Even though the capability exists, that does not mean that the NSA is using it to read Americans' emails. Indeed, as defenders of the NSA spying program point out, American citizens and residents are legally protected against warrantless email searches.
However, there are some seemingly minor loopholes with respect to Americans' protections against these email searches. Owing to these loopholes, nearly every American is susceptible to being secretly spied on by his or her government.
If a foreigner is under surveillance, and an American mentions the name of that foreigner in an email, his or her own email can be searched by NSA without warrant or justification (2).
If an email message is conveyed across a server located in another country, it is considered a "foreign communication" and is subject to a warrantless search (3).
The three hop rule
If a United States citizen or resident (person "A") has ever communicated with an individual (person "B") who has ever communicated with a person ("C") who has ever communicated with someone (Person "D") who has had contact with someone who is suspected of terrorism, that United States citizens is susceptible to warrantless searches of his or her email (4).
Every Internet user on earth is about 4.74 "hops" away from every other Internet user on earth (5). Every Facebook user is, on average, 3.74 hops away from every other Facebook user (6). If, in your lifetime, you have interacted online with 1000 people, you are only 2 hops away from everyone else in the United States (6).
The chance of being 3 hops away or less from a terrorist is a function of how many individuals are on the terrorist watch list. Approximately 875,000 people are on that watchlist, including people who have been cleared of any connection to terrorism, a two year old boy, and the Ford Motor Company (7).
Thus, it is very unlikely that a typical American benefits from legal protections against secret, warrantless searches. The same rules and loopholes apply to the content of phone calls. If you are unwise enough to discuss tax evasion or trade in illicit drugs using email or phone, the NSA will share the information with law enforcement officials at its discretion. However, law enforcement officials are advised to conceal the fact that they obtained evidence from the NSA (3).
Someone who remembers living under the Stasi in East Berlin offers some wise words: “It is the height of naivete to think that once collected this information won’t be used,” he said. “This is the nature of secret government organizations. The only way to protect the people’s privacy is not to allow the government to collect their information in the first place (8).”
(1) http://www.theguardian.com/world/2013/jul/31/nsa-top-secret-program-online-data
(2) http://www.nytimes.com/2013/08/08/us/broader-sifting-of-data-abroad-is-seen-by-nsa.html?hp&_r=1&pagewanted=all&
(3) http://www.forbes.com/sites/jennifergranick/2013/08/14/nsa-dea-irs-lie-about-fact-that-americans-are-routinely-spied-on-by-our-government-time-for-a-special-prosecutor-2/
(4) http://www.theatlanticwire.com/politics/2013/10/conservative-reporter-says-feds-took-her-files-while-searching-home-guns/70941/
(5) http://math.stackexchange.com/questions/446150/given-average-network-diameter-how-many-nodes-are-three-hops-away
(6) http://www.theguardian.com/commentisfree/2011/nov/23/facebook-degrees-of-separation
(7) http://www.washingtonsblog.com/2013/07/nsa-spokesman-accidentally-admits-that-the-government-is-spying-on-all-americans.html
(8) http://www.mcclatchydc.com/2013/06/26/195045/memories-of-stasi-color-germans.html#.UedhLJFx0xB
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