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.

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