very significant thing. it's sol lom, it's precious, it's got all these attributes that allow you to have the relationship with your children or with your spouse. and this can't be just subject to vote. i understand that in this early stages when a state is trying to figure out whether recognition -- >> maybe it shouldn't be subject to vote. i'm just curious why you're so sure about the better path? in other words, let's say that the gay community gets to pick the path. you can get your supreme court decision in june of next year or you can have five years to change hearts and minds through democracy in the remaining 29 states? it's not obvious to me what's the best path. >> well, i'm trying to suggest a constitutional path both under due process and the vested rights that come with the marriage -- >> i get it. the assumption of the question is that you can have either one. that's the assumption of the question. it's not obvious why the supreme court ruling by five justices in

june of 2015 is the better path for the community, not necessarily your clients, the community at large. changing hearts and minds happens through democracy much more effectively than it happens through court decisions. >> i understand, judge, but i represent four couples. their kids deserve two parents. they deserve them today and that's -- and they are entitled to those based on these notions of due process and equal protection. and especially when you look at the movement that's occurred. this is similar to the loving situation, which by the way, was a recognition case. i mean, that couple moved to d.c., got married, then came back to virginia and were prosecuted because virginia wouldn't recognize the d.c. marriage. at the time of the decision in 1967, there were 15 states that had repealed the ban on interracial marriage.

there was momentum going in their favor, but the supreme court still struck down their prosecution. there was still 16 states that prohibited interracial marriage. >> that doesn't seem very helpful to your non-recognition point because that's not the analysis that the supreme court follows in loving. the analysis the supreme court follows in loving is not the fact that virginia wouldn't recognize a d.c. marriage. it was the fact that virginia wouldn't recognize for in-state or out-of-state couples interracial marriages. so that actual path suggests -- goes back to the first question i asked, which is we really should start this inquiry from the perspective of whether the state in the first instance has authority to deny same-sex couples a marriage license. >> you know, even in windsor -- by the way, those facts came from footnote 5 in loving. so they did consider it relevant. but even in windsor, the supreme court makes a point to say that

it assumes that state recognition of marriage is consistent within the state. they say that twice in the majority opinion. what we're developing here is a second tier of marriages in ohio. opposite sex couples that come in with various legal hiccups in their marriages from other states that ohio says, oh, never mind. and then same-sex couples that ohio says, no. you can't have your marriage recognized. and this does get us to the other aspect of equal protection and why special consideration should trigger an equal protection finding and a violation in this case. and that is the notion of animous. we have in this record a remarkable collection of all the facts that went into the passage of the 2004 ohio supreme court -- or ohio constitutional amendment. one of them, just to name one,

in the becker declaration in exhibit q is the state's description of measure. this is published by secretary of state blackwell is still on the website. under the pros, it says, this measure will prevent the state from spending any money and allowing homosexuals which they describe as being indooef yent relationships. so there's a real prejudice there. and this notion that the measure gave effect to the private prejudice against gays is one that bears some weight. and i would recommend to you that the amkus brief said -- >> i have a lot of sympathy for judge holmes on this point. the whole idea is to eliminate otherness. it's not to create a new category of people we're going to label bigots. >> it's just like in an

employment case where if i represent somebody and my client was fired because they wouldn't exceed to a customer's demand, then i don't have -- you know, in a title 7 case, you don't have to -- it isn't a defense to honor customer prejudices. in this type of situation under palmore, you had a supreme court case where a custody decision was made and the child was removed from a situation because the judge thought, oh, living in an interracial family, that creates too much tension. the judge didn't have any prejudice, but the judge was exceeding to the prejudice of others. and what the supreme court said was, don't let us pass laws that actually implement private prejudice of others. so it isn't a finding that somebody is a bigot, it's a

finding that the court -- that a law could get passed -- >> how is it a compliment to the people who passed this that they had animus? >> this isn't about being a compliment. it's about all the factors we ought to look at in order to determine whether this measure targeting this narrow group of people, the same people targeted in windsor, is constitutional. history of discrimination, this history of targeting even in the measures description by the secretary of state, the text itself, by the way -- think about the text. the constitutional amendment in ohio says not only that we aren't going to define marriage to include other than a man and woman, it says no civil union, nothing that approximates marriage. it's saying get away from us. as far as you can. and those are the types of things that the supreme court looks at when it's even -- if we're doing rational basis.

i'm just saying, these are the factors. they line up here to say, this deserves the same special consideration that the court gave the federal measure in windsor. when do you that, especially in light of the role of the federal courts to prevent states from denying liberty to people, to be the backstop, it's appropriate to act now. was it appropriate before? i don't know. we weren't in this case before. i will say that now with half the country practically in a situation where they're going to want to bring their marriages across state lines and with those children in the balance -- i would say also, that we ought to think about the harm that we're dealing with in a situation like this. the couples that are plaintiffs in this case, three of them were

impregnated by artificial insim nation. there's no need to go to state court and deal with fathers that are claiming rights. and under ohio law, if you are married and you use the process of artificial insemination, the father is deemed the parent of the child. so same rule should apply here. by the way, the implementation question is easily answered. just do a definition for all your laws. get away from husband and wife. get away from father and mother and go gender neutral. i don't think that that's a serious impediment to implementing marriage recognition as it would be here. and the difference is huge in this case. you've got the non-birth mothers of these three babies saying, i am a parent. sue me if my kid doesn't get my support. call me if my kid doesn't show

up for school. prosecute me if there's neglect of my kid and ohio is saying no, we don't want that. we will let this kid only have one parent. but if you're an opposite sex kid, then you will have two parents. that's a super harm to these children. and that's part of why the matter is urgent, because as we get more and more couples with children as we have in this case, presenting themselves in ohio, we can't wait on the democratic process and suffer the harm at this level that they are suffering. both of those names need to be on the birth certificate. and that's very practical. windsor talked 11 separate times about the dignity that was owed to same-sex couples. and in that opinion, it said repeatedly over and over, targeting these couples for this

sort of second tier status, humiliating these children who are in these relationships causes the very purpose and -- the actual core of the statute is to treat them unequally and that's exactly what's happened in ohio. so we have both the same lack of dignity that was recognized in windsor and we have these very practical problems of children getting only half the parents. and they should get both parents. this report was correct when it said the birth certificate is the basic currency by which parents can freely exercise those protective parental rights on the parent side and responsibilities. it is the only common governmentally conferred uniformly recognized readily accepted record that establishes

identity, parentage and citizenship and it's required in an array of legal context. so in this case, what you see in ohio is harms that come from marriage recognition from cradle, as in the henry plaintiffs to grave, as in the obergefell plaintiffs. without raecognition, these couples are denied lack of consortium in wrongful death. they are denied tax benefits, other benefits. these are benefits that are taken for granted by different sex couples. i've been married to the same woman for 42 years. three great kids. the law is rigged in my favor, because i get tax benefits, i get other benefits. and if -- it's fair in a sense to rig it in favor of marriage, because we pay our taxes. we buy our houses. we buy stuff after the mall. we take care of our kids.

we put less demands on the government. and same-sex couples deserve a piece of that. there's absolutely no reason to treat them unfairly with respect to this balance that the government has drawn with respect to favoring marriage. and it's important. and the death certificate is the same thing. tea it's important it be accurate. it's the last record of a person's life on earth in this country. and to be wrong -- i mean, talk about a dignity violation. i mean, that is absolutely huge. and i think it bears -- it's sobering, really. so each of the four children in the henry case have two parents. not one. and affirming the district court will cause ohio to recognize these families and the marriages

that anchor them, affirming the district court will also cause the death certificates of william ives and john arthur to reflect their marriages and allow those men to rest in peace. thank you. >> thank you, m. i think you have a few minute rebuttal. >> thank you, your honor. a few quick points. first with respect to the question about isn't this case entirely dependent on the outcome of the other case. i think that's exactly correct, how it comes out most likely explains how this case will come out. if michigan comes out upholding the traditional definition of marriage, i haven't heard any basis for having an exception for out of state recognition. the first point that was made was substantive due process

right. that was deeply rooted in recognizing out of state marriages. that doesn't take on the notion that you don't create due process rights when there's a source of commitment in the full credit cause. it ignores the equally longstanding -- >> but couldn't we say if we wanted to that ohio is perfectly free to refuse to recognize -- to refuse to issue -- refuse to recognize people who get into common law marriages within the state but then apparently allow somebody whose marriage say common law marriage is considered valid in another state to come in and recognize that marriage? >> just -- it's a notion of what ohio's public policy is. there's no question that ohio would recognize some marriages that would not be lawful in ohio. but i think ohio has always

retained the exception for those marriages that violate public policy. it's public policy long predates this debate. there's no way you can say the exception is tied toward -- there's no deeply rooted notion to the exception. it's cited in cases. we cite state versus brown which talks about the exception. that's from the 1890s. with respect to windsor, i disagree that the federalism rational played no part in the ruling. it wasn't a structural constitution case. it wasn't on the outcome. but the federalism rational was the entire rational for why there was animus there. the federal government engaged in an unusual intrusion. it was that unusual law that triggered the animus scrutiny. you can't say that for these types of laws for the reasons i

just suggested, that this public policy exception has been around in ohio for a long time and it certainly predates the present controversy. the public policy exception -- >> the public policy is not recognizing same-sex marriages. the content of which would possibly have been illegal and a crime in ohio for most of that time that you are talking about. >> well, that just goes to show that there's no deeply rooted right with respect to out of state recognition of same-sex marriage and then the third point i'd like to point out briefly is the citation to some of the record material in a quality foundation this court made quite clear that legislative motivations, especially in the referendum context are impossible to determine, precisely because it's a referendum. so it depends on the intend of all 3 million voters who voted

for this constitutional ame amendme amendment. that's an analysis that's literally impossible. you can't gauge into the mind of everybody who voted yes for proposition 1. i think that's distinguishable from rumor. and windsor, because the court in those cases didn't engage in the legislative intent of what the laws on their face and said the law on their face are unusual. and that's not the case here. so if there's in further questions, i respectfully ask the court to reverse the district court. >> mr. murphy, can we go back to the 19th century history we were talking about? it occurred me after you sat down that you thought i was talking about these -- the suffragists crisscrossing the country trying to get an amendment to the united states constitution. that's not what they did. they knew that was virtually impossible. they were going to the local

people trying to get the right to vote on the school board. they were going to each state legislature saying, please infringe us women so we can vote on state ballot in this state. and they did it state by state by state. and when it came to the end and they did get the right to vote finally in a few of those states, there was still the question of whether they could vote in national elections. and that's why the constitutional amendment was required. i just wanted us not to be talking past each other, if you understand. >> i understand. democracy might be slow and i think it has more legitimacy. i don't actually think it's going all that slow in this case. i know that -- the process being undertaken now repealed the ohio constitutional amendment. with that if there's no other questions -- >> you may have had a question? >> i'm fine. thank you, mr. murphy.

appreciate your helpful briefs and argument. the case will be submitted. >> thursday night on c-span3, sports at school. a house hearing on head injuries and other safety issues. also a senate hearing on academic standards for student athletes. that's at 8:00 eastern here on c-span3. montana has one member of the house of representatives.

he is leaving the house to run for senate. in the race to replace him, republican ryan zinke and democrat john lewis met for their first debate over the weekend. here is a few minutes of that. >> my opponent called for economic sanctions against isis. tell me how you put economic sanctions against a non-nation state. maybe we should perhaps write a letter. the issue is that i isis is a danger. i think you have to have a three-pronged approach. you have to shut down our southern border. is is an immigration threat. a nation that can build a canal in the 19th century can build a fence in the 21st. unfortunately, it's going to call for america to lead. you cannot control isis by air

alone. in the worlds of general conway, four star, there isn't a snowball's chance in air that air operations will work. i agree. limit our ground forces to special forces to supply and support. we make sure our coalitions that we choose are watched and efficiently trained. and limit our involvement but make sure that isis is destroyed. >> quick follow-up, because no one answered how we're paying for this. we have put two wars on the credit card. would you support a war tax to support a perpetual war we seem to be in? >> there's two different approaches to this issue. i'm saying we need to be thoughtful and responsible. a letter is not going to get the job done. but this is something who called for invading mexico a few weeks ago because we have an american in jail in tijuana.

that's not the kind of judgment i want representing me in congress. his instant reaction to the president's announcement we would have air strikes was, let's send in more troops. he also said a couple years ago that when president announced that women should serve in combat roles in this country, he said that is nearly certain to cost lives, nearly certain to cost lives, women serving in combat roles. that's not the judgement we need in congress. it's a good question. how much is this going to cost? it needs to be debated in congress and authorized. >> quick rebuttal. how do we pay for this? >> we pay for it by having a strong economy. a navy costs money. bridges, schools, infrastructure, that all costs money. paying for medicare, social security. we need a robust economy. john, i know you didn't serve.

this man is a marine that has been in a prison in mexico for over six months. every man, woman and i have served both and have i commanded both. everybody that serves in this country wants to make sure america has their back. when america doesn't have their back, like mexico, what happens is it sends a signal to every vet veteran, you know what, america will not be there. i advocated the president doing his duty and doing by all available means to get the young marine back. more campaign 2014 debates coming up thursday on our companion network c-span. live at 7:30, a debate from the 17th congressional district of illinois.

a federal appeals court in new york city heard a case last

month on the national security agency's collection of america's phone records. the civil liberties union is suing to stop the program and have the data deleted. the oral argument is an hour and 45 minutes. the court of appeals for the second sishcircuit. >> please be seated. good morning again.

we are about to proceed to hear the case of american civil libblib libb libberties union versus clapper. this case is of sufficient interest that it's being broadcast. i don't know who is going to watch it, if anyone. to the extent that it's going to be watched by people who aren't lawyers and aren't familiar with appellate argument, i thought i would just say one thing about what is not likely to be seen here. this case is about the bulk data collection program operated by the national security agency. what viewers are about to see is not a debate on the merits of that program and whether it's a good thing or a bad thing. that's for two reasons. one, as a matter of substance, the issues before us start with

legal issues about whether this court even has the jurisdiction to resolve any or all of the questions raised by the plaintiffs and then continue the questions raised by the plaintiffs are not about whether the program is a good thing or a bad thing but about whether it's an authorized or perhaps forbidden by specific statutory provisions of congress and by specific provisions of the constitution of the united states. that's what's before us. it's also not a debate as a matter of form. the procedure sheer going to involve lawyers making arguments. they are likely to be interrupted and asked questioned by the judges. that's not because we're rude or because we don't want them to make their case in an uninterrupted manner. they have had the opportunity to present in writing their positions in uninterrupted manner. this is to some degree our time

to ask questions of the lawyers to clarify the points that they are making and the implications of those points to perhaps raise issues that haven't been fully addressed by the parties and to give each side the opportunity and indeed the obligation to not just say their best points but to respond to the best points of the other side. so it's not going to be a sort of free ranging debate where everybody gets to say everything they want about these programs. it's going to be much more limited than that. all right. so i don't know whether that was useful or not. it's certainly not useful to any of the lawyers here who know what's going to happen. mr. abdo? you may proceed. and you have reserved some time for rebuttal. >> thank you, your honor. good morning. may it please the court. every day the nsa collects

records of the phone calls made by -- >> i'm going to -- i'm going to interrupt you at the outset because two questions. that are questions of fact. i find it kind of difficult to approach this argument without understanding that at the outset. one is that as i read them -- and i did read them, in some cases more than once, it's not clear to me whether e-mails are covered by this program or not. it's possible that's a big secret as to whether they are or not. but i don't know sitting here whether i can get ahold of all my mistresses and say, let's just do it by e-mail baurs the government can't watch. i'm sure my wife isn't going to watch this program. but i'm terribly serious about the question of -- insofar as we're allowed to know -- you are allowed to know, are e-mails

covered and to what extent. maybe you can answer that. >> e-mails are not covered by this program. this program concerns records of phone calls made by americans every day. the government has operated programs in the past under similar interpretations of the meaning of relevance that allow it to collect the same information for e-mails. burt that but that's not what this case concerns. >> we cannot take into account one way or the other whether somebody can say -- lord knows i mean this very seriously. that they can say to a co-conspirator of some sort, well, let's just use e-mails. i don't use the phone anyhow. >> the court can take that into account when they consider the interpretation of relevance and of the grand jury interpretation. they can take it into account when they consider the breath of

the interpretation of smith and 4th amendment. >> that would be because it's your position that it's the government is correct here then congress has authorized the same sort of order -- the same sort of order could be madz wite wit respect to everyone's bank records? >> that's right. then bulk collection would be permitted not just for phone records but for any records. it would be permitted not just under section 215 but under every run of the mill subpoena statute and not just in the context of terrorism investigation but in the context of investigations that essentially any crime involving more than one person. >> let me ask this. if the data remained in the possession of the telephone companies and the government -- it may be through tens or hundreds of subpoenas -- to get the same information that they are gathering by using the queries against the database of the government has collected, would that be constitutional?

>> the government has that authority now under a number of statutes. we don't challenge the government's ability to issue targeted demands for records from the telephone companies or from any other company. >> but that's not -- when you say targeted demands, are you saying because the government -- because they have a number that the fbi or whatever organization comes and says, we have a number that we have -- asked for, we want the phone companies to apply this company across the data set that would be the data set assuming it's the data set, same data set that the government currently has. i'm asking, is it your position that that is constitutional or unconstitutional? >> it would be constitutional for the government to issue a targeted demand for a limited set of data as it has always done. what is unconstitutional about this program i think are several things. first is that the government is collecting in bulk everything at the outset in a way that has never been permitted either as a

statutory matter or as a constitutional matter. second, once the government has that information in its possession, it runs queries on that data. but our principal complaint is about the government's collection of that information. >> that raises what i said was going to be my second question. that is, there appears throughout this in particularly -- this case was brought -- was begun less than a week after the disclosure of the program, if i'm not mistaken. >> that's right. >> there's been a fair amount of water under the bridge since then. what we refer to as the red brief, which is to say the government's brief, they mention three things. one, if i remember, the number of hops, that is two degrees of separation, rather than three, and also having to get the court

approval before entering and quarry, that's my understanding, is the second thing that's done and has been done already. the third thing is this notion that they are going to go back -- they haven't yet but they're going to go back to congress and they're going to say no more -- we don't want to do this anymore. we want to keep all this information in the hands of the service providers and not -- instead of being -- being able to query them. i gather it's not simple. but we're going to take this out of the hands of the government and out of the data will no longer be sitting there in the hands of the government. it's going to be put back where it started and will be queries from there. if that was done, if congress were to pass such a law, would that essentially end the controversy here? there's kind of a technical

question as to what your standing would be if they did that. leaving that aside, i would have thought, having read that, that if they did what the president said in march they were going to do, would you have embraced it and said, yeah, that's why we started this. i can't -- i apologize. but i think of senator aken 40-some odd years ago saying declare victory and withdraw. >> we would love if the government ended the bulk collection of american phone records. if the government did that and it purged our records, that would resolve everything put in place -- put at issue by our injunction motion. that is not the current state of affairs. >> continue. >> i think it would be maybe unwise to expect congress -- this congress for the next to

act in that way so soon. there are two bills, one before the house and one before the senate that have differences. they haven't reconciled. there are a handful of days left in the session of this term. >> i understand. they are thinking of other things at the moment. >> i sure say that the injury is ongoing on a daily basis. even if congress acts in several months, we're entitled to a remedy today for the violations that continue and are ongoing. if i may, will return, i suppose where i was going to begin with the statute, which is i think offers a narrower ground for decision. we have two positions under section 215. >> the government insists that we don't have jurisdiction to reach the statutory issues because congress has precluded implicitly what would normally be our jurisdiction under the procedure act.

>> that's right. >> i assume you're going to address that. >> i am. i think the government is wrong for a couple of reasons. first, the apa creates a strong presumption of review for injunkive claims. that can only be overcome if it's clear and convincing evidence that congress intended to preclude the claims such as the ones we bring here. there isn't that evidence. the government points first to section 2713 of the communications act. but that statute by its term is only as to claims within its pure view. second 215 is not within purview of section 2712 of the communications act. it applies to several unrelated sub chapters and not even the government contends that it applies at least as a texture ral matter to our claims here. the government also argues that section 215 itse$215 itself imp preclude our claims. but the supreme court made clear time and again that congress is

providing for a caution of action for one class of plaintiffs does not deprive other plaintiffs of a cause of action. if that were the case, then the presumption of review ar the apa as the justice said would not be much of a presumption at all. instead the question turns on one of congressional intent. what did congress intend when it enacted 215? on that score i think the legislative record is clear. congress enacted the recipient review procedures of 215 after a district court in the southern district of new york had invalidated the national security statute because it failed to provide for a clear avenue for review for recipients of national security letters. congress fixed that problem in 2006. it similarly provided in the same legislation review for recipients of section 215 orders. but it spoke not at all about

review -- >> perhaps you can make clear how we're going to deal with the red light after 12 minutes. >> this is clearly a matter that will go on as long as at least we find it valuable to go on. >> i should warn you, i went on the c-span website, which that technical i am. and i went on for finding out what c-span stands for. which i would be happy to share with you at another time. but i found out that they, unlike what it says here, they have set aside two hours for this broadcast. >> we have something to shoot for. >> we will go on at greater length. go ahead. >> thank you. so i think what i was saying is that the legislative history of section 215 makes clear that the recipient review procedures did not decide the question at all

about whether congress wanted the targets of 215 orders to have available statutory review. in that context where the legislative intend is -- cannot. >> no one would have avenued a lawsuit like this, one brought by someone whose records were demanded because the intept was that people in your position would never know that this was going on. does that mean that congress didn't anticipate this kind of lawsuit or intended to preclude this kind of lawsuit? >> no. this is the point on which we disagree with the government. congress clearly provided for the possibility that targets of 215 orders would learn about those orders. it contemplated that recipients would have a right to challenge gag orders imposed upon their ability to tell customers about

the orders. and that they might in due course tell their customers. i think congress clearly contemplated that targets would learn, that it did not go on to preclude whatever claims it wanted to preclude speaks clearly that congress simply had no view on the matter. >> you are talking about recipients, which is the service companies, and not individuals whose records were being collected. is that right? >> i'm talking about the gag orders on recipients by section 215. those recipients can challenge the gag order provisions. and i think -- >> if they win, then a person whose records were at issue would learn of it? >> that's exactly right. i think there's something a bit bizarre about the government's arguments. it attributes congress the intent to derive this court. there's no question that this court will have to at least resolve our constitutional claims.

the only consequence of the government's claim of precollusion is that the narrower ground for decision would not be available. that's very strange intint to attribute to congress. there's not a coherent theory offered by the government on why congress would have wanted to preclude our statutory claims knowing full well that our constitutional ones could proceed. >> that's assuming congress actually gave that thought at the time. i'm not sure that that necessarily would be the case. when you are talking about the statute, congress did address the issue of the recipient. and they didn't say recipients and others. is there anything to suggest that congress at the time they were dealing with recipient thought about others possibly having the ability to challenge this statute? >> i don't think there's anything in the legislative history. that, i think, is fatal to the government's claim. because in that situation where there's no intent one way or the

other, the background rule of the apa controls. when congress amended section 215 to add the recipient review procedures, it asked the government its view of necessity of those procedures. the government went to congress and said, we think as a statutory matter that those -- that there is already an avenue for judicial review for recipients of the orders. that was their position in the litigation over the national security letter statute and that was also their position in congress. we don't think that clarification of the law is necessary. burt but we welcome it. it clarifies the species of judicial review that the government will told the district court was available to recipients of these orders. congress was addressing the narrow problem of the -- of it being potentially unconstitutional for congress not to have provided ready judicial review for recipients. >> your argument wit respect to

it the secrecy point is that if congress didn't imagine that this thing was ever likely to happen, assuming that -- i understand you have an argument that they should have foreseen this possibility, at least some contingent circumstances. but if they didn't think about this at all, then you win, because there -- we're not looking for evidence of a legislative intent to create a right to judicial review. your position is that's already there under the apa. unless there is evidence of a judicial intent of of a congressional intention to preclude judicial review? >> that's exactly right. that's created by the apa, the way that your honor articulated it is the way the supreme court has articulated it. that's the government's burden to show by clear and convincing evidence that congress intended to preclude our claims, not our burden to demonstrate that congress intended to create

them. if i may, will move on to the merits of our statutory claim. our first claim is that section 215 does not apply to call records. in the same statute that congress enacted section 215, in 2001, it added a provision to the stored communications act prohibiting the government from acquiring phone records. it created i exceptions to that prohibiti prohibition. but section 215 is not among the list of those exceptions. under settled principals of statutory construction, the specific prohibition in the communications act supersedes the very general grant of authority. in the past, the government has agreed with that very principal. when they were confronted by a senator who worried that the privacy protections of the census act might yield to section 215, the department of justice assured that senator

that the privacy protections in the act would not yield, that they trumped the general authority of section 215. they have agreed with a related proposition which is that the exceptions in the communications act are exclusive. that it is not for courts and it is not for the government to infer additional exceptions not created by congress to the background rule of privacy established by the act. that was the government's position in an olc memo in 2009 to the fbi concerning the scope of the national security letter statute. >> am i right that if we agreed with you about this proposition about the stored communications act that unless you are also right about the meaning of relevance that this could be something of a victory for you, only a transient victory? in other words, your whole -- one of your arguments about the relevance issue is that if we

interpret relevance as broadly in 215 as the government wants to do, then the government could get the same kind of records out of just administrative subpoenaed. and that request is covered as an exception of the stored communications act. >> not exactly. in part because the stored communication act limits the type of call records the government can acquire. the government could not acquire -- it could only acquire the originating phone number, the receiving phone number and information about the duration of the call under the stored communications act, including under the administrative subpoenas, but they couldn't acquire things like the identifying device number of the device making the phone call. it couldn't acquire the trunk identifier, which is something they acquire under the verizon order here. you are correct that they still would have the very broad

interpretation of relevance available to them. i think that's a defect in their argument. on the government's theory, it could use any run of the mill administrative subpoena statute to acquire the same records in bulk. notable is the fact that none of the other statutes include the source of protections that the government relies in section 215. in other words, they could rely on the national security letter statute to acquire these very same records in bulk without the minutization procedures they point to from saving thur collection, without the same sortd of limitations that the -- >> maybe they will concede that that would be unconstitutional because it's only those type procedures and the court order procedures and so on in section 215 that in their view defeat your constitutional argument. it will be interesting to see what they say. >> i would find that surprising. i think their argument is broader, that smith controls this case.

>> yes. >> there's one other argument i will quickly mention under our statutory argument is the real grid the our statutory claim before proceeding to the constitution. that argument is that the core to problem with the government's theory on the merits of section 215 is that it labels everything relevant on the premise that some tiny portion of everything -- >> i don't mean to interrupt your statement of that. i think we know what that argument is. it reminds of justice stewart who said that if everything is classified, no is classified. if everything is relevant, than relevance drops out. it doesn't exist. >> that's right. >> a more technical question, i guess, is, this is the -- well, the statute says that the government can apply for an

order requiring the production of any tangible things. the question of relevance doesn't come there in terms of the authorization. it comes later whether it requires that the application to the court include a statement of fact showing there are reasonable grounds to believe that the tangible things it are relevant to an authorized investigation. i'm wondering -- it would be easier for me if the authorization said for an order requiring the production of relevant tangible things rather than putting it down later in the papers to the court. the reason i find this troubling or confusing, difficult is it is

the administrative procedure act. presumably the administrative procedure act, the -- what we're talking about is the fbi and the nsa. and i'm wondering whether by putting this down, the question of relevance down in terms of what must be shown to the court, we're not being asked not to review what the fbi and the nsa did but that we're being asked to review what the court did, the court being -- it's not an agency under the apa. i don't flow if tknow if the qu makes sense. i understand the notion that everything that's relevant is very troublesome, at least.

but are we -- if we say that that's wrong, that everything is relevant is wrong and the court was wrong by saying that everything was relevant was fine, are we then reviewing what an administrative agency was done or are we reviewing what the court has done? if the latter, do we' have the power under the apa -- do we have the power to review what the court has done rather than what the agency has done? >> i think the quick answer is that we're asking for the former not the latter. even if the latter, i think the suit would be appropriate. i will elaborate. i will note that there are any number of surveillance statutes that are structured that provide authority at the outset, set out the limitations below. that's not a novelty in section 215. it's the same in section 1881a

under the amendment act. it sets out a grant of authority at the outset. i know, your honor and judge lynch are familiar with section 702. to get to -- >> we were once. >> to get to your. >> we weren't as familiar with it as the supreme court, but we should have been. >> to get to your precise question, we are challenging agency conduct. we are challenging the government's daily collection of our records. we are not asking this court to overturn the fis being. we are not asking this court to said aside the verizon order. we're asking for an injunction against continued collection by the government. that could be put in place without saying anything to the fisk, only with an instruction to the government. that's what our challenge is. for that reason, it's understood as a challenge under the apa. even if that were not true, even if you characterize our challenge as one to a fisk

order, i don't think that would change orders. the government itself filed -- it was challenging the verizon order said the appropriate avenue for relief was a district court case such as up withe one are in appeal on. the government noted that it's true that a district court action may not achieve the same relief as whack being sought in that case, vacating the fisk order, but the plaintiffs would be entitled to receive an adequate remedy, namely an injunction against ongoing and illegal agency conduct. >> what happens, now that the mention that, what happens if -- there are now district courts at least two district courts which have come to opposite conclusions within a week and a half of each other on the issues before us. and they did it on the constitutional basis.

supposing we were to affirm and the district court -- the d.c. circuit were to affirm. so you are have one circuit that says it's unconstitutional. here is an injunction. another one says, oh, no it's perfectly constitutional and we are not going to give you an injunction because it's constitutional. where does that leave -- are they allowed to get records in d.c. and not in new york? where would that leave us? >> i imagine the government would seek a stay from the d.c. circuit. if they were not successful, they would ask the supreme court to resolve the conflict? >> it would be the supreme court that would deal with it? >> i think so. the supreme court likely would permit a stay pending the resolution of the conflict. i will turn to our constitutional claims. >> should we permit a stay subject to resolution of that? suppose we agree completely with

you. in order to avoid this sort of circumstance -- i guess you are going to get this to this later. might we say, great, we agree with you. but there's other litigation going on. we want the supreme court to have a kick at the ball. we're very much concerned. supposing we're wrong and somebody blows up a subway train. does it make sense for us to say, here are our views and wait until the d.c. circuit speaks and until the supreme court has an opportunity to speak before actually making an order of -- an injunction? >> i think it would be well within the court's authority. we haven't taken a position on that. we would be happy to if and when that arise sdmarises. >> that would be within our power? >> yes. i will proceed to the

constitution. our claim under the 4th amendment is quite state forward. it's that the government's bulk collection of our call records intrudes upon a reasonable expectation of privacy. the government's primary defense is that this case was decided in 1979 when the supreme court issued smith versus maryland. that is not the case. >> let's suppose that we agreed or at least entertained the argument that quantity is quality and that the nature of this program is different than what was at issue in smith. isn't there still quite a bit to the government's argument that even if n this context, there's not really much of an expectation of privacy in these records? for example, if you look at the opening of your brief, you have this parade of things about the government could find out from these records. people could -- the government could, if it chose, if someone

looked into it, from this metadata could determine it's likely that someone was hiv positive or it's likely that someone had an abortion. couldn't verizon find out those things if it chose? couldn't verizon go into the records that it has and make the same kind of search and determine the same kind of private information and use it for purely commercial purposes, not remotely as important to anyone as the reason the government seeks this data -- to use this data to do, but just because they might be able to make money by selling a list of people that verizon thinks have recently developed an unwanted pregnancy and they could sell that list to abortions are us or an anti-abortion group to send

information to those people. verizon could don't that? >> i don't flow if they could as a matter of our relationship with verizon. i don't think our contract provides for unregulated access to our call records. as a matter of fact, the only access that verizon typically has to our records is likely through its computerized collection of those records. so it's a bit ironic that the government claims that the computerized collection of those records extinguished an expectation of privacy but its collection of those records does not -- are you hypothesizing something about your contract? do you know something about your contract with verizon that i don't know about mine? that there's something in there that says they can't use the call records for anything but billing? >> i don't know the precise contours what have they can and can't do with the records. there are statutes that regulate what telecommunications companies can do with their

customers' records. >> including the stored communications act. i take it they couldn't just say to abortion providers or pro-life organizations, here is our phone records. you go search and find people who might be interested in your services. well, the point is, verizon has all of this information and presumably has the computer capacity to probe them if it chose. >> they certainly may have the computer capacity. i don't know whether they have the authority. i think it turns on the question of what the congressional statutes regulating -- i forget the long form of the name. but cpni, customer primary network information. i think you are hypothesizing -- i don't know the exact contours. i don't think anything turns on that question. the third -- i think this is

another way of stating the third party records doctrine question. i don't think that has been an on off switch in the way you are suggesting. there are contexts in which information is shared with a third party. yet, the person whose privacy is reflected nonetheless is recognized to have an expectation of privacy. >> could you illustrate? >> sure. all of our didn't the contents of or phone calls are routed through verizon communications. the contents of our calls are nonetheless strongly protected by the 4th amendment. they are protected by federal statute. no one has suggested that verizon's ability to listen to the content of our communications extinguishes our expectation of privacy. the same is true of our e-mail. our e-mail is stored on the party -- on the servers of third parties. i think courts are beginning to grapple with that question. the 6th circuit held that

despite the possibility that google might read your e-mail because the information is stored on that third party server, customers nonetheless have an expectation of privacy. >> lord knows there are enough -- there are many ironies in this case. one of them -- maybe it makes no legal or constitutional difference. but it's a little strange that once mr. snowden disclosed the existence of this program, we no longer had a reasonable expectation of privacy. we have just been told we don't have any privacy, that the government has it. i would like you -- i suspect you can respond to that, because you probably thought about it a lot longer than i thought about the question. i wish you would focus as we do this -- even forgetting smith versus maryland.

talk to me about reasonableness. how do -- in this case for us the word reasonable is in the 4th amendment. talk to me about how we figure out -- the three of us figure out what's reasonable and what isn't reasonable. >> sure. if i may, i will briefly address your first question. which is now escaping me. >> the first question is, now that everybody knows about it and they are watching it on television -- >> the supreme court recognized there's privacy and it can be defined in congress so chooses through a statute that permits bulk collection. it has guarded against that by analyzing a question along with the catch, which is whether people are reasonable in expecting privacy. you see that question being addressed by cases like jones and by cases like riley, both of

which recognize that even though there's the capacity for greater intrusion into our personal p privacy by the government giving that information, that doesn't alter the relationship between the citizens of this country and their government. >> is is it relevant to the constitutional issue? in other words, suppose this case came to us purely as a constitutional question. after congress had engaged in a full-scale debate as to whether to authorize explicitly exactly this program and they did explicitly authorize this program -- i suppose one could further hypothesize they did it a few months before an election and after an election in which this was an issue, the same congressman who voted for this were returned to office. would that make any difference

to our estimation of what is a reasonable expectation of priva privacy? >> i think it would likely like relevant to the inquiry but cannot be dispositive. it is not to be turned into a one-way ratchet for government intrusions into privacy. >> i am wondering if that means even if there were some bar to our considering purely as a sensory question, whether or not this program was authorized, whether or not this was an executive branch frolic in detour, that was not authorized by any legislation of congress and was pro hprohibited by congress, as part of this whether it was constitutional or not, and an executive branch

excursion would stand on different and shakier constitutional ground and might even be an unreasonable intrusion on privacy. without necessarily concluding that it would be unreasonable for the same program to operate if it had full clear congress n congressional authorization. >> i suppose that's right. although, i don't think anything in our argument turned -- >> well, not your argument. your constitutional argument leads to the conclusion that even if congress authorized the program explicitly, it is still unconstitutional. i realize that's your position. >> that's right. i see your suggestion. i think that could be an element of the reasonableness of the expectation of privacy. the fact that executive intrusion has not been one deliberated to -- >> and if there was a real

debate in the democratic branches of government, that led to a decision to reup this pro groom. >> that's right. if anything the current debate that's ongoing, it suggests the opposite. that congress is not comfortable and the country is not comfortable with both collections. and indeed, the president himself has now recognized that both collections creates an intolerable risk of abuse and should be ended. i think that's a good segue to get to your question as to how to analyze reasonableness. i think it is always about balancing the intrusiveness of the government's search against its rational for doing so. i will say at the outset that i don't think the court need to get to conducting that balance. the fact that the government search, without satisfying the warrant with probable cause clauses of the constitution, is sufficient for us to prevail on the fourth amendment.

>> -- continuing merit. i guess my first question is smith allowed for the numbers dialled, they said that that was not covered and people didn't have an expectation of privacy in that. let's assume with regard to the program, is it your contention that it is unconstitutional for them to collect just that information? >> just the information in smith? >> yes. >> yes. >> that it is unconstitutional? >> it would be. smith dealt with criminal technology directed at an individual suspected of a crime off three days. >> technology i don't think is an issue because -- well, maybe to the extent of bulk. but with regard to what is being captured, which is the numbers, are you saying that the

government -- in words, that for seven years, that is unconstitutional is. >> right. maryland investigated michael lee smith, not through the pen register, but because it had sib the moment of its birth created a data base of every phone call he of made and received and kept that data base in a government kofr. i think the supreme court would have understood that case to stand for a very different proposition and i wager they would have found that collection unconstitutional. so if that were the program that we were challenging, i still think it would be unconstitutional. although, that's not -- you know, it is more intrusive here for a number of different reasons. >> how do we -- oh, sorry. >> no, go ahead. >> how do we go about, without any fact-finding at all, i keep

looking and wondering whether we're having in-camera proceedings. but i'm wondering whether how, without any fact-finding at all, can we begin to know, figure out, by a district court, by some trial court, presumably in-camera, how can we begin know whether this is reasonable or not. how can i begin to know whether, you know, we're really because of the way the world is today, which is different from wait it was a week ago. and different from a year ago. and different from june 2013. how can we, come up with some reasonable determination, reasonable -- >> i don't think fact-finding is necessary. i think the parties have briefed the issue. and even the president now can see that the government can

accomplish the interest that it is seeking to serve through this program without collection. >> we send his lawyers here to say that he should listen. >> i think he is awaiting a legislative solution. the president in the interim has, i suppose -- >> forevidently, the president thinks it is necessary to continue and it is unconstitutional do so. the representatives of the government are here to say that they think this is simply essential, at least a reasonable thing, for government -- >> that's right. our view is not that president concede the unconstitutionality of the statute, of the program, but that government conceded that there are alternatives significantly less intrusive means for the government to accomplish. >> fair enough. and one would hope that it does truly sound like the rational

way to proceed. we started without that question. but supposing, you know, because of legislative thoughts as judge lynch talked about the possibilities, that politically it won't fly after the election and we're stuck with what we've got, that is to say the whole country is stuck with either we say this is unreasonable and or a violation of the fourth amendment or we conclude that it's reasonable under the circumstances giving both the nature of the pleat and what has to be done to control that threat. how do we do that based on -- >> if i could get to your point. >> please. >> the first point is the one i tried make earlier. that i don't think the court needs to get to the reasonableness balance. the government is only entitled

to a question of free floating reasonableness. if it can demonstrate that warrant and probable cause requirement of the fourth amendment are impractical. it cannot for the same many reason, that government can accomplish the interest through individualized application. >> that wouldn't ordinarily require the probable cause -- in other words, this alternative procedure that we're envisioning, that you're envisioning, is keeping these records and i take it -- if you have a reasonable suspicion, or unreasonable suspicion, that if the government wanted to look at phone records, they do that all the time by issuing a grand jury subpoena or some national security letter, without probable cause and without a letter. and the argument is that is not

fourth amendment -- either not a fourth amendment event, because it is smith against maryland, or if it is, it is a reasonable one. >> that's right. but the government here is trying to engage if bulk collection. if we're correct that that implicates the fourth amendment then the question becomes for purposes of special needs doctor, in which the government has invoked. the question is whether the government can accomplish interest through targeted demands. if it could then it is not entitled to forgo the constitution. we don't think it could use targeted commands to engage in bulk collection. even the government conceded that it could use target had demands to accomplish interest here. it uses a phone number to queerry its data base. instead of queerrying a data base, it can query -- >> but you're saying, the free

floatingness inquiry, in terms of bulk collection, and al interpret tifs perhaps, a reasonable thing to do or unreasonable thing to do. i don't know why the warrant requirement of the probable cause requirement comes into play. in that inquiry. >> i suppose because at least in this case, the question of practicability used to collapse with the question of reasonableness. i think they are disstichk inquiries. the first question is whether dispensing with the requirements of individual suspicion is practic yl or not. here we don't think it spp even if it were impractical or the government to acquire these records in individualized fashion, we would still think that program is unreasonable. for the reason it is the most intrusive means that the government could use to accomplish its very narrow interest. that sort of program has always been held to be unreasonable. and if in part, and i'll emphasize it again, it is in part because even the president conceded that the government's interest can be accomplished in

narrow means. and not just the president. it is the privacy and civil liberties, oversight board that wrote a very lengthy report concluding that bulk collection is unnecessary. if a group hand-selected by the president himself that came to the same conclusion, and there is record evidence in this case from the professor of computer sigh enat princeton, explaining very simply how the government could recreate the program in a targeted way that would not require bulk collection. >> unless my colleagues has further questions, once you get to the point of saying to reemphasize the point you already made, we probably have gotten to the end. we do have time, probably more

than two minutes at the rate we're going. >> thank you your honor. play it please the court. stewart delarico, the government. this program has been considered and approved by all three braksg there are call detail records pursuant to the court under a provision of fisa that's been twice reauthorized without change after congress was brief bed this very program. >> you are starting off by saying it was authorized by all three branches of the government but you don't want us to say it was. >> i think this is a choice that congress made in specifying a very detailed provision for applications and approval of those applications by the fisc.

and then what a detail review scheme following that allowing for challenge by providers and ultimately reviewsed to the fisc review court and to the supreme court if appropriate. but the supreme court has been clear and blocked in other cases that where congress established clearly a specified form or forum or limited parties for judicial review, then that provision, that process is exhaustive and -- >> going ton address very specific facts, the judicial review program there, that suggests that it was reasonable to assume that congress had intended to preclude review by other parties. i don't know whether it goes to call it a test. but set out a variety of factors and looked at those factors,

that they are a reasonable inference. i'm not sure if those factors come out here. you are hanging your hat very heavily on a generalization, aren't you? that any time that congress addresses judicial review by one person it must have precluded judicial review at the head of any other person? >> i don't think we are relying just on generalization. the court made clear that inquiry needs to be based on the structure of the statutory scheme at issue here. if you look at the structure in the first part of the argument, there is no provision for the third parties for these orders, because as matter of course, the expectation was that at the time, the third parties, including people other than recipients, would not know about them. >> is that to assume that congress intended to forbid

review by such a third party if the third party did find out? in other words, i understand the idea that if congress authorizes this kind of lawsuit, it is a good idea to say, of course not. they couldn't amath inthat this could happen, because it couldn't happen, because secrecy was maintained. but if judicial review is available, then the question is did congress specifically entend to prohibit judicial review to these particular people. and the answer is, they probably never thought about it because they didn't think the people would be around. don't you lose? >> i give a couple answers to that, your honor. first is limiting the category of people who could challenge the orders with a deliberate choice made a reflection in legislative history. and i think other discussions. but certain lit amendment that rejected proposed district court

challenge challenges to 215 orders. i think the key address not in the first argument was part of 215 which says that an order, issued purr to the -- shall remain in effect, and shall be set aside and procedures that are set aside in the section. i think that's a clear statement by congress that when the fisc orders are issued, they should be satisfied only pursuant to the process that the court or that congress specified there. and pro collusion here, makes perfect sense given the structure of the section. which provided for applications by the government to an article 3 court established for the purpose of reviewing foreign intelligence applications.

>> i guess one did, so we should ask them, but it is a secret who they were, so we can't ask them. so i will ask you. why would a recipient challenge an order. they are given immunity that they vee violated any rights by turning stuff over to the government. what stake do they have in other words than saying, here, it's no skin off our nose. it is skin off their nose. >> i think you're right, your honor, that we aren't the people to ask. as you indicate, and as reflected in judge collier's opinion from the fisc, there has been such a clael challenge to an order recently and that led to reaffirmation of the production order on statutory aep constitutional ground. so i think that given that we have here not just the situation

where congress has said certain challenges to an agency should be brought before a forum, but before the private party is required to make production to the government, the plaintiff's argument requires a collateral challenge to -- >> well, that is an interesting an troubling point. on the other hand, it is pointed out that exactly such a clael is apparently authorized. the government concedes it is authorized on constitutional ground. so the government's position appears to be that we can collaterally review, if that's how you want to look at it, to test its consistency with the constitution but not to test whether it is consistent with section 215. >> yeah. >> i think that your honor, that

is the consequence of the supreme court's implied conclusion doctrine in related cases as compared to what the court said for example on webster versus doe about what required for a court to review congress having intended to preclude constitutional claims. it is a higher standard -- >> is there anything to avoid constitutional avoidance here? you are asking us, you are requiring us, to decide a question of constitutional law. to decide whether perhaps the government is precluded from doing this sort of thing even if congress wants it done. or on the other hand, to accept an argument that says nobody's got any constitutional privacy rights in anything any more. because surely the same argument

is made first. the same third party argument that you're making as a matter of constitutional law and the same relevance argument that you're making under the statute applied to bank and credit card records, don't they? >> obviously to some extent there are elements of the same argument. >> well, let's take it through. they are third party records, right? smith against maryland applies. >> smith against maryland itself was limited to noncontent record and actually the court made a point of distinguishing the situation of contact selection. obviously there are other cases, including united states miller versus miller involving financial records that dealt with other types of information. i think the key under the fourth amendment and relevance test under the statute in both lines of cases, the court made clear is a totality of the circumstances type inkwerry. what is relevant under the circumstances. what is reasonable under the

circumstance -- >> come upon isn't it at least as relevant to you whether somebody that you have some reasonable suspicion is engaged in terrorist connections using his credit card last week to buy a ton of fertilizer as it is to find out whether he called his gym that on -- using his verizon cell phone? >> right. >> so i think you're -- >> or even to find out who his other colleagues are. it is clearly in the sense that you are talking about it. in fact if you had that guy and you wanted to get his precise credit card record, is there any question you would serve grand jury to get that? >> i don't understand why the same jump that says you can collect all the stuff in advance essentially to make it easier, quicker. i'm not dent grating that interest.

to make it quicker and easier on what this guy is up to. why doesn't the same thing apply to credit card records? >> speaking of the types of information that you're talking about, answering those questions in counterterrorism and other types of investigations, occur by law enforcement ef day. those are important elements of the -- a set of tools that the government has to pursue counterterrorism investigations. what we're talking about here, the proposition of relevance that has been advanced here and that the fisc has approved, is however tied to the nature of the records that are being collected in bulk. bulk to metadata or call detail records, putting the smith question aside about the fact that those are actually -- what we're talking about is information that is provided by telecommunications companies from their own records that they have created and maintained for their own business purposes. but if you just look at what the

government's use of the metadata is, the record in this case, including declarations submitted with the preliminary junction and making clear that purpose of the bulk collection is to allow for the use of analytic tools in counterterrorism investigations. so both the nature of the data, which is interconnected and can be standardized and there for can be searched through contact chaining to make connections, and in furtherance of, a particular type of investigation, which are not ordinary criminal investigations looking back at who perpetrated a crime that we know about tp but are designed to be forward looking. the purpose of this work is to detect and disrupt future plots before an attack can be made. i'm sorry, your honor.

>> bank records seem to me to have the same sort of information. and under miller, it appears that there is still an interest in sort of their bank records. there may be certain limitations on that but isn't it a similar sort of thing? couldn't then the government aggregate everybody's bank records and apply the same career methodology to get at the same sort of -- >> so that is a question that would be relevant to the, to use the term, to the question of whether that type of collection is authorized. here, i think it is important that the fisc has examined the type of data. and has established that it can be connect need a data base and

queerried in a way that law enforcement does it. if used routinely, it may not have the same benefits from aggregation ante and queerrying based on standardized format. so the answer here would not necessarily be the same. it's a question. >> i'm having trouble understanding this. is it the idea that telephone records are uniquely kept in similar formats by all providers so that unlike bank records they are more susceptible to collections data base? i thought it was almost the opposite. if you have to wait -- we have this guy's phone number. we think he is engaged in something suspicious. we would like know who he talks

to and who the people he talks to talks to. now you can get the provider, all of the people he talks to, then subpoena all those people and get information. so all of that information is gettable. cy would have thought, and maybe i'm completely mistaken, that the problem is that it is time consuming and you have to track everybody down. so having it all on your server in your back room and do whatever you need to do and translate the spript record or verizon record or t-mobile record and have it all -- am i wrong about that? >> no, you're right about that. >> so isn't that true about a bank? can you go subpoena by subpoena and collect everything there is to know about everybody. and all in one big government

cloud. with procedural connections you can is with the government about what you look at and when you look at it. i just don't understand an argument as to what is so special about telephone records that makes them so valuable, so uniquely interactive or whatever, that same arguments you're making don't apply to every record in the hands of a third party business entity of every american everything. >> your honor, i would like to come back to the point embedded in thereabout the minimization and other restrictions on the use. which i do think is critical to understanding the appropriateness of this program. but on the question of relevance, i think you are correct in your general description about the purpose of the collection of the data.

and that the advantage of doing it in advance, is that it allows for standardization where that is necessary. though i do think that phone records by their nature tend to be, you know, and are, quite standardized. and to rallow for rapid connections between known and unknown terrorists. that's the purpose of the program as again reflect fled the record and in the district court opinion, frankly. the purpose is to be able to identify from a known person with some connection to a per missably targeted terrorist organization who that person is in contact with. and in particular might be in contact with in the united states. and the analytical tools to make those connections and to, identify them rapidly, are are at the core of this particular

program. >> some of us sitting here have done this in criminal investigations. and know exactly how important it is to get people's phone record, to trace their connections and it's done everyday in the week. with targeted subpoenas about the people that one is suspicious of. and having done it, i can tell you that there are a lot of burdens in doing it case by case. but surely you agree this could be done by targeting speen whus. >> so whether it is sufficiently timed is another element. the need for examination across carriers so you are following the lengths of where people are communicating using different barriers. and again, to build historical

repository, because going in, the government doesn't know who -- which of the metadata might reveal an important connection to a known terrorist. so if you started only when you identified that person, that information would not be as valuable. >> and a question whether the phone company keeps all these records. and at the suggestion earlier, in terms of what president suggested by legislation, that that problem could be solved by requiring phone companies to keep the information indefinitely against the possibility of future collection. >> i want to get back to the question of constitutional avoidance. because you are asking us to decide that is extraordinarily sweeping. without inquiring as to whether this something that could ever

be allowed under the constitution, without addressing whether the congress of the united states has ever really thought about this program, and putting aside the issue of precollusion, it is a little hard for me to imagine that somebody who looked at a law that says you can have an order that will get anything you can get like with a grand jury subpoena. imagine that that means you could get stuff that nobody could imagine getting with a grand jury subpoena before. it could have been done, i don't know. but it is a little hard to imagine that that rather i knock louse language, and make a showing of relevance to a showing of an investigation, and as i read your brief, they aren't really relevant to the investigation right now. we just want them in case they become relevant so we can query this data base.

why do they think congress bought that using this language in 215? >> i think one reason, your honor, is because congress was brief bed this very program and extended section 215 twice without change. i think this does reflect ratification in a way that ordinary -- >> i wonder how balanced a ratification argument is when you deal with, what is essentially, a secret law. you are dealing with something public and therefore ratifying it again and again. and somehow reflecting public will because they know about it. i'm not sure that ratification carries as much baggage as you want it to. until june of 2013. >> i think, your honor, the

reason it does here, is because we're not just talking about a presumption that if it is in the federal reporters somewhere congress will know about it. here, congress, the intelligence committees were briefed over time, about the details of the program. and in advance of reauthorization in 2010 and 2011, the executive pranbranch provided a briefing paper to be available to all members in 2010. before the 2010 ratification, all senators in 2011, detailed not only the nature of the program, but that the fisc authorized it. that the relevance requirement in and statutes had been met. it was in consensus with smith

versus maryland. and in the plaintiff's brief they highlight from senators was made in connection with the 2011 reauthorization wauz wr they specifically call colleague's attention to the legal interpretation of section 215 and importance of understanding how it was being used in connection with this very program. and so finally the chairs of the intelligence committee made this material available and offered briefings more generally to all members and also repeated the need for members to understand how it is being used. so this goes beyond the ordinary -- >> it is getting late. i want to make that i understand whether you are arguing about pro collusion or 215 and whether relevance is an appropriate -- for getting thecollusion or 215 relevance is an appropriate -- for getting the constitution --

>> arguing here that congress understand 215 to cover the program we are talking about. >> you're beyond pro collusion. >> and i also think that extending 15, knowing wh215, kn going on, more broadly -- >> and with foley's decision and before we say anything to the contrary, if we were to, that would be the kind of thing that would be a tip cat rypical rati argument. folly's analysis of the pro collusion issue but the pro collusion issue is not otherwise something that is before congress in some judicial opinion when they did one of the three authorizations. >> the pro collusion point, your honor -- >> relying on the history of the beginning. the relevance argument you are relying on the idea that congress reupped this statute,

section 215, after the program had been instituted, the fifth court approved it and there was this process of briefing in congress. and i don't think there is any -- can you tell me if it is and if you can't answer it, but could you just explain to me, if i'm a member of the congress, ordinary member, not a member of some special committee, what exactly was i told -- i don't mean what is in the classified region. what was i told about, you better go read this before you vote for this. what memo did i get? >> so, i think there were memos from the chairs to intelligence committees and they are in the joint appendix. so you can look at them. but they authorize information -- i'm paraphrasing,

but information is provided by executive branch. it is important for evaluation of the reauthorization of this authority in section 215. >> then it is up to me to figure out if it is worth it for me to read it, since they were telling me i should, and to do it or not. i think of things like legislative vetoes and other things where the supreme court emphasized that legislation gets done when there are votes for it and president signs it. this notion that legislation has been accomplished because i, as a member of congress, got a letter saying you should go read something that is in a secret compartment before you vote on this, therefore assumes that congress approved whatever is in that speaker compartment. >> the further fact that we have here is that there are members,

including senators widen and yew dahl that were talking about this debate. >> who get on the floor and say was listen, bozos, you better read this. we can't tell you what this is in public but you better go read it. >> earth in other context, the supreme court reference that is sufficient and this goes beyond what you look at in ordinary -- >> i don't think justice scalia counts as regular -- we can take that up with him some day. >> i think it is certainly correct that wisdom of this program and in light of its nature and scope is the public debit and debate within congress. there are multiple proposals introduced and that is working

its way forward. the president has -- this is not consideration. it is entirely -- saying we don't think this is authorized by congress, that would put it to them, wouldn't it? whether or not they think this is something that should be done or not. then they could take their vote and that would put all these esh us, short of a constitution, would put pay to all of the issues as to whether this is legislatively authorized. >> just take out the word relevant. >> we think this program is okay. keep doing this or alternatively don't do this any more. then if they did the latter, we wouldn't have the constitutional issue here. if they did the former, then the constitutional esh u, i suppose, would still be around. >> section 215 authority will sunset in june of next year.

so some action has to be taken one way or another. either to extend it or change it in light of the current ongoing debates. what the president said is that he supports achieving the goals, national security goals, reflected in the authority without the government actually ingesting the metadata. allowing queries and asking providers. he also noted that in order for that approach to be workable with the speed and manner necessary to accomplish goals, legislation would be required. so he directed, that in the meantime, because he thought in his judgment it was important, to continue the capability that the government go to the fisc and seek cannoted reauthorization. >> it is the second time now. >> to changes that your honor --

>> september 10 is the next reupdate. >> i believe september 12th is the expiration of the current order. i think that clarifies where current things stand. if i might turn to more questions about the statutory authorization, i think i will turn to the fourth amendment, if that makes sense. our position is that the fisc and district court in this case did correctly conclude that under smith versus maryland, acquisition of business records reflecting -- >> let me tell you what problem i have with that. not just, you know, those were the cold days. but the question is, and maybe i don't think i'm using the mosaic

approach, but doesn't there come a time and isn't this what the pl plaintiffs are contending, and isn't there some simple pen register used in smith versus maryland and that we are recognizing for a long time, where the amount of data that you have of that sort is so detailed and so extensivextensi in fact it is a content divulging actions rather than not. the whole point, since i read it again this morning, but the point was you're just -- it is something that you already give out. anyhow, given to a third party. so it's -- it is not as though you are listening in, which would be different.

and it is, i think -- or a question, is whether the methods become so sophisticated, that analyzing this kind of data, that unlike a pen register, in this case, you are finding out content. is there any hopes to that idea? >> certainly, this is the -- one of the issues that's been a factor in the public debate over the last year since the disclosures. i make a couple of point. first, again, we are in fact talking about the same type of information. so to the extent -- >> to the point of what he was just saying, judge probably didn't go each piece of met why

data by metadate why and do the analysis. right?a why data by metadate why and do the analysis. right?why data by metadate why and do the analysis. right?hy data by metadate why and do the analysis. right?y data by metadate why and do the analysis. right? data by metadate why and do the analysis. right?data by metadate why and do the analysis. right? he said it is third party and similar like information. but doesn't it require that actually he -- well, sure it requires and that determination is made based upon if you're talking about a right to privacy and you look at each part of the metadata and make a determination at that point. why shouldn't the court have to go through that exercise? >> i think the record reflects that if you're talking about the type of information, we are talking about the same call detail record at issue in smith. so the number called and number received. routing information. time and duration of the call. we're are not talking about name or address or financial information.

>> technology hasn't changed so much that the analysis that it is pen register doesn't work any more? >> the next two statements are that one, the ability of metadata to reveal useful information to investigators and particularly connections was known at the time of smith and was in effect the power of the metadata, that smith itself pointed out. did. carry the day with the court, which concluded that even though the expectation is that some companies are assembling the metadata, because you know you get a list of all your calls at the end of the month, that's not a -- that did not give rise to a fourth amendment interest. >> that is very simple stuff that comes from the pen register

used in courtrooms if the united states everyday in the week when it is u.s. attorneys saying this is the amount of time conspirator a talked to conspirator b on his cell phone until the day. they are talking about the drug transaction. we don't have the con tept of the phone call but we have a record of the person of the insider at goldman sachs, talking to the trader, right before before hear is the question right before the announcement of some new public information. what side of the jury ladies aep gentlemen do you think they are talking about? this is a leak from the other side. there is no worry that mesa data, any secret, that metagreat

can reveal cop duct. >> leads me to the response i wanted to make a moment ago, which is, it is important not to lose site of other protections built around. the acquisition and other programs, givenity bulk. bulk nature of information to the government and in light of technology. i think that's critical to understand. in addition to it being noncontact information about the telephone calls, data can only be queried for counterterrorism purposes. thep only if there's a reasonable are a tick u labl suspicion that the selection term or number or whatever is connected, associated with, a

specified foreign terrorist. >> go ahead? >> they want to end the event. >> i don't think that's right, your honor. in 18 6r 1 subsection g requires minimization procedures. because i think the text of the statute reflects it was understood that this tool could be used to obtain data that would relate to, you know, a number of u.s. persons. so the statute requires that government propose and that an element of the program deed robust pro seetd urs, they are sold out then in detail. that there would-be protections around the use and dissem nation of the data -- >> now that we have some

experience with minimization procedures, pro zum they would be possible to spell out something in legislation. if this program were going to be authorized by congress explosively, thep making sense what did make sense and what didn't. this says the attorney general has to specify. so far, fisc signed up on what the attorney general is signed off for. when it got more respective, that's because the attorney general asked for it to be made more restrektive. they are operating essentially saying here is what would be better at minimalization. or here is what we think the constitution requires. government says, here is a list of things we think he should tell us to do. the court says okay. those restrictions are approved. sni my concern about all of this is that it is find to say we've got this program and this is the only -- we never misused this

data. we that is not the same thing as our government not having any information sitting there where -- i don't know what mr. snowden could have done. maybe instead of leaking the order, he could have leaked the data base to somebody. we don't know what happens when someone inhabitants the white house, this one or former one, goes these are realistic concerns about letting the government have this massive body of data without anything that even -- of course, look. i'm sure part of your answer has to be, and i'm sure it makes sense, if we are told the

government can't do this, imagining a government that breaks all the rules, they could get it anyway. they could tap our phones and we would nef know unless there are bad guys. there are levels of restripgs and it is one thing to have congress adopt a pro dpram. we consider to what we've done to forget taxes and one that says, they can get what relevant but they should be careful how they use it. . >> so i think, your honor, the reflection goes beyond the last version that you just articulated. but i do think that the point about, in the national security area, the political branches being charged with or arranged,

drawing the lejs in matching the national security meeds. needs. and congress draw some of these lines almost, i'm not sure this is the phrase that was used, but because some of these questions are susceptible in effect to legislative fact finding. about what is popate. what trade-offs are appropriate yit to meet the needs of national security. similarly, this court in evaluating types of antiterrorism or counterterrorism activities section of the subways and fairies, noted that there -- reluctant to wisk away from political branches. the questions about how these questions should be made.

>> very careful about making a constitutional evaluation. >> there's obviously a desire to ask questions about what might arise and other contacts. but given the supreme court with reasonableness retaliation and you do have smith and you do have the same type of information at smith. if you're reaching constitutional issues, we inch a focus on the program. >> you have to reach constitutional issues? >> yes. your pro collusion point, a reflection of the jean that congress established. and the sprees court also recognized that where that is the case. the constitution may be, i'm an statutory claim. that is the issue of webster

versus doe. the court said that constitutional claim could be reached, not the stat story plame. there was no cause of action available. >> the only way we can achieve constitutional avoidance in this case is by against you on something statutory. either way we are forced to get there anyhow, right? >> right. our position is that congress -- i prefer that you not rule against us, that's true. but here, congress hasn't provide jurisdiction for the court to reach statutory claims. we are left with the constitutional argument. they only think that whether you do it as a metal of smith versus maryland. and answers the questions about the whether if it is a fourth aend inment search get record from theel