Case 2:14-cv-00705-CB Document 23 Filed 12/23/14 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ELLIOTT J. SCHUCHARDT,
individually and doing business as
the Schuchardt Law Firm,

CIVIL DIVISION
Case No. 2:14-cv-00705-CB

Plaintiff,
v.
BARACK H. OBAMA, as President of
the United States, et al.,
Defendants.

PLAINTIFF’S BRIEF IN OPPOSITION
TO DEFENDANTS’ MOTION TO DISMISS

Filed on behalf of the Plaintiff,
Elliott J. Schuchardt
Contact information for this party:
Elliott J. Schuchardt
Schuchardt Law Firm
U.S. Steel Building, Suite 660
600 Grant Street
Pittsburgh, PA 15219
Phone: (412) 414-5138
E-mail: elliott016@gmail.com

Case 2:14-cv-00705-CB Document 23 Filed 12/23/14 Page 2 of 30

TABLE OF CONTENTS
PRELIMINARY STATEMENT ......................................................................................... 1
BACKGROUND .............................................................................................................. 1
The government sought approval from the FISC for bulk collection of email....................................................................................................................... 2
The FISC denied the government's request to collect e-mail in bulk.................... 4
The Defendants now collect e-mail in bulk without a warrant or any court
oversight. .............................................................................................................. 5
The government also collects phone "metadata" in bulk...................................... 6
PROCEDURAL BACKGROUND..................................................................................... 7
ARGUMENT.................................................................................................................... 8
I.

The executive branch is infringing on the investigatory function of this
Court..................................................................................................................... 8

II.

The Court is required to accept the allegations in the complaint as true. ........... 10

III.

IV.

V.

A.

The Court should not consider the Defendants’ allegations of fact. ........ 10

B.

There is a material issue of fact as to whether the Defendants are
collecting all phone metadata. ................................................................. 11

The Plaintiff has standing because the complaint alleges specific facts
indicating that the Defendants’ are collecting e-mail and phone metadata. ....... 12
A.

The Defendants’ bulk collection of e-mail and phone metadata is
well-established in the complaint. ............................................................ 14

B.

The Plaintiff has been harmed by the Defendants’ bulk collection of
e-mail and phone metadata. .................................................................... 15

The Defendants' conduct is in direct violation of the Fourth Amendment........... 20
A.

The Plaintiff has an expectation of privacy in his e-mail and web
search queries. ........................................................................................ 20

B.

The Plaintiff has an expectation of privacy in his phone metadata. ......... 21

The complaint has properly pled a cause of action for civil damages. ............... 23

CONCLUSION .............................................................................................................. 24

Case 2:14-cv-00705-CB Document 23 Filed 12/23/14 Page 3 of 30

TABLE OF AUTHORITIES
Cases
ACLU v. Clapper, 959 F. Supp. 2d 724, 738, 2013 U.S. Dist. LEXIS 180863, 29,
2013 WL 6819708 (S.D.N.Y. 2013).................................................................. 18, 22
Al-Haramain v. Obama, 705 F.3d 845 (9th Cir. 2012).................................................... 24
Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir.), cert.
denied, 474 U.S. 935 (1985)................................................................................... 10
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 2009 U.S. LEXIS
3472, 28-29 (2009) ................................................................................................. 13
Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986) ......................................... 10
Bell Atlantic v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d
929, 940, 2007 U.S. LEXIS 5901 (2007). ............................................................... 13
Bennett v. Spear, 520 U.S. 154, 167, 137 L. Ed. 2d 281, 117 S. Ct. 1154 (1997)........ 12
Boumediene v. Bush, 553 U.S. 723, 742, 128 S. Ct. 2229, 2246 (2008)........................ 8
Clinton v. City of New York, 524 U.S. 417, 450, 118 S. Ct. 2091 (1998) ...................... 10
Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) ............ 10, 13
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).............. 10
In re Redacted Government Case, FISA Court, Opinion of Roger Vinson...... 4, 5, 12, 21
Klayman v. Obama, 957 F. Supp. 2d 1, 2013 U.S. Dist. LEXIS 176925, 2013 WL
6571596 (D.D.C. 2013)............................................................................... 18, 19, 23
Langford v. City of Atlantic City, 235 F.3d 845, 850 (3d Cir. 2000); .............................. 10
Marbury v. Madison, 5 U.S. 137 (1803) ...................................................................... 8, 9
Oran v. Stafford, 226 F.3d 275, 279 (3d Cir. 2000)....................................................... 10
Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d
Cir.), cert. denied, 510 U.S. 1042, 126 L. Ed. 2d 655, 114 S. Ct. 687 (1994)......... 10
Pryor v. NCAA, 288 F.3d 548, 560, 2002 U.S. App. LEXIS 8745, 25-26 (3d Cir.
2002) ...................................................................................................................... 11
Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430, 2014 U.S. LEXIS 4497
(2014) ......................................................................................................... 20, 21, 23

Case 2:14-cv-00705-CB Document 23 Filed 12/23/14 Page 4 of 30

Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). ......... 10
Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (U.S. 1979).......... 21
Smith v. Obama, 2014 U.S. Dist. LEXIS 76344, 2014 WL 2506421 (D. Idaho
June 3, 2014).......................................................................................................... 22
United States v. Mitchell, 377 F. Supp. 1326, 1974 U.S. Dist. LEXIS 8455
(D.D.C. 1974)............................................................................................................ 9
United States v. Moalin, 2013 U.S. Dist. LEXIS 164038, 2013 WL 6079518 (S.D.
Cal. Nov. 18, 2013)................................................................................................. 22
United States v. Nixon, 418 U.S. 683 (1974) .................................................................. 8
Statutes
50 U.S.C. § 1801 (2014). .............................................................................................. 24
50 U.S.C. § 1810 (2014). .............................................................................................. 23
Rules
Fed. R. Civ. P. 12(b)(6) ................................................................................................. 10
Fed. R. Civ. P. 12(d) (2014). ......................................................................................... 11
Fed. R. Civ. P. 8(a)(2) (2014).................................................................................. 12, 13
Treatises
62 Fed. Proc., L. Ed. § 62:508 ...................................................................................... 11
Constitutional Provisions
U.S. Const., Art. III, Sect. 1 (2014).................................................................................. 8

ii

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ELLIOTT J. SCHUCHARDT,
individually and doing business as
the Schuchardt Law Firm,

CIVIL DIVISION
Case No. 2:14-cv-00705-CB

Plaintiff,
v.
BARACK H. OBAMA, as President of
the United States, et al.,
Defendants.

PLAINTIFF’S BRIEF IN OPPOSITION
TO DEFENDANTS’ MOTION TO DISMISS
The Plaintiff, Elliott Schuchardt, files this memorandum of law in opposition to the
Defendants’ motion to dismiss the complaint. In support hereof, the Plaintiff states as follows:
Preliminary Statement
This case challenges the Defendants' bulk collection of constitutionally-protected
e-mail, web search queries, and phone "metadata."
Additional facts have become public since the Plaintiff filed his second amended
complaint in November. It is now known that the Foreign Intelligence Surveillance Court
denied the government's request to collect such information without a warrant in 2007.
Background
The background of the case is as follows.
On October 4, 2001, President George W. Bush authorized a program that collected
and analyzed the full content of e-mail sent within the United States. (2d Amend. Compl.,
¶ 6.) This program was known as "Stellar Wind."1

1

Ex. A, Charlie Savage, "Documents Shed New Light on Legal Wrangling Over Spying in U.S.," N.Y.

Case 2:14-cv-00705-CB Document 23 Filed 12/23/14 Page 6 of 30

After the program commenced, several career intelligence officers objected to the
program on Fourth Amendment grounds. However, they were unable to obtain change within
the federal government. (2d Amend. Compl., ¶¶ 8-23.)
In December 2005, the New York Times exposed the government's secret program.
(Ex. A, Savage Article). A few months later, in May 2006, an AT&T technician revealed that
the NSA was copying all e-mail passing through AT&T's communications network in San
Francisco. (2d Amend. Compl., ¶ 13.)
The government sought approval from the
FISC for bulk collection of e-mail.
Following these disclosures, the government sought to establish the legality of the
Stellar Wind program through the Foreign Intelligence Surveillance Court (the "FISC"). The
FISC is a secret court set up pursuant to the Foreign Intelligence Surveillance Act, 50 U.S.C.
chap. 36 ("FISA"), to review and issue subpoenas in connection with foreign intelligence
investigations.
On December 13, 2006, the Department of Justice filed an application with the FISC
for approval of the Stellar Wind program. The application was supported by a memorandum
of law, which became public earlier this month. (Ex. B).
The application asked the FISC to give the government blanket authority to collect a
large number of communications from specific communication facilities. Instead of targeting a
specific e-mail address or phone number, the government sought to target all e-mail or phone
calls passing through a specific communication facility. (Ex. B, at 10, 23-26). Once collected,
the e-mail or phone calls would not be searched -- or "tasked" -- without the approval of the
Attorney General. (Ex. B, at 11).

Times, Dec. 12, 2014 [hereafter "Savage Article"].

2

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The government's brief argued that blanket collection of e-mail would allow the
government to act with greater speed. (Ex. B, at 10). In addition, it would be possible for the
government to collect information about persons who were not yet known to be "persons of
interest." As explained in the petition:
Granting the application would make it possible to collect
communications to and from a substantial number of telephone numbers
and e-mail addresses being used by such operatives who otherwise
would not be surveilled due to resource constraints.
(Ex. B, at 12) (emphasis added).
The government supported its application with a Declaration by the "NSA Program
Manager for Counterterrorism." (Ex. C). The name of this person has been redacted from
the documents. However, the declaration includes a very important statement. It says:
The Intelligence Community believes that the United States must use
every collection tool available to prevent future attacks.
(Ex. C, at 12) (emphasis added). The government therefore admitted, in January 2007, that it
was seeking to collect everything that it could get its hands on. This admission parallels the
allegations made by William Binney, Edward Snowden and Ladar Levinson. (2d Amend.
Compl., ¶¶ 1-55.)
In the application, the government argued that the President -- as commander in chief
of the armed forces -- has the inherent right to conduct electronic surveillance without a court
order. (Ex. B, at 55-59).
On January 10, 2007, the Honorable Malcolm J. Howard of the FISC approved the
government's petition.
Shortly thereafter, Attorney General Alberto Gonzales crowed to the media that the
warrantless spying program had been brought "under the authority of the FISC."

3

He

Case 2:14-cv-00705-CB Document 23 Filed 12/23/14 Page 8 of 30

described the administration's legal theory as "innovative" and "complex." (Ex. A, Savage
Article).
The FISC denied the government's
request to collect e-mail in bulk.
However, Gonzales spoke too soon. On March 21, 2007, the government filed an
application to renew the bulk collection authority approved by Judge Howard. This time the
application was considered by the Honorable Roger Vinson, of the FISC. (Ex. D, Vinson
opinion, at 3).
On April 3, 2007, Judge Vinson held that the government's bulk collection of e-mail was
not authorized by FISA. (Ex. D, Vinson opinion, at 13). In denying the government's request,
the Court explained its reasoning as follows:
Even if the statutory language were as elastic as the government
contends, it would still be incumbent upon me to apply the language in
the manner that furthers the intent of Congress. In determining what
interpretation would best further Congressional intent, it is appropriate to
consult FISA's legislative history. That legislative history makes clear
that the purpose of pre-surveillance judicial review is to protect the
fourth amendment rights of U.S. persons. Congress intended the
pre-surveillance "judicial warrant procedure," and particularly the judge's
probable cause findings, to provide an external check on executive
branch decisions to conduct surveillance.
Contrary to this intent of Congress, the probable cause inquiry proposed
by the government could not possibly restrain executive branch
decisions to direct surveillance at any particular individual, telephone
number or e-mail address.
* * *
The government would have all the probable cause findings . . . made by
executive branch officials, subject to after-the-fact reporting to the Court.
That result cannot be squared with the statutory purpose of providing a
pre-surveillance “external check” on surveillance decisions.
(Ex. D, Vinson opinion, at 13-15) (emphasis added).
Judge Vinson therefore ordered the government to cease collecting e-mail as of May
31, 2007. (Ex. D, Vinson opinion, at 21).
4

Case 2:14-cv-00705-CB Document 23 Filed 12/23/14 Page 9 of 30

The Defendants now collect e-mail in bulk
without a warrant or any court oversight.
Before finishing his opinion, Judge Vinson addressed the government's argument that
the President has the inherent authority to collect domestic e-mail, as part of the executive's
powers as commander in chief of the army. Judge Vinson refused to rule on this issue:
I recognize that the government maintains that the President may have
"constitutional or statutory authority to conduct the electronic surveillance
detailed herein without Court authorization." [Citations omitted]. Nothing
in this order and opinion is intended to address the existence or scope of
such authority, or this Court's jurisdiction over such matters.
(Ex. D, Vinson opinion, at 20).
The FISC therefore indicated that it would "look the other way" if the executive branch
were to engage in bulk collection without court approval. That is exactly what the executive
branch did.
The Defendants began to collect a wide variety of information from the internet
pursuant to the authority purportedly granted by an obscure executive order, number 12333.
This order purports to authorize bulk collection of data for a number of broad reasons. (See
2d Amend. Compl. ¶¶ 56-63.)
The Defendants wasted no time. On September 11, 2007, the Defendants began bulk
collection of e-mail from Microsoft. On March 12, 2008, the Defendants began bulk collection
of e-mail and web search queries from Yahoo. Other providers followed: Google on January
14, 2009; Facebook on June 3, 2009; YouTube on September 24, 2010; Skype on February
6, 2011; AOL on March 31, 2012; Apple in October 2012; and Dropbox in June 2013. (2d
Amend. Compl., ¶¶ 38-39, 90-99).
On June 5, 2013, Edward Snowden, a former government contractor, disclosed the
government's sweeping surveillance program in an article published in the Guardian
newspaper. (2d Amend. Compl., ¶¶ 24-49.)
5

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Shortly thereafter, the government approached Snowden's e-mail provider, Lavabit.
The government insisted that Lavabit install a device on its system to give the government
access to the full content of all e-mail for all of Lavabit's 410,000 customers. On August 8,
2013, Lavabit voluntarily shut down service, rather than submit to future government
monitoring. The following day, another encrypted e-mail system -- Silent Circle -- voluntarily
shut down. (2d Amend. Compl., ¶¶ 50-55.)
Since August 9, 2013, there has been no secure e-mail service within the United
States. The content of all e-mail sent or passing through the United States is monitored
and/or stored by the Defendants without a warrant. (2d Amend. Compl., ¶ 55.)
The government also collects phone "metadata" in bulk.
This case also addresses the government's collection of information concerning phone
calls made in the United States.
In May 2006, the government began collecting "metadata" from United States
telephone companies. (Ex. E, Shea Decl., ¶ 13.) "Metadata" means the phone number of
both the caller and the person called, the name and address associated with each phone
number, and the duration of the call. It does not include the content of the call. (2d Amend.
Compl., ¶¶ 114-116.)
The government obtains such records by means of orders issued by the FISC. (Ex. E,
Shea Decl., ¶ 14.) The NSA consolidates the records from different phone companies into a
single database. According to government officials, this aggregation of records into a single
database creates “a historical repository that permits retrospective analysis.”2

2

See Klayman v. Obama, 957 F. Supp. 2d 1, 15, 2013 U.S. Dist. LEXIS 176925, 30, 2013 WL
6571596 (D.D.C. 2013) (citing the Shea Declaration and government pleadings).

6

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PROCEDURAL BACKGROUND
The Plaintiff, Elliott Schuchardt, is an attorney practicing law in Pittsburgh,
Pennsylvania. Schuchardt has a law degree from Columbia University Law School, and has
practiced law for more than twenty years.
Schuchardt is a consumer of many of the internet services described above. He uses
e-mail provided by Google, Facebook and Yahoo; he conducts web searches through the
Google search engine; and he stores his personal and law firm documents by means of the
Dropbox cloud storage service. Finally, Schuchardt makes telephone calls by means of
Verizon Communications. (2d Amend. Compl., ¶ 86; see also Ex. G, Affidavit of Elliott J.
Schuchardt).
As a lawyer, Schuchardt is required to keep his communications with clients
confidential. He is not able to do so if the Defendants are actively storing and data-mining his
e-mail and online documents.
On June 2, 2014, Schuchardt filed a complaint against the Defendants, seeking an
injunction. The Plaintiff subsequently amended the complaint on September 2 and November
24, 2014.
On December 11, 2014, the Defendants filed a motion to dismiss the Plaintiff’s second
amended complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
It is proper for the Court to deny the Defendants’ motion for the reasons set forth
below.

7

Case 2:14-cv-00705-CB Document 23 Filed 12/23/14 Page 12 of 30

ARGUMENT
I.

The executive branch is infringing on the investigatory function of this Court.
In 1803, in Marbury v. Madison, 5 U.S. 137 (1803), the U.S. Supreme Court stated that

it has the power to issue orders binding upon the executive branch of the United States.
Since that time, the Supreme Court has jealously guarded the power of the federal
courts, vis-a-vis the executive branch. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer,
103 F. Supp. 569, 1952 U.S. Dist. LEXIS 4527 (D.D.C. 1952) (president does not have the
power to seize nation's steel mills under his alleged power as commander in chief of the
armed forces); United States v. Nixon, 418 U.S. 683 (1974) (president does not have the
power to determine the scope of a subpoena issued by a federal court); see also Boumediene
v. Bush, 553 U.S. 723, 742, 128 S. Ct. 2229, 2246 (2008) ("The Framers' inherent distrust of
governmental power was the driving force behind the constitutional plan that allocated powers
among three independent branches.").
In this case, the executive branch is attempting to usurp the Court's investigatory
function.

This function was assigned to the federal courts by Article III of the U.S.

Constitution. Specifically, that section provides as follows:
The judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to time
ordain and establish.
U.S. Const., Art. III, Sect. 1 (2014).
By unilaterally seizing the nation's e-mail and searching it without a court order, the
Defendants have rendered moot the need for this Court to review and issue subpoenas.
The judicial power of the United States cannot be shared with other branches of the
federal government. In 1974, the U.S. Supreme Court addressed this issue in United States

8

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v. Nixon, 418 U.S. 683, 704-705, 94 S. Ct. 3090, 3106, 41 L. Ed. 2d 1039, 1062, 1974 U.S.
LEXIS 93, 40-41 (U.S. 1974).
In that case, the U.S. District Court for the District of Columbia issued a subpoena to
President Nixon, directing him to produce audio recordings of conversations that occurred in
the Oval Office. Nixon moved to quash the subpoena, arguing that production would have
violated "executive privilege." The District Court denied Nixon's motion, finding that the
federal courts -- and not the President -- are the final arbiter of the law. United States v.
Mitchell, 377 F. Supp. 1326, 1974 U.S. Dist. LEXIS 8455 (D.D.C. 1974) (Sirica, J).
On appeal, the U.S. Supreme Court unanimously affirmed Judge Sirica. The Court
explained its reasoning as follows:
Our system of government "requires that federal courts on occasion
interpret the Constitution in a manner at variance with the construction
given the document by another branch."
* * *
The "judicial Power of the United States" . . . can no more be shared with
the Executive Branch than the Chief Executive, for example, can share
with the Judiciary the veto power. . . . Any other conclusion would be
contrary to the basic concept of separation of powers and the checks
and balances that flow from the scheme of a tripartite government. The
Federalist, No. 47, p. 313 (S. Mittell ed. 1938). We therefore reaffirm
that it is the province and duty of this Court "to say what the law is" with
respect to the claim of privilege presented in this case. Marbury v.
Madison, supra, at 177.
Nixon, 418 U.S. at 704-705, 94 S. Ct. at 3106, 1974 U.S. LEXIS 93, 40-41 (U.S. 1974).
The wiretapping in the case at bar is far more pernicious than that in the Nixon case.
In Nixon, the executive branch was wiretapping the political opposition. In this case, the
executive branch is wiretapping the Court itself. (2d Amend. Compl., ¶¶ 45-46.)
For the foregoing reasons, the executive branch is attempting to seize the Court's
power. The Plaintiff respectfully submits that the Court enforce its powers, while it has the

9

Case 2:14-cv-00705-CB Document 23 Filed 12/23/14 Page 14 of 30

ability to do so. Clinton v. City of New York, 524 U.S. 417, 450, 118 S. Ct. 2091 (1998)
(Kennedy, J., concurring) ("Liberty is always at stake when one or more of the branches seek
to transgress the separation of powers").
II.

The Court is required to accept the allegations in the complaint as true.
A district court reviewing the sufficiency of a complaint has a limited role. "The issue is

not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer
evidence to support his claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94
S. Ct. 1683 (1974).
The Court may not dismiss a complaint unless the plaintiff can prove no set of facts
that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct.
99 (1957); Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir.), cert.
denied, 474 U.S. 935 (1985).
In making this decision, the Court is required to accept all allegations in the complaint
as true, and view them in the light most favorable to the plaintiff. Fed. R. Civ. P. 12(b)(6)
(2014). See Oran v. Stafford, 226 F.3d 275, 279 (3d Cir. 2000); Langford v. City of Atlantic
City, 235 F.3d 845, 850 (3d Cir. 2000); Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir.
1986); Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d at 944.
A.

The Court should not consider the Defendants’ allegations of fact.

Generally, when considering a motion to dismiss, the Court should only consider
material in the plaintiff’s complaint. See In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir.), cert. denied, 510 U.S. 1042, 126 L. Ed. 2d 655, 114 S. Ct. 687 (1994).

10

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The Court should not consider factual allegations proffered by the Defendant. The
purpose of the motion is not to try the case, before discovery is conducted. According to the
Third Circuit:
As a general rule, the court may only consider the pleading which is
attacked by an FRCP 12(b)(6) motion in determining its sufficiency. The
court is not permitted to look at matters outside the record. . . .
Documents that the defendant attaches to the motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff's
complaint and are central to the claim; as such, they may be considered
by the court.
Pryor v. NCAA, 288 F.3d 548, 560, 2002 U.S. App. LEXIS 8745, 25-26 (3d Cir. 2002),
citing, 62 Fed. Proc., L. Ed. § 62:508 (emphasis added).
It would therefore be improper for the Court to consider any documents submitted by
the Defendants in this case, before discovery has been conducted.
B.

There is a material issue of fact as to whether the Defendants are
collecting all phone metadata.

If the Court does consider the attachments to the Defendants' motion, then it is proper
for the Court to find that there is a material issue of fact, warranting denial of the Defendants'
motion. See Fed. R. Civ. P. 12(d) (2014).
The Defendants have supported their motion with an affidavit of Major General Gregg
C. Potter, the Military Deputy Director for the Signals Intelligence Directorate at the National
Security Agency (the "NSA"). General Potter’s affidavit states that the Defendants do not
collect “all” call records for persons in the United States. Potter Decl., ¶ 4. However, the
affidavit is, notably, silent on the Defendants’ bulk collection of e-mail.
The Plaintiff is filing, with this brief, the Affidavit of Teresa H. Shea, the Director of the
Signals Intelligence Directorate at the NSA. In the affidavit, Shea discusses the Defendants'
metadata collection program at length. She indicates that the program only works because it
collects virtually all of the phone metadata in the United States. Ex. E, Shea Decl., ¶¶ 7-10.
11

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There is therefore a material issue of fact as to whether the Defendants are collecting
all or virtually telephony metadata in the United States.
The Plaintiff is also filing the Affidavit of William Binney, a former senior employee of
the NSA. In his affidavit, Binney states that other employees of the NSA confided in him, and
told him that the government was collecting the full content of e-mail. Ex. F, Binney Decl. ¶ 5.
There is also a material issue of fact as to whether the Defendants' collection activities
are occurring pursuant to the authority granted by FISA. As noted in the Background section
of this brief, the FISC has issued an opinion finding that the Defendants do not have authority
under FISA to engage in bulk collection of e-mail. See In re Redacted Government Case,
FISC, Opinion of Roger Vinson, Ex. D, at 160, discussed supra at 2-4.
It is therefore proper for the Court to find that there is a material issue of fact
concerning numerous issues in this case.
III.

The Plaintiff has standing because the complaint alleges specific facts
indicating that the Defendants’ are collecting e-mail and phone metadata.
Constitutional standing requires pleadings that show (1) a legally recognized injury; (2)

caused by the named defendant or at least "fairly traceable to the challenged action of the
defendant"; and (3) that a favorable decision by the court would likely redress. Bennett v.
Spear, 520 U.S. 154, 167, 137 L. Ed. 2d 281, 117 S. Ct. 1154 (1997).
Traditionally, the federal courts used a system of “notice pleading,” to determine the
sufficiency of a complaint. This meant that the plaintiff simply had to give the defendant
sufficient information as to the nature of the causes of action being pled against the
defendant. The plaintiff did not have include any specific facts in the complaint, at all. Conley
v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).

12

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This system of "notice pleading" is reflected in Rule 8(a) of the Federal Rules of Civil
Procedure. According to Rule 8(a)(2), a complaint must only contain "a short and plain
statement of the claim showing that the pleader is entitled to relief," in order to "give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests." Conley,
355 U.S. at 47; Fed. R. Civ. P. 8(a)(2) (2014).
In 2007, the U.S. Supreme Court stated that a complaint must contain sufficient facts
to show that the plaintiff was “plausibly” damaged by the defendant. In Bell Atlantic v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929, 940, 2007 U.S. LEXIS
5901 (2007).
Contrary to the Defendants' assertions, the Supreme Court in Twombly did not ask the
District Court to conduct a mini trial based solely on the pleadings. The Court simply wanted
to see facts alleged in the complaint, that plausibly supported the claim asserted. In Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 2009 U.S. LEXIS 3472, 28-29 (2009), the
Supreme Court elaborated on this standard:
A pleading that offers "labels and conclusions" or "a formulaic recitation
of the elements of a cause of action will not do." 550 U.S., at 555, 127
S. Ct. 1955, 167 L. Ed. 2d 929. Nor does a complaint suffice if it tenders
"naked assertion[s]" devoid of "further factual enhancement." [citations
omitted].
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to "state a claim to relief that is
plausible on its face." Id., at 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929. A
claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Id., at 556, 127 S. Ct. 1955, 167 L. Ed.
2d 929.
Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (emphasis added).
Thus, contrary to the allegations in the Defendants’ pleadings, the Court must accept
the factual allegations in the Plaintiffs’ complaint as true.

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A.

The Defendants’ bulk collection of e-mail and phone metadata is wellestablished in the complaint.

The Plaintiff's complaint includes a cornucopia of detail and facts that have leaked out
from the Defendants’ industrial data-mining operation.
The complaint quotes at length from affidavits filed by former NSA employees in the
case of Jewel v. NSA, pending in the U.S. District Court for the Northern District of California,
Case No. 08-cv-04373 (the “Jewel case”). Those affidavits, based on personal information,
indicate that the NSA is collecting the full-content of e-mail, without any oversight by the
Courts. (2d Amend. Compl., ¶¶ 19-21.)
The complaint next quotes at length from public statements made by former NSA
employee, Edward Snowden. Snowden states that he was able to read the e-mail of any
person in the United States – without a warrant – if he had the e-mail address for that person.
(2d Amend. Compl., ¶¶ 45-47.) Snowden’s public statements make it abundantly clear that
the Defendants are collecting the full content of e-mail from a variety of e-mail providers in the
United States. Id. Snowden has released documents showing the actual dates that the
Defendants started such collection, with respect to a variety of e-mail providers. (2d Amend.
Compl., ¶ 39.)
The complaint also describes the government’s treatment of Ladar Levinson, the owner
of the Lavabit e-mail system. Following Snowden’s disclosures, the federal government
required Levinson make available the full-content of the e-mail within Lavabit’s system – for
over 400,000 subscribers. Levinson responded by shutting down the system, and then suing
the federal government for the right to tell his story. The complaint describes Levinson’s
treatment by the government, and attaches a copy of Levinson’s public statement. (2d
Amend. Compl., ¶¶ 50-54.)

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B.

The Plaintiff has been harmed by the Defendants’ bulk collection of e-mail
and phone metadata.

Next, the complaint properly pleads that the Plaintiff has been harmed by the
Defendants’ collection efforts.
The complaint states the Plaintiff uses the e-mail services provided by Google, Yahoo
and Facebook. (2d Amend. Compl., ¶ 86.) The complaint also states that the Plaintiff uses
the internet-search services used by Google; the cloud storage services provided by Google
and Dropbox; and the cell phone and text services provided by Verizon. Id.; see also Ex. G,
Schuchardt Aff., ¶¶ 10-12.
The complaint seeks certification on behalf of a national class of persons using such
internet and telephone services. (2d Amend. Compl., ¶¶ 75-83.)
The complaint contends that the Defendants are massively invading the privacy of the
Plaintiff and the proposed national class with respect to all of these services. Specifically, the
complaint contends that the Defendants are collecting the full-content of e-mail being sent by
means of Google, Yahoo and Facebook; all web queries being conducted by means of these
services; the full content of documents stored on the cloud storage services provided by
Google and Dropbox; and the metadata for all phone calls being made by means of Verizon.
(2d Amend. Complaint, ¶¶ 37-41, 91-94.)
The complaint is crystal clear on its allegations concerning this point:
92.
Since March 12, 2006, the Defendants have been collecting both
the content and the metadata of the Plaintiffs’ private e-mail
communications sent through the Yahoo e-mail system.
93.
Since January 14, 2009, the Defendants have been collecting
both the content and the metadata of the Plaintiffs’ private e-mail
communications sent through the Google “gmail” e-mail system.
94.
Since January 14, 2009, the Defendants have been collecting the
content and the metadata of the Plaintiffs’ private internet search history
through the Google search website.
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95.
Since June 3, 2009, the Defendants have been collecting the
content of the Plaintiff's e-mail and instant messages through Facebook.
96.
Upon information and belief, since approximately June 2013, the
Defendants have been collecting the content and metadata of
documents stored by the Plaintiff using the Dropbox cloud storage
service.
97.
The documents, images and communications collected by the
Defendants contain information of a private and confidential nature.
Such communications include bank account numbers; credit card
numbers; passwords for financial data; health records; and trade secrets
of a confidential and valuable nature.
98.
The documents and communications collected by the Defendants
also include communications with clients of Schuchardt's law firm, which
are privileged and confidential under applicable law.
99.
Upon information and belief, the Defendants are storing such
information in a computer database, or through a government program,
which the Defendants call “Prism.”
(2d Amend. Compl., ¶¶ 92-97) (emphasis added).
As shown above, there is no truth to the Defendants' argument that the Plaintiff has
failed to plead that his own communications have not been collected: the Plaintiff affirmatively
makes such contention in the above paragraphs of the complaint.
Furthermore, the Plaintiff has properly pled that he has been harmed by the
Defendants’ invasive conduct. Specifically, the complaint states as follows:
106. The Plaintiff is aggrieved by the above-described conduct of the
Defendants.
107. The Defendants are subject to the law established by the United
States Constitution.
108. According to the 4th Amendment of the United States
Constitution:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.
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109. The Plaintiff has an expectation of privacy in the above-described
private information and electronic communications being collected by the
Defendants.
110. The Defendants have unlawfully collected such information in
violation of the 4th Amendment, without obtaining a warrant and without
probable cause.
* * *
129. The Defendants have already compromised, or caused the
termination of, all secure e-mail communication services based in the
United States.
130. Upon information and belief, the Defendants have also
compromised the security of the cloud storage services, Dropbox and
Microsoft’s Skydrive.
131. Given the dearth of secure, alternative e-mail and cloud storage
services available in the United States, the Plaintiff respectfully seeks
injunctive relief against the Defendants.
* * *
136. The Plaintiff is no longer able to freely express himself by means
of e-mail or documents stored by means of internet cloud services
because the Defendants are collecting and data-mining such
documents.
137. In preparing this complaint, the Plaintiff was not able to use e-mail
to consult with certain persons, even though the proposed
communications would be entirely lawful. This is because the
Defendants could provide such communications directly to the lawyers
representing the government in this lawsuit.
138. The Defendants have also interfered with the Plaintiff’s ability to
freely associate with other persons, because the Defendants have
unilaterally obtained, without a warrant, phone and internet data showing
with whom the Plaintiff associates.
139. If the Defendants’ conduct is allowed to continue, it is possible
that future American governments will use such information to blackmail
or target political enemies.
2d Amend. Complaint, ¶¶ 106-110, 136-139 (emphasis added).
The Plaintiff has further supplemented these allegations by means of an Affidavit, filed
together with this brief. See Ex. G, Schuchardt Aff.
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The Plaintiff has therefore properly pled damages in the complaint.
In several other cases involving the government’s collection of confidential records, the
federal courts have found standing. For example, in Jewel v. NSA, 673 F.3d 902, 2011 U.S.
App. LEXIS 25951 (9th Cir. 2011), the Ninth Circuit found that a group of citizens had
standing to challenge the government's collection of e-mail. In reaching this conclusion, the
court rejected the government’s contention that there is heightened standing requirement in
national security cases:
Article III imposes no heightened standing requirement for the often
difficult cases that involve constitutional claims against the executive
involving surveillance. See Amnesty Int'l, 638 F.3d at 149 ("We do not
see any reason why the law of standing should be stricter or different in
the surveillance context.").
Jewel, 673 F.3d at 913, 2011 U.S. App. LEXIS 25951, 25.
The Southern District of New York reached a similar conclusion in ACLU v. Clapper,
959 F. Supp. 2d 724, 738, 2013 U.S. Dist. LEXIS 180863, 29, 2013 WL 6819708 (S.D.N.Y.
2013). In that case, the U.S. District Court for the Southern District of New York found that
the ACLU had standing to challenge the government's collection of phone metadata where
the ACLU was a Verizon subscriber, and had alleged in the complaint that all phone metadata
for Verizon was being collected.
Similarly, in Klayman v. Obama, 957 F. Supp. 2d 1, 27, 2013 U.S. Dist. LEXIS 176925,
67-68, 2013 WL 6571596 (D.D.C. 2013), the U.S. District Court for the District of Columbia
found that several private citizens had standing to challenge the government’s collection of
phone metadata.
Significantly, in the Klayman case, the government took the same position that it
argues here; namely, that the FISC's order providing for the production of phone metadata
mentions only “Verizon Business Network Services” as the producing party, and not a broader

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Verizon entity. In Klayman, Judge Richard Leon found that the government was not being
truthful about the scope of its collection program:
[T]he Government argues that Judge Vinson's order names only Verizon
Business Network Services ("VBNS") as the recipient of the order,
whereas plaintiffs claim to be Verizon Wireless subscribers. See Govt.'s
Opp'n at 21 & n.9. The Government obviously wants me to infer that the
NSA may not have collected records from Verizon Wireless (or perhaps
any other non-VBNS entity, such as AT&T and Sprint). Curiously, the
Government makes this argument at the same time it is describing in its
pleadings a bulk metadata collection program that can function only
because it "creates an historical repository that permits retrospective
analysis of terrorist-related communications across multiple
telecommunications networks, and that can be immediately accessed as
new terrorist-associated telephone identifiers come to light.”
* * *
Put simply, the Government wants it both ways. Virtually all of the
Government's briefs and arguments to this Court explain how the
Government has acted in good faith to create a comprehensive
metadata database that serves as a potentially valuable tool in
combating terrorism — in which case, the NSA must have collected
metadata from Verizon Wireless, the single largest wireless carrier in the
United States, as well as AT&T and Sprint, the second and third-largest
carriers.
Klayman, 957 F. Supp. 2d at 27, 2013 U.S. Dist. LEXIS 176925, at 67-68. Judge Leon
therefore rejected the government’s reasoning, and found that the plaintiffs had standing.3 In
making this decision, Judge Leon relied on the Shea Affidavit, which as been filed in this
case. See Ex. E, Shea Affidavit.
The federal courts are engaged on this issue, as noted above, because of the great
danger posed by the Defendants’ conduct. It is therefore proper for the Court to find that the
Plaintiff has standing in this case.

3

In the case at bar, the Defendants are attempting to play “fast and loose” with the Court, by filing an
affidavit that contradicts the statements that they made only months ago in the Klayman case.

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IV.

The Defendants' conduct is in direct violation of the Fourth Amendment.
The Defendants' conduct is a direct violation of the Fourth Amendment of the United

States Constitution. Such amendment reads:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.
U.S. Const. 4th Amend. (2014) (emphasis added).
The protection of the Fourth Amendment only applies if the Plaintiff has an expectation
of privacy in the information sought by the government. In this case, the Plaintiff does have
an expectation of privacy.
A.

The Plaintiff has an expectation of privacy in his e-mail and web search
queries.

Just this year, the Supreme Court issued a landmark opinion clarifying that the Plaintiff
has an expectation of privacy in his e-mail, texts and web search queries.
In Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430, 2014 U.S. LEXIS 4497
(2014), the state of California searched the defendant’s cell phone without obtaining a
warrant. The defendant, David Riley, then moved to exclude all evidence obtained from the
search.
On appeal, the U.S. Supreme Court unanimously held that Riley had an expectation of
privacy in the data in his cell phone. In reaching this conclusion, the Court noted the
immense storage capacity of a modern cell phone:
The term “cell phone” is itself misleading shorthand; many of these
devices are in fact minicomputers that also happen to have the capacity
to be used as a telephone. They could just as easily be called cameras,
video players, rolodexes, calendars, tape recorders, libraries, diaries,
albums, televisions, maps, or newspapers.
* * *
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The most basic phones that sell for less than $20 might hold
photographs, picture messages, text messages, Internet browsing
history, a calendar, a thousand-entry phone book, and so on.
* * *
A cell phone search would typically expose to the government far more
than the most exhaustive search of a house: A phone not only contains
in digital form many sensitive records previously found in the home; it
also contains a broad array of private information never found in a home
in any form—unless the phone is.
Riley, 134 S. Ct. at 2489-91, 2014 U.S. LEXIS 4497, at 34 (emphasis added). The Court
therefore concluded that any search of a cell phone would require a warrant. Id., 134 S. Ct. at
2493.
This is the same conclusion reached by the FISC in 2007, when it refused to authorize
the government's bulk collection of data under FISA. See In re Redacted Government Case,
FISC, Opinion of Roger Vinson, Ex. D.
Thus, both the civil courts and the FISC have ruled against the government, when the
government has sought to collect e-mail, texts and web queries without a warrant.
It is proper for this Court to follow the unanimous lead of the Supreme Court in Riley,
and issue an injunction against the government’s bulk collection of e-mail.
B.

The Plaintiff has an expectation of privacy in his phone metadata.

In their motion, the Defendants argue that they can freely collect phone metadata
because such information, arguably, is not protected under the Fourth Amendment. It is
proper for the Court to reject this argument for the reasons set forth below.
The leading case on this issue is Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61
L. Ed. 2d 220 (U.S. 1979). In Smith, the State of Maryland installed a pen register at the
central telephone system to record the phone numbers dialed from a suspect's home
telephone. The state did so without obtaining a warrant. After the suspect, Michael Smith,

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was criminally charged, Smith moved to exclude all evidence obtained from the pen register.
On appeal, the U.S. Supreme Court held that Smith did not have a privacy interest in the
phone numbers called from his telephone. Id., 442 U.S. at 742.
The Defendants argue in their motion that the holding in Smith should allow the
government to seize all phone metadata in the United States, without obtaining a warrant.
There are important reasons why the Court should reject this argument.
First, as stated above, the seizure of information in Smith was a fairly limited
circumstance. In Smith, the pen register was in place for only two days before the state
arrested Smith. Furthermore, the register targeted a single phone number -- that of Smith,
who was already a suspect at the time of its installation. Id., 442 U.S. at 742. The facts are
therefore entirely distinguishable from the case at bar, involving widespread spying on the
population.
Second, the federal courts are presently divided on whether the holding in Smith
should be applied to the government’s collection of phone metadata. As noted in the
government's brief, several courts have held that the holding in Smith should be extended to
the collection of phone metadata. See, e.g., ACLU v. Clapper, 959 F. Supp. 2d 724, 738,
2013 U.S. Dist. LEXIS 180863, 29, 2013 WL 6819708 (S.D.N.Y. 2013); Smith v. Obama,
2014 U.S. Dist. LEXIS 76344, 2014 WL 2506421 (D. Idaho June 3, 2014); United States v.
Moalin, 2013 U.S. Dist. LEXIS 164038, 2013 WL 6079518 (S.D. Cal. Nov. 18, 2013).
However, each of these cases, was decided before the Supreme Court ruled in Riley
v. California. The government's cases are therefore distinguishable on the law. The U.S.
Supreme Court is now using a broader definition of privacy.
The Plaintiff therefore submits that it would be proper for the Court to follow the holding
in Klayman v. Obama, 957 F. Supp. 2d 1, 2013 U.S. Dist. LEXIS 176925, 2013 WL 6571596
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(D.D.C. 2013). In that case, the U.S. District Court for the District of Columbia held that the
government’s collection of telephone metadata violated the Fourth Amendment. In reaching
this decision, Judge Richard Leon found that the holding in Smith v. Maryland did not apply to
the internet age:
The almost-Orwellian technology that enables the Government to store
and analyze the phone metadata of every telephone user in the United
States is unlike anything that could have been conceived in 1979. In
Smith, the Supreme Court was actually considering whether local police
could collect one person's phone records for calls made after the pen
register was installed and for the limited purpose of a small-scale
investigation of harassing phone calls. See Smith, 442 U.S. at 737. The
notion that the Government could collect similar data on hundreds of
millions of people and retain that data for a five-year period, updating it
with new data every day in perpetuity, was at best, in 1979, the stuff of
science fiction. By comparison, the Government has at its disposal today
the most advanced twenty-first century tools, allowing it to "store such
records and efficiently mine them for information years into the future."
Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring).
Klayman, 957 F. Supp. 2d at 33, 2013 U.S. Dist. LEXIS 176925, 86-88 (citing United States v.
Jones, 132 S. Ct. 945, 181 L. Ed. 2d 911, 2012 U.S. LEXIS 1063, 2012 WL 171117 (U.S.
2012)).
In light of the Supreme Court’s unanimous holding in Riley, 134 S. Ct. 2473, 189 L. Ed.
2d 430, 2014 U.S. LEXIS 4497, the Plaintiff submits that it would proper for this Court to
following the holding in Klayman, rather than the pre-internet opinion expressed in Smith.
V.

The complaint has properly pled a cause of action for civil damages.
In their motion to dismiss, the Defendants argue that the Plaintiff has not properly pled

a claim for civil damages against the Defendants. The Plaintiff is seeking such damages
pursuant to 50 U.S.C. § 1810. This section specifically authorizes a civil cause of action
against any person who unlawfully conducts electronic surveillance activities. 50 U.S.C.
§ 1810 (2014).

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The Defendants argue that Congress has not waived sovereign immunity, for purposes
of this statute, citing a Ninth Circuit case, Al-Haramain v. Obama, 705 F.3d 845 (9th Cir.
2012). In that case, the Ninth Circuit held that Congress did not waive sovereign immunity, for
purposes of 50 U.S.C. § 1810.
The Plaintiff respectfully submits that the Court apply the plain meaning of the statute,
which grew out of the abuses documented by the Senate Church Committee in the 1970s.
The definition of “person” -- for purposes of 50 U.S.C. § 1810 – specifically includes “officers
or employees of the Federal Government.” 50 U.S.C. § 1801 (2014). Thus -- based on the
plain meaning of the statute -- Congress intended for the statute to be used against officers of
the federal government.
CONCLUSION
This case poses significant policy questions for the United States, as a nation.
As explained in the complaint, the Defendants presently have the ability to read the
Court’s e-mail. (2d Amend. Compl. ¶ 45.) This ability gives the Defendants enormous power.
It is the power to pry through the papers in our citizens’ homes. It is the power to blackmail
the citizenry. It is the power to blackmail the federal judiciary.
There are thirteen members of the judiciary who could, in theory, consider the merits of
this case. The Defendants have the ability to read all of their e-mail.
According to the United States constitution, the investigatory function was assigned to
the courts as part of our system of limited government. U.S. Const. Art. III, Sec. 1. If the
United States is to remain a strong and vibrant society, then it is necessary to maintain a
strong Fourth Amendment.
Seventy-five years ago, Justice Felix Frankfurther warned the American people of the
importance of this amendment:
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This Court has thus far jealously enforced the principle of a free society
secured by the prohibition of unreasonable searches and seizures. . . . It
is not only under Nazi rule that police excesses are inimical to freedom.
It is easy to make light of insistence on scrupulous regard for the
safeguards of civil liberties when invoked on behalf of the unworthy. It is
too easy. History bears testimony that by such disregard are the rights of
liberty extinguished, heedlessly at first, then stealthily, and brazenly in
the end.
Davis v. United States, 328 U.S. 582, 597, 66 S. Ct. 1256, 1263, 90 L. Ed. 1453, 1462, 1946
U.S. LEXIS 2180, 23-24 (1946) (emphasis added).
Let us heed his words, while there is still time to do so.
WHEREFORE, for the reasons set forth above, the Plaintiff respectfully requests that
this Honorable Court enter an order denying the Defendants’ motion to dismiss.
Respectfully submitted,
By: /s/ Elliott J. Schuchardt
Elliott Schuchardt
PA I.D. #78911
SCHUCHARDT LAW FIRM
U.S. Steel Tower, Suite 660
600 Grant Street
Pittsburgh, PA 15219
Phone: (412) 414-5138
E-mail: elliott016@gmail.com

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CERTIFICATE OF SERVICE
I, Elliott Schuchardt, hereby certify that I served a true and correct copy of the
foregoing brief on the following person on this 23rd day of December 2014 by means of the
Court’s CM / ECF electronic filing system:
Marcia Berman, Esq.
United States Dept. of Justice
marcia.berman@usdoj.gov
Counsel for the Defendants
/s/ Elliott Schuchardt
Elliott Schuchardt