Since 2005 families across the country have been using The Elf on a Shelf to watch their children and report back to Santa about whether the kids should be on the Naughty List or the Nice List. Not to be out-done by the Big Guy at the North Pole, Congress added a provision to the Foreign Intelligence Surveillance Act in 2008, known as Section 702. However Section 702 was never supposed to be used to spy on Americans; and unlike the fictional elf that doesn’t actually send intelligence data to Santa, the NSA is actually collecting data on an untold number of Americans.

The number may not be a secret much longer, though. Reuters reports the House Judiciary Committee sent a letter to National Intelligence Director James Clapper in mid-December requesting “an estimate of the number of Americans whose electronic communications have been caught in the crosshairs of online surveillance programs intended for foreigners.”

The letter from 11 members of the Committee states, “The timely production of this information is incredibly important to informed debate on Section 702 in the next Congress— and, without it, even those of us inclined to support reauthorization would have reason for concern.”

This is a dramatic shift from just over three years ago when Senator Ron Wyden asked Clapper “does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” To which Clapper responded, “No, sir… Not wittingly.”

Not long after this answer by Clapper, the PRISM & Upstream programs were made public thanks to whistleblower Edward Snowden and journalists like Glenn Greenwald . Clapper, when asked about his statement that the NSA does not collect data on millions of Americans said “I responded in what I thought was the… least untruthful manner, by saying no.”

Prism allows the NSA to gather “data from Alphabet Inc’s Google, Facebook , Microsoft, Apple and other major tech companies [involving messages] that [are] sent to and from a foreign target under surveillance.” Reuters adds, “Upstream allows the NSA to copy web traffic flowing along the internet backbone located inside the United States and search that data for certain terms associated with a target.”
The Judiciary Committee’s request is for a real numbers estimate of Americans being spied upon as soon as January that can be shared with the public.

Federal officials claim “that calculating the number of Americans subject to Section 702 surveillance might be technically impossible and would require privacy intrusions exceeding those raised by the actual surveillance programs.” Though exactly how determining the number of people being surveilled by the NSA requires greater privacy intrusions than what is already being done seems to be an excuse by Clapper & Co to not reveal how many Americans are having their Fourth Amendment Rights violated.