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Breaking: ACLU vs Clapper holds Bulk Surveillance Legal – Implications for India

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 UoIand 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.

 

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Surveillance and Privacy in India – VI: The Third Party Doctrine and Untidy Endnotes

I must thank Amlan for bringing to my attention an important aspect of the Canara Bank case, that I overlooked in my discussion in the last post. I had pointed out how Canara Bank departed from the American Supreme Court case of Miller in basing privacy upon a personal, as opposed to propertarian, foundation (“privacy is of persons, not places”). Miller, however, also stood for an important proposition known as the “third party doctrine”, which has direct implications for the law of privacy in the context of the CMS. It is crucial to examine Miller in relation to Canara Bank with respect to that. Amlan rightly pointed out that if Canara Bank rejects the third-party doctrine, then this has profound implications for the constitutionality of CMS-surveillance; we must therefore pay close attention to the issue.

Before we commence, one distinction: there is a difference between telephone tapping (that Malkani held certainly violates a privacy interest), and telephone records that are held by telephone companies and are then turned over to the government (the NSA’s PRISM project, the GCHQ’s Tempora Project, and our very own CMS). The third-party doctrine isn’t applicable to the Malkani case of the government directly tapping your line, but becomes very important precisely when the information is routed to the government via a third party (in this case, the telecom companies). Since there is no settled case in India (to my knowledge) on CMS/PRISM style surveillance, we must examine the third-party doctrine as developed elsewhere.

Recall that in United States vs Miller,  the question was whether a person had a privacy interest in personal records held by a bank. The Court held he did not, since:

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”

This is known as the third-party doctrine. Speaking for four members of the Court in dissent, Justice Brennan rejected it, reasoning that:

[A] depositor reveals many aspects of his personal affairs, opinions, habits, associations. Indeed, the totality of bank records provides a virtual current biography. . . . Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds.”

Three years later, in Smith vs Maryland, the question arose whether a pen register (that is, an electronic device that records all numbers called from a particular telephone line), installed on the telephone’s company’s property, infringed upon a legitimate expectation of privacy. The Court held that it did not, because:

Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

Smith vs Maryland is essentially the third-party doctrine applied to telephone records. Records in question are knowingly and voluntarily passed on to a third party (the telephone company), the customers being aware that the third party is storing and recording them. Consequently, there is no reasonable expectation of privacy. Of course, there is a gap in the logic: the fact that we have no reasonable expectation of privacy against the telephone company storing and recording our data does not mean that we have no reasonable expectation of privacy that government will not do so. Nonetheless, Smith vs Maryland was what the government has relied upon in the recent NSA litigations across American District Courts. In the oral arguments in ACLU vs Clapper, for instance, which we have discussed previously on this blog, the government’s entire privacy argument was based upon the Smith vs Maryland holding, and ACLU’s counter-arguments turned upon how, in the last thirty years, the use of the telephone had increased so much, with so many personal details now part of phone records, that Smith no longer held the field.

This week, in Klayman vs Obama, Judge Leon at the Columbia District Court accepted in substance, the ACLU argument. He observed that “the relationship between the police and phone company in Smith is nothing compared to the relationship that has apparently evolved over the last seven years between the Government and telecom companies” – that is, a formalized policy as opposed to a one-time collection. Judge Leon then went on to hold that not only was the government’s surveillance technology vastly more all-encompassing than it had been in 1979, but also that “the nature and quantity of information contained in peoples’ telephony data is much greater as well.” The “ubiquity” of phones had altered both the amount of information available, and what that information could tell government about peoples’ lives (and indeed, previously on this blog we have discussed how bulk surveillance of telephone records can enable government to construct a complete record of a person’s social, sexual, religious and political mores). Consequently, Judge Leon held that there was likely to be a reasonable expectation of privacy in telephone records.

Does Canara Bankin rejecting Miller, reject the third-party doctrine as well? I think it does so, although not unambiguously. In the Court’s mind, the third party doctrine is a corollary of the propertarian theory of privacy. Thus, in paragraph 54, the Court observes:

Once we have accepted in Govind and in latter cases that the right to privacy deals with ‘persons and not places’, the documents or copies of documents of the customer which are in Bank, must continue to remain confidential vis-a’-vis the person, even if they are no longer at the customer’s house and have been voluntarily sent to a Bank.

The Court here conflates “no longer at the customer’s house” (persons v places) and “voluntarily sent to the Bank” (third party). Because even if one holds that the right to privacy belongs to persons and not places, it is logically possible to hold that once one voluntarily turns over one’s information to someone else, one no longer has a privacy interest in it. The Court, however, expressly forecloses that option by reading the two together – because the right of privacy belongs to persons and not to places, therefore we retain our privacy interests even in those documents that we have voluntarily turned over to a third party. In other words, the Court’s logic appears to be that the nature of the documents vis-a-vis us remains unchanged despite their location shifts from beyond our control, even if this shift is knowingly and voluntarily cause by us. Thus, it would appear that Canara Bank adopts a particular conception of privacy-interests-belong-to-peoples-and-not-places, one that rejects the third party doctrine. To repeat: this is not the only way in which we can understand the people/places distinction; conceptually, people/places and third-party come apart, as they have done so in American law. What we have tried to do here is to make sense of the Canara Bank holding, and I submit that the only way to do so is to understand Canara Bank as rejecting third party through one specific conception of people/places. Thus, the Smith v Maryland argument is not open to the government if it wishes to collect data from telecom companies or, in the case of the internet, ISPs. In light of Canara Bank, the privacy interest remains.

We may now end our substantive privacy law discussion by a brief examination of two cases whose locus lies in the domain of medical tests, although in differing areas. Selvi v State, decided in 2010, involved the constitutionality of narco-analysis and polygraph tests during police investigations, and the testimonial statements obtained therefrom. The Court had no trouble in finding that, insofar as these techniques interfered with a person’s mental processes in order to elicit information from him, they infringed his right to privacy. The Court then summarily rejected the State’s argument of a compelling interest in eliciting information that could lead to the prevention of crime, holding that: “There is absolutely no ambiguity on the status of principles such as the `right against self-incrimination’ and the various dimensions of `personal liberty’. We have already pointed out that the rights guaranteed in Articles 20 and 21 of the Constitution of India have been given a non-derogable status and they are available to citizens as well as foreigners. It is not within the competence of the judiciary to create exceptions and limitations on the availability of these rights.”

This passage is curious. While a non-derogable right need not be an absolute right, our privacy jurisprudence suggests that the right to privacy is indeed derogable – when there is a compelling State interest. Insofar as Selvi goes beyond the accepted doctrine, it is probably incorrectly decided; nonetheless, it affirms – once more – even if only through contentions made by the State, that the relevant standard for infringement is the compelling interest standard. Furthermore, in subsequently investigating whether compelled undertaking of narco-analysis or polygraph tests are actually likely to reveal the results that the investigating authorities need – and finding them unconstitutional because they don’t – the Court takes a path that resembles narrow tailoring.

Lastly – and most recently – Rohit Shekhar v Sri Narayan Dutt Tiwari dealt with a Court order requiring a compulsory DNA test in a paternity dispute. After lengthy citation of foreign precedent, the Court entered into a bewildering discussion of the relationship between DNA tests and the right to privacy. It held that depending upon the circumstances of a case, mandatory testing would be governed by a number of factors such as a compelling interest, a probable cause, decreased expectations of privacy, and so on. (Para 79) It then went on to hold: “forced interventions with an individuals privacy under human rights law in certain contingencies has been found justifiable when the same is founded on a legal provision ; serves a legitimate aim ; is proportional ; fulfils a pressing social need ; and, most importantly, on the basis that there is no alternative, less intrusive, means available to get a comparable result.” This is extremely strange, because the first three conditions form part of a classic proportionality test; and the last two are – as readers will recognize – the two parts of the compelling state interest – narrow tailoring test. Indeed, the Court contradicts itself – “legitimate aim” and “pressing social need” cannot both be part of the test, since the latter makes the former redundant – a pressing social need will necessarily be a legitimate aim. Consequently, it is submitted that no clear ratio emerges out of Rohit Shekhar. It leaves the previous line of cases – that we have discussed exhaustively – untouched.

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Oral arguments in ACLU v Clapper – II: How Surveillance affects Free Speech and the Freedom of Association

(As an addendum to the previous post, this piece explains exactly how much information can be gleaned from metadata surveillance.)

Recall that we are discussing the American Union for Civil Liberties’ challenge to the NSA’s bulk surveillance program, something that is directly relevant to India, in light of our own central monitoring system (CMS), that goes much further. In the last post, we discussed the implications of bulk surveillance upon privacy. But in addition to making the privacy argument, ACLU also argued that bulk surveillance violates the freedom of association, implicit in the American First Amendment, and upheld by a long line of cases. In India, of course, that right is expressly guaranteed by the Constitution.

In order to understand ACLU’s freedom of association argument, we must first look to the 1958 American Supreme Court decision of NAACP Alabama. Recall that the deep South in the 1950s practiced large-scale and widespread de facto discrimination against coloured people. The National Association for the Advancement of Coloured People (NAACP) had opened an office in the southern state of Alabama, and had “given financial support and furnished legal assistance to Negro students seeking admission to the state university; and had supported a Negro boycott of the bus lines in Montgomery to compel the seating of passengers without regard to race.” Arguing that this was causing “irreparable injury to the property and civil rights” of the citizens of Alabama, the state imposed various requirements upon the NAACP, one of which was a requirement to disclose its membership lists. NAACP refused. The state filed a restraining order. NAACP challenged. The Court’s opinion, upholding the claims of the NAACP on behalf of its members, deserves to be quoted in full:

“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”

“It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective a restraint on freedom of association… this Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said… “a requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.” Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

In constitutional law, NAACP’s argument is invoking a doctrine known as the “chilling effect“. Basically, the idea is that if certain pre-existing burdens – legal or otherwise – are attached to exercising certain rights in certain broadly-specified ways, then people, out of caution, fear or prudence – will simply refrain from effectively exercising those rights altogether. The classic example is – unsurprisingly – that of free speech. This (somewhat real) hypothetical ought to drive home the point: suppose there is a law that bans “offensive” speech. The government might be motivated by the lawful and legitimate interest in protecting historically ostracized communities from continuous, vituperative hate speech. Nonetheless, the word “offensive” is so inherently subjective and open to manipulation, that it will lead people – fearing prosecution – to self-censor and to stop engaging even in perfectly legal speech not contemplated by the statute.

The situation is not always as clear-cut as the one outlined above, and often needs an investigation of various social factors, combined with a fair-sized helping of judicial common sense. For instance, in Shelton v Tucker, an Arkansas law required all publicly-employed teachers to disclose the organizations which they had been part of over the previous five years. The state argued that the schools needed the information to make judgments on the competence of teachers before hiring or extending their contracts – certainly, a legitimate objective. There was nothing on the record to suggest that the information would be missed. Nonetheless, the Court held:

“Such interference with personal freedom is conspicuously accented when the teacher serves at the absolute will of those to whom the disclosure must be made — those who any year can terminate the teacher’s employment without bringing charges, without notice, without a hearing, without affording an opportunity to explain… the statute does not provide that the information it requires be kept confidential. Each school board is left free to deal with the information as it wishes. The record contains evidence to indicate that fear of public disclosure is neither theoretical nor groundless. Even if there were no disclosure to the general public, the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy.”

Investigating whether or not there was a compelling state interest, the Court applied the familiar strict scrutiny test, and held:

“The statute requires a teacher to reveal the church to which he belongs, or to which he has given financial support. It requires him to disclose his political party, and every political organization to which he may have contributed over a five-year period. It requires him to list, without number, every conceivable kind of associational tie — social, professional, political, avocational, or religious. Many such relationships could have no possible bearing upon the teacher’s occupational competence or fitness… in a series of decisions, this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.”

And in Local 1814 v The Waterfront Commission, the question was whether there could be compelled disclosure of all of a labour union’s members who had authorized payroll deductions for contributions to a political action committee, for the purposes of investigating coercion. The Court of Appeals held:

“We believe that compelled disclosure of the Fund’s contributors under the circumstances of this case would give rise to a chilling effect similar to the one recognized by the Supreme Court in Shelton v. Tucker, supra. The Waterfront Commission has undeniably broad powers of control over waterfront labor. It has the responsibility of supervising the hiring and assignment of all longshoremen. The Commission has the power to cause longshoremen to lose their jobs by removing or suspending them from the longshoremen’s register… Refusal to answer questions or produce evidence in a Commission investigation may be grounds for revocation or suspension from the register… we agree with the District Court that there is a substantial danger that longshoremen will perceive a connection between contributing to the Fund and being called before the all-powerful Commission. Some chilling effect on some contributors would be inevitable.”

Each of these three cases were cited and relied on by ACLU before the District Court. The argument is now self-evident: bulk surveillance of telephony metadata, as we discussed in the previous post, over time reveals patterns of data that, in turn, reveal associational information about people. The government did not deny this – in fact, it could not deny it, considering that its entire case was based on just how effectively bulk surveillance did reveal associational patterns! The question then, was two-pronged: whether there was a chilling effect, and whether a compelling state interest justified the consequent violation of the First Amendment’s freedom of association.

The judge asked ACLU what evidence there was to demonstrate a chill (and indeed, the government, in its response, would contend that there was no evidence demonstrating that anybody had been chilled). ACLU argued that none of the cited cases had relied upon evidence demonstrating a chill – in fact, bringing forth such evidence would essentially involve proving a negative. You would have to effectively prove that someone who would have otherwise spoken to you didn’t speak to you because of the chilling effect – and how could you ever do that? This was why the Supreme Court and the Court of Appeals had adopted the common sense approach – and surely, if the entire society was subjected to surveillance, that would certainly involve the unpopular, dissident (yet perfectly legal) groups that are the inevitable victims of any chilling effect. That is to say, if I know that all my associational patterns are known to the government, I might well consciously or subconsciously refrain from associating with unpopular  or dissident groups.

The government also argued that the First Amendment wasn’t implicated in this case, because it wasn’t directed at ACLU. The purpose was’t to penalize expressive activity. The judge nonetheless enquired whether a good faith investigation could – nonetheless – impair the freedom of association (the state responded that it couldn’t, in this case); and in its reply, ACLU argued that even an indirect burden on an expressive activity, or an associational activity, requires exacting scrutiny. As Alexander Abdo, counsel for ACLU, ended by observing:

Imagine that the government comes to your house each night and compels you to hand in all your call records for that day. Is that not a clear violation of the Fourth and First Amendments?”

By corollary, of course, this entire argument applies with equal force to free expression (19(1)(a)). There are, therefore, two questions that we must consider: to what extent do Articles 19(1)(a) and 19(1)(c) embody the doctrine of the chilling effect; and what standard of scrutiny is applicable under 19(2) and 19(4). There is a substantial amount of case law on how to interpret the “reasonable restrictions in the interests of… the sovereignty and integrity of India…” limitations, and most of it points towards a general proportionality test. Once again, though, it is at least arguable that the sheer scale and extent of bulk surveillance calls for more exacting scrutiny; and in any event, even under the proportionality test, the government would need to produce at least substantial evidence to show that it cannot achieve its objectives through less intrusive surveillance.

To sum up, then: bulk surveillance implicates three crucial constitutional rights: privacy (21), expression (19(1)(a)) and association (19(1)(c)). The oral arguments in ACLU Clapper reveal the numerous complexities involved, and point the way forward towards the debate that must be had in India: what conception of privacy does our Constitution commit us to? Does bulk surveillance serve a compelling state interest? Could the same objectives be achieved by a narrower tailoring? Does bulk surveillance cause a chilling effect upon expression and association? And if it does, when and how – if ever – can it be justified?

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Surveillance, privacy, association and the Constitution – I: Oral arguments in ACLU v Clapper

Earlier this year, ex-NSA contractor and whistleblower Edward Snowden revealed the industrial-level surveillance of private communications undertaken by the American government. One feature of the American surveillance program is what is known as “telephony metadata collection“.  Under this, all the details of phone conversations minus the actual content of the call – that is, the two numbers involved, the time and duration of the calls etc – are intercepted and stored in a vast database maintained by the National Security Agency. Later in the year, The Hindu revealed that the Indian government’s Central Monitoring System was doing something very similar (the technical details of how the two programs differ is not relevant at the moment, because CMS surveillance is at least as intrusive as NSA surveillance – and in actual fact, is more so). For details, refer to the CIS website here, and articles here and here.)

NSA surveillance was challenged on statutory and constitutional grounds by the American Civil Liberties Union, and the oral arguments took place today morning at the Southern District Court of New York. In what follows, I summarize today morning’s proceedings, because ACLU’s two core constitutional arguments – violations of the rights to privacy and free association – are fundamental constitutional rights in India as well (Article 21 and 19(1)(c)). Examining the constitutional debate in the United States, therefore, can help us understand precisely what is at stake – constitutionally – as far as the CMS goes.

(Caveat: I reconstruct the following from my hurriedly-taken courtroom notes. For a full account of ACLU’s written submissions, please refer to their website here).

As mentioned above, ACLU rested its claims on statutory and constitutional grounds. The statutory argument involved a detailed analysis of Section 215 of the Patriot Act, the likes of which do not exist (thankfully!) in India. The relevant statutory provisions in India are the S. 5 of the Telegraph Act, and S. 69 of the Information Technology Act (along with the 2009 Rules). So while ACLU’s statutory arguments are of limited relevance, it is important to underscore the following: S. 215 of the Patriot Act requires a relevance requirement before data can be collected. Similarly, the IT Act requires the government to be convinced that it is “necessary or expedient” in the interests of the security or integrity of the state etc. – a standard that permits at least a degree of judicial review. One of the arguments made by ACLU was, given that constitutional rights were implicated, the Patriot Act (and other associated legislation) should be construed a manner that preserved – and did not putatively violate – the rights of privacy and free association. That argument, of course, applies to India as well.

Another important takeaway from the statutory arguments was ACLU’s argument that a statutory authorization of individual, targeted surveillance operations did not amount to the massive dragnet operation that the NSA was carrying out. Both because of the sheer scope and because of its potentially limitless extension, mass telephony metadata surveillance could not simply be equated to an individual targeted operation, given that it raised a whole host of issues not ordinarily implicated in standard cases of surveillance. This is critically important, because the 2003 case of PUCL v. Union of India is taken to establish that S. 5, Telegraph Act permits surveillance in general. PUCL, however, did involve individual targeting, and therefore, ACLU’s arguments suggest the first important legal issue for us to consider: does the PUCL opinion legitimate CMS surveillance as well? If the answer is yes, then the potential consequences could be devastating – especially because, amongst the procedural safeguards mandated by the judges in that case, one is conspicuous by its absence: judicial authorization of surveillance. Even the United States, that has, over the past few months, come under sustained criticism for blatant privacy violations, has something called a FISA Court that is – admittedly, in ex parte proceedings – required to authorize surveillance before it can be carried out. The idea that government can carry out surveillance of citizens’ private data on a nationwide scale with a single-step legitimation process that involves no more than administrative review will have radical consequences for a number of important constitutional principles, not least the separation of powers.

However, as the ACLU’s constitutional arguments show, there is a strong case to be made out for the proposition that bulk surveillance does differ, not only in degree but in kind – from individual surveillance, and that therefore, PUCL does not hold the field. Let us therefore, now, turn to the Constitutional case.

ACLU’s first argument rested upon the Fourth Amendment to the American Constitution, that – inter alia – prohibits an unreasonable search. Two questions arise in an American fourth amendment enquiry:  first, has there been a search? And secondly, is the search reasonable? It is around the first question that the American Supreme Court has developed its privacy law jurisprudence. In Katz vs United States, it held that there exist “spheres of privacy” belonging to each individual, which government may not penetrate. What constitutes a protected sphere of privacy depends upon whether or not citizen have a reasonable expectation of privacy. So – as the US Supreme Court has held, for example, I do not have a reasonable expectation of privacy as I walk down a public road, but I do have a reasonable expectation of privacy within my own home. What constitutes “reasonable expectation” seems – largely – to be culturally determined.

Two questions arose with respect to the issue of “search” (i.e., scope of privacy). The first crucial point – that the judge made, and which the government argued – was that on one theory of privacy, the breach occurs not at the moment that the data is collected, but at the moment at which it is subsequently queried to reveal patterns of association. This would mean that the surveillance as such violates no privacy right. ACLU, on the other hand, argued that the very nature of the right to privacy was that it closed off certain spheres from governmental intrusion – and consequently, privacy was violated at the moment of penetration, independent of what was done with the data afterwards. The basic question, according to ACLU, was whether people had a reasonable expectation of privacy with respect to their phone records and the various associational inferences that could be drawn from them. The answer, it was argued, was an unequivocal yes, because of the very nature of metadata surveillance: sociologically – and this is a vitally important point –  it has been shown that a detailed enough metadata trawl can reveal as much information about someone as a straightforward content trawl. As ACLU’s lawyer argued, the government can know when you last called your doctor, your lawyer, your stock-broker, your pastor, your ex-girlfriend, and so on. Over time, a pattern of associational relations would build that would reveal huge amounts of information about your personal life – and surely that was a violation of a reasonable expectation of privacy.

The government also argued, by relying on precedent, that it had already been held by the Supreme Court that there was no reasonable expectation of privacy in phone records. ACLU distinguished the case by arguing that previously, the Court had only considered a specific, temporary targeting – whereas this was bulk targeting, and potentially limitless. This takes us back to our earlier point about the distinction between individual targeting and bulk targeting, which assumes specific importance in light of PUCL.

The second fourth Amendment question was whether, if there was a search (privacy intrusion), it was reasonable. The government argued that there was a compelling state interest at hand, that of counter-terrorism. Counter-terrorism was necessarily prospective in nature. It was designed to detect, disrupt and prevent future terrorist attacks. Consequently, what the intelligence agencies needed to detect was patterns over time and over different (phone) carriers. Such information or connections could not be known at the outset, which is why ACLU’s proposal – of only carrying out surveillance of individuals with known links to terrorist organizations – could not work (although many of these arguments were made in the statutory context, they are equally relevant for understanding the government’s definition of compelling interest). In responding to a question from the judge as to whether bulk surveillance was uniquely suited to achieve governmental objective, the government argued that no other mechanism was as timely or effective. Given all this, it was clear that by placing limits on what part of the data could be queried post-search, it was clearly a narrowly-tailored intrusion, and hence reasonable.

ACLU, on the other hand, argued that the government had produced no evidence to show that bulk surveillance was actually necessary to achieve the objectives of counter-terrorism. ACLU produced evidence to the effect that in most circumstances, a three-hop trail was enough. This is what a three-hop trail is: suppose you have a suspected terrorist, X. You place his phone under metadata surveillance. You then do the same with all the persons he contacts, then all the persons they contact, and then repeat the process once more (three steps). In any event, on the government’s own argument, the only occasions on which surveillance had actually led to a substantive outcome had been simple cases of one-hop.

Readers should now be in a position to recognize that our own fledgling privacy jurisprudence, evolved out of three cases, Kharak Singh v State of UPGobind v State of MP and R. Rajgopal v State of TN, and placed under the all-ecompassing rubric of Article 21, is utterly inadequate to deal with the complex issues raised by bulk metadata surveillance, or other forms of bulk surveillance. There are two questions of particular urgency: first, what is the philosophy of underlying our Article 21 right to privacy? If it’s something like the Katz standard, protecting zones or spheres of privacy from any intrusion, then the mere collection of records could constitute an infringement; pre-Katz law, on the other hand, which seemed to focus more on common law trespass, might not reach the same outcome. Gobind and Kharak Singh tell us nothing, being good, old-fashioned house-surveillance cases. In light of the sheer scope of CMS and government surveillance, this is a debate that must be had now. And secondly, once an infringement of privacy has been demonstrated, what burden of justification is placed upon the government? In today’s hearings, both sides seemed to argue upon a strict scrutiny standard: namely, that the government had to show a compelling state interest, as well  show that no less intrusive measure could serve that compelling state interest than the measure it had chosen (bulk surveillance). The question of whether or not strict scrutiny applies in India is a minefield that we cannot venture into now; but the basic question remains – given the amount of intrusion that the current surveillance system puts into place, what standard is government to be held to (I’m not here referring to the statutory burden under the IT Act, but the constitutional burden of justifying an infringement of privacy). Can the government simply claim deference from the Courts as long as it can demonstrate some reasonable relationship with its objectives of counter-terrorism, and others? Or must the government affirmatively demonstrate that bulk surveillance is the only way that it can achieve its objectives? In today’s district court, the US government spent great amounts of time and effort doing that. Let us see what the outcome is.

In the next post, we shall analyze the freedom of association claim made by ACLU, also litigated in today’s hearings.

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