target U.S. citizens, it's become obvious that NSA has a great deal of latitude to collect, sort, and filter the contents of emails, calls and web-based communications that are being swept up as part of the security agency's court- and congressionally-approved monitoring of a target overseas.

More technology won't necessarily save us, but a real national conversation about a philosophy of restraint and the trade-offs between security and liberty just might. Technological advances will continue to roll out, but we are now at a crossroads – as a nation, we need to decide just how much liberty we're willing to trade for security.

In 1940, Charlie Chaplin's The Great Dictator condemned a growing threat in the world. Parts of Chaplin's stirring speech are especially relevant today - the era of technology's ability to sift through big data for personal identifiers: "Machinery that gives abundance has left us in want," Chaplin said. "More than machinery we need humanity."

Just because we have the technological ability to sort through everyone's social interactions to find useful information for potential advertisers (which appears to be Facebook's business model) or comb through emails, phone calls and Internet traffic (the NSA data-sweep model) doesn't mean that we should do so. Something can be both possible and legal – and still not be right.

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