Appeal Court Revives Lawyer's Lawsuit Against The NSA's Email Dragnet

from the tossed-back-for-another-look dept

Another lawsuit against the NSA has been revived. Previously dismissed by a district court for lack of standing, attorney Elliott Schuchardt's suit against the NSA for its domestic surveillance has been remanded back to the court that tossed it.

Like several other surveillance lawsuits, Schuchardt's springs from the Snowden leaks. Unlike some of the others, it doesn't focus on the NSA's phone metadata collection -- the subject of the first Snowden leak. Instead, his challenges the constitutionality of the NSA's Section 702 collection. With this program, the NSA apparently collects not just metadata on electronic communications, but also the content.

The Appeals Court found the leaks themselves provide enough evidence to make Schuchardt's allegations plausible -- or at least strong enough to survive the government's motion to dismiss. From the opinion [PDF]:

Based on the record he had compiled, Schuchardt’s second amended complaint alleged that because the Government was “intercepting, monitoring and storing the content of all or substantially all of the e-mail sent by American citizens,” his own online communications had been seized in the dragnet. App. 82, 95–99 (emphasis added). In particular, Schuchardt asserted that he was “a consumer of various types of electronic communication, storage, and internet services,” including “the e-mail services provided by Google and Yahoo; the internet search services of Google; the cloud storage services provided by Google and Dropbox; [and] the e-mail and instant message services provided by Facebook.” App. 95–96. Then, relying on the operational details of PRISM made public by the Washington Post and Guardian, he alleged that: (1) the Government “had obtained direct access to the servers” of the companies providing him with these services; (2) the Government was “unlawfully intercepting, accessing, monitoring and/or storing [his] private communications . . . made or stored through such services”; and (3) the Government was “collecting such information in order to ‘data mine’ the nation’s e-mail database.”

The government responded to the cited leaks by citing the PCLOB's report on its PRISM program. First, the government claimed Section 702 only authorized the collection of communications by people outside of the US. Pointing to the oversight report, the government also claimed PRISM wasn't a dragnet, but rather a targeted program.

Based on its review, the PCLOB determined that “[i]n PRISM collection, the government . . . sends selectors—such as an email address—to a United Statesbased electronic communications service provider,” who is then by law “compelled to give the communications sent to or from that selector to the government.” PCLOB Report at 33. Far from being the dragnet that Schuchardt had alleged, therefore, “PRISM collection under Section 702 may be targeted only at non-U.S. persons located abroad who possess or are likely to receive foreign-intelligence information.”

In reviving the suit, the Appeals Court isn't deciding whether the government assertions about the PRISM program are correct, but rather whether Schuchardt's allegations are sufficient to further explore the issue in court.

The Government strenuously disputes the plausibility of Schuchardt’s assertion that PRISM collects “all or substantially all of the e-mail sent by American citizens,” and we address that dispute in detail below. But putting aside for the moment the question of whether Schuchardt’s allegations concerning PRISM are entitled to a presumption of truth, the consequences that he identifies as flowing from the Government’s alleged dragnet are undoubtedly personal to him insofar as he has a constitutional right to maintain the privacy of his personal communications, online or otherwise.

So, the finding is encouraging, if very limited. The court notes that the order encompasses only a very small part of Schuchardt's allegations.

Our decision today is narrow: we hold only that Schuchardt’s second amended complaint pleaded his standing to sue for a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. This does not mean that he has standing to sue, as the Government remains free upon remand to make a factual jurisdictional challenge to Schuchardt’s pleading.

More encouraging is the time spent by the court examining the submitted documents -- leaks provided to the Washington Post and The Guardian -- which point to the possibility that PRISM is more dragnet than targeted collection program, even though the government claims otherwise.

None of this guarantees Schuchardt or anyone else will learn anything new about the NSA's Section 702 collections. The Appeals Court reminds the lower court that the plaintiff is not automatically entitled to discovery in this case, considering its subject matter, and invites the government to use its favorite excuse to make sure its collection techniques stay under wraps.

Finally, nothing in our opinion should be construed to preclude the Government from raising any applicable privileges barring discovery—including the state secrets doctrine—or to suggest how the District Court should rule on any privilege the Government may choose to assert.

It's not incredibly encouraging, but at least the court didn't decide the attorney had no standing to sue. That's the problem with secret surveillance lawsuits. There's zero chance any individual will be able to prove their communications have been swept up by the NSA, but most courts aren't even willing grant plaintiffs the possibility of further exploring even plausible claims of constitutional injury.

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Filed Under: elliott schchardt, mass surveillance, nsa, section 702, surveillance

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  • icon
    That Anonymous Coward (profile), 14 Oct 2016 @ 3:16pm

    If only there weren't secret laws & secret courts that interpret words with unique special meanings.

    Perhaps it is time to stop worrying about someone screaming 'terrorist lover' at people who dare to question the wisdom of a program that hasn't actually shown any beneficial use.

    Perhaps if they had to explain how they blew past every limitation by finding novel new ways to define words.

    Just because we've had these programs for this long is no reason to keep staying that course when its clear that they are expanding simply because they refuse to answer for what they have done & the belief more will be better.

    How can a nation keep carving holes into the bedrock before they manage to bring it all down.

    Many of these programs are worthless and its time to suck it up and admit they screwed up & try other things.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Oct 2016 @ 5:34pm


      They are useless for their stated purposes, but literally priceless for the actual purpose, gathering everything possible to use against future people in power. You never know when an anonymous college student is going to end up being the leader of this country some day. Suddenly your agency finds itself funded beyond belief and given anything they request. Police departments like NYC have learned this and are quickly working on their own informational fiefdoms of future blackmail material.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Oct 2016 @ 1:29am

        Re: Re:

        "but literally priceless for the actual purpose, gathering everything possible to use against future people" [FULL STOP]

        The people they target don't even necessarily have to be "in power". They just need to have something the 3LAs want, be it money, power or (access to) information.

        Hell not even that: any frowned upon (but otherwise harmless) hobby could at one point be deemed Reasonably Suspicious™ and result in (at least) a lengthy arrest and public shaming.

        reply to this | link to this | view in chronology ]

  • identicon
    SpaceLifeForm, 14 Oct 2016 @ 3:50pm

    Assume RSA is solved

    Just assume that all of your
    Comms are *NOT* secure.

    You still do not have standing.

    But, if you can show that RSA is
    not a 'Hard Problem', I.E, the large
    SemiPrime factoring problem is not
    really a difficult problem (which I
    believe to be the case for reasons
    that I will not discuss at this
    point in time due to the possibility
    that it could impact ongoing legal
    investigations), would you then have

    If you can show that RSA is 'pwned',
    then not only does this lawyer in
    this instance case have standing,
    Everyone does.

    reply to this | link to this | view in chronology ]

  • identicon
    Quiet Lurcker, 15 Oct 2016 @ 7:31am

    A Profound Failure of American Jurisprudence

    Why have the courts held that a person has to have standing in order to challenge the constitutional validity of an act or law?

    Aren't the courts, the creators of that requirement, doing irreparable harm to the sovereign people?

    Shouldn't it be possible for any one at any time to raise a constitutional challenge?

    reply to this | link to this | view in chronology ]

    • icon
      Norahc (profile), 15 Oct 2016 @ 7:42am

      Re: A Profound Failure of American Jurisprudence

      Or at least assume standing until the government affirmitively proves they don't have it.

      reply to this | link to this | view in chronology ]

      • identicon
        Quiet Lurcker, 15 Oct 2016 @ 11:41am

        Re: Re: A Profound Failure of American Jurisprudence

        In my conception, standing is assumed de facto under the terms under which the Constitution came into existence in the first place.

        I believe reference to the Preamble is in order here. It reads in pertinent part:
        “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.”

        The whole idea is, the government has no right to challenge standing on any grounds whatsoever.

        Expanding on my prior thought, I would add the notion that when constitutional issues are in play, then secrecy and national security must, of necessity, go out the window; and where the government claims either of those arguments the courts ought to be required to find in favor of plaintiff automatically.

        reply to this | link to this | view in chronology ]

        • icon
          Whatever (profile), 16 Oct 2016 @ 5:33pm

          Re: Re: Re: A Profound Failure of American Jurisprudence

          Standing is a basic legal principal. It applies in all sorts of situations, not just this one.

          The idea of standing is that your legal challenge isn't just theoretical, but practical in that the ruling would actually apply and fix a wrong that you feel is being done to you. It's not to allow you to challenge any American law or agency even if the law or agency isn't doing anything specifically against your.

          From Wikipedia:

          "In the United States, the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that he/she/it is or will "imminently" be harmed by the law. Otherwise, the court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. To have a court declare a law unconstitutional, there must be a valid reason for the lawsuit. The party suing must have something to lose in order to sue unless it has automatic standing by action of law."

          What the appeals court has ruled is that summarily dismissing the case was wrong, as there is a very narrow path where the plaintiff might be able to show standing. But it's a pretty narrow path, having to show that their information was collected, and then prove that the collection in violation of the constitution.

          It's unlikely to succeed, but hey, someone had to try.

          reply to this | link to this | view in chronology ]

          • identicon
            Quiet Lurcker, 17 Oct 2016 @ 2:58pm

            Re: Re: Re: Re: A Profound Failure of American Jurisprudence

            If I may paraphrase the wonderful Sir Terry Pratchett (Requescat in pace, sir) toward the end of /Hogfather/:

            The auditors: There are rules...
            Death: YES! AND YOU BROKE THEM!

            Nigel Planer and Ian Richardson (In order of appearance above) in the movie of the same name. The auditors broke some of the most fundamental rules of that universe (assuming there are such things - this is the discworld we're talking about here), and Death and his (adoptive - don't ask) granddaughter found it necessary and desirable put the auditors in their place, rather emphatically.

            The same holds true here. The government, which should be subservient to the People is ignoring the constitution. It should be the right if not the responsibility of any member of the People to stand up and say "No. This is not right", because when the government ignores the constitution, the entire fabric of government and society are inevitably weakened. The harm befalls not just the plaintiff, but everyone.

            reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 16 Oct 2016 @ 7:36pm

      Re: A Profound Failure of American Jurisprudence

      Indeed, thanks to the courts bending over backwards for the government it's near impossible to challenge such programs.

      You need 'standing' to challenge the programs/laws, but given the nature of such laws/programs demonstrating that you personally have been affected is effectively impossible, which means there is basically no method to do so via the courts, and with the very groups (theoretically) meant to provide oversight and act as a check against abuse from the intel community instead acting as their cheerleaders, even to the point of deliberately hiding their actions from other parts of the government, yeah, good luck challenging them that route.

      reply to this | link to this | view in chronology ]

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