Confronting the metadata dilemma in India: a turn to context and proportionality

Abstract

This paper problematizes the increasing trend of metadata collection by law enforcement, in light of the ‘going dark’ debate, which was spurred by the widespread adoption of secure encryption standards. Focusing on Indian privacy law, which remains nascent as of writing, we examine and propose potential constitutional limitations on metadata collection, and provide substantive guidance on their application. These limitations are bifurcated into two stages: first, whether metadata collection infringes upon the right to privacy, and second, whether the infringement is justified. In determining whether the collection of metadata in a specific case infringes privacy, we conceive of a ‘contextual approach’, challenging the usual ontological subordination of ‘metadata’ in relation to ‘content data’. At the second stage, we centre the standard of proportionality. We offer substantive guidance for Indian courts at each step of the test, including the development of a ‘risk profile’ of metadata collection practices. Such guidance is crucial, given the technically intricate nature of cases involving metadata processing.