>> he points out in the context of public interest groups how you can tell to the donors are by the duration of the call, that kind of thing and you can through trunk identifiers find the location of an individual. >> insists the government found out with was making abusive phone calls, i am not sure you can get much more extreme than that. >> look at 118 of the selden affidavit, your honor.

information sought from verizon includes the trunk identifier, the telephone calls, this provides information about how like call is routed to the phone network which naturally deals information about the location of the parties. for example even if the government never obtains location information about a call, drunk identifiers information revealing a domestic call is carried by cable in the line to the mainland the united states will reveal the caller was in the state of hawaii at the time the call was placed. what is important, one of the most important findings is ruling. page 57, where he says no court has ever recognized the special need, they're trying to rely on special needs too, the circumstance to justify continuous daily searches of virtually every american citizen without any particular suspicion. in effect the government urges it the first to sanction such a

dragnet. this is a long-term proposition that is different from register or tracer trap, there's no particular showing of probable cause. simply grab these records because the government can do it. >> registers not require probable cause but statute 2715 requires reasonable suspicion under the statute as well, your honor. we are not talking about -- >> you jumped ahead to the actual third step, the examination of the calls. you never attempted to show standing there. there is no doubt in the record suggesting your calls have been examined. >> yes there is. we have my affidavit and the affidavits of charles strange in the record. >> established those calls were examined?

>> because i am receiving telephone communications that i never made and people are getting them from me that i never made. it is in the record. >> what is that the phenomena and you attribute to this, people are getting phone calls. >> things of been breached. we put forward evidence in our affidavit the government doesn't receive it, they say we can't confirm or deny. they had an opportunity to reveal to judge leon in camera what was going on. they chose not to. heads you win, tails you lose. >> i'm still trying to get clear what phenomena and it is from which you infer that your calls collected in this program have

been turned out in a query and examined. >> i want to make clear what our argument is. the gathering of the information at its inception is itself a fourth amendment violation. secondly, there has been a showing that under the minimization procedures where they claim to protect the identity and location, they have been repeatedly violated by a the nsa and the other government -- >> u.s. still not answering my question. what is it that has happened to use that shows it must've come from this -- abuses or exercise of rights on section 215 under this program? >> the totality of the evidence, the nature of metadata, we had invasion into my cellphone and

the computers and cellphones -- >> what are the invasions? >> a different instance. they are on a computer and all of sudden a picture is taken of them purportedly by some entity related to the fbi. they don't have a camera on their computer, they're getting calls from afghanistan, strange calls that have nothing to do with their having communicated with afghanistan with regard to their dead son. this son -- >> it sounds very peculiar and not sure how what links them to this program. >> regrettably it is not peculiar because our government--i am a former justice department lawyer and founder of judicial watch, "freedom watch". the regrettable fact is the government has not been telling the truth to either lower court judge leon to congress, the director of national security lied under oath committed perjury with regard to this program, we have whistle-blower

ed snowden and the government had to admit they were doing this because they were forced to do so. >> judge leon pointed out the government holds the cards. they come in here arrogantly, i'm not disparaging the lawyers the government has all comes in arrogantly and says we are above the law. we don't have to tell anybody what we're doing and since we don't have to tell anybody what we're doing we win. we will just continue doing it. thomas jefferson, our founding father and 7 american president, when the people fear the government there is tyranny. we have tyranny. if king george iii at the same powers as the nsa our founding fathers would never have gone to philadelphia. it would have been picked up, arrested and executed before signing the declaration of independence. this is not an insignificant matter, this is not an academic matter, this is a matter of our rights as a people to be free from having the government stand

over our shoulder, a chilling effect on freedom of speech, freedom of association. i can talk on the phone anymore for if you they will use identifying information and regulatory/client privilege. this is the most outrageous abuse of freedom in our history. it is not to be taken lightly and i take offense at the government saying we hold the cards, you are entitled -- this is why we had a revolution, we have our faith in you, you are our only protection between this tierney and as chief justice roberts point ated out if the court doesn't step in here, we're going to be in the streets again and i don't want to see that and you don't want to either. >> thank you. >> good morning, your honor. may it please the court? i represent the electronic frontier foundation, american civil liberties union and the

aclu of the nation's capital. thank you very much for giving us the opportunity to address you here. i am happy to answer questions. there are a few things based on the commentary before that i hope i can assist you in sorting through this situation. first, we don't believe the government is attempting to expand sniff to cover program that is significantly larger than what smith had to do which were just cards made by a suspect over three days. this is the mass collection of the communication patterns of millions of people over many years and kept five years. this was the center argument in

smith, the information -- >> how about smith acknowledged companies couldn't give telephone ears a choice whether they would have data that was recorded, they are recorded. >> that is correct. gathering was just -- didn't have any clue whether the car went through much less the patterns of the calls that were happening. it is that information. >> has smith been applied to trace as well as the registry? >> it has not been by the supreme court and it has not been by this court either. but yes, there are some cases out there. >> if that is the case, the smith principle applies, then it does cover the kind of data

you're talking about depending what number the call comes from. >> that is correct but what is going on is significantly bigger and the government is trying to cram a much larger program involving a lot more information than they ultimately can receive. >> the salient difference between smith and the present case is one of magnitude. >> i think that is fair. there is a location for somebody wouldn't have gone with a pen track. the identifiers, one is an identify every phone and the other of the some card in your phone, provide significantly more detailed identifying information than just the phone. >> of the go back to the trunk identifier, that at best gives

you some information about location. in the event of smith, the phone number itself gave you conclusive information, a particular geographic point, did it not? >> goes to the area told. >> that is easy as pie to get. >> yes. the identity of locations -- >> because of the land line. >> there is additional information here, the most important thing that is different here. and the digital information being gathered and the government obviously wants that information for a recent. four years after smith, the court recognized that it was going to think differently about the elections and the targeted collection that was at issue in knocks. in fitness 5, the court recognized that in situations in

which their expectation of privacy had been converted for some reason or other because the government admitted they were spying on everybody, you might have to go back to a different approach. if you look at smith itself and knocks later and riley in general and jones, the supreme court doesn't seem to think it is stuck in a little box that if metadata is done, pour -- these are factors that go into a calculus about reasonable expectation of privacy and once you start thinking about that as a calculus you kind of see that in rye leave the court said just because you could get a smart amount of information from somebody's pockets doesn't mean we have to be blind to the much larger information you can get from some of these smart phones. think about those differences, think about the differences in time in jones, the concurrences in jones say we are not stuck in a small box of smith vs. maryland, we can work at a very big difference the amount of

time that location is being tracked wears a single point in time, no reasonable expectation of privacy. at some point between that and 28 days and no expectation of privacy where justice of the dough is current and sonia sotomayor takes you to. i don't think -- >> jones involved what otherwise would have been public knowledge which became concurrent. what otherwise would have been public knowledge, this observation became an invasion of privacy only because it created the mosaic, using a phrase they didn't use but in this case applying smith, the data that is being gathered was not acknowledged by observation but willingly transmitted to a third party.

if that is not an invasion at all, then does it become an invasion because there is a lot of it? a thousand times nothing still eagles nothing. >> a thousand times nothing, nothing to go on but math, but -- >> the supreme court doesn't follow my math in general. >> i do think there is a difference in concurrence that comes from the difference in scale and i do think the examples we give you in our histories as well, i don't think a reasonable expectation of privacy, analysis, should be blind to those differences. >> they think the reasonable expectation approach is the correct approach? >> there is a reasonable expectation of privacy that approach is the correct approach. i think the metadata here, a lot more -- if you know i got a call

from my husband you don't know anything. after he got a call from his oncologist you probably know a little more. so it gives a more invasive picture into somebody's life. >> that is true if you get to that step that if you are doing those kinds of query's but the conceptual implications here it seems to me our past. on the one hand, you are saying people continue to have a privacy interest in information they have voluntarily conveyed to a third party. that is, i think, different from any way -- the reason smith works is because it draws that very clear line, you have given this up, you know longer have a privacy interest in it. if we go with you, if we follow the line of reasoning you have, how do the police ever figure out what it is okay to look at

and what it is not okay to look at? because they would have to, i suppose, look at your subjective intent. >> i think that on nestle it is a difficult question the court may have to address that some point, we have the government, acting everybody's records of wrath 13 year period of time and keeping them sometimes -- >> how does that change the fact that this information was voluntarily conveyed to somebody else? in fact if there is an invasion of a right it appears to be the right of the telecom because it is their business records. >> i don't agree. i don't think it is an on off switch for people's privacy interests. wasn't in the ferguson case in 2001, the hospital records case you referenced earlier. i don't think the constitution has nothing to say about whether the hospital can just can't your

information over and congress has never said that it matters, that you have nothing to say about whether the hospital handles medical records to the government and in fact the hospital records -- the fact that your luggage -- doesn't mean you lose your privacy interest in the chestman case, or that you didn't change the first amendment analysis, it and in cats, the person who was found to have reasonable expectation of privacy was standing enough votes in both. he did not own that phone booth. >> but the difference was it was content. in other words they could hear what was being said. it wasn't that the level of just information that you turned over to your carrier just by virtue of using that technology. >> yes but like i said before, that was more about content, but what was saying was the first

amendment protects people, not places. if you think about the third party doctrine as an on/office which you are thinking about the places and not the people. the payphone -- she made the call. the company -- they have records that had nothing to do with you but this one you have a very important role in. >> i understand the aggregation of all this information is unlike anything we have dealt with before but what i am trying to understand is if we make this the rule, what does that do? it seems to meet the implications go out in many different directions. for instance, if you say conveying information to a third party has nothing to do with it, then what happens to the use of informants, a secret agents, all these kinds of issues invariably have to be sorted out.

that is what i am asking. what who line would you draw? >> the reasonable expectation of privacy obviously. the court could hold you don't have expectation of privacy in sharing future crimes with an informant. you don't have reasonable expectation of cup privacy possessing contraband. we are talking about millions of innocent americans making everyday phone calls that the government is living up. there is no reasonable expectation of privacy in everyday phone calls that you make, it is not like the special needs cases where you have someone running a train or students in beijing in behavior. these are regular people making everyday calls. >> the failure of the government's position is you can't take things that were designed for specific situations and just decide that everybody is a suspect. you have to work at what the

government is doing and come together and you don't have reasonable expectation in that conversation. >> is the line whether it is legal or illegal activity? >> the court's has done that in the contraband cases. the other instance is the question is no suspicion whatsoever and the suspicion is of the dish they are trying to do away with that piece of what the constitution protects us with. imagine the special needs case where there was a category of people -- >> a category of people in the stops for driving which are aimed at preventing driving not by catching people who are driving drunk but catching the sensors and prosecuting, making sure they don't continue o

their way. there is no individual targeting their. the police pick a place they think is particularly suitable for catching as i just explained drunk drivers. the overwhelming majority of them are totally innocent and yet everyone in that dragnet is found. >> i don't think there dragnets would be -- as they were and nobody. they have to do some targeting of places. this is completely indiscriminate. >> in terms of the drunkenness of the people who are stopped in that kind of program is completely indiscriminate. they are driving through a particular crossroad door down a

particular street not because of any evidence whatsoever is that any of them has ever had a drink. >> that is true but in the special needs context's you have categories, people who are driving -- >> past the intersection of first and maine. >> that is tearing that is going in the michigan department, people were being stopped to see if they have licenses and the difference between smith when we are looking for drunk driving and the peace, they say you will catch drunk drivers here. it was completely random and they didn't show any efficacy. >> obviously. that seems very strong.

i understand judge leon discounted any possible benefits to this but it doesn't seem to me there is much factual record supporting that discount. >> but the government has admitted it did accomplish these goals. >> less invasive is the sense that the database bases remaining in the hands of the pharma companies until they cleared it but the same process of querying would go on, no difference as far as i could make out in the clearing and no difference in the examination of the particular records found to be relevant in the query. >> the statutory legislative angle -- i would take for you the fourth amendment moment of collection and the collection is

-- for the moment that a conversation is seas or matters, and comply with the supreme court decision, that decision is the intersection under title 3, it is not what the government does afterwards. >> you don't think it makes a difference whether the government collects a trillion things, and versus the government, collects a hundred things that looks at hundred? >> it is a significant difference. >> doesn't count against you here. hid the government, a lot is selected and virtually nothing is examined. >> i do think it matters. it is largely a result of government protocol. >> that is part of the case. >> that is part of the case.

>> i think justice roberts was correct when he said the founders didn't fight revolution in order to win the right to government protocol and that is what the government is arguing here that the protocols keep you safe. protocols keep them safe and contrary -- they find the protocol but it has been sucked up in recent years. it didn't make any sense. when you think of what we have the first amendment, to stop general searches, it was okay for at the king's men to go into anybody's house as opposed to the actual going in wouldn't matter. the quarterly phone call, photocopy the mail and the membership in the organization or in the bedroom because they

have got protocols that say when they can do, the first amendment now what it says is you should be able to be secure in your papers and not have to track that the government will collect it after they received it. that is not consistent with the first amendment, or any of the other cases we search everybody's phones and things that bad and sufficient. i don't think it is efficient here as well even though they got the fifth court completing the protocol. >> thank you. >> may it please the court, paul smith for the center for

national security studies. thanks for the opportunity to argue. the court can and should decide this case, of the alternate ground that section 215 does not authorize the been a data collection program. the statute if you read it as a whole when we look at different features of section 215. >> the preclusion language and defects in the statute, what do we do with the fact it larry klayman waived this issue and modified his complaint with the district court to exclude the statutory claim. >> we have pieces in this legislation when this principle of constitutional boy and his that stake to decide the issue and statutory grounds -- >> when has the court the net in the way of explicit waivers?

>> we site united states versus underwood where both were claiming statutory argument and wanted the court to reach an additional argument and the circuit says it is appropriate for us to recover. and the features of the stage we point do are not just the relevance requirement. it is supposed to be done by the fbi which is supposed to be retaining and protecting all these records. >> it was the background of an enormous amount of interchange between government agencies, data that the nsa has computed capabilities the fbi does not. surely anticipating that. that the nsa would do something like that. >> that is the issue congress had in mind that there would be a massive data breach past when they pass this particular

provision. >> you were focusing on the nsa/fbi issue. >> what the fbi being the identified agency is specified of france over being able to maintain the records and suggest they didn't imagine anything like continuous collection of everybody's sensitive records, the statute says more like what you'd get with the one time grand jury subpoena. you get relevant information treated by law-enforcement and used for those purposes. and other parts of the statutes.

and authorizing continuous election. and periodic review, continuous election. and the holocausts, which the program is operating, and that is not what the statute was meant to do. >> the illusion in the statute to grand jury subpoenas, basically grand jury subpoenas and others suggest very broad sweep, there are loads of cases where the government collects data, a huge multiple of the actual data that is going to find anything in. >> the largest -- i submit

must've been a tiny fraction, and other categories makes sense and all the records of the doctor who suspected malpractice and activities, all the records of some corp. the flying records being collected other than everybody in the united states who is engaged in using the telephone, which is face a not every telephone company but has to be pretty much all the more the whole thing wouldn't make sense. that, i think, is different from what congress intended to do. under the doctrine of constitutional avoidance, you not only chris the statutes first that your approach is supposed to be to construe the statute in a manner that avoids this major constitutional pronouncements you are being asked to make. you look all those features of the statute together -- >> how can we do that on a statutory claim that is not in

existence? do you have a case -- rich as we will base relief not in the period of district court relief, but on the theory that was never pled. >> it was mitigated fully, and -- >> a decision on preliminary injunction notion, and streamline the case but not like you are acting without the benefit of a record below. all of this is in the record. >> directed benefited but jurisdictional the jurisdiction to base relief, claims that is no longer permitted. >> i don't think there's any jurisdiction limitation on the court's ability to avoid a constitutional challenge by saying -- >> you might not think that but no reason i should think this. i never get any case where we granted relief on a claim that wasn't made. >> it is an example of a court saying we don't care that the parties are awaiting the

statutory argument. >> the engage in the reusing statute to give a basis for relief that wasn't ready. here you are asking us to retain in extraordinary relief for injunctions distance something that hasn't read before us. >> it is not the same -- >> it has to do with particular ability, if i had the wrong case in mind or was that hideous type thing? >> i don't remember. is a case when a corporation said it doesn't matter. >> you don't know what's under what was about. >> i don't know specifics. there was an express discussion that the way for of the party of this argument does not deprive us of the power. the supreme court -- >> it is not just an ordinary situation of waiver of an argument, not asking us to grant relief based on something that

is not solid. >> a principle of constitutional avoidance is the right way to behave in this situation, instead of having a massive new constitution. >> that is not the way it goes. >> i don't think any of them involve granting relief dishonest that cute that wasn't ready for us. >> was decided below, there's analysis. and in that situation it shouldn't be i would think controversial that the short should -- the court to avoid the fourth amendment and construe the manner that avoids that issue. the government response that you are precluded from addressing the statutory issue because the congress created a review remedy for recipients of the orders but i think that argument has a variety of defects.

no indication that congress excluded anybody else, they didn't think the other people in ordinary course would be aware of these orders so you wouldn't create a remedy for people who were aware there data was being collected from custodians of record. that it is no indication congress had a desire to put the court in position of having to address the constitutional argument which the government concedes is before you properly but not decided that after that weather actions are consistent with what congress mandated. so the block case on which they rely is entirely different. and congress intended been put in a position of having to decide constitutional issue. the statute which is enforceable -- >> at least one of the cases in the court, the recipient of the orders raised the constitutional question at any rate, raised

issues what it raised, and behalf of a particular telephone subscriber, that suggests telephone subscribers, reclusive provision up to the hilt. >> because the council of urologists particularly, has to be enough, looking for a way around because of language. >> the normal lead time the claim has been brought after judge leon ruled, the funding telephone company came back and said tell us for sure what we are supposed to do, judge collier issuing an opinion, i disagree with this and dealing with the data. the reality is recipients of

these orders have no incentive, they are completely immunize from any liability for complying with the orders. it is not their privacy that is at stake. for many years until -- >> why does the telephone company -- >> some problems after judge leon rules, that is the national influence. collier says keep going. that is a one time event probably or at least an indication that the structures such the we will have meaningful enforcement of these requirements. in terms of the recipients they have no incentive to take that action, the other thing i want to mention, the government has this idea that all of this was radical by congress, years after

the court started collecting this made a date at and after it was authorized on these things there was an extension, two extensions of 215 along with other statutory provisions in 2011. there are multiple problems, a safer problem, they don't even claim most members of congress are aware of the program when they voted to extend it. >> the issue that we go -- >> no indication how many did that. >> the other senators, that is true, other senators -- they were willing to go ahead in the face of them. >> the question was the intent of congress to authorize the

program which is not authorized on the face of the statute. by virtue of the fact the senators didn't heed senator widen's warning to go to the secret memo. anything like the majority of congress that they extend the statute. the other thing -- >> how do you compare it with the level of awareness. >> passing a statute, you have sown the congress with what the statute says they voted for. year the statute supports what they are doing. five years later, we have to change by putting this memo in a secret room, and the statue to mean something different. and any awareness of it at all,

passing a secret lot that will take your metadata and put it in a vault somewhere and hold on to it. in this context, it is troubling for a variety of reasons in addition to the fact they had two different programs extended in these laws. in order not to extend that and be charged with gratification, he would shoot down different programs, why he did it, it is a secret. the whole situation is fraught with problems in terms of ratification. >> the final point i wanted to make. >> you have 12 minutes remaining.

>> acquittal -- a couple quick points on rebuttal. in number of questions the court has raised both when i was before and to in council, this has to be assessed by what it actually is, not what we might fear is in a different version or different worlds. the program exists in a different way and not merely by executive discretion or choice, it is still relevant, it seems to us, but because congress passed the statute directing a core, an article free corps to take action and the court has taken extensive action issuing multiple orders addressing the same questions the plaintiffs here have raised explaining the basis of the program, carefully

limiting how the program operates and how the government can use the data collected in this section 215. requires a prior judicial determination of a reasonable articulate suspicion. they require extensive oversight every 90 days, a careful limits how the data can be used. the query can only show two steps, this confirms limited intrusion into privacy interests. the importance of protecting privacy, and following the earlier speech in january, did emphasize the importance of transparency.

>> what does that have to do with our decision? >> one of the arguments on the other side that the government has not disclosed everything, the government has disclosed far more in the context of this case than one would normally expect, and a great deal less the president -- to shore transparency and robust debate about this program and thereby made available that the plaintiffs -- >> the president, part of the record for going out of preliminary injunction? >> i don't think it needs to be part of a record. >> you are arguing outside the record, not what we normally expect of you. >> the point about the limited use of the program, it reflects that it is not accurate.

the possible uses of the metadata when we do know because of what has been released, though limitation the court has imposed on that, and these questions is there any possibility that information about these plaintiffs's phone calls would be reviewed by any person and that's program, the kinds of cases the supreme court decided highlights the lesser interests in privacy here because unlike in smith and miller and criminal cases the supreme court decided the government is not using all this information in order to go after individuals. >> that reiterates the government, evaluation in obtaining of data in and of itself is not a fourth amendment violation. >> absolutely and one of your questions earlier reminded me of an important point in that aspect.

>> soldiers goes through your papers but don't do anything about signing the papers, the fourth amendment has not been violated. >> the supreme court recognized that. it is the different question when individual affects or property interests have been invaded. >> property is what is protected in the fourth amendment, the historic basis. it is relied on by the opinion of four or what they are doing. the prediction of privacy is by the elite no concurrence in jones recognized by the scalia opinion. property is an important interest in the original

interest -- is there a privacy invasion in the fact the we get phone calls? >> just been told there is not, you are absolutely right, party and privacy are protected by the fourth amendment. in this case, the property interests, those at the telephone company, hasn't any subpoena context and records can be subpoenaed without implicating fourth amendment concerns. and many other grand jury cases can also make the point. and the discord talking about the privacy interests emphasize also what distinguished the supreme court decision in smith had made a point that the customer in this context of metadata actually expect all phone-number is to be collected

in a list unlike individual travelling on the public, not expect that aggregation, that is the question we were talking about earlier. it is important to focus on this program and the nature of it. judge williams, you were asking earlier if the government collects, pick a number, 1 million whenevers and only looks at two or 25 of them, it is a different case than in a criminal investigation the government looks at everything in an effort to profit -- prosecute individual defendants. >> what you get in order to decide what to prosecute -- >> it comes down to whether smith controls or doesn't.

>> yes. on that proposition. if we said smith was in applicable that would take us to reasonableness. can we get to that? what is the relationship between the alternative program outlined in the second declaration and the president's plans or even proposals for change of the program. both of those seem to be intended to remove the collection, the government, action aspect of the program. >> various alternatives that were proposed urge congress to pass, passed the bill along that. all of these alternatives are predicated on an important fact

which is under current law we could not do, we could have -- fill the gaps the president and intelligence community identified without doing it pursuant to section 215 program we have in place. we would need a different legal structure, new legislation in order to adopt any of those alternatives. that is the point the president made that is relevant here. is important to recognize -- >> not sure how that fits in reasonableness. >> under the special needs doctrine or generally, there is no requirement the government least it, the least restrictive means of accomplishing it. the case is clear under the special needs doctrine. the program need only be reasonably effective in accomplishing those goals. the evidence in the record, and

the means of identifying terrorist contacts in and outside the united states in order to help prevent terrorist attacks against the united states. that is compelling government interests in acknowledging that. do >> >> these national-security is itself an exception to the requirements or do you need special needs. >> to address an argument that could be that broad in scope. there are a number of -- reasonable under the fourth amendment, the special needs doctrine is one that is easy with in it. all of them require maryland versus king as another example. all of them require a balancing of government interests with a degree of intrusion in privacy

and that context especially, and the limitations on the use of this information and the fact that the vast majority, all but the tiniest fraction, none of this metadata will ever be seen by any government analysts and any use of it is carefully limited and overseen by the court. turning briefly to the point about the statutory argument raised by one of the -- i would like to emphasize the question highlighted, and a preliminary injunction the district court against a government program. to support a claim ender preliminary injunction, plaintiffs must show a likelihood of success on the merit. no support that statutory argument that not only abandoned but expressing withdrawn the amended complaints that no

longer rely on that basis. and the plaintiffs should, it is not in the case. the only answer would be that this should vacate a preliminary injunction, not supported by the kind of argument that is the only appropriate one. the fact is that the plaintiffs have raised a constitutional claim and that is before this court and the basis of the claim. remember the district court found in the government's favor on preclusion that it precludes this kind of claim. >> you were saying if we addressed the statutory issue and found it to be a winner, to make it the injunction -- >> i don't think you have to

address the claim. my time is expired. if you agree the statutory claim must be raised in a case like this, the case could be decided, the answer to that question is there is no support for the preliminary injunction. why would emphasize if there's any reason for the court to believe -- and address it in a supplemental brief. >> it seems to me, the concern you are voicing, and the statutory claim, and we rejected it going on a constitutional claim, no problem, if we accepted it, would still have to

vacate the injunction because it was based on something totally different than the plaintiff's claim. that is the thing to do. >> multiple reasons, what we emphasize is very limited. and it highlights the strange nature that an argument, masters of their own complaint have not invoked was decided against district court they abandoned on appeal as well. if there were any reason to doubt that that argument should be in play the proper basis wouldn't be for this court to uphold preliminary injunctions, and -- >> different from what happened.

the national bank of oregon, both parties disclaimed the issue and the court charged ahead and resolved it on the ground that it had discretion to resolve logically interior issues. >> i am struggling to remember the effect of the national bank of oregon case. basically the fact were discovered in the course of oral arguments that it was quite possible that the statute that the parties were arguing about where it never lawfully and acted. >> more so than -- >> the statute itself was in play. >> it turns on its validity of

course. another case we would point to, would be happy to provide to the court. the supreme court case in catalina held talking specifically about constitutional avoidance rules that the mere fact that there may lurk in the case on on constitutional grounds decisions is not a sufficient basis to invoke the rule of constitutional avoidance that stage one, 1993, by the supreme court. ira would also -- my time is expired but you raised the point about a conceptual implications of this case and i would like to point to the authorities, and the article of the party doctrine, because the exclusionary rules, the ordinary remedy for violations in the

fourth amendment, it is important to have a bright line standard in place for law-enforcement to follow. smith provides that, miller provides that. the arguments that plaintiffs invoke would not permit that and would raise the kinds of concerns i think your question raised. the plaintiffs made no mention on that one. >> thank you, we heard you, reversed the district court's injunction. >> thank you very much. >> here is -- perhaps two minutes. if you should restrict -- judge leon did not reach the first issue in this case. to decide on the floor, the

supreme court's decision at naacp, 4 phone 9, this has a chilling effect on free speech, the fact that everyone's records are being obtained by the national security agency and other intelligence agencies. the naacp has a strong case, i am a plaintive, public advocate, head of a public interest group and as result it has a chilling effect when people come in to see me, talking freely to defend themselves against actions by the government and others that harmed them. you feel you are targeted the way the naacp was in that case. i don't want to be overpresumptive but you all know me to some extent. i am a strong public advocate, i take strong positions and taken on presidents before. and ibm targeted? arby surprised if i am not. on the issue of grabbing

everybody's records, clearly the other government defendants could go to the telephone companies where particular showing of probable cause or reasonable suspicion. and when someone is in contact with a terrorist organization or terrorist, they go in that specific needs not to grab everybody. the extent of the constitutional violation is a huge, beyond any imagination of american law. for the government to come in front of us to say we don't look at identifying information, we don't violate the privacy of individuals because we don't know who they are, flies in the face of the nsa's uninspected general and this is a matter of record, in that period of time it was six months, over 2,000

violations of section 215 and the constitution so they themselves are not being candid with this court, they do systematically violated those rights even to the extent that they are getting into the communications of people they worry are cheating on them in their private sex lives. the capability here is enormous and this has going back to the cross appeal, and dealing with fourth amendment issues, huge implications on the first amendment on the right of free speech and the right of association. this cannot be permitted in a civilized society. american people don't need to be under the sword of damocles every moment they picket their phone to make a call and myself in particular when i talked to a client in a public interest capacity. i thank you for your time. the american people look to protect them from the tyranny of the current government.

>> thank you. >> the 2015 c-span student camp video competition is under way open to all middle and high school students to create a 5 to 7 minute documentary on the theme the three branches that you, showing policy, action or law by the gesture did -- executive or judicial branch of the federal government has affected you or your community. 200 cash prizes for students and teachers totaling one hundred thousand dollars. for the list of rules and how to get started go to studentcam.org. ..