Ambar Bhushan: Blog Post

Ambar Bhushan

Information Privacy Law

Professor Ira Rubinstein

April 13, 2017

Lone Wolf 4th Amendment Challenge To NSA Bulk Data Collection Put On Ice

Tennessee lawyer Elliot Schuchardt’s lawsuit alleging that the NSA was collecting and storing “massive quantities of email and other data created by United States Citizens” has been removed from the District Court’s active docket, The Pennsylvania Record reports.

On March 16 2017, Judge Cathy Bissoon of the Western District of Pennsylvania issued an administrative closing in the suit, subject to Schuchardt’s next filing with respect to the Government’s motion to dismiss. The case may also be reopened sooner, if either party has reason to so move the District Court.

Schuchardt’s lawsuit, originally filed in June 2014, named former POTUS Barack Obama, former National Intelligence Director James R. Clapper, FBI Director James B. Comey and NSA Director Michael S. Rogers as defendants.

On September 30, 2015 Judge Bissoon dismissed the suit for plaintiff’s lack of standing, finding that Schuchardt failed to identify facts indicating that his own communications had been targeted, seized, or stored.

On October 4, 2016 The Third Circuit vacated Judge Bissoon’s order, finding that Schuchardt’s second amended complaint contained sufficient factual allegations to implicate his 4th Amendment Rights. In coming to this conclusion, the Third Circuit focused on the second amended complaint’s characterization of the NSA’s PRISM program as a “dragnet” that collects “all or substantially all of the e-mail sent by American citizens by means of several large internet service providers.” At oral argument, Schuchardt conceded that his claims regarding the bulk collection of telephonic metadata were moot in light of the USA Freedom Act of 2015. The Third Circuit also made it explicitly clear that it was not concluding that Schuchardt had standing, and that the Government was “free to make a factual jurisdictional challenge to the pleading.”

Schuchardt’s complaint, which arose in the wake of the Snowden Revelations, was amended again in January 2017. In its latest iteration, the complaint alleges that Executive Order 12333, Section 702 of the FISA Amendments Act of 2008 and Section 215 of the USA PATRIOT Act violate Schuchardt’s 4th Amendment rights.

The Third Circuit remanding the lawsuit and the subsequent administrative closure, however, should not be taken as indicative of the merits of Schuchardt’s claims, nor color the motives of the Government or the District Court. While some may be excited by the Third Circuit affording Schuchardt an outside chance in his crusade, and tempted to cry foul at the administrative closing, it is important to remember that the re-authorization of Section 702 of FISA is due at the end of 2017.

It is likely that the administrative closing came in the wake of the House of Representatives’ March 1 hearings on Section 702 of FISA. The current indeterminacy of the law, and therefore, its bearing on Schuchardt’s case are the likely culprit for the case being put on hold, and not some sort of political intrigue.

While the outcome of the legislative deliberations on Section 702 is uncertain, one thing is clear: Elliot Schuchardt is not quite done amending his complaint just yet.