Lawyer’s PRISM surveillance suit pushes forward

October 18, 2016

Attorney Elliot Schuchardt

Attorney Elliott Schuchardt

The government must continue to face an attorney’s lawsuit saying its PRISM program unlawfully captures and intercepts substantially all emails American citizens send, according to a recent federal appeals court decision.

Elliott J. Schuchardt, an attorney representing himself in the case, has plausibly claimed the government unlawfully searched and seized his emails through PRISM, which he calls a bulk-collection program and “virtual dragnet,” the 3rd U.S. Circuit Court of Appeals ruled.

Without ruling on the merits of Schuchardt’s lawsuit or even whether the attorney has actual standing to move forward with his case, the 3rd Circuit vacated the trial judge’s dismissal order.

Schuchardt responded to the decision in an email, saying he is very pleased the appeals court recognized the case’s important issues and allowed it to move forward.

“It is our contention that the U.S. government is storing the full content of email in the United States, without a warrant and without a court order,” he said.

“When this case is over, we believe that this process will be brought under the auspices of the federal judiciary, as required by the Fourth Amendment,” he added.

The government did not immediately respond to a request for comment about the decision.

Tucker Ellis attorney Joseph A. Dickinson said the 3rd Circuit’s decision moves the privacy conversation forward, instead of using legal procedure to avoid legitimate substantive issues.

Dickinson handles matters involving data privacy and security issues, but he was not involved with this case.

“The technical capabilities of the federal government, as an example the NSA’s PRISM program, exceed the ken of the average computer geek let alone U.S. citizens who are not technically adept,” he said in an email.

“As a group, we need to engage in a meaningful conversation about the appropriate extent of privacy protections as this is an area of the law, the development of which lags behind the growth of technology,” he wrote.

U.S. Circuit Judge Thomas M. Hardiman wrote the panel’s decision.

Snowden ‘exposes’ PRISM program

According to Judge Hardiman’s opinion, Schuchardt sued the government in the U.S. District Court for the Western District of Pennsylvania in June 2014.

He named President Barack Obama, National Intelligence Director James R. Clapper, FBI Director James B. Comey and NSA Director Adm. Michael S. Rogers as defendants.

According to Schuchardt’s complaint, the government runs a surveillance program called PRISM that intercepts, monitors and stores online communications from substantially all Americans, including his own.

Using its authority under Section 702 of the Foreign Intelligence Surveillance Act, 50 U.S.C.A. § 1881a, PRISM allows the government to collect virtually all U.S. citizens’ online communications in bulk to mine for data about terrorists, the suit says.

This bulk-collection program violates the Fourth Amendment, according to the complaint.

To support his allegations, Schuchardt’s complaint cited articles from prominent newspapers about the surveillance program, including a June 7, 2013, article in The Guardian, which excerpted classified materials about PRISM released by former government contractor Edward Snowden.

Through PRISM the government has obtained direct access to widely used email and internet service providers such as Google, Apple and Yahoo, Schuchardt said.

The Guardian article also notes the precise dates the government obtained access to Google and Yahoo, services that Schuchardt uses, according to his complaint.

The government moved to dismiss Schuchardt’s suit, arguing the court lacked subject matter jurisdiction because the attorney did not have constitutional standing to sue.

U.S. District Judge Cathy Bissoon in Pittsburgh agreed with the government and dismissed Schuchardt’s case.

According to the District Court, Schuchardt had not identified any facts to support claims his personal email was swept up in the government’s alleged surveillance program. Schuchardt v. Obama, No. 14-cv-705, 2015 WL 5732117 (W.D. Pa. Sept. 30, 2015).

On appeal, the 3rd Circuit vacated Judge Bissoon’s decision, which had relied on a facial challenge to the court’s jurisdiction, the opinion said.

When reviewing a facial challenge under Rule 12(b)(1) of the Federal Rules of Civil Procedure, F.R.C.P. 12(b)(1), a judge must decide if a party plausibly pleaded that the court has subject matter jurisdiction, according to the 3rd Circuit’s opinion.

Article III Constitutional standing requires that plaintiffs allege they have suffered a concrete and particularized injury to pursue their case in federal court.

Schuchardt sufficiently pleaded a concrete and particularized Fourth Amendment injury, plausibly alleging the PRISM program collects virtually all American’s emails from Google and Yahoo, two email services he uses, Judge Hardiman said.

These allegations are enough to allow him to move forward with his case.

“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,” Judge Hardiman wrote.

On remand, the government may still file a factual challenge to the court’s jurisdiction and may still raise any applicable privileges, such as the state secrets doctrine, to Schuchardt’s request for jurisdictional discovery, the 3rd Circuit opinion said.

Schuchardt v. President of the United States et al., No. 15-3491, 2016 WL 5799656 (3d Cir. Oct. 5, 2016).