These are private circuits leased by Google and Yahoo you're talking about here, connecting data centers that they own outright. Are you arguing that because these links are geographically located in a foreign country, the NSA should be able to disregard the provenance of the data they carry?

I'm not well-versed on the applicability of the Constitution to property abroad owned by American corporations, but my guess is that the NSA can make a credible argument that because the wires and the bits are overseas, they're allowed to tap them, especially if they take measures to filter out any data of American origin in the pipes. It's a reasonable presumption that the origin of most of that data is foreign.

Yes, the companies in question are American, but Google and Yahoo go to great lengths to take advantage of the legal distinctions between operating in the U.S. and operating abroad, especially with regard to taxation. It seems a little disingenuous for them to claim now that in this context, we should ignore the distinction between operating inside the U.S. and operating outside the U.S.

Personally, I think it is disingenuous to suggest that the standard to which we hold our foreign intelligence services should have anything to do with the tax strategy of the service providers whose infrastructure it is that they are violating. These are quite clearly American companies, headquartered in America, listed on American exchanges, with the majority of their staff based in America, already cooperating fully with lawful American intercept requests (remember, that's what PRISM was).

Even if there were some John Yoo style memorandum finding this legal under some perverted legal construction, I still don't understand what could possibly justify a program like this, especially given the cost, implications, and consequences of building one.

> Personally, I think it is disingenuous to suggest that the standard to which we hold our foreign intelligence services should have anything to do with the tax strategy of the service providers whose infrastructure it is that they are violating.

I bring up taxes not to suggest some sort of tit-for-tat, but to make a point about jurisdiction. Income earned by American corporations operating abroad is not taxed by the U.S. because those operations are outside of American territorial jurisdiction. But being outside American territorial jurisdiction also has other implications beyond taxes.

> Even if there were some John Yoo style memorandum finding this legal under some perverted legal construction

I don't know if the construction would have to be all that perverted. The Constitutional balance between Congress and the President is different inside the U.S. versus outside the U.S., by design. While it's clear that American citizens retain their Constitutional rights abroad, it's also clear that the executive branch has far greater leeway and discretion when acting abroad.

What exactly did the NSA do here that's illegal? The most obvious thing might be violation of the Wiretap Act. But that's an act of Congress. Acts of Congress are presumed to only apply domestically, and the courts that have considered the issue have found the Wiretap Act to have purely domestic application. That's entirely consistent with the Constitutional scheme of Congress being a primarily domestic institution. For similar reasons, courts have rejected attempts by environmental groups to sue the U.S. Army under the environmental laws for pollution on foreign military bases.

The next thing might be some sort of trespass to private property. But trespass is state law and that certainly doesn't apply extra-territorially. I don't know, maybe there is an international common law of trespass, but I'm not aware of anything like that.

Finally, Google and Yahoo might have a Bivens claim directly under the Constitution, say for a 4th amendment violation. Off-hand, I can't think of any reason such a claim wouldn't work, and if I were Google and Yahoo I might bring such a claim just to make a point. But a Bivens action isn't criminal, it's a civil suit for damages arising out of a Constitutional violation.

Given that they knew about the distributed nature of cloud computing and computer networks it strikes me as unreasonable to claim they honestly did expect to capture domestic traffic. Furthermore, by the looks of it, they intentionally avoided knowledge of whether traffic was foreign or domestic.

It certainly looks like they intended to gain access to information they weren't allow to knowingly intercept.

Finally, you're assuming they didn't simply spy domestically - and I'm not so sure that's true. They certainly tried to make it very hard for anyone to find out, and there's no indication that any meaningful oversight or review will be permitted.

But at the end of the day there's just the general insanity of it all - the harm to american interests by trying to do to others what would be domestically illegal, and on a large scale - that's just crazy. The status quo seems to be entirely in our favor, and then some rogue agencys seem to be doing their utmost to upset it. What were they thinking?

> It's a reasonable presumption that the origin of most of that data is foreign.

I think that statement is false. Since it's known that google, yahoo and basically all major players mirror data from one data center to others to protect themselves from outages, a reasonable assumption from the technical side is that a large chunk of the data is actually American and that there is no way to figure out the nationality of the bits you're collecting. It reeks of trying to circumvent the restrictions that apply to data collection on american soil. That may still be legal by the letter of the law (all american data collected is just "bycatch"), but I doubt it's unintentional.