Schuchardt v. President of U.S.

• Decision Date: 05 October 2016
• Docket Number: No. 15-3491,15-3491
• Parties: Elliott J. Schuchardt, individually and doing business as the Schuchardt Law Firm, on behalf of himself and all others similarly situated, Appellant v. President of the United States; Director of National Intelligence; Director of the National Security Agency and Chief of the Central Security Service; Director of the Federal Bureau of Investigation
• Court: U.S. Court of Appeals — Third Circuit

839 F.3d 336

Elliott J. Schuchardt, individually and doing business as the Schuchardt Law Firm, on behalf of himself and all others similarly situated, Appellant

v.President of the United States; Director of National Intelligence; Director of the National Security Agency and Chief of the Central Security Service; Director of the Federal Bureau of Investigation

No. 15-3491

United States Court of Appeals, Third Circuit.

Argued: May 17, 2016

Filed: October 5, 2016

Elliot J. Schuchardt [Argued], 309 Braeburn Drive, Winchester, VA 22601, Counsel for Appellant

Andrew G. Crocker, Esq., Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Counsel for Amicus Appellant

Benjamin C. Mizer, David J. Hickton, H. Thomas Byron III, Henry C. Whitaker [Argued], United States Department of Justice, Appellate Section, Room 7256, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Counsel for Appellee

Before: SMITH^* , Chief Judge, HARDIMAN, and NYGAARD, Circuit Judges.

OPINION

HARDIMAN

, Circuit Judge.

This appeal involves a constitutional challenge to an electronic surveillance program operated by the National Security Agency (NSA) under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Elliott Schuchardt appeals an order of the United States District Court for the Western District of Pennsylvania dismissing his civil action for lack of jurisdiction. The District Court held that Schuchardt lacked standing to sue because he failed to plead facts from which one might reasonably infer that his own communications had been seized by the federal government. Because we hold that, at least as a facial matter, Schuchardt's second amended complaint plausibly stated an injury in fact personal to him, we will vacate the District Court's order and remand.

I

Schuchardt's appeal is the latest in a line of cases raising the question of a plaintiff's standing to challenge surveillance authorized by Section 702. Congress amended FISA in 2008 to “supplement[ ] pre-existing FISA authority by creating a new framework under which the Government may ... target[ ] the communications of non-U.S. persons located abroad.” Clapper v. Amnesty International USA , ––– U.S. ––––, 133 S.Ct. 1138, 1144, 185 L.Ed.2d 264 (2013)

; see also FISA Amendments Act of 2008, Pub. L. No. 110–261, 122 Stat. 2436, 2438, 50 U.S.C. § 1881a. On the day Section 702 became law, its constitutionality was challenged by “attorneys and human rights, labor, legal, and media organizations whose work allegedly require[d] them to engage in ... telephone and e-mail communications” with persons located outside the United States. See

id. at 1145. The Clapper plaintiffs claimed that Section 702 was facially unconstitutional under the Fourth Amendment, which prohibits unreasonable searches and seizures. See

id. at 1146.

A

The dispositive question presented to the Supreme Court in Clapper

was whether the plaintiffs had established an “imminent” injury “fairly traceable” to the government's conduct under Section 702. See 133 S.Ct. at 1147

. Because the plaintiffs had brought suit on the day the law was enacted, there was no evidence that their communications had been intercepted—there was only a looming “threat of [future] surveillance.” Id. at 1145–46. Nonetheless, the plaintiffs claimed they had standing because there was an “objectively reasonable likelihood” that their communications would be intercepted based on the nature of their contacts with persons outside of the country. Id

. at 1146.

The Supreme Court rejected this argument as “inconsistent” with longstanding precedent requiring that “threatened injury must be certainly impending to constitute injury in fact,” Clapper , 133 S.Ct. at 1147

(emphasis in original) (quoting Whitmore v. Arkansas , 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ). And because the plaintiffs could rely only on a “speculative chain of possibilities” to support their allegations of future harm from unlawful government surveillance, they failed to demonstrate an injury that was “certainly impending.” Id . at 1150.

In particular, the Court characterized the Clapper

plaintiffs' “speculative chain” as entailing five inferential leaps:

(1) the Government will decide to target the communications of non-U.S. persons with whom [the plaintiffs] communicate;

(2) in doing so, the Government will choose to invoke its authority under [Section 702] rather than ... another method of surveillance;

(3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Government's proposed surveillance procedures ... satisfy [Section 702's] many safeguards and are consistent with the Fourth Amendment;

(4) the Government will succeed in intercepting the communications of [the plaintiffs'] contacts; and

(5) [the plaintiffs] will be parties to the particular communications that the Government intercepts.

133 S.Ct. at 1148

.

On summary judgment, the plaintiffs had failed to “set forth by affidavit or other evidence specific facts” supporting these inferences. Id. at 1149

(internal quotation marks omitted). Accordingly, they lacked standing to challenge the constitutionality of Section 702. Id.

B

Soon after Clapper

was decided, former NSA contractor Edward Snowden leaked a trove of classified documents to journalists writing for the Washington Post and Guardian .¹ Those documents referenced the existence of an NSA program engaged in the bulk collection of domestic telephone metadata, i.e. , “details about telephone calls, including for example, the length of a call, the phone number from which the call was made, and the phone number called,” but not the voice content of the call itself. ACLU v. Clapper , 785 F.3d 787, 793 (2d Cir. 2015) ; see also

Smith v. Obama , 816 F.3d 1239, 1241 (9th Cir. 2016) ; Obama v. Klayman , 800 F.3d 559, 561 (D.C. Cir. 2015). The operational parameters of the program were summarized in a classified order of the Foreign Intelligence Surveillance Court (FISC) directed at Verizon Business Network Services. ACLU , 785 F.3d at 795

. In short, based on Section 215 of the USA PATRIOT Act, Pub. L. No. 107–56, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. § 1861 et seq. ), Verizon was producing to the government, “all call detail records or ‘telephony metadata’ ... on all telephone calls made through its systems or using its services where one or both ends of the call are located in the United States.” ACLU , 785 F.3d at 795.

The government's bulk collection of telephone metadata precipitated a number of lawsuits. In one case, the Second Circuit held that the government had exceeded its statutory authority under Section 215 to obtain “relevant” information by constructing an “all-encompassing” database of “every telephone call made or received in the United States.” ACLU , 785 F.3d at 812–13

. Under the statute's sunset provision, however, authorization for the bulk telephone metadata collection program expired on June 1, 2015. See Pub. L. No. 112–14, 125 Stat. 216 (2011) (authorizing an extension); Smith , 816 F.3d at 1241. And although the program was subsequently reauthorized by the USA FREEDOM Act, Pub. L. No. 114–23, 129 Stat. 268 (2015), that act “prohibits any further bulk collection.” Smith , 816 F.3d at 1241. In reliance on that prohibition, the Ninth Circuit has determined that “claims related to the ongoing collection of metadata [under Section 215] are [now] moot.” Id.

Separate and apart from the bulk collection of telephone metadata under Section 215, the documents leaked to the Washington Post and Guardian also shed light on a previously undisclosed electronic surveillance program operating under Section 702 called PRISM.² Slides from a presentation purportedly authored by the NSA described PRISM as “collect[ing] directly from the servers” the full content of user communications exchanged using services provided by several large U.S. companies—including Microsoft, Google, Yahoo, Apple, and Facebook. App. 53. Another slide depicted a timeline showing the inception of PRISM collection from each company, beginning with Microsoft in September 2007 and ending with Apple in October 2012. Yet another slide suggested a slogan for the NSA's “New Collection Posture”: “Sniff it All, Know it All, Collect it All, Process it All, Exploit it All, and Partner it All.” App. 61.

II

On June 2, 2014, Schuchardt filed a complaint in the District Court asserting constitutional, statutory, and state law claims against the President, the Director of National Intelligence, and the Directors of the NSA and Federal Bureau of Investigation. He alleged that the Government was violating the Fourth Amendment by storing his confidential communications “in a computer database, or through a government program, which the Defendants call ‘Prism.’ ” Civil Complaint ¶ 22, Schuchardt v. Obama , No. 2–14–cv–00705–CB (W.D. Pa. June 2, 2014), ECF No. 1. He sought to enjoin “the [Government] from engaging in any further collection of ... [his] information.” Id. ¶ 37.

Schuchardt responded to the Government's successive motions to dismiss by amending his complaint twice. In addition to refining and expanding his allegations, Schuchardt supplemented his averments with exhibits, the contents of which fall into two general categories. First, he supported his allegations regarding PRISM with excerpts of the classified materials that were the focus of the Washington Post and Guardian reports, as well as several of the reports themselves. Second, he included affidavits filed in support of the plaintiffs in Jewel v. NSA (Jewel I ), 965 F.Supp.2d 1090 (N.D. Cal. 2013)

, a case challenging the NSA's interception of internet traffic flowing through a telecommunications facility in San Francisco pursuant to an Executive Order issued shortly after September 11, 2001. Id. at 1098. Jewel I was decided on remand from Jewel v. NSA , 673 F.3d 902 (9th Cir. 2011), in which the Ninth Circuit held that the plaintiffs...