On this blog, we had discussed earlier the oral arguments in ACLU v Clapper. Just now, the New York District Court has ruled bulk surveillance legal, going against the decision of the Columbia District Court in Klayman v Obama (if it wasn’t already, this makes it inevitable that eventually, the United States Supreme Court will be called upon to settle the conflicting lower court decisions).
As we had discussed earlier, ACLU v Clapper consisted of two claims: a statutory one, based on S 215 of the Patriot Act, which is of no concern to us, since no parallel legislation with a similar history exists in India. The second claim was a constitutional one, based on issues of free association and privacy, which is directly relevant to India.
On a quick reading of the judgment the following important points emerge:
– contrary to ACLU’s submissions, the Court held that the 1978 precedent of Smith vs Maryland applied, which had held that an individual had no privacy interest in information voluntarily turned over to third parties (telecommunications providers). As we have discussed on this blog, the Indian courts have rejected Smith vs Maryland and its precursor, US vs Miller, in the 2004 judgment of Distt Collector vs Canara Bank. Holding that privacy is a right of persons, not places, the Supreme Court affirmed in Canara Bank that an individual has a privacy interest in personal financial documents held by a third party (the bank). [the New York court’s Smith analysis can be found in pages 39 – 43] The Court also holds that the Fourth Amendment lays down a standard of reasonableness, and does not require that the “least intrusive method” be used when carrying out a search within the terms of the Constitution. Again, arguably, the position is different in India. As we have seen, the compelling State interest test for privacy violations goes hand-in-hand with narrow tailoring, as is evident by the rules framed by the Court in PUCL vs UoI, and those accepted as constitutional in State of Maharashtra vs Bharat Shantilal Shah, which categorically required the government to explore other, less intrusive methods of surveillance before carrying out interceptions, and also required it to intercept to the minimum extent possible to carry out its goals.
– The Court also ruled that the argument that bulk collection would have a chilling effect on the freedom of association was not well-founded. To recap: ACLU had argued that the knowledge that is call records were being collected would lead to a “chilling effect” in that it would restrict the communication and association rights of hostile and unpopular (yet legal) groups, who would self-censor in an attempt to avoid governmental knowledge of their activities. The reasoning of the Court appears to be that what was taking place was only collection; actual querying of the metadata to reveal specific information could be undertaken only on specific grounds. Since the likelihood that ACLU’s data itself would be queried and reviewed rested upon an “attenuated chain of possibilities“, the chilling effect had not been proven. In this way, the Court implicitly distinguished prior cases like NAACP vs Alabala, where for instance, a group treated with hostility by the government had been required to reveal its membership lists. Whatever the merits of this argument, once again, the key point upon which it turns is that the NSA surveillance is restricted to metadata collection. Consequently, the logic does not apply to something like the CMS, which is all about intercepting bulk content. [see pages 45 – 46 for the First Amendment analysis]
An extraordinary statement at the end:
“The effectiveness of bulk telephony metadata collection cannot seriously be disputed.” [p. 48]
However, as Klayman found, that is precisely what is under dispute. In the fifty-four instances cited by the government, it had failed to demonstrate that the outcome would have been materially different in anyone. (see here for an analysis). In other words, there is a familiar story here: in a national security case, a judge takes the executive’s words at face value, and accords an extremely high level of deference. The Indian courts have an ignominious history in this regard (Habeas Corpus), and it will be crucial how this particular claim is treated in the Indian courts.
The New York court ruling is certainly a blow for privacy rights. Like Klayman vs Obama, Indian privacy lawyers ought to study it carefully, not only because of what it holds, but because of what implicitly follows: if the holding of legality is founded upon legal arguments that have been considered and rejected by the Indian Supreme Court, and upon factual premises directly opposed to those prevailing in India, ACLU vs Clapper might – paradoxically – be more of an ally than an enemy in the fight against bulk surveillance.