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posted by n1 on Friday October 24 2014, @10:11AM   Printer-friendly
from the classified-[redacted]-[redacted]-case-dismissed-[redacted] dept.

Justice Department lawyers have asked a federal court in Pittsburgh to dismiss a sweeping lawsuit brought earlier this year by a local lawyer against President Barack Obama and other top intelligence officials.

In a new motion to dismiss filed on Monday, the government told the court that the Pittsburgh lawyer, Elliott Schuchardt, lacked standing to make a claim that his rights under the Fourth Amendment have been violated as a result of multiple ongoing surveillance programs.

Specifically, Schuchardt argued in his June 2014 complaint that both metadata and 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.

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  • (Score: 0) by Anonymous Coward on Friday October 24 2014, @10:26AM

    by Anonymous Coward on Friday October 24 2014, @10:26AM (#109518)

    see intro in the motion to dismiss

    • (Score: 4, Interesting) by weeds on Friday October 24 2014, @01:49PM

      by weeds (611) on Friday October 24 2014, @01:49PM (#109563) Journal

      From the motion:

      Despite the addition of numerous extraneous allegations, the Amended Complaint fails to
      plead any facts plausibly showing that Plaintiff’s communications have been intercepted by the
      Government under PRISM collection conducted pursuant to Section 702 of the Foreign
      Intelligence Surveillance Act (“FISA”), or that records containing information about Plaintiff’s
      telephone calls have been collected under the Government’s “Section 215” bulk telephony
      metadata program.

      No attempt to deny PRISM or bulk telephony metadata program.
      IANAL - but I can read :) I am fairly sure that a motion to dismiss is a common practice.
      In this case the defendant is stating that plaintif can't sue them because the plaintif first has to prove that his information was collected and even if he did, the programs are legal, and the US gov officers can't be sued when doing their jobs. So tough luck buddy!
      I am sure one of our readers who is a lawyer can clean up my layman's interpretation.

      • (Score: 0) by Anonymous Coward on Friday October 24 2014, @03:21PM

        by Anonymous Coward on Friday October 24 2014, @03:21PM (#109592)

        If they breach his constitutional right (that's the culprit, he has to prove that), they're not legal. Thus suing on the 4th.

        • (Score: 2) by bob_super on Friday October 24 2014, @03:58PM

          by bob_super (1357) on Friday October 24 2014, @03:58PM (#109621)

          See Sir Garlon's post below, about the inability to prove Standing in the case.
          Even if you got into the NSA's database, and proved that it contains records of your communications, they still would play on semantics to get the case dismissed. Because a database entry is not (according to them) a search until someone specifically analyses it.

  • (Score: 2) by Geezer on Friday October 24 2014, @11:01AM

    by Geezer (511) on Friday October 24 2014, @11:01AM (#109519)

    I don't like the odds this guy is up against, but I wish him godspeed in his efforts.

  • (Score: 2, Interesting) by Pseudonymous Coward on Friday October 24 2014, @11:52AM

    by Pseudonymous Coward (4624) on Friday October 24 2014, @11:52AM (#109529)

    This doesn't just violate his fourth amendment (prohibits unreasonable searches and seizures) but I can bet you that it has violated his attorney-client privilege at least once.
    And he's not alone in this. Since PRISM wasn't a targeted operation, this means other lawyers and their clients have also had their rights violated.

    Can someone please un-fuck the NSA already?

    NSA spybot keywords: spy extremist weapon conversion trigger mechanism Linux XKEYSCORE encryption RSA

    • (Score: 2) by LaminatorX on Friday October 24 2014, @12:55PM

      by LaminatorX (14) <laminatorxNO@SPAMgmail.com> on Friday October 24 2014, @12:55PM (#109544)

      I have a friend who used to do sigint. He signed his emails with "The new Bush record is the bomb!"

      • (Score: 0) by Anonymous Coward on Friday October 24 2014, @03:57PM

        by Anonymous Coward on Friday October 24 2014, @03:57PM (#109620)

        I like to use random lines from the Talking Heads' Life During Wartime.

    • (Score: 2) by cafebabe on Friday October 24 2014, @05:59PM

      by cafebabe (894) on Friday October 24 2014, @05:59PM (#109666) Journal

      A valid argument could be that his clients fear having their Fourth Amendment rights violated via digital communication and and therefore they are not able to exercise privileged communication fully. This would only require one statement from a past or present client. Indeed, a plausible corner case would be a no-win, no-fee case which was lost or narrowly won due to material facts not communicated digitally. That would certainly have standing.

      --
      1702845791×2
  • (Score: 2) by Phoenix666 on Friday October 24 2014, @01:23PM

    by Phoenix666 (552) on Friday October 24 2014, @01:23PM (#109552) Journal

    And the other day another Soylentil cited cases like this to insist that the jury box in the "soap, ballot, jury, ammo" set has not been exhausted yet. Those of us with longer memories remember the earlier lawsuits against the telecoms for spying (back in the Bush era) were summarily dismissed, and have a different take on the success of that stage.

    Does anyone else still think cases like this will reverse the damage?

    --
    Washington DC delenda est.
    • (Score: 2) by Sir Garlon on Friday October 24 2014, @01:37PM

      by Sir Garlon (1264) on Friday October 24 2014, @01:37PM (#109559)

      Does anyone else still think cases like this will reverse the damage?

      Well I certainly don't think the ammo box will fix what's wrong with America. Best case. it would replace one oligarchy with another. Likely with a Robespierre-style reign of terror [wikipedia.org] after the turnover. No, thanks.

      What I think is that the *soap* box hasn't been exhausted. If you don't like government surveillance, then don't just bitch about here in the echo chamber. You have to make regular people care.

      --
      [Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
      • (Score: 4, Insightful) by JeanCroix on Friday October 24 2014, @02:31PM

        by JeanCroix (573) on Friday October 24 2014, @02:31PM (#109582)

        If you don't like government surveillance, then don't just bitch about here in the echo chamber. You have to make regular people care.

        I think the biggest problem with that is that people are provided with too much to care about. The outrage of the masses is a limited resource, and it's being drawn in so many different directions these days that there can be no focus. GMOs, climate change, gay marriage, government surveillance, gamergate, fracking, Breaking Bad toys in Toys-R-Us, domestic violence in football, et cetera and ad nauseum... the internet outrage machine is powerful, but making enough people care about what actually matters is difficult due to all the noise. And everyone is sure their particular outrage is the one that deserves the most attention. Who am I to say that government surveillance is a more important issue than abused pitbulls, from their perspective?

        • (Score: 3, Informative) by everdred on Friday October 24 2014, @04:32PM

          by everdred (110) on Friday October 24 2014, @04:32PM (#109640) Journal

          > Who am I to say that government surveillance is a more important issue than abused pitbulls, from their perspective?

          In the same way that many believe that "the second amendment is the one that protects all your other rights," the ability to speak freely means being able to communicate about all the other things that matter to you, like pitbulls.

        • (Score: 1) by curunir_wolf on Friday October 24 2014, @04:52PM

          by curunir_wolf (4772) on Friday October 24 2014, @04:52PM (#109651)
          Add to that the highly effective media scaremongering over ISIS/ISIL and Ebola. Citizens are lining up in droves to hand over their rights to any government bureaucracy that guarantees they won't die by beheading or bleeding from their eyes.
          --
          I am a crackpot
        • (Score: 2) by cafebabe on Saturday October 25 2014, @09:58AM

          by cafebabe (894) on Saturday October 25 2014, @09:58AM (#109863) Journal

          And nuclear war, biological war, civil war, pestilence, plague, immigrants and cancer [soylentnews.org].

          More seriously, the general public is gaining ambivalence towards technology because exercising the precautionary principle is impractical and/or too costly for most people. Yes, a member of the public can buy cheap tickets, cheap books and cheap food with their phone. Or do whizzy things like hail a taxi. However, for the rest of the time, they know that it is a spy in their pocket. Unfortunately, complete abstinence from technology which they don't understand means less discounts and being a social pariah.

          --
          1702845791×2
          • (Score: 2) by JeanCroix on Saturday October 25 2014, @02:44PM

            by JeanCroix (573) on Saturday October 25 2014, @02:44PM (#109912)

            That does bring up a good point - there are several "solutions" to government surveillance which come to mind:

            1) Don't use trackable technology - which, as you stated, has many problems. On the face of it, this tech has a lot of useful functions, and it seems a shame that we've finally managed to achieve many things that sci-fi has dreamed of for so long, only to have it ruined by bad actors.

            2) Rely on the tech companies to keep government from tracking it. The start of this is the whole Apple encryption announcement, and the FBI crying to the courts to allow them a required back door. To me, this feels backwards. Ostensibly, the government is the entity which should be protecting its citizens from tracking. Two or three years ago, there was talk about laws to protect against tech companies using cell phones to track its customers, but now the roles have flipped. If we need private companies to protect us from our own government, then something is seriously broken. And this leads to...

            3) Make changes to the government so it does not track its citizens by default. And this is where we came into this discussion with my original post. Can we somehow make people care, and garner enough will to cause these changes? And when/if we actually do, can we ever trust that if the government says it's not surveilling all mobile devices, that it really isn't?

      • (Score: 3, Insightful) by Phoenix666 on Friday October 24 2014, @04:22PM

        by Phoenix666 (552) on Friday October 24 2014, @04:22PM (#109629) Journal

        Well I certainly don't think the ammo box will fix what's wrong with America.

        That's the flaw in that four boxes phrase, in that the shock value of the last is designed to send people back to ping-ponging inside the rigged game of the other three. The soap box does not matter -- on the Internet no one can hear you scream. The ballot box does not matter; we've changed from Democrats to Republicans several times in the last 20 years, and nothing has changed. That was the point of the article on the shadow government a couple days ago. The jury box, well, that stopped working a long time ago when the size of your bank account came to determine the outcome of the trial; and what's worse, the government and jurists have mostly stopped pretending that the most fundamental of our laws, the Constitution, even apply any more. The ammo box is plenty full in this country, and just because the consequences of it being opened might be bad won't prevent it when people get pissed off enough, and they're are getting plenty pissed off.

        But there is another option that I suggest, which is that skilled groups like ours undertake a program of organized, active resistance to the Masters of the Universe. We built the tools they're using to take our freedom away, so who better than we to turn them around on them? Why not build darknets upon darknets to defeat the NSA? We can code, can we not? Why not put a robotic snake in every 1%'ers's commode to bite them in the ass? We have components and soldering irons, do we not? Every year at Maker's Faire I see the most amazing minds doing the most incredible, inventive things, any one of which could seriously tip the balance, and every year I say to myself, "This is the revolution."

        I know the smart people on SN and in the maker movement and the rest of the geek universe can solve this problem, if we choose to.

        --
        Washington DC delenda est.
        • (Score: 2) by Sir Garlon on Friday October 24 2014, @05:29PM

          by Sir Garlon (1264) on Friday October 24 2014, @05:29PM (#109660)

          You can create chaos but you cannot create a new order. That can only be done by collective will and consent. It's unclear what you hope to accomplish, other than some terrorism for fun and profit.

          --
          [Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
          • (Score: 2) by Yog-Yogguth on Friday October 24 2014, @08:26PM

            by Yog-Yogguth (1862) Subscriber Badge on Friday October 24 2014, @08:26PM (#109708) Journal

            Liberty?

            --
            Bite harder Ouroboros, bite! tails.boum.org/ linux USB CD secure desktop IRC *crypt tor (not endorsements (XKeyScore))
          • (Score: 2) by Phoenix666 on Friday October 24 2014, @10:43PM

            by Phoenix666 (552) on Friday October 24 2014, @10:43PM (#109755) Journal

            terrorism for fun and profit

            The alternative to the status quo != terrorism. Neither does it equal chaos. If we accept your assertion at face value, then no social change has ever created any new order, only chaos. Except, the historical record does not agree with you. You do not even need to look at a history book to know that, but simply remember the fall of the Berlin Wall and the end of the Iron Curtain (assuming you're old enough to remember those events). Those two in particular sharply contradict your assertion because they happened almost overnight and with nearly no bloodshed (apart from the Securitate's fight in Romania). There are lots more examples that have occurred within our own lifetimes, such as Otpor's nonviolent overthrow of Milosevic in Serbia.

            So, what it rather disappointingly seems you are arguing for is acquiescence and resignation to the increasingly hopeless plight of mankind. Hey, what can you do, right? Pass me another beer and put the game on, eh?

            It's unclear what you hope to accomplish

            .

            I'm sure that is so, since we were not talking about my personal wishlist for what a post-status quo world order would look like, but rather my assertion that because the traditional avenues for structured, managed social change ("soap, ballot, jury...") have all been coopted and no longer serve their vital role, stronger measures are required. But since you asked so nicely for what Phoenix666 would like to see happen, here are a few in no particular order:

            1. End corporate personhood. Corporations are not natural persons, and do not deserve the rights due a natural person (especially since they suffer none of the penalties for their crimes like imprisonment and capital punishment).

            2. Shut down K Street, and permanently end the revolving door between DC and corporations. "Regulatory capture" must be replaced with the rule of law.

            3. Break up the big banks, and largely end for-profit banking. Bankers add no value to the world in any way, and allowing them to capture, control, and corrupt our democracies while essentially de-capitalizing our societies is catastrophic.

            4. Begin seriously addressing climate change and its threat to human civilization by implementing sound (and economist-endorsed) measures like carbon cap & trade and making the triple-bottom line the bedrock of policy formation.

            5. Scrap industrial policy that favors the entrenched and monied and fund and invest in innovation, startups, and entrepreneurs who found new industries and generally make the world a better place (tm).

            6. Bring back the high top-end tax rates for the (for lack of a better term) 1%'ers who pay less of their income to taxes than the people in our societies who actually do things. Labor should not be taxed higher than market speculation.

            7. Defund and dismantle the NSA and put its leaders in jail for the rest of their lives.

            8. Make K thru university education free for all. The student loan industry has destroyed the economic mobility of at least two generations of Americans and threatens to snuff out decades more of economic growth.

            9. Make privacy an explicit constitutional right, and, while we're at it, enforce the Constitution.

            There are a whole lot more, but that's a pretty solid list for starters. If you think those goals are ridiculous and that the status quo is perfectly fine and sustainable, that's cool. Then we'll all know where you stand.

            --
            Washington DC delenda est.
          • (Score: 2) by tangomargarine on Tuesday October 28 2014, @02:34PM

            by tangomargarine (667) on Tuesday October 28 2014, @02:34PM (#110858)

            Chaos, Discord, Confusion, Bureaucracy, and The Aftermath

            Imposition of Order causes an increase in Disorder, and imposition of Disorder causes an increase in Order.

            --
            "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
        • (Score: 2) by tangomargarine on Sunday October 26 2014, @09:54PM

          by tangomargarine (667) on Sunday October 26 2014, @09:54PM (#110349)

          But there is another option that I suggest, which is that skilled groups like ours undertake a program of organized, active resistance to the Masters of the Universe. We built the tools they're using to take our freedom away, so who better than we to turn them around on them?

          Who is John Galt?

          --
          "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
          • (Score: 2) by urza9814 on Tuesday October 28 2014, @01:59PM

            by urza9814 (3954) on Tuesday October 28 2014, @01:59PM (#110851) Journal

            But there is another option that I suggest, which is that skilled groups like ours undertake a program of organized, active resistance to the Masters of the Universe. We built the tools they're using to take our freedom away, so who better than we to turn them around on them?

            Who is John Galt?

            That actually brings up a good point, in a somewhat roundabout way -- we don't really need to *build* the technology, there's quite a bit of it out there already. We have simple to use darknets (Tor; Freenet); we certainly have easy to use encryption technology (truecrypt or whatever replaces it; PGP and the various enabling plugins)...we have the tool already, what we need is *marketing*!

  • (Score: 3, Insightful) by tangomargarine on Friday October 24 2014, @01:58PM

    by tangomargarine (667) on Friday October 24 2014, @01:58PM (#109571)

    Can anybody here explain what the hell this is supposed to mean? If his specific right he cites has been violated, I don't see how he can NOT have standing to sue. But I'm not a lawyer.

    --
    "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
    • (Score: 4, Interesting) by Sir Garlon on Friday October 24 2014, @02:52PM

      by Sir Garlon (1264) on Friday October 24 2014, @02:52PM (#109587)

      I'm not a lawyer either, but as I understand it, he has to show that the defendant's alleged actions personally affected him. This is a long established legal principle that acts as a filter to prevent random people filing frivolous lawsuits against everyone in the hope of winning the lottery. Like all legal principles, it is subject to, let's say, tactical application by a good lawyer (that's what lawyers do).

      It is awfully hard to show that one was specifically harmed by dragnet surveillance when the surveillance data and all records pertaining to its access and use are classified in the name of "national security." DOJ lawyers know this and challenge the plaintiff's standing. This puts the burden on the plaintiff to show he was harmed, while the fact that the evidence is classified means that the plaintiff is denied access to all the relevant evidence. So, case closed.

      This is a common pattern used not only in NSA surveillance cases, but also in "terrorism" or espionage cases of any kind. The government controls the evidence and they can withhold, destroy, or fabricate it at their pleasure.

      --
      [Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
    • (Score: 2, Informative) by curunir_wolf on Friday October 24 2014, @04:59PM

      by curunir_wolf (4772) on Friday October 24 2014, @04:59PM (#109656)

      IIRC, there are 3 tests to establish "standing" in a court:

      1. The plaintiff must demonstrate he was damaged in some way. Courts have recognized a civil rights violation as damage, even if the plaintiff suffered no physical or financial loss.
      2. The court in question must have clearly established jurisdiction, based on location of the alleged wrongdoing and the parties involved.
      3. There must be some remedy available. I'm assuming that if the court has the authority to order the defendant to pay money, this one is satisfied.
      --
      I am a crackpot
      • (Score: 2) by redneckmother on Friday October 24 2014, @06:42PM

        by redneckmother (3597) on Friday October 24 2014, @06:42PM (#109677)

        If ignoring the Constitution and Bill of Rights isn't a civil rights violation, I don't know what is.

        --
        Mas cerveza por favor.
        • (Score: 2) by urza9814 on Tuesday October 28 2014, @02:08PM

          by urza9814 (3954) on Tuesday October 28 2014, @02:08PM (#110853) Journal

          The question is if it violated *his* civil rights, not if it just violated civil rights in general. If your rights were violated, you have to be the one to sue. I can't sue on your behalf.

          Of course that's bullshit, it's a catch-22 situation -- they say he can't sue unless he was spied on, and he can't know if he was spied on because that would "compromise national security"...

      • (Score: 2) by tangomargarine on Friday October 24 2014, @07:01PM

        by tangomargarine (667) on Friday October 24 2014, @07:01PM (#109685)

        1. 4th Amendment, as mentioned in the summary.
        2. It's a federal court...the wiretapping was a federal program...are we going to start arguing about where the servers are located? Because that would be blatantly hypocritical as the U.S. government has demonstrated it doesn't give a shit whether the servers are even in another country.
        3. Remedy is to tell the NSA to stop...again...maybe they won't ignore us this time? Firing all the head honchos would be nice, too, but I'm not sure whether that's relevant to *this* case per se.

        --
        "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"