Just now, the US Federal Court has held that the NSA’s bulk metadata telephony surveillance is “likely unconstitutional” under the Fourth Amendment. “Likely” because this was a motion for a preliminary injunction, and the grounds for an injunction are based upon the plaintiff’s likelihood of success.
I haven’t had time to read the judgment in detail, but a quick skim-through reveals that under the two-step Fourth Amendment test, the Court found, first, that people have a reasonable expectation of privacy in their telephone data, because of the sheer volume of personal information that is transacted via phone; and on an investigation of evidence, the Court found that the infringement was unreasonable, because there was no evidence to demonstrate that the compelling State interest – that of protecting national security – was actually being served effectively by said collection. On p. 64, the Court observes:
“I cannot imagine a more indiscriminate and arbitrary invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for the purpose of querying and analyzing it without prior judicial approval. Surely such a program infringes on the degree of privacy that the Founders enshrined in the Fourth Amendment.”
Indian privacy lawyers would do well to study this judgment closely. As we have argued before in this blog, the two-step Fourth Amendment test is materially similar to Article 21’s right-to-privacy/compelling State interest test. Of particular interest is the Court’s conclusion that:
(a) We do have a reasonable expectation of privacy in our telephone records
(b) The government cannot simply assert national security; the burden lies upon it to actually show that bulk surveillance is effectively serving this purpose – and that is, show through demonstrable evidence of terrorist attacks foiled or prevented.
(c) The absence of judicial approval for mass surveillance is constitutionally fatal.
All of these positions are extremely relevant for the constitutionality of the CMS. We shall see how this judgment progresses through the Courts.