Over the past six months, the sweeping surveillance powers of the US National Security Agency have been repeatedly criticised in the wake of the revelations by Edward Snowden, the former NSA contractor. Few of those criticisms have been quite as damning as the one delivered this week by Richard Leon, a judge with the district court for the District of Columbia.
In a case brought by two legal activists, Judge Leon was asked to determine whether the NSA’s seven-year programme for the collection of Americans’ phone data violates the US constitution. He said it “almost certainly” does. He described the NSA’s power to engage in the systematic collection of phone data as something “almost Orwellian”, a phenomenon that would have left James Madison, the author of the US constitution, “aghast”. Among the more striking features of this broadside is that it comes from a judge appointed by George W Bush.
The broad issue that Judge Leon looked at is the NSA’s power to collect metadata – the record of who is telephoning whom, when the call is made and for how long. Defenders of the NSA argue that the acquisition of phone metadata only allows the agency to see the context in which a call is made, establishing links between potential terrorists. It does not give the NSA access to the content of calls.