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.

In an amended complaint filed last month, Schuchardt gets into more detail, and specifically challenges the legality of surveillance programs authorized by Executive Order 12333, Section 702 of the Foreign Intelligence Surveillance Act Amendments Act (FISA AA) and Section 215 of the PATRIOT Act. (Ars explored the history of Executive Order 12333 in August 2014.)

In an e-mail to Ars on Wednesday, Marcia Berman, a senior trial counsel who authored the motion to dismiss, said, "Per department policy, attorneys do not comment to the media on litigation."

This lawsuit joins a handful of similar cases that have come about or gained new life as a result of the Snowden revelations. The only one that the government has outright lost was one brought by Washington, DC lawyer Larry Klayman—that case is currently pending before the District of Columbia Circuit Court of Appeals, which will hear oral arguments on November 4, 2014.

At this point, Schuchardt's case seems like a long shot.

“Metadata program clearly serves special governmental needs”

As Berman wrote in the motion to dismiss:

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. Plaintiff therefore lacks standing to contest the legality of these foreign-intelligence programs under the Fourth Amendment, or on any other ground. Plaintiff has not materially amended his Fourth Amendment claim challenging PRISM collection, or his claim that five-year retention of acquired communications data violates FISA, and so those claims fail on the merits for the reasons set forth in the Brief in Support of the Government’s Motion to Dismiss (ECF No. 6) ("Gov’t Br."), at 12-18, which we incorporate herein by reference.

Berman goes on to say that even if Schuchardt did have standing, his rights were not violated under the third-party doctrine. This is the legal theory that has held in a 1970s-era Supreme Court decision in Smith v. Maryland, which found that people do not have a privacy interest in information that they have already disclosed to a third party, such as a bank or telephone company.

"The Section 215 telephony metadata program clearly serves special governmental needs above and beyond normal law enforcement," Berman concluded. "The undisputed purpose of the program is identifying unknown terrorist operatives and preventing terrorist attacks—forward-looking goals that fundamentally differ from ordinary criminal law enforcement, which typically focuses on solving crimes that have already occurred, not preventing foreign terrorist attacks and protecting national security."

In a phone interview with Ars on Wednesday, Schuchardt said that he was preparing his response to the government’s motion to dismiss.

"I'm making an allegation that no one else is making: I'm contending that the government is collecting full content of e-mail," he said. "I'm contending that they're not doing it by PRISM but via 12333. I'm not saying that this is being done on a case by case basis but that they're grabbing it all. Where is that email residing? Is it back at the Google servers? I'm contending that this is on a government server. I am the only person in the US who is objecting to those set of facts."

In a declaration submitted to the court on Monday, Major General Gregg C. Potter, the military deputy director for signals intelligence at the NSA, he noted that "although there has been speculation that the NSA, under the bulk telephony metadata program, acquires metadata relating to all telephone calls to, from, or within the United States, that is not the case."

This caught Schuchardt’s attention: "They're not collecting all metadata, but they didn't deny that they're collecting all content, and they can't because they would lying."

In his declaration, Potter also notes that the Foreign Intelligence Surveillance Court re-authorized the bulk metadata collection program just last month.

Paging Mr. Snowden

John Tye, a former State Department official, who has spoken publicly in recent months many times ( including with Ars ) about the dangers of Executive Order 12333, lauded Schuchardt's case.

"There should be more lawsuits like this. However, such lawsuits face an uphill battle, not on the facts but in getting a court to rule on the merits of the claim," he said by e-mail.

"Most Americans don't realize this, but there is ongoing illegal government activity that it is in effect impossible to stop through a lawsuit. The judicial branch has created a variety of procedural legal doctrines—like standing and state secrets—that make it very difficult for a plaintiff with even a legitimate complaint to have his or her case heard. Most likely this case will be thrown out on the basis of a procedural objection, before the court makes any ruling on whether NSA collection on US persons under 12333 is legal or not. And by deciding not to rule on the merits, the court will thereby permit illegal collection on US persons to continue." A well-known NSA veteran turned whistleblower, Thomas Drake, who has repeatedly spoken out against government spying, also agreed with Schuchardt's assessment.

"NSA is collecting both metadata and content (where possible) of e-mails as mass dragnet surveillance sweep on vast numbers of people within the United States," he told Ars by e-mail on Wednesday.

"[They] have [been] for a number of years. Evidence exists through earlier disclosures, Snowden’s disclosures, and ongoing court cases."

Ed Loomis, a cryptologist at the NSA from 1964 to October 2001 who later became a whistleblower, also told Ars that such a motion to dismiss is standard operating procedure for government lawyers.

"The bottom line for the government though is that they can claim it's all a matter of ‘business records’ that Congress has authorized and which no user of the Internet or digital communications media can have a reasonable expectation of privacy," he told Ars. "As to your question regarding collecting e-mail from everyone, they surely have the ability and legal loopholes to round it up."

Schuchardt added that he had been in touch with the Electronic Frontier Foundation and the American Civil Liberties Union (ACLU) to try to bolster his case.

He also contacted Jesselyn Radack, one of Edward Snowden’s attorneys, to try to see if he could get Snowden to submit a video deposition. Radack told Ars she referred Schuchardt to Ben Wizner, another Snowden attorney who works for the ACLU. Wizner did not immediately respond to Ars’ request for comment.

Schuchardt, who according to his own website primarily works on "civil litigation, corporate law, personal injury, bankruptcy, divorce and child custody" cases, admitted that taking on the highest levels of the American government was new for him.

"I've been following the issue before Snowden came forward," he said. "Then I started to watch it for that first year, and then when Congress was dragging its feet, I decided I was going to file the case when nothing got done, and when nothing got done, I decided to move forward."