Snowden Leaks Prompt Spying Case Revival

     (CN) — Count another victory for National Security Agency whistleblower Edward Snowden, whose leaks of top-secret records on mass surveillance inspired the Third Circuit to revive a lawyer’s class action against the program.
     After filing his federal lawsuit in Pennsylvania, attorney Elliot Schurchardt’s ran up against the same hurdle in challenging the NSA’s data-collection program that the American Civil Liberties Union did in New York.
     Both the ACLU and Schurchardt claimed the NSA violated their rights and privileged communications by spying on them. The ACLU’s lawsuit challenged the agency’s telephone-data scooping program, and Schurchardt’s complaint defended the sanctity of his emails.
     But these cases stumbled because neither could initially prove in court that the NSA used its long-suspecting spying programs against them.
     The ACLU first collided with this barrier in a complaint the group filed with Amnesty International against national intelligence director James Clapper in 2008.
     Five years later, the U.S. Supreme Court’s ruling in Clapper v. Amnesty emphasized that plaintiffs could not challenge the secret surveillance if they could not prove that they were being targeted. Critics called the ruling a catch-22 for privacy-minded litigants.
     All of that changed with Snowden’s blockbuster leaks in June 2013, months after the high court’s February ruling.
     Armed with this new evidence, the ACLU returned to court in New York; conservative gadfly lawyer Larry Klayman filed in Washington; and Schurchardt filed in his then-home of Pittsburgh.
     As of Wednesday, all three of these lawsuits have vaulted their first hurdle of standing, or the right to sue.
     The Third Circuit’s most recent decision, in Schurchardt’s case, spans 38 pages and devotes several paragraphs to Snowden’s revelations.
     Circuit Judge Thomas Hardiman noted in his ruling that Schurchardt’s suit focuses on “documents leaked to the Washington Post and Guardian” regarding a “previously undisclosed electronic surveillance program operating under Section 702 called PRISM.”
     “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,” Hardiman wrote.
     In a phone interview, Schurchardt said that his lawsuit is more ambitious than the one in New York.
     “Telephone metadata, we believe, is a red herring,” he told Courthouse News. “But the holy grail here, and Mr. Snowden said this repeatedly, is the email. And it’s not the metadata of the email. It’s the content.”
     According to the ruling, the government “strenuously disputes” that PRISM collects “all or substantially all of the email sent by American citizens,” but these allegations can proceed to discovery — subject to restrictions to protect classified information.
     In essence, Schurchardt contends, the court told him, “We’re going to make it fairly difficult for you to do so because of the government secrets defense.”
     Electronic Frontier Foundation’s attorney David Greene, who wrote a friend-of-the-court brief supporting Schurchardt, said that the case revived by Third Circuit is similar to his organization’s lawsuit Jewel v. NSA in California.
     Like the ACLU’s case, the EFF brought its challenge in 2008.
     The San Francisco-based group’s case targets so-called “upstream” surveillance of communications through fiber optic cables.
     He said that the upshot of the Third Circuit ruling is that the impact of the Supreme Court’s Clapper decision, once thought to be daunting, is more narrow than previously believed.
     “The Clapper decision only really applies to pre-enforcement challenges,” Greene said, referring to actions against programs not yet in effect.
     He added that active data-collection programs do not face this hurdle.
     The Justice Department did not immediately respond to an email request for comment.

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