that there is already an avenue for judicial review for recipients of these 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, but we welcome it because it brings no harm. 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 basic argument with respect to it the secrecy point at least an argument with respect to 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 a congressional intention to preclude judicial review? >> that's exactly right. that's the presumption created by the apa. the way that your honor articulated it is the way the supreme court has articulated it time and again. 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, i'll move on to the merits of our statutory claim. as i said before, our first claim is that section 215 simply 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 prohibition. but section 215 is not among the list of those exceptions. that's critical, because 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 in effect 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 already created by congress to the background rule of privacy established by the stored communications act. that was the government's position in an olc memo i believe 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 for you? in other words, your whole -- one of your arguments about the relevance issue is that if we interpret relevance as broadly in section 215 as the government wants to do, then the government could get the same kind of records out of just fbi 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. so for example 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 you're referring to, 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. but 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 including the national security letter statute, to acquire all of these same records in bulk. notable is the fact that none of

those 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 minimization procedures they point to as save tharg collection from invalidation, without the same sorts of limitations that the fisk has imposed. >> maybe they will concede that that would be unconstitutional because it's only those minimization-type procedures and the court order procedures and so on in section 215 in in their view defeat your constitutional argument. it will be interesting to see what they say about that. >> i would find that surprising. i think their argument is broader, that smith controls this case. >> yes. >> yes. >> so maybe -- there's one other argument i will quickly mention under our statutory argument, which is the real grit the our statutory claim before proceeding to the constitution. and 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 nothing is classified. if everything is relevant, then 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 thing, et cetera. the question of relevance doesn't come there in terms of the authorization. it comes later when it requires

that the application to the fisa court include a statement of fact showing there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. i hope i've got that right so far. i'm wondering -- i mean, 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 fbi and the nsa did, but we're being asked to review what the fisa court did, the fisa court being -- it's certainly not an agency under the apa. i don't know if the question makes sense. but i wonder whether -- when you bring in relevance -- and 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. i don't think that's a novelty in section 215. it's the same in section 1881a under the fisa amendments 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 fisk. 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 at all, 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 matters. the government itself filed -- it was challenging the verizon order said the appropriate avenue for relief was a district court case such as the one we

are in appeal on. but that was the appropriate avenue. 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 you mention that, what happens if -- there are now two 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 have one circuit that says it's unconstitutional. here is an injunction. another one says, oh, no it's perfectly constitutional and we

are certainly 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 simply 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 have to deal with it in that case? >> i think so. the supreme court likely would permit a stay pending the resolution of the conflict. so if i may, i'll 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 arises. >> that would be within our power to do if we thought that was wise? >> yes. so if i may, i'll proceed to the constitution. our claim under the 4th amendment is quite straightforward. it's that the government's bulk collection of our call records intrudes upon a reasonable expectation of privacy. the government's primary defense of course is that this case was decided in 1979 when the supreme

court issued smith versus maryland. that's simply not the case. >> let's suppose that we agreed or at least entertained the argument that quantity is quality here 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 in 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 nice 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 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 reasons 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 r us or an anti-abortion group to send information to those people. verizon could do that, couldn't they? >> i don't know 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. in fact, as a matter of fact, the only access that verizon typically has to our records is

likely through its computerized collection of those records. and so it's a bit ironic that the government claims that the computerized collection of those records extinguishes an expectation of privacy but its collection of those records does not -- >> are you hypothesizing something about your contract? or 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 all our phone records. you go search and see if you can find people who might be interested in your services. well, anyway, the point is,

verizon has all of this information and presumably has the computer capacity to probe them if it chose. >> they certainly may very well 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 proprietary network information. i think you are hypothesizing -- i don't know the exact contours. you're correct. but 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. and i don't think that has been an on/off switch in the way you are suggesting. there are frequently contexts in which information is shared with a third party and yet the person whose privacy is reflected nonetheless is recognized to

have an expectation of privacy. >> could you illustrate? >> sure. all of our -- 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 also protected by federal statute. no one has ever 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 routinely stored on the party -- on the servers of third parties. and i think courts are beginning to grapple with that question. the 6th circuit in a case called warshack 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, through "the guardian" and others, disclosed the existence of this program, we no longer had a reasonable expectation of privacy. we've 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, but 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 originalists the word "reasonable" is actually in the 4th amendment. right? 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 has recognized there's a circular ti to the caps test and it can be define if congress so chooses through a statute that permits bulk collection. it has guarded against that by analyzing a question along with the caps test, which is whether people are generally reasonable in expecting privacy. and i think you see that normative 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 privacy by companies and by the government given the digitization of information, that doesn't fundamentally at ter relationship between the citizens of this country and their government. >> is the statutory issue at all

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 congressmen who voted for this were returned to office. would that make any difference to our estimation of what is a reasonable expectation of privacy? >> i think it would likely be 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 statutory question, whether or not this program was authorized, whether or not we found this was an executive branch frolic in detour that was not authorized by any specific legislation of congress and was in fact prohibited by congress, as part of addressing 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 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 re-up this program. >> 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 rationale 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 4th amendment. >> if smith had any 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 over the course of 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 since 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 coffer. 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 knowing, 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 the way it was a week ago and different from a year ago and different from june 2013. from june 2013. how can we, without fact-finding, 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 -- >> for the moment, evidently, 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 4th amendment are impractical. it cannot for the same many reason, that government can accomplish the interest through

individualized applications. in other words -- >> that wouldn't ordinarily require the probable cause -- in other words, this alternative procedure that we're envisioning, that you're envisioning, is the president is currently envisioning, is keeping these records and i take it -- if you have a reasonable suspicion or unreasonable suspicion, that if the government wants to look at one person's phone records they do that all the time by issuing a grand jury subpoena or perhaps some national security letter or something of the sort without probable cause and without a warrant. and the argue suspect that ice not a 4th amendment -- either it's not a 4th amendment because of smith versus maryland or if it is it's 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 4th amendment then the question becomes for purposes of special needs

doctrine which the government has invoked, the first question is whether the government can accomplish its interests through targeted demands. if it could then it is not entitled to forgo the requirements of the constitution. we don't think it could use targeted commands to engage in bulk collection. but even the government conceded that it could use target had demands to accomplish its interests here. it uses a phone number to query its data base. instead of querying a data base, it can query -- >> i'm just questioning what you're saying is the fr free-floating inquiry, in terms of bulk collection, in light of possible alternatives perhaps a reasonable thing to do or an 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 distinct inquiries. under the special needs doctr e doctrine, the first skwe whether dispensing with the requirement of individual suspicion is practical or not. here we don't think it is. 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 science at princeton, explaining very simply how the government could recreate this program in a targeted way that would not require bulk collection. that goes both to the question of practicability. i can defend on those grounds. >> unless my colleagues has further questions, i think once you get to the point of saying to reemphasize the point you already made, we probably have gotten to the end. so i thank you for your argument. >> thank you. >> you do have some time for rebuttal, which will probably be more than two minutes at the rate we're going. mr. geller. >> thank you your honor. play it please the court. stewart delarico for the government. this program has been considered and approved by all three branches of government.

it involves the national security security bulk metadata or call detail records pursuant to the court under a provision of fisa that's been twice reauthorized without change after congress was briefed about this very program. >> you are starting off by saying it's been approved by all three branches of government, but you actually don't want us to address whether it was authorized by one of them. >> if you're referring to the statutory preclusion argument, yes, that's right. and we think that was a choice congress made in specifying a very detailed provision for applications and approval of those applications by the fisc. and then with a detailed review scheme following that allowing for challenge by providers and ultimately reviewed to the fisc review court and to the supreme court if appropriate. but the supreme court has been clear in block and 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 -- >> but the court went on to 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 they set out a variety of factors and looked at those factors and concluded with respect to that program that preclusion was a reasonable inference. i'm not sure that those factors come out the same way here. you're really hanging your hat very heavily on a generalization from block, aren't you, that anytime that congress authorizes judicial review by one person it must have intended to preclude

judicial review at the behest 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 that structure in the first part of the argument, there is no provision for challenge by 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 enough 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 imagine that 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 intend 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 certainly the amendment that rejected proposed district court challenges to 215 orders. i think the key provision that was not addressed in the first part of the argument was section 1861 f2d, part of 215, can says an order pursuant to the procedure by the fisc shall

remain in full effect, a quote, unless it should be specifically modified or set aside pursuant to the procedures specified in the section. i think that's a clear statement by congress that when the fisc orders are issued, they should be set aside only pursuant to the process of that the court or that congress has specified there. and preclusion 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. >> why would a recipient -- i guess one did so, maybe you should ask them, but i guess it's secret who they are so we can't ask them so, i'll ask you. why would a recipient challenge one of these orders? they're given absolute immunity from any claims by their customers that they violated any rights by turning the stuff over

to the government in response to one of these requests. what stake do they have in saying anything other than, here, government, take what you want, it's no skin off our nose, it's 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 challenge to an order recently and that led to reaffirmation of the production order on statutory and constitutional grounds. so i think that given that we have here not just the situation where congress has said certain challenges to an agency action should be brought before a forum but have required prior approval before the private

party is required to make production to the government, the plaiiff's argument requires a collateral challenge to an order by another -- >> well, that is an interesting and troubling point. on the other hand, it is pointed out that exactly such a challenge 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. >> right. i think that your honor, that is the consequence of the supreme court's implied conclusion doctrine in block and related cases as compared to what the court said for example on webster versus doe about what is required for a court to review congress having intended to preclude constitutional claims.

it's ooh higher standard to avoid serious constitutional questions. >> is there any role for the doctrine of 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 really anymore, 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 apply 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 records and actually the court made a point of distinguishing the situation of contact collection. 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 both the fourth amendment and under the relevance test under the statute in both lines of cases, the court made clear is a totality of the circumstances type inquiry. what is relevant under the circumstances. i mean what is reasonable under the circumstances -- >> come on. isn't it at least as relevant to you whether somebody that you have some reasonable suspicion is engaged in terrorist connections used 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 relevant in the sense that you're 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 subpoena to get that? so 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 denigrating that interest. to make it quicker and easier on find out all the connections and what this guy is up to. why doesn't the same thing apply to credit card records? >> i think certainly your honor is correct that the seeking the types of information that you're talking act, asking those questions in counterterrorism and other types of investigations occur by law enforcement every tay. 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 telephony meta daydata 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 it's both the nature of the data, which is interconnected and can be standardized and therefore can be searched through what's called 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 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. and so -- i'm sorry. your honor? >> bank records seem to me to basically 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 queried in a way in the way that the nsa does it. other types of data, even if very valuable for law enforcement and used routinely, may not have the same benefits from aggregation ex-ante and querying based on standardized

formats. 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. i would have thought, and maybe i'm completely mistaken, that

the problem is that it is time consuming and you have to track down who everybody's proo provider is and so on. so having it all on your server in your back room and doing whatever you need to do and translate the sprint record or verizon record or t-mobile records so they're all compatible is the whole point of what makes this beneficial. am i mistaken about that? >> no. you're correct about that. >> isn't that obviously true about every bank? if you have all the bank records it would be the same sort of thing. you can go subpoena by subpoena or you can collect everything there is to know about everybody and have it all in one big government cloud with -- understand this -- with proce procedural connections with the government about what you can look at and when you can 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's everything. >> your honor, i would like to come back to the point embedded in there about 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 as reflected in the declarations here 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, although i do think phone records by their nature tend to be, you know, and are quite standardized. and to allow for rapid identification of connections between known and unknown

trichts. i mean, that is really the purpose of the program, as, again, as reflected in the record and in the district court opinion, frankly. the purpose is to be able to p identify from a known person with a connection to a 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 at the core of this particular program. >> rapidly has to be what it's about, right? because some of us sitting here have done this in criminal investigations. i know exactly how important it is to get people's phone records to trace their connections. and it's done every day in the week with targeted subpoenas about the people that one is

suspicious of. and having done it, there are a lot of burdens in doing it case by case. but surely you agree this could be done by targeted subpoenas. it's a question of, again, i don't mean to minimize it at all. the efficiency, convenience, speed of making these inquiries. >> yeah. so whether it's sufficiently timely, that is certainly an element. i think other aspects that are, again, reflected in the record and this conclusion are the need for examination across carriers so you're following the lengths where people are communicating using different carriers. and the, again, to build a historical repository for some period of time. because going in the government doesn't know who, which of the metadata might reveal an important connection to a known terrorist. and so if you started only when you identified that person, you

know, that information would not be as valuable. >> it's a question also of whether the phone company keeps all of these records, though i think suggesting earlier and suggests in terms of what the president has suggested by legislation that that problem could be solved by requiring the phone companies to keep this information indefinitely against the possibility of future collection. i want to get back to this question of constitutional avoidance. because you are asking us to decide something extraordinarily sweeping without requiring that this is 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 preclusion, it's a little hard for me to imagine.

somebody who looked at a law that said you could have an order that would get anything you can get with like a grand jury subpoena. imagine that means you can get stuff that nobody ever imagined getting with a grand jury subpoena before. it could have been done. i don't know. it's hard to imagine that rather innocuous language, when they're relevant to an investigation means that all kinds of records as i read your brief, you're really saying, they're not relevant, really, to an investigation right now. we just want to have them in case they become relevant so we can query at that point this data base. why would we think that congress, you know, bought that using this language in section 215. >> i think one reason, your honor, is because congress was briefed about this very program and it extended section 215 twice without change.

and, you know, the details of this are reflected in our brief. i think this does reflect ratification in a way that the ordinary -- >> i wonder how valid the ratification argument is when you're dealing with secret, what is essentially secret law. i thought the ratification notion is that you're dealing with something that's public and therefore by ratifying it again and again, you're somehow reflecting the public will because they know about it. i'm not sure ratification carries as much baggage as you want it to if you're talking until june of 2013 when people knew this was going on. >> i think, your honor, the reason it does here is because we're not just talking about a presumption that if, you know, if it's in the federal reporter somewhere congress is deemed to know about it. here congress -- the judiciary and intelligence committees were briefed over time about the details of the program. and then in advance of

reauthorization in both 2010 and 2011, the executive branch provided a briefing paper to be made available to all members in 2010 before the 2010 ratification. all senators in 2011 that detailed not only the nature of the program, but that the fisk had authorized it. that the relevance requirement in the statute had been met. that it was consistent with the supreme court's precedent under the fourth amendment in reference to smith versus maryland. and, in fact, the -- some of the statements that in the plaintiff's briefs they highlight from some of the senators were made in connection with the 2011 reauthorization. and the importance of understanding how it was being used in connection with this very program. and so, you know, finally, the

chairs of the intelligence committees made this material available and offered briefings more generally to all members. and also repeated the -- the need for members to understand how it was being used. so i think this is -- this goes beyond the ordinary ratification. >> it's getting later in the afternoon. i want to make sure i understand whether you're arguing about preclusion or 215 and whether relevance is a -- is an appropriate, forgetting the constitution. >> i'm arguing here that congress understood section 215 to cover the program that we're talking about and the types of records. >> so you're beyond preclusion? >> i also think by extending section 215 knowing, you know, knowing what's going on, i think it -- more broadly. it more broadly. >> well, maybe if they

reauthorize it after the judge's decision and before we say anything to the country if we were to, that would be the kind of thing that would be a typical ratification argument, right? the congress would ratify judge pauley's analysis of the pr collusion issue. but tpreclusion issue is not something otherwise before congress in some judicial opinion when they did one of these reauthorizations. >> and the preclusion point, your honor. >> there you're relying on the original legislative history of the beginning. but for the relevance argument, you're relying on in part the on the idea that congress reupped this statute, section 215. after the program had been instituted, this court had approved it. and there was this process of briefing in congress. and i don't think there's anything classified. you can 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, an ordinary member, not a member of some special committee, what exactly was i told? i don't mean what was in the classified briefing. what was i told about you better go read this before you vote for this. what memo did i get from whom? >> so, i think, there were memos from the chairs of the two intelligence committees. and they are in the joint append appendix. they identified within the connection of the reauthorization, information has been provided by the -- i'm paraphrasing -- but information provided by the executive branch that was important for evaluation of the reauthorization of this authority in section 215. >> and it was up to me to go and figure out if it was worth it for me to go and read it as they were telling me i should.

and i think of things like legislative vetoes and other issues where the supreme court has emphasized that legislation gets done when each house votes for it and the president signs it. this notion that the legislation has been accomplished because i as a member of congress got a letter saying you should go read something that's in a secret compartment before you vote on this. that it's therefore assumed that congress approved whatever was in the secret compartment. >> the further fact that we have here is there were members, including senators wyden and udahl pointing to this debate. >> some people got up on the floor and said, listen, you bozos, you better read it, because we don't want to vote for it because of what's in there. we can't tell you what it is in public, but you better go read it. and nevertheless, they voted. >> and so, in other context, the court has said, you know, supreme court has indicated that

references and committee reports, for example, are sufficient. this, i think, goes beyond what you'd look at in an ordinary ratification given the classified. >> i think so, but justice scalia doesn't seem to think to as far as counts of legislation. >> and to your point, your honor, about the current state of discussions in congress and the president's position. i mean, i think it is certainly correct that the wisdom of this program in light of its nature and scope is the current subject of public debate and debate within congress. as indicated, there are multiple proposals that have been introduced and that process is working forward. the president has -- >> we could -- this i suppose is not a consideration that's entirely appropriate for a court. if this court said we don't think this is authorized by congress, that would kind of put it to them, wouldn't it? to actually act on whether they think this is something that should be done or not.

and then they could take their vote and that would put to all of these issues as far as short of the constitution. it would put paid about all the issues about whether this is elective authorized if congress just voted and said. >> has to take out the word relevant. >> i could say we think this program is okay. keep doing this, or alternatively don't do this anymore, and then there would be nothing if they did the latter, we wouldn't have a constitutional issue either. if they did the former, then the constitutional issue, i suppose would be around. >> and the section 215 authority will sunset in june of next year. so some action has to be taken one way or the other. either to extend it or to change it in light of the current ongoing debates. what the president has said is that he supports achieving the goals, national security goals reflected in the section 215 authority without the government

actually ingesting the bulk metadata. allowing querying at the providers. although, in the same statement in march, he also noted that in order for that approach to be workable with the speed and in the manner necessary to accomplish the goals, legislation would be required. and so he directed that in the meantime because he thought it was important in his judgment it was important to continue this capability that the government go to the fisk and seek continued reauthorization of the program. >> 90 days there now. and it's now been reauthorized a second time with the two restrict -- two changes that your honor spoke about earlier. >> september 10th is the next re-up day. >> i believe september 12th is the expiration of the current order as reflected in the briefs. but so -- i just think that clarifies some of the discussion earlier about where things currently stand.

and if i might turn to the no more questions about the statutory reauthorization, i think the -- i'll turn to the fourth amendment if that makes sense. our position is that the fisk and the district court in this case did correctly conclude under smith versus maryland, the acquisition of business records reflecting the data was not -- >> let me tell you what problem i have with that. it's not just, you know, those were the old days. but does the question is -- and i don't think i'm using the mosaic approach. but doesn't there come a time. and isn't this what the plaintiffs are contending. doesn't there come a time when the old-fashioned, simple pen register that was used in smith versus maryland or -- and that

we are recognized it for a long time where the amount of data that you have of that sort is so detailed and so extensive that, in fact, it is a content divulging action rather than not. the whole point of the direction -- the whole point would suggest i write it again this morning. but the point was, you're just -- it's something that you already give out. anyhow, it's given to a third party. so it's -- it's not a big. and it's not as though you are listening in, which would be different. and the question is, i think, or a question is whether the methods have become so sophisticated of analyzing this kind of data. unlike a pen register, in this case, you are finding out content. is there any oomph to that idea?

>> okay. so certainly, this is the one of the issues, i think, that's been a factor in the public debate over the last year since the disclosures. i'd make a couple of points. first, here, again, we are, in fact, talking about the same type of information that -- >> to that point, to the point, judge pauley didn't go each piece of metadata by metadata and do the analysis that was done in smith. right? he did so -- it was sort of a -- he said that it's third party and it's like similar type information. but wouldn't -- doesn't the, doesn't it require that actually

he -- well, should it require that determination is made based upon if you're talking about a right to privacy. 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 that the record in this case reflects that if you're talking about the type of information that's at issue that we are talking about the same type of call data record -- call detail records at issue. so the number call, number received. the routing information, time and duration of the calls. we're not talking about name or address or financial information or cell site location. >> the question is whether the technology hasn't changed so much that the analysis that it's just a pen register doesn't work anymore. >> the next two points i would make on that are, one, the ability of metadata to reveal useful information to investigators and particularly

connections was known at the time of smith and was actually, you know, in effect the power of the metadata was a point pointed out, obviously did not carry the day with the court, which concluded that even though the expectation is that phone companies are assembling the metadata if only because you know you get a list of your calls at the end of the month, that did not give rise to a protected fourth amendment interest. so, you know -- >> even that very simple stuff that comes from the pen register is used in courtrooms in the united states every day in the week when assistant u.s. attorneys get up and say here's a chart of the -- all the times that conspirator "a" talked to conspirator "b" on his cell phone in the days leading up to the drug transaction. you, the jury, should infer from that what they're talking about.

they're talking about the drug transaction, or alternatively. here's a record, we don't have the content of the phone call, but we have a record of the insider at goldman sachs talking to the traitor right before here's the record of the traitor's purchase of the stock in question right before the announcement of some new public information. what, ladies and gentlemen of the jury, do you think they were talking about? that's proof this was a leak from the insider. so there's no secret about the fact that metadata never was, never was in smith any secret about the fact that metadata can reveal content. >> the point about the power, the technology now that allows analysis leads me back to the point i want to make in response to judge lynch. which is, it's important not to lose sight of all of the other protections that are built around the acquisition and retention and use of the data under this program given its

bulk, you know, the bulk nature of the production to the government and in light of the technology. and i think that's critical to understand. that, you know, in addition to being only noncontent information about the telephone calls, the data can only be queried for counterterrorism purposes. and then only if there's a reasonable articulatable suspicion, is connected, associated with a specified foreign terrorist organization. >> none of the safeguards are built into the legislation. >> the legislation -- >> totally silent as to any of that. >> i don't think that's right, your honor. so in -- 1861, subsection g, i believe it is, requires mine

minimization procedures. this could be used to gather data that would relate to a number of u.s. persons. so the statute requires that the government propose and that an element of the program be robust minimization procedures. they've been spelled out in orders of the fisc, but there would be protections around the use and dissemination of the data. >> now that you've got some experience with the procedures, it presumably would be possible to spell out something in legislation if this program were going to be authorized by congress explicitly that said what made sense and didn't make sense. after all, this just says the attorney general has to specify.

so far the record is that fisc signed off. and when it was made more restrictive, that was because the attorney general asked for it to be more restrictive. nobody's there saying here's what would be better minimization procedures or we think this is what the constitution requires. here's a list of things we think you should tell us to do. and the court says, okay, that's what -- those restrictions are approved. right? i mean, that -- my concern about all of this is that if, you know, it's fine to say we've got this program and this is the -- we never misuse this data. we only use it for these purposes and we have rules to have that happen. that's not the same thing as the government not having that information sitting there where, you know, i don't know what mr. snowden could've done. maybe instead of leaking the

order, he could've leaked the database to somebody. we don't know what happens when some inhabitant of the white house, this one or another one, has a plumber's unit and decides to let them have access to the data base. these are realistic concerns. about letting the government have this massive body of data without anything, but even the, of course, look, anyone i'm sure part of your answer has to be and it makes sense. whoever makes the rules, they could be abused. if we told the government it can't do this, it has a technological capacity. and imagining a government that breaks all the rules, they could get it anyway somehow. they could tap all our phones and we'd never know it. and if they're bad guys, these are all paper restrictions. but there are levels of restriction and, you know, it's one thing to have congress adopt a program and say this is what

it is and we've considered what needs to be done to give protections, and one that says, well, they can get what's relevant, but they should be careful how they use it. and then we infer from that this massive, this massive program. >> so i think, your honor, i think the record on the enactment of section 215 and its extensions respectfully 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, within a range drawing the lines about what steps are appropriate to accomplish national security needs, something that the supreme court has articulated in the fourth amendment context, for example, in the keith decision urged the -- that congress draw some of these lines. almost, i'm not sure this was the phrase that was used but because some of these questions

are susceptible in effect to legislative fact finding about what is appropriate, what tradeoffs are appropriate in e the -- to meet the needs of national security. similarly, in the mcwade and cassidy cases, this court in evaluating types of antiterrorism or counterterrorism activities, in connection with the subways and ferries noted that there, again, that the court should be reluctant to rest away from the political branches, the choices about how these judgments should be made and -- >> we should be be very cautious about making a constitutional determination. >> which is why, i think, your honor, should evaluate the program that we have. there's obviously a desire to ask questions about, you know, what might arise in other context. but given that the supreme court has made clear that the examination, a tally of the

circumstances type question and you do have smith and you do have the same type of information that was at smith. if you're reaching the constitutional issues, we urge a focus on the program. >> you have to reach the constitutional -- >> yes. i was referring to your point. which, respectfully is a function of the regime that congress established. and the supreme court has also recognized that where that is the case, where congress has not provided an apa cause of action, the consequence may be the examination of a constitutional and not a statutory claim. that was the issue in webster versus doe and that was the result. the constitutional claim could be reached, not the statutory claim. there was not an apa cause of action available. >> it seems to me quite simple that the only way we can achieve constitutional avoidance in this case is by ruling against you on something statutory.

otherwise we're forced to get there anyhow, right? >> again, and our position is. >> would you prefer we not rule against you? >> i prefer you not rule against us, that's certainly true, but here, congress has not provided jurisdiction for the court to reach the statutory claims. there's not an apa waiver of sovereign immunity. we are left with the constitutional argument, there, we think, that whether you do it at the level of smith versus maryland, which we think remains binding precedent and answers the question about the -- whether it's a fourth amendment search to get the records from the telephone companies in this context. or if you go to the special needs inquiry and the reasonableness approach. if you look at the program as a whole, not just the initial collection, but the fact that the fisc has authorized that collection only upon the imposition of robust controls of when the data may be queried, ha

may be done with the results of the query, set out in the primary orders and reporting back to the fisc. this is not, respectfully, and this is reflected in the court's opinions, which have been declassified. not just the court accepting whatever the government offered, but making determinations according to its own statements that with these procedures, it's -- the program strikes an appropriate balance with providing the capability that is -- that is -- >> fisc order that imposes more restrictions than the government sought at the time? >> i don't -- i don't know the answer to that question. my point was that if you look at several of the recent opinions, which i had occasion to -- >> i never suggested there being some kind of rubber stamp. i'm saying the procedures there are a little different than the procedures that would be in

place in a district court or for that matter in congress in terms of having a robust consideration, not just from what the government says is a good idea to minimize and whatever the judge can bring to bear in his or her own experience. but to a real debate. >> right. >> so what i think i -- what i can say is that although these particular orders are not in the joint appendix here, among the declassified materials from the fisc are opinions reflecting reactions to compliance issues that were identified. and steps that the fisc took in response. which as i recall included orders not only things proposed by the government, but that is a general recollection on that front. >> you seem to rely in part, improperly so on material that has in the last year and a half or so been declassified and

should serve to assure us that there is not a special needs problem or fourth amendment problem. it's odd. what else, that's what you've let us know. what else haven't you let us know? you were pushed to that -- i say this with all -- more than all due respect. with all respect. i'm not saying that's a bad thing. but all of this stuff that we now know, and we don't know, we don't know. all of this stuff we now know is as part of a political reaction to the understanding that this program was in effect. isn't that so? aren't you arguing a good deal from a material that was made that was classified until a june ago and was made public as a reaction to that? >> i mean, certainly that is true that there's now information public in the public

realm that had not been public before. but this program, and i think this is the critical aspect of the congressional design was subject to article 3 review from the beginning by operation of the fisc which was a body that congress set up specifically to accomplish that. just as the intelligence committees act as the channel for oversight of the executive branch on -- from the congressional side where you're by necessity dealing with classified information. >> but it would certainly -- this is entirely useless. i can't say this, but the whole system surely would be -- give a much warmer feeling inside if it was not all ex parte but some representative of the other side even if that some representative of the other side was a -- a pro

bono or not pro bono. pay them. get fitzgerald out from chicago and have him argue the other side of these. and i for one would find what you say, i'm not talking law now, that's why it's out of school. i find this a lot more reassuring if it were subject to an adversary process. and it's not. >> and as your honor may be aware. among the proposals that are currently pending for change to the program. would it include provisions that allow for -- and there are more than one option on the table, the kind of approach you're talking about. >> in that case, i vote for it. >> in fact, if you look at -- if you look at the reasonable inqui inquiry, for example. i think, you know, and balance

the factors that the supreme court and this court have said should be balanced. on the one hand, there certainly is an overriding importance in preventing future terrorist attacks. here, the intrusion, if any, you know, subject to the smith argument on the privacy of individuals is carefully cabined to allow the examination of the data. to allow the identification of connections only on finding of reasonable, articulatable suspicion and the other procedures in place. the statutory and fisc-imposed safeguards limit the dissemination of the records collected. there's also an oversight system by the fisc and by congress as well as other entities and the executive branch. all of this, i submit, we submit should lead the court, if evaluating the fourth amendment question to conclude that the

program as it currently stands is reasonable because the fourth amendment. >> something can be constitutionally reasonable whether or not it gives us a warm feeling. >> that is certainly true, and because, the test is whether it's a reasonably effective means of accomplishing the interest, there's no restrictive means. >> i think we all understand that. looks like you're folding up. i was about to say -- unless my colleagues have more questions, we've given you about as much time as we've given -- unless there's something you think you haven't gotten to that's critical. >> anything about the first amendment. >> didn't mention it either. we'll consider that based on the brief because he's not going to be able to pick it up in rebuttal since he hasn't talked about it and didn't talk about it in his initial arctic any more than spoke about the standing argument, which doesn't mean he's waived it. it means he's relying on his

brief. i don't know we need to hear more about any of those things. unless you -- i don't want to cut you off if there's something critical that we should know that you haven't gotten to. but we've given it probably more time than you'll get in the supreme court let alone in the usual arguments here. >> i can also assure you, if and when you get to the supreme court, you won't see two of these. >> thank you, your honor. >> thank you very much. >> i will hear you. we will hear you on rebuttal. limited to two minutes in light of all that's been said. at the same time, we have had a very thorough discussion of the issues, i believe. so i hope that you will be able to be relatively brief and respond only to points that you haven't had an opportunity to address so far that he has spoken of on his side of the argument. with that, go ahead. >> of course. and just a few points, your honor. the first is to respond to the discussion of ratification. that doctrine is not a game of

got ya with congressional intent. the question is whether there's an interpretation of statute that congress was aware of. and that's simply not the case here. many members of congress were not aware of the program. those who were, were not provided any legal analysis of the program. and even then, they weren't allowed to discuss it with their colleagues and constituents in a way that the supreme court has pointed to in past cases of ratification. the second point is to go back to an exchange that you had, judge lynch, with the government relating to the efficiency, question of efficiency. professor has explained quite clearly that the government could use targeted demands in a nearly instantaneous way if it's structured arrangement with a telecommunications company in a certain way and congress certainly could provide for that mechanism. even -- and the fact that congress has not yet provided for that mechanism is no bar to this court ruling it must. that was precisely the case when

the supreme court ruled the government could not wiretap individuals without a warrant and led to the enactment of title three. and that was the case in keith when the supreme court ruled that for an intelligence surveillance even though justified by the need to gather intelligence had to be individualized. third quick point is that smith is very different from this case for a lot of reasons. it's not just that the government is acquiring different types of information under this program that it was acquiring under smith. it's not just that the government is acquiring the information about millions of individuals and not just one. but it's also that the government is acquiring that information even with respect to a single person indefinitely. for an indefinite duration. and not made clear, just a few years after smith, that when the government scales up a surveillance operation from targeted to dragnet, to constitutional balance is different and needs to be addressed differently. and i think, judge, you're

exactly right. now requires this court to assess the expectations of privacy of this program and not just of what the supreme court decided. a quick related point is that the minimization procedures would be superfluous. they could collect the records without any of those protections in place. they could store all of them indefinitely, they could query them for any reason or no reason at all. and they could build the dossiers they disclaim building in this case. a final point is that the government tries to explain why it's only asking for a narrow ruling from this court. but the legal theorys that it advances are a road map to a world in which the government routinely collects vast quantities of information about americans who have done absolutely nothing wrong. i don't think that's the world that congress envisioned when it enacted section 215 and certainly not the world that the

framers envisioned when they crafted the fourth amendment. if there are no questions. >> thank you very much. we very much appreciate the arguments of both sides which were extremely careful, thorough and learned. and we will take them under advisement and eventually render a decision. thank you all very much. that's the last case on the calendar, the clerk will adjourn the court. >> court stands adjourned. jay rockefeller is retiring after 30 years in the u.s. senate. he's a democrat, but republican congresswoman shelly moore capato is believed to have the edge. they debated earlier this week. >> would you vote again today to repeal aca which would mean

those 160,000 west virginians would lose their insurance? >> i would vote to repeal and replace. i voted for that 50 times. but i also recognized that the aca has some very good things about it. first of all, making sure people don't get cut off their insurance for pre-existing condition. absolutely for that. was for that before the president decided to take it into in a larger and much more detrimental direction. i believe keeping our students on until they're 26. i think that's a good thing. so there are good things. so we need to keep what's good, replace it with what will work. get rid of a businessman date. make sure our businesses are not having a 30% increase in their premiums, which we're seeing. 7,000 west virginians have lost their health care plan, because, remember the president, who i'll remind you, my opponent supported and supports his policies and his health care policies said, if you like your health care plan, you can keep it period.

it was sold as a bill of goods. it's unaffordable. were things wrong? yes, with the health care system, i wish we'd worked together. in a bipartisan way to find a way to keep folks who are on insurance now, the 140,000 medicaid, we'll want to keep them insured because that's important to us not just to them, but it's important to us as a state. >> secretary, your response? >> there she goes again. she says one thing and votes another way. she says she's for all of these things in the aca, but yet she has voted to repeal it. i won't vote to repeal it. i know what it's like to go without health care. my daughter delaney had open heart surgery. and those prayers were answered

because that surgery saved her life. she's a healthy, happy 12-year-old right now. but when my husband and i started our small business. he said, i talked to the insurance companies trying to get insurance for us and the business and the family. and he said they would cover me and you, but they wouldn't cover delaney because of her pre-existing condition. i will never go back to the days when insurance companies can deny someone with a pre-existing condition. for the congresswoman to sit here and say. >> virginia's democratic senator mark warner is being challenged by ed gillespie. they debated in the northern

virginia suburbs outside of washington, d.c. >> when you're not in the white house, my party doesn't have one thing to stand up to right now. but i'll share with you some things that i'm probably at odds. when congress passed mandatory minimum sentences in the u.s. congress that we swung too far. and that i believe that we need to revisit those. in particular for nonviolent offenders and allow more discretion for judges and, frankly, more discretion for the states to make determinations in terms of what are the proper sentencing guidelines for these things. i think we went overboard in terms of -- in terms of federal sentencing mandatory minimum sentences. i'm someone who believes in redemption, and in reconciliation.

and i also believe that we need to look at the prospect of banning the box after you have served your time and paid your price. and in terms of time in prison. for certain crimes and for certain jobs, you know, i don't think you should be required to check the box as a felon, which only increases recidivism. and i think if people have paid their debt to society, society needs to welcome them back into society and make it easier for them to come back into society if, again, for certain crimes and for certain positions. >> same thing. >> i appreciate you asking that question. because my whole campaign -- my opponent's whole campaign has been pretty much based on this bogus charge, the 97% charge. i mean, independent political analysts have called it both misleading and not reflective of my record. the national journal, which does a review of all of the votes, not just a subsection, ranks me right in the sensible center. and your questionnaire, where

have i stood up against my party? let me go through my list, i support drilling off the coast of virginia. as long as we get a share of the royalties, but i support that. i support the keystone pipeline. i've been protested against because of that support. i stood up repeatedly against the president on the foreign policy choices, both around as we've talked about with isil, but also in terms of being stronger against putin in russia. start calling early in march for these kind of stronger opposition to his activities in ukraine and around europe. and it's that reason that virginians know my record. it's that reason why, again, in this campaign i'm so proud to have the support of more republican, former republican legislators than when i ran the first time. if his claim had merit, i don't think that would be the case. what it is, though, is the kind of political sound bite attack charge that comes from somebody who spent their career as a partisan operative. >> we have two more live debates

tonight on our companion network, c-span. live at 7:30 eastern from the 17th congressional district of illinois, she debates republican challenger bobby schilling. and later tonight, live from chicago, the democratic governor of illinois pat quinn will debate republican challenger at 9:00 p.m. eastern also on c-span. c-span's 2015 student cam competition is underway. this nationwide competition for middle and high school students will award 150 prizes totaling $100,000. create a five to seven-minute documentary on the topic, the three branches and you. videos need to include c-span programming, show varying points of view, and must be submitted by january 20th, 2015. go to studentcam.org for more information grab a camera and

get started today. >> tonight on c-span 3, sports at school it begins at 8:00 p.m. eastern here on c-span 3. >> this weekend on the c-span networks, a memorial service for president reagan's press secretary james brady. on saturday night at 9:00 p.m. eastern, former secretary of state colin powell talks about world affairs. and sunday evening at 8:00 on q & a, robert timberg talks about how a marine in vietnam, a land mine explosion nearly killed him and changed his life. and friday night at 8:00 on c-span 2, author and activist ralph nader calls for an alliance between parties to take on the issues that plague america. saturday night at 10:00 on book tv's afterwards, surgeon and author on why he feels medical

science should be doing more for the aging and dying. and sunday, just after 7:00, syndicated columnist naomi klein on free market capitalism. friday at 8:00 on american history tv on c-span 3, curator and director of the cia museum in virginia, tony hileigh explains of preserving and protecting the museum's history. how it helped establish regional identities and gain valuable fighting experience for their own revolution. and sunday night, on the presidency at 8:00 p.m., the congressional testimony on the nixon pardon. find our television schedule at c-span.org and let us know what you think about

>> welcome you all this morning. thank you for coming. my name is tony morrow, and i am on the steering committee of the reporters committee for preemd of the press which is con sponsoring this. and i want to thank nyu also for sponsoring this event. i've also covered the supreme court for 34 years and have been immersed in these issues for pretty much all of that time. this is the second discussion we've had on this subject of transparency at the supreme

court. the last one was a few months ago. the theme then and now, really, is that transparency in the case of the supreme court is about way more than just allowing cameras in the court. though, of course, that is very much on our wish list. we'll see these other issues related to transparency develop even more this morning than at the last event. we have a terrific panel to discuss these issues. it's my great pleasure to introduce her. she also is on the steering committee of the reporters committee for freedom of the press. and another panelist used to be an intern at this reporter's committee. dalia's covered the court since before the turn of the century. and when she arrived on the beat

and ever since, she's been a breath of fresh air, bringing tremendous insight as well as a touch of humor to covering the supreme court beat. when she writes about a supreme court argument, you almost don't need cameras. emphasis on almost. because her writing is so, so vivid. before i turn it over to dalia, i want to mention that if you'd really like to give the supreme court a piece of your mind on these issues, there is the booth of truth upstairs where you can tape a brief video with your views on these issues. now, i'll turn it over to dalia. thank you. >> so thank you, tony, and i want to re-double tony's thanks to the various sponsors and to nyu for this absolutely gorgeous venue. and you all probably know that last fall for the first time in

history, some advocacy groups snuck camera into oral argument. and for the first time ever, we got to see live video of oral argument, which looked more like a sighting of the lochness monster. and people were interested in it. reminded, especially those of us who go back and forth to the court. who get to be in the arguments. the extent to which the branch that is met to be the most transparent and open and, you know, everything that you need to know about the court's workings is contained in the four corners of the opinion is actually completely unknown and knowable to 99.9% of the american public who were glimpsing for the first time blurry judicial shoulders and getting very excited about it. so we're here to talk about transparency, not just cameras. but all the aspects of

transparency. but i want to just open by saying that transparency means not just that we can't see the workings of oral argument. means also we can't hear the workings of oral argument until the court releases audio on fridays. we can't readily access their website. when we on the day of the health care cases came down tried to access their website, it crashed. we don't know the justices' speaking schedules, we don't get copies of their speeches, it's very difficult to get their financial disclosures. don't get me started on their papers. so that's what we're here to do today. and we thought in lieu of me reeling off introductions of our

panelists who are amazing each in their own right, i'm going to ask each of them to introduce themselves to you. and tell you, you know, for half a minute who they are, why they have skin in this game. and then i want them to answer a question that is completely open ended because that's the kind of hip sisters we are. and the question is going to be what does transparency at the supreme court mean to you? we're going to start right here with willie and go down the line. and ten seconds on who you are and why this is an issue that's important. and if you would develop an idea of what it means to you. >> thank you, dalia, very much. it's a more to be here. i'm willie jay. and why am i here? i'm here because i am a lawyer who briefs and argues cases before the supreme court. i used to work for the justice department in the solicitor general's office. and now i'm in private practice. and much of my work in private

practice, as well, is before the supreme court. what does transparency mean to me? for me, as a lawyer and advocate, it's not about the cameras. it's not about the papers, it's not about the speeches and certainly isn't about the financial disclosures. it's about the decision of cases, which after all, is the justices', a, number one job to decide cases. when they decide cases, what do they decide? and what do they decide them based on? those are kind of the transparency things that get me up in the morning. because the courts will often say we're a transparent branch because everything's public. the briefs are public. they are on a website, no the the court's website. the oral argument is public. it's, you know, transcribed easily, perusable on the court's website and so on. but does the court limit itself to what's in the briefs or not? and i think one striking example

of that is buried in justice kennedy's juvenile life without parole opinion from a couple of years ago where he was developing some statistics about how many young offenders were incai incarcerated term of life without parole. including letter to supreme court library from federal bureau of prisoners. letter to supreme court library from, i think, district of columbia department of corrections. basically, the justices had asked other parts of the federal and, you know, municipal d.c. government to do some research for them and provide that information secretly, not copied to the parties, and i'm not revealing any inside information because i don't have any. but the solicitor general didn't participate in that case. and it may well have been a complete surprise to the attorney general, the solicitor general and the, you know, the

people to whom the director of bureau of prisons reports. that it was opining or even providing factual information on this fairly complicated nuanced issue. i think it was a surprise to the advocates, as well. so when you're standing in the court, you speak your piece, you sit down and the chief justice says the case is submitted. the briefing is all done. the oral argument is all done. but then the researching begins. and so the transparency concern that i have is that the justices often view that as the beginning and not the end of the fact at law and science gathering process. justice breyer is also fond of citing social science and other secondary literature in his opinions. in most cases, none of which is not cited by the parties, it's his own research. he finds it useful. but how do you respond to those citations? and how do you convince him not to rely on them?

because you haven't seen them until they appear in his opinion. >> okay. >> hi, i'm clay johnson, the ceo of a company called the department of better technology. i'm a former presidential innovation fellow. used to be the director of sunlight labs and before that, a company called blue state digital, we made barackobama.com and a bunch of other things. i guess i'm here to represent the technical aspect of this as you can tell by my lack of tie. >> what does transparency mean to me in terms of the supreme court? i think it means three things in descending order of priority. there are no other fields in the world i can think of. imagine, if you will, if we took every beautiful skyscraper.

or that the scores to the super bowl were the only thing you saw from the big game. this has an adverse effect, i think, on people who aspire to these jobs or to aspire in the legal profession not to be able to watch people that are at the top of their game deliberate before the court and argue before the court. i think that's a remarkable law. the second thing is history. transparency means history to e me. we are doing a great disservice to the dignity of the courts so making it that decisions like bush v. gore or citizens united are captured in low-resolution audio files, and that's it. and moreover, because of various technical things, you know, often times web pages are cited and arguments all the time. but somebody did a study more recently that said about 30% or

so of all of the links that are cited in these arguments are gone. so we're not, you know, we're not taking that technical step of archiving the context of these decisions at all. and as we further rely on technology and, especially, the web in order to do that, this level of context being removed seems to be a great disservice to our children and to the people that are going to come after us. and, finally, it's about accountability. and i don't find that argument to be the biggest and most important one. although it is important. i just find my work both inside and outside of the federal government, you know, going to someone, anyone, and saying, hey, i'd like to place a camera behind you so i can watch and scrutinize everything you do in realtime tends to be a tough sell. and so i tend to lead with more substantial arguments like this does not reflect on the dignity

of your job. so i think those are the three things that matter the most to me around transparency and why i care about this issue. >> eric? >> good morning. i want to thank gabe to thank gd dahlia for hosting it. my skin in this game is pretty serious. i teach constitutional law. it's ironic that the supreme court might be the least transparent court in the united states because at best, i'm with a judge that it's a political court. i don't think it's a court at all. to the extent there are transparency issues to begin with with judges, i don't think the supreme court counts as a court. i will give you a great example of that. every year thousands and thousands and thousands of people send petitions to the supreme court. lawyers spend hundreds of hours working, fees are paid, parties are incredibly invested in this. and maybe the most important decision the justices make is

which case to haear. and we don't even know which justices voted to grant in a particular case. this is an incredibly important public vote on a matter of public concern, and there is simply no reason why we shouldn't know this. and it's relevant, truthful information about a public body. now, they may argue that too much would be read into who decides to grant. but the bottom line is, i was litigating supreme court cases in the 1980s with some of the leading litigators at the time, and at the trial court level we had a state case and the effort was to make the record such that justice o'connor would be pleased. this was five years before o'connor would see the case. there's so. speculation going on anyway. if we know that four moderates vote to grant sert in an

abortion case, we have some idea. it might be wrong. it may be write. who votes should be a matter of public record. and which leads me to my overall point. with the president, with the congress, with state legislatures, there is a presumption of transparency and there has to be a good reason for secrecy. if there's a good reason, the presumption can be overcome. when it comes to supreme court of the united states, there's this huge presumption of secrecy and only if that is overcome do we get transparency. that doesn't make any sense at all. have i r i have run this by litigators and law professors. no one has given me a good reason why we can't fine out who voted. if we don't have a good reason for it, the public should know relevant, truthful information. >> i'm bruce brown.

i'm executive director of the reporter's committee. i'm here because the committee was under represented today and felt we had to balance the panel out. for the reporters committee, which represents the interests of journalists in covering institutions like the supreme court, we care deeply about the immediate access to see and hear what goes on in the building. and we care about it not just for us but for, of course, the public at large. and there's a great moment described in the book "the 4th estate in the constitution" about the oral argument in newspapers which came along at a time when the press had been losing access cases when it had been arguing for some kind of special privilege it had. the man who argued the case for the newspaper is asked, is this just another example of the press asking for some kind of

special protection for its own interests? he responds and says, no, the access we're seeking is the access that belongs to the general public. and that was the core for access law. that was the moment that tipped the scales and the court and newspapers grant the decision, recognizing the right of access, not just for the press but for the general public. when we at the reporters committee think about access, we're thinking not just in the short-term, can we get reporters into the court to cover the hum of what happens in a particular news cycle in the building but also the long-term. dahlia mentioned supreme court papers. one issue here interested in is trying to force the court away from this ad hoc system of each justice deciding when and how

and under what circumstances to make papers available and move instead to something more regularized like what you have in the presidential system now, which was put in place by legislation in 1978 to deem those papers property belonging to the public and not subject to the particular decision making of any particular justice when he or she leaves the court. and when you ask what access means to me, i want to respond in terms of extreme particularity. i wrote some statistics down. my wife's grandfather was a life long friend of justice douglas. we discovered when he passed away that he had a number of letters from douglas. we were trophy hunting, going through the papers and seeing the stuff. so i looked up online to see what i could find out about the papers of justice douglas and where they were. and, of course, you go to the supreme court website and they send you some place else because it's not the kind of thing that

they are collecting and gathering. although, they should. then as you make your way through a number of other websites, i found with great particularity information about the papers of justice douglas which i will share with you. they are at the library of congress. they with 1,787 containers of papers. making up 716.8 linear feet. there are a total of 634 -- excuse me. roughly, i'm going to give you an approximation, 650,000 items. one box of classified documents. that sounds very interesting. seven over-sized boxes. that gives a member of the public, a reporter, some sense with particularity with which it's disclosed there a confidence that a justice who served on the court for 45 years, something like that, that those papers are preserved, out

there for scholars, for journalists who are writing books. i think we need to see something like that in relationship to one justice, it begs the question why can't we have that for them all. thanks. >> sonja? >> i'm son gentlemya west. i'm honored to be on the panel because this is an issue near and dear to my heart. i was briefly a reporter in my college and post-college days, including an internship at the reporters committee, which was amazing. then decided to go to law school with this hope of defending journalists, which i did for a few years after law school, including in california trying and usually failing to get cameras into the courts under the california system. this is an issue i had the great honor of clerking for justice stephens. i got to see from behind the scenes what was going on with the court and also became very

interested in what the court coverage was of what i was seeing. that's when i became a big fan of dahlia's work because she did a great job and became a bigger fan of tony's work who had already been following. and i'm now associate professor at the university of georgia where i teach constitutional law and write about press issues. so in terms of what transparency means for me, i'm going to mimic of what eric says, i feel it means that the presumption should be a right of access. that whether or not there's actually a first amendment right of access on some of these issues, i think there are arguments there could be. we should have the first amendment presumption that we're going to have public access to this information. and the problems i'm seeing right now, here i am going to talk about cameras in oral argument even though i agree we should not get focused on this

issue. there is this wide range of issues that matter. the reasons we're getting the responses to the arguments that clay laid out really well are not meeting that bar in terms of why we can't have cameras at the oral argument. the arguments we're hearing from the justices -- we get this piecemeal when they're asked about it. they are asked about it all the time when they appear at law schools or panels. it falls into three concerns. one is concerns about the participants, that they will engage in show boating and grand standing. that doesn't add up when we look at what's going on in all the other courts that are allowing cameras in. all 50 states have cameras allowed in their courtrooms in some form. canada has had cameras for more than 20 years. this issue of showboating doesn't stand up and it doesn't make sense when you think about what a big deal oral argument at the supreme court is. the justices know that everyone is watching who asked the first question, who sounds critical.

they keep track of who makes the audience laugh. they know they are on stage here. the advocates know -- willie can attest to this. they're not thinking about the audience. they're thinking about the justices and making their point and trying to read the justices. the idea that showboating would occur doesn't add up. another concern is about the media, what they would do with camera access, concerns about snip pits and sound bites. there's a belief that there's concern what john stewart and stephen colbert would do with the clips. it doesn't add up with that we get audio or quotes athe newspaper. we heard about this question or that question. so the third area that is actually we're hearing more of from the justices and i find concerning is that we're hearing from the justices, even justices who at their confirmation hearings supported cameras in e