This article was originally published on ARS Technica.
3rd Circuit gives Elliott Schuchardt new, albeit slim, chance to beat the gov’t.
A lawyer who specializes in family and bankruptcy law gets another chance in his ambitious lawsuit filed against President Barack Obama. On Wednesday, the 3rd Circuit Court of Appeals restored his case, after it had been dismissed at a lower district court.
Specifically, Elliott Schuchardt argued in his June 2014 complaint that both the metadata and the content of his Gmail, Facebook, and Dropbox accounts were compromised under the PRISM program as revealed in the documents leaked by former National Security Agency (NSA) contractor Edward Snowden.
In an amended complaint filed in September 2014, Schuchardt expanded his argument, and he specifically challenged the legality of surveillance programs authorized by Executive Order 12333, Section 702 of the Foreign Intelligence Surveillance Act Amendments Act (FISA AA) and Section 215 of the PATRIOT Act. (Ars explored the history of Executive Order 12333 in August 2014.)
Schuchardt‘s success with the 3rd Circuit is based on procedural grounds and means the case will be sent back to the federal court in Pittsburgh, where it can continue.
“He lives to fight another day,” Brian Owsley, a former federal magistrate judge who is now a law professor at the University of North Texas, told Ars.
The 3rd Circuit opinion in Schuchardt v. Obama underscored a distinction between a “facial” and “factual” attack in the government’s motion to dismiss. Lawyers representing the president and the numerous intelligence agencies that Schuchardt sued argued that the case should be dismissed because Schuchardt could not show that he himself had been harmed.
However, the 3rd Circuit did not address whether or not his allegations that he was actually targeted by government surveillance, and was subsequently injured, are in fact true.
As the opinion concluded:
As a result, we must accept Schuhardt’s allegations as true, with the important caveat that the presumption of truth attaches only to those allegations for which there is sufficient “factual matter” to render them “plausible on [their] face.”
Aside from this sweeping allegation, Schuchardt has supplied no facts suggesting how (or why) the Government would have been interested in his online activity. His burden, therefore, was to allege enough “factual matter” to make plausible the Government’s virtual dragnet.
The lower court will now have to consider the facts of the case. The government could bring further motions to dismiss or assert privileges that would throw a wrench into Schuhardt’s case.
As Ars reported previously, the earlier district court opinion in Schuchardt v. Obama echoes a long line of similar cases—including a recent one from a Maryland federal court—that rely on a 2013 Supreme Court decision in the case of Clapper v. Amnesty International. In short: you can’t sue the federal government for illegal surveillance if you can’t convincingly prove that you were targeted.
Riana Pfefferkorn, a legal researcher and attorney at Stanford University, told Ars:
With there being a fair number of cases out there that have taken a pretty dim view of plaintiff standing in these sorts of mass surveillance cases—he will have an uphill battle unless he has an extra ace up the sleeve to show that he was personally subjected to the surveillance that he was challenging.
As of now, very few plaintiffs have cleared this formidable hurdle.
“Based on the public record, it is exceedingly unlikely Schuchardt can convince the court that [Section 702 of the Foreign Intelligence Surveillance Act] is a dragnet (or that he is a probable target), and the Circuit even indicates that it doubts he can prevail,” Susan Hennessey, the managing editor of Lawfare and a former attorney at the Office of General Counsel at the NSA, told Ars.
“So yes, snowball’s chance in hell is probably a fair assessment of his odds.”