Mimesis Law
16 November 2018

Yeah We Read Your E-mails. What Are You Gonna Do About It?

October 11, 2016 (Fault Lines) – Many of us have a long-held and deep suspicion that, despite tepid denials, the National Security Agency (NSA) reads all of our e-mails, and listens to all of our phone calls, and keeps a massive secret database of all our most private communications, thoughts and political activities.

Certainly, the NSA has something of a well-deserved reputation for being secretive and heavy-handed, and the Agency has typically responded to legitimate inquiry with hostility and evasion, which just makes them seem even more sinister. Then Edward Snowden’s leaks of NSA misbehavior either confirmed or gave credence to our mass-suspicion (or paranoia).

Coming from this place of mistrust, a number of civil libertarians have consistently done everything conceivable to either stop or at least expose these suspected misdeeds. The problem, though, has always been that it is almost impossible to prove that the government is hiding something from you when the government’s response to any allegation is to claim that the response is a secret.

Recently, in Schuchardt v. President, the Third Circuit revived what appears to be a hobbyist’s lawsuit against the President of the United States, the NSA, and pretty much everyone else who may or may not have anything to do with internal spying operations. The titular plaintiff, Elliot J. Schuchardt, is an attorney who, after reading reports of NSA nonsense based on Snowden’s leaks, apparently decided that he had had enough and sued, pro se.

Schuchardt also appears to be very competent, and limited his attack to one program that had been revealed by the Snowden leaks. As reported in the opinion, according to news reports, based on the leaked reports, the NSA had been, allegedly, operating a program called PRISM, which involved collecting,

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

in an effort to find evidence related to international misdeeds. Because a domestic agency can’t just read all of your e-mails for no reason (at least not legally), PRISM implicated

all or substantially all of the e-mail sent by American citizens by means of several large internet service providers.

Because Schuchardt had used e-mail before, he sued to get an injunction to keep his stuff private.

Unsurprisingly, the district court wasn’t buying it, and dismissed the complaint, after concluding that Schuchardt lacked standing, and, alternatively, failed to prove his allegations were even plausible.

The district court had come to its conclusion based on the notion that Schuchardt didn’t really have any evidence that the NSA was reading his e-mail. The court thought that, at best, he had suggested that the NSA was involved in some shenanigans but even that suggestion was just based on news reports. In a really vexing move, the district court had also concluded that the only way someone would be able to adequately plead a complaint would be to produce evidence, “not publicly available,” such as “a leaked FISC [Foreign Intelligence Surveillance Court] order” or a “detailed insider account,” that proved that the individual plaintiff was specifically targeted and subject to illegal conduct.

This means that the district court had essential said, even if you present actual proof, from leaked documents, if they are publicly disseminated (you know, “leaked”), that means they don’t really count. The court also suggested that even then, the only evidence that can possibly matter is direct evidence that you in particular have been targeted, even if the leaked documents say every single person in the U.S. was specifically targeted.

And, keep in mind, this was at a pleading stage.

In what seems at first blush like a win, the Third Circuit reversed the district court on both grounds. In a complex opinion dealing with Article III justiciability and injuries-in fact, pleading standards and a whole bunch of other stuff, the Court came up with a really simple conclusion. If you have some evidence, no matter the source, that suggests that you have been swept up in an illegal dragnet of government surveillance, you can complain about it. But the Court also wasn’t willing to go all the way and say that Schuchardt had met even that paltry burden. The Court just sent it back down for the trial court to apply the new standard.

As Schuchardt himself acknowledged after the decision, this is almost certainly going to be an empty victory. While his complaint can go forward, he’s doomed because he will still have to convince the court that he has met his modest burden of production. The court may still find it insufficient, and can deny Schuchardt the opportunity to even ask for discovery to see if maybe there is more evidence out there.

Even if, by some miracle, the case moves past the complaint, the defendants will just deny every discovery request as classified, and deny the factual allegations based on secret evidence that not even the court can look at. The court will then enter summary judgment for the defendants because he never proved the misconduct and the defendants claim to have really good, secret, evidence proving they behaved themselves.

Ultimately, this case just illustrates the total inadequacy of the current system. The Snowden leaks provide really good evidence that the NSA is at least looking at the metadata of just about everyone’s e-mail. Heck, Yahoo just revealed that it did just that at the government’s behest, although it did so with double-secret permission from FISC.

Despite that, there’s really no way to stop it. How can you prove that the NSA secretly read your, individual, personal e-mails when they keep it a secret that it happened? If leaked documents from NSA aren’t enough, then what is? As much as Schuchardt’s case might look like a win, it really just confirms the fact that there’s probably no way to force the government’s hand.

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  • Jim Tyre
    11 October 2016 at 12:36 pm - Reply

    Even if, by some miracle, the case moves past the complaint, the defendants will just deny every discovery request as classified, and deny the factual allegations based on secret evidence that not even the court can look at.

    That may happen, but it isn’t a foregone conclusion. As our judge in Jewel v. NSA has ruled already, and as the judge in the Schuchardt case may rule, 50 USC section 1806(f) applies. We have discovery pending in Jewel, it remains to be seen how that will factor into any ultimate decision on discovery responses.