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

so it depends on the intent of all 3 million voters who voted for this constitutional amendment. that's an analysis that's literally impossible. you can't gauge into the mind of everybody who voted yes for proposition 1. i think that's distinguishable from rumor. and windsor, because the court in those cases didn't engage in the legislative intent of what the laws on their face and said the law on their face are unusual. and that's not the case here. so if there's no further questions, i respectfully ask the court to reverse the district court. >> mr. murphy, can we go back to the 19th century history we were talking about? it occurred to me after you sat down that you thought i was talking about these -- the suffragists crisscrossing the country trying to get an amendment to the united states constitution. that's not what they did. they knew that was virtually impossible.

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 i know that -- the process being undertaken now repealed the ohio constitutional amendment.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

thank you, mr. murphy. appreciate your helpful briefs and argument. the case will be submitted. >> jay rockefeller is retiring after 30 years representing west virginia in the u.s. senate. he's a democrat but republican congresswoman shelly capito is believed to have the edge on the race against natalie tennant. they debated early they are week. >> would you vote against aca. >> i would vote to repeal and replace. i voted for that 50 times. i recognize 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 conditions. absolutely for that. of for that before the president

decided to take it in a larger and much more detrimental direction. i believe keeping our students on until they are 26, i think that's a good thing. there are good things. we need to keep what's good, replace it with what will work. get rid of the business mandate. make sure our businesses are not having a 30% increase in their premiums which we're seeing. 7,000 west virginiians have lost their health care plan. remember the president who i'll remind you, my opponent support and supports his policies and health care policies says if you like your health care plan you can keep it, period. well, that didn't work out so well. so, you know, it was sold as a bill of goods, basically. we're hearing people who are losing their physicians. whose deductibles have gone up in the thousands of dollars. it's unaffordable. were things wrong? yes. i wish we worked together. i wish we worked in a bipartisan way to find way to keep folks who were on insurance now, the

140,000 medicaid, want to keep them insured because that's important to us not just to them but it's important to us as a state. >> so, your response >> there she goes again. i wish that she says one thing and votes another way. she says she's for all these things in the aca but 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 when she was a-week-old. and many folks across west virginia prayed for her, 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, we wanted to buy insurance so, he called and i can remember the day i came home and he said natalie i talked to the insurance companies trying to get insurance for us and the business and the family and they

said they would cover you and me but they won cover delaney because of her pre-existing condition. i was devastated. i thought what parent takes something that their child can't have? i will never go back to the days when insurance companies can deny insurance for someone with a pre-existing condition. for congresswoman to say she's for that too, she's voted to take that away. >> we have two more live debates tonight on our companion network. live at 7:30 eastern from the 17th congressional district of illinois, incumbent democratic congresswoman cheri bustos debates bobby schilling. later pat quinn will debate bruce rauner at 9:00 p.m.

this weekend, friday night at 9:00 p.m. a memorial service for 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 and a. author robert timberg talked about how a land explosion almost killed him. on friday night on c-span 2, ralph nader calls for an alliance between parties to take on issues that plague america. atul gawande feels medical science should do more for the ageing and dying. and naomi kline on climate change. friday at 8:00 on c-span 3, director of the cia museum in

virginia, explains the history of the agency. saturday at 8:00 p.m. king george's war of 1740s, how it helped the american colonists reached identities. and sunday night on the presidency at 8:00 p.m. president ford's congressional testimony on the nixon pardon. find our television schedule at c-span.org and leapt us know what you think about the programs you're watching. call us at 202-626-3400. e-mail us at commentsass c-span.org. join the c-span conversation. like us on facebook. follow us on twitter. tonight on c-span 3, sports at school. we'll show you a house hearing on head injuries and other safety injuries. also a safety hearing on

athletes. >> a federal appeals court in new york city heard a case on the national security agency's collection of american's phone records. the american civil liberties union is suing to stop the program and have all the data deleted. the oral argument is an hour and 45 minutes.

what viewers are about to see are not the merits of that program whether it's a good thing or bad thing, that's two

reasons. one as a matter of substance, the issues before us start with legal issues about whether this court even has the jurisdiction to resolve any or all of the questions raised by the plaintiffs and then continue, the questions raised by the plaintiffs are not about whether the program is a good thing or a bad thing but about whether or not it's been authorized or perhaps forbidden by specific statutory provisions of congress and by specific provision of the constitution of the united states. that's what is before us. it's also not a debate as a matter of forum. the procedure here will involve lawyers making arguments. they will likely be interrupted and asked questions by the judges. that's not because we're rude or we don't want them to make their case in an uninterrupted manner. they've already had the opportunity to present in

writing their positions in uninterrupted manner. this is to some degree our time to ask questions of the lawyers to clarify the points that they are making and the implications of those points. to raise issues and give each side the opportunity to not just say their best points but to respond to the best points of the other side. so it's not going to be a sort of free ranging debate where everybody gets to say everything they want about these programs. it's going to be much more limited than that. all right. so i don't know whether that was useful north. not useful to any of the lawyers.

you have some time for rebuttal. >> thank you, your honor. good morning. may it please the court. every day the nsa clebts reports of phone calls made by millions -- >> i'm going to interrupt you at the outset because two questions that are essentially questions of fact. i find it difficult to approach this argument without understanding that at the outset. one is that as i read them and i did read them in some cases more than once. it's not clear whether emails is covered by this program or not. it's possible it's a big secret as to whether they are or not. i don't know whether sitting here i can get a hold of all my mistresses and say let's do it by emails. i'm sure my wife isn't going to watch this program. i'm terribly serious about the question of what, insofar as

we're allowed to know, you're allowed to know are emails covered and to what extent that's the first question. >> emails are not covered by this program. this program solely concerns records of phone calls made by americans every day. the government has operate programs in the past under similar interpretations of the meaning of relevance that allow it to elect the same information for emails but that does not what this case concerns. >> all right. okay. we cannot take into account one way or the other whether somebody can say and lord knows i mean this very seriously, can say to a co-could nspirator. >> the government can take that into consideration. i think the court can take into

account when it considers the breadth of the government's interpretation of smith and fourth amendment jurisprudence. >> it's your position that the government is correct here then congress has authorized the same sort of order, could be made with respect to everybody's bank records in the country. >> that's exactly right. if section 215 permits bulk collection then bulk collection would be permitted not just for phone records but for any records, would be permitted not just under section 215 but every run-of-the-mill and not justin context of terrorism investigations but in the context of investigations of essentially any crime involving more than one person. >> if the data remained in the position of the telephone companies and the government sought to get the same information that they are

basically gathering using the queeries against the database that the government has collected would that be constitutional? >> the government has that authority now. we don't challenge the government's ability to challenge demands. >> when you say targeted demands are you saying because the government -- because they are having a number that the fbi or whatever organization comes in and says we have a number that we have asked for. we want the phone companies to apply this number across the data set, that's the data set, assuming it's the data set, same data set that the government currently has? i'm asking, is it your position that that's constitutional or unconstitutional? >> it would be constitutional for the government to issue a targeted demand for a limited set of data as it always has done. what's unconstitutional about

this program are several things. first the government is collecting in bulk everything at the outset in a way that has never been permitted. second once the government has that information in its position it runs queries on that data. our principle complaint is about the government's collection of that information >> that raises my second question. this case was brought was begun less than a week after the disclosure of the program if i'm not mistaken and a fair amount of water under the bridge since then. what we refer to as the red brief, which is to say the government's brief, they mention three things. one, if i remember, the number

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

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

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

be our jurisdiction under the procedure act. >> that's right. >> i assume you're going to address that. >> i am. i think the government is wrong for a couple of reasons. first, the apa creates a strong presumption of judicial preview for injunctive claims for conduct. that can only be overcome if it's clear and convincing evidence that congress intended to preclude the injunctive claims such as the ones we bring here. there isn't that evidence. the government points first to section 2712 of the communications act. but that statute by its term is preclusive only as to claims within its purview. section 215 is not within purview of section 2712 of the sword communications act. it applies to several unrelated subchapters of fisa and not even the government contends that it applies at least as a textural

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

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

section 215 makes clear that the recipient review procedures did not decide the question at all about whether congress wanted the targets of 215 orders to have available statutory review. in that context where the legislative intent is -- cannot be discerned, the default rule of the apa governs and provides for injunctive relief. >> with respect to the -- the government makes an argument further that no one would have anticipated a lawsuit like this, that is one brought by someone whose records were demanded because the intent was that people in your position would never know that this was going on. does that mean that congress didn't anticipate this kind of lawsuit or intended to preclude this kind of lawsuit? >> no. this is a point on which we disagree with the government. congress clearly provided for the possibility that targets of 215 orders would learn about those orders. it contemplated that recipients would have a right to challenge

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

resolve our constitutional claims. the only consequence of the government's claim of preclusion is that the narrower ground for decision would not be available to it. that's very strange intent to attribute to congress. there's not a coherent theory offered by the government on why congress would have wanted to preclude our statutory claims knowing full well that our constitutional ones could proceed. >> that's assuming congress actually gave that thought at the time. i mean, i'm not sure that that necessarily would be the case. when you are talking about the statute, congress did address the issue of the recipients. and they didn't say recipients and others. is there anything to suggest that congress at the time they were dealing with recipients thought about others possibly having the ability to challenge this statute? >> i don't think there's anything in the legislative history.

and that, i think, is fatal to the government's claim. because in that situation, where there's no intent one way or the other, the background rule of the apa controls. i think it's important to point out that when congress amended section 215 to add the recipient review procedures, it asks the government its view of the necessity of those procedures. and the government went to congress and said, we think as a statutory matter that those -- that there is already an avenue for judicial review for recipients of 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 had 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 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 saving their 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 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 me 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 fisa 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. [ laughter ] >> 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 was 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 fourth 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 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 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. there are recognizeses that protect that 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 sixth 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 fourth 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 circularity 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 alter the 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 it 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 explicit 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 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-- >> it is still unconstitutional. i realize that's your position. >> that's right. but i see your suggestion. i think that could be anelement of the reasonableness, the expectation of privacy, the fact that it has not been authorized by congress.

>> what would happen if there was a real debate in the democratic branchs of government that led to the decision to reup this program. >> i think that it suggests that congress is not comfortable and the country is not comfortable with bulk collection. the president, himself, has recognized that bulk collection creates a risk of abuse and should be ended. i think that's a good segway to get back as to how to analyze reasonableness. it's always about analyzing the intrusiveness of the government's search against its rationale for doing so. i don't think the court even needs to get to conducting that balance. the fact that the government's search proceeds without individualized suspicion, without the warrant and probable cause clauses of the

constitutionis sufficient for us. >> people did not have an expectation of privacy in that. let's assume, with regard to the program, that is it your intention that it would be unconstitutional to collect just that in bulk? >> yes. that's unconstitutional. >> smith dealt with an individual who was suspected of a crime over the course of three days. >> no, but the technology, i don't think, is an issue. maybe to the extent of bulk, but with regard to what is actually being captured, are you saying

that because the government is collecting that in bulk, in other words, for seven years or whatever, that that is unconstitutional? >> that's right. i think in 1979, the state of maryland had investigated michael louise smith because it had, at the moment of his birth, created a data base of every phone call he ever made or received, the supreme court would have understood that case to stand for a very different proposition. and i wager they would have found that unconstitutional. i'll note that's more intrusive here for a number of different reasons. >> how do we go about looking at this stuff and knowing about this. how do we kngo about knowing

without any fact-finding at all. in fact, i keep wondering why we're having in-camera proceedings here. but, how, without any fact-finding at all, can we gin to know, figure out, how can we begin to 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 the way it was a year ago when it started june 19. how can we, without fact finding, come up with some reasonable determination of reasonable? >> i don't think fact-finding is necessary. the parties have briefed 2 issue and even the president now

concedes that the government can accomplish the interest of seeking to serve through this program without bulk collection. >> why did he send his lawyers here to say that he should lose? >> i think he's awaiting the legislative solution. the president, in the interim, has decided to -- >> for the moment, evidently, the president thinks it is necessary to continue operating this program and that it's constitutional to do so. he might prefer some other way of doing it, but the representatives of the government are here to say that they think this is presumably essential, at least it's a reasonable thing. >> that's right. our view is not that the president had conceded the unconstitutionality of the statute -- of the program, but that the government has conceded that there are alternative, significantly less-intrusive means. >> fair enough.

but one would hope that that does truly sound like the rationale way to proceed. and we started out with that question. but supposing, you know, because of legislative blocks, as judge lynch spelled them out to you, the possibility 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 unenable or it's a violation of the fourth amendment or we conclude it e's reasonable, under the circumstances, reasonable to control that threat. how do we do that? >> the first point is one that i tried to make earlier. i don't actually think the court

needs to get to the reasonableness bounds. the government is only entitled to a question of free-floating reasonableness if it can demonstrate that the warrant and probable cause requirements of the fourth amendment are impractical. and it cannot recognize that the government can accomplish its interests stlu regularized capitalizations. >> that wouldn't require either probable cause or a warrant. and i take it, if you had a reasonable suspicion or even one line, they do that all the time by issuing grand jury subpoena or perhaps some national security letter without probable cause and without a warrant.

and the argument is that's not a fourth-amendment -- ert it's not a fourth amendment event, because it's something against maryland. or, if it is, it's a reasonable one. >> that's right. but the government here is trying to engage in bulk collection. if we're correct that that implicates the fourth amendment, then the question becomes for purposes of the special needs doctrine, which the government has invoked, the first is whether the government is tar get demands, if it could, then it is not entitled to forego the requirements of the constitution.

it's an increment of what they're doing now with a reasonable thing to do or an unreasonable thing too do. i don't know why the warrant requirement or the probable cause requirement comes into play. in that inquiry. >> i suppose it's because, at least in this case, the question of practicalblety, it's special interests. the first question is whether dispensing with the requirement of individualized suspicion is practical or not. here, we don't think it is. even if it were impractical for the government to require these records in an individual fashion, we would still think that it's unreasonable. for whatever reason, it is the most intrusive means that the government could accomplish its interests. that has always been held to be unreasonable. it's in part, and i think this is a critical point, it's in part because even the president

has conceded that the government's interests can be accomplished in their own means: it's not just the president. it's the reprisal and civil liberties oversight board. it's a hand-selected review group -- a group hand-selected by the president himself that came to the same conclusion. and there's rord evidence in this case from professor felton who is a 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. i think that showing goes to both the question of practicalblety. i still think it goes to the question. >> i think we unless my colleagues have any questions, once you get to the point of reemphasizes ting the point tha you've already made, i think

we've probably reached the end. you do have some time for rebuttal, probably two minutes at the rate we're going. >> thank you, your honor. this case concerns an intelligence program that has been considered and approved by all three branchs of government. it includes production to the agency, to the orders under a provision of fiza after congress was briefed about this very program. >> so you're starting off by saying it's been approved by all three branchs of government, but you don't want us to address whether it was authorized by one of them? >> if you're referring to the statutory conclusion arguemented, yes, that's right. and we think that was a choice that congress made in specifying a very detailed application and

approvals for those applications and then, with a detailed review scheme following for that. allowing a challenge by providers and ultimately, a review to the supreme court, if appropriate. then that process is exhaustive. >> but we've gone onto address some very specific facts about the judicial review program there that suggested that it was reasonable to assume that congress had reviewed all the parties. they sent out a variety of factors and concluded specifically with respect toe that program that conclusion was

a reasonable inference. i'm not sure those factors come out the same way here. you rely very heavily on a generalization, aren't you? that any time congress authorgh authorizes judicial review of one person, it must at the behest of any other american? >> respectfully, your honor, i don't think we're relying on a generalization. the court ha made clear that the inquiry is based on the structure at issue here. if you look at that structure, first, as was alluded to in the first part of the argument, there was no provision by challenge of third parties for these orders. as a matter of course, the expectation was, at the time, the third parties, including people other than recipients of the orders would not know about them.

did they implicitly authorize this kind of lawsuit? it's a pretty good argument to say of course not. >> first, your honor, limiting the category was a deliberate choice in reflective legislative history.

>> i think the first part was section a-51 which says that an order pursuant to the procedure by the fisk, shall remain in full effect, that's a quote, unless it's been 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 fisk orders are issued, they should be set aside only pursuant to the court that congress has specified there.

>> why would one recipient -- i guess one did, so maybe i should ask them, but i guess it's secret who they were. so i'll ask you. why would a recipient ever challenge one of these orders? they're given absolute immunity from any claims by their customers that they violated any rights by turning stuff over to the government. what stake do they have other than saying it's no skin off of our nose. it's skin off their nose. >> i think you're right, your honor. one could imagine business reasons or practical reasons for making that decision.

>> but so i think, given that we have here not just a situation where congress has said that certain challenges to agency action should be brought only in a particular forum, but have required judicial approval before the private party is required to make the production to the government preclusion of the type that we're talking about here makes complete sense. and the plaintiff's argument really requires a collaborative challenge by another article three court.

>> i think, your honor, that is the consequence of the supreme court's implied conclusion doctrine in related cases as compared to what the court has said in webster versus dell about what is required for court to have pretended to include constitutional claims. >> you're 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. while, on the other hand, to accept an argument that says nobody's got any constitutional privacy rights in anything, really, anymore.

surely 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 statute applies to credit card records, doesn't they? >> obviously, to some extent, they are the same argument. >> they made a point of distinguishing a new collection.

>> isn't it relevant to you that he used his verizon cell phone to buy a ton of fertilizer? or even to find out who his other colleagues are? there's clearly relevance in the sense that you're talking about it. to make it easier and quicker to make the inquiry and find out

what all the connections are and what this guy is up to. why doesn't the same thing apply to credit card records. and those are important elements in the set of tools that a government has to pursue counter terrorism investigations. what we're talking about here, the proposition of relevance that has and the fisk has approved is, however, tied to the nature of the records that are being collected in bulk. 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.

the record in this case, including the declarations that are submitted with the injunction and the orders of the fisk make clear that the purpose of the bulk collection is to allow for it's the data that can be searched in what's called contact training and in furtherance of a particular-type of investigation. the purpose of this work is to protect and disrupt future plots before an attack can be made.

>>. >> it appears that, you know, that the will have an interest in their bank records. isn't it a similar sort of thing? it couldn't have been the government aggravating everybody's bank records and applying the same, you know, career sort of methodology to get at the same sort of linkages. >> so that was a question that would be relevant, to use a term, to the question of whether that type of collection is authorized here.

other types of data, even if very valuable for law enforcement and used routinely. >> so the answer here would not necessarily be the same. it's a question. >> it is -- is the idea that telephone records are unique ly catching similar formats by all providers so that unlike bank records, they're more susceptible to the data base? we'd leek to know who he toalks

to and who the people he talked to talks to. so all that information is gettable. i would have thought, and maybe i'm completely mistaken, that the problem with doing that is awfully time consuming. you have to track down who everybody's providare and so on. it's the whole point of what makes this pattern beneficial. am i mistaken? >> no, you other correct about that. >> so isn't that obviously true about any bank?

or you can collect everything there is to know about everybody and have all one big government cloud. but i don't understand the third party business entity of every american's anything. >> your honor, i'd like to come back to the point about min mization and other restriction on the use, which i do think it's critical in understanding the appropriateness of this program. on the question of relevance, you are correct in your general description as defleblgted in the definitions here about the purpose of the collection of the dare that.

i do think, phone records tend to be, by nature, standardized. as for a rapid identification of locations for known and unknown terrorists. the purpose is to be able to identify from a known person with a permissibly targeted organization who that person is in contact with. and the analytical fools to make those connections and to

identify them rapidly are what this is for. >> some of us sitting here have done this criminal investigations and 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 i'm suspicious of. and i can tell you there are a lot of burdens in doing it case-by-case. >> so whether it's sufficiently timely, that's certainly an element. i think other aspects that are, again, reflected in the record and in the filsing conclusion are the need for the examination of cross carrier sos that you're following the lengths where people are communicating using different carriers.

and, again, to build a positive repository going in because, again, the government doesn't know which the met day day might reveal an important piece of information to a known terrorist. it's in terms of what the president has sug jesed by legislation. to keep this information indefinitely against the future. >> i want to get back to this avoidance because you are asking us to decide something that is

extraordinarily sweep iing witht 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 that somebody who looked at a law and said you can have an order that will get anything you can get with a grand jury subpoena. imagine that that means you can get stuff that nobody ever imagined getting with a grand jury subpoena before. and they maybe could have. i don't know. but it's a little hard to imagine that that rath other innocuous language means that all kinds of records that, 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 if they become relevant. >> i think one reason, your honor, is because congress was briefed about this very program and extended section 215 twice without change. and the details of this are refleblgted in our brief. >> i thought the radification was dealing with something that's public therefore r ratifying it again and again. i'm not sure ratification carries with it as much a baggage that you want it to if you're talking until june of

2013 when people notice this is going on. >> i think, your honor, the reason it does here is because we're not just talking about a presumption that if it's in the federal reporter somewhere, congress is needing to know about it. here, the intelligence committeeses, over time, 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 guilty only the nature of the program but that the fisk had authorized it, that the relevaalevance requirement the statute had been met. that it was consistent with the supreme court pres dent were

made? connection with the 2011 reauthorization where they spefkly called their colleagues attention to the reinterpretation and the importance of understanding it was being used in connection with this very program. and so you know, finally, the chairs of the sbel jensz committees made this available and offered briefings generally to more members and also repeated the need for members to understand how it was being used. so 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 an appropriate --

f forgetting the constitution. >> i'm arguing here that congress understood section 215 to coverer the program that we're talking about. i also think that by extending section 215, you know, knowing what's going on, i think -- i spez it more broadly leads to talking about that. >> then you're relying on the o ringal history in the beginning. but for the relevance, you're

relying on the part that congress re-upped this statute on section 215. the court approved it and there was this process. but could you explain to me that if i'm a member of congress of some special committee, what exactly was i told? i don't mean what was in the region, what was i told about you better go read this before you vote for this? what memo did i get?

>> i think they were memos from the chairs. information had been provided by the executive branch that was important for evaluation of the reauthorization of this authority in section 250. >> so it's worth it for me to figure out if i should go and read it. >> i think of things like legislative vetoes and the court has emphasized that legislation gets done when he shows it and the president signs it. this notion saying it's going to be congress approving whatever was in that. >> the further fact that we have here is that there were members, including senators widen and

udal, who were privy to this debate at the time. >> so it wasn't just someone on the floor saying listen, you'll need this and we don't want to vote for it because of what's in there. >> so in other context, the supreme court has indicated that reference and supreme courts are sufficient. this goes beyond what you'd look at in an ordinary ratification. >> i think so. it's not as far as what counts in legislation. i guess take it up with him some day. >> and to your point, your honor, about the current state of discussions and congress and the president's potion. i think it is certainly correct that the wisdom of this program in light of its nature and scope in the current subject and debate within congress as was indicated in there are multiple

proposal that is have been introduced and that was walking forward. >> this court said we don't think it's necessary, that would 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 paid to all of these issues. >> all you have to do is take out the word relevant. >> there would be nothing, if they did the latter, we wouldn't have the constitutional issue. >> the section 215 authority

will, cease in june of next year. so some action has to be taken one way or the other. what the president has said without the government actually ingesting the met data, allowing querying at the providers, although in the same statement in march, he also noted that in order for that approach to be workable, within the speed an manner available to accomplish the goalings, sledlegislation w be required. in the meantime, he thought it would be important, or his judgment thought it would be important to continue this capability that the government go to the fisc and seek couldn'ted authorization of the program.

>> your honor, september 10th is the next re-update? >> i believe september 12th is the expiration of the current order, as reflected in the briefs. so i think i clarified some of the discussions earlier. i think that i'll turn to the fourth amendment, if that makes sense. our position is that the fisk and the district court did correctly conclude that the acquisition of business records reflect i

reflecting was not a zench. >> i don't think i'm using the mosaic, but doesn't there come a time, and isn't this where the plaintiffs are contending, doesn't this come a time when the old fashioned simple pen register that was used in smith versus maryland and that we are recognizing for a long time where it -- the amount of data that you have of that sort is so detailed that, in fact, it is a content divulging action rather than not? the whole point of the direction, and whether or not again this morning. but the point was it's splg that you already give out. anyhow, it's given to a third party and it's not -- and it's not, as though, you are

listening in, which would be different. and the question is, it is, i think, or a question is whether the methods have become so sophisticated about analyzing this kind of data, that in this case, you are finding out content. is there any umph to that idea in. >> >> certainly, this is one of the issue that is's been a factor in the public debate. a couple points. first, here, again, we are talking about the same type of information. so to the extent -- to that point, to the point that zach was just saying, they probably

didn't go each piece of metadata by metadata that was done in smith. 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 should require that actually that determination is made based upon if you're talking about the right pricing, you look at each part of the metadata and make the right determination. >> i think that the record in this case reflects, if you're talking about the type of information that's at issue, that we are talking about the same type of call detail records that were at issue in smith. so the number call and number received, routing information, time and duration of the calls. we're not talking about name or

address or financial information. >> so the next two points that i would make on that are, one, the ability of met-data to reveal useful information was known at the time of smith and even though the expectation is that phone companies are assembling the metadata, that did not give rise to a protected fourth amendment interest.

right before here's the record of the traders of 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. that this was a leak from the insider.

so there's no secret about the fact that metadata can reveal content. >> and the power of technology that allows analysis, it leads me back to the point that i wanted to make a response to judge lynch a moment ago. it's important not to lose sight of all of the other protections that are built around the acquisition and retention of the data in light of the technology. i think that's critical to understand. in addition to it being non-content information about the telephone calls, the data can only be queried for counter terrorism. and the number or term or

whatever, is connected, associated with a specified foreign terrorist organization. >> none of the safeguards are built into the legislation? >> the legislation, your honor -- >> i don't think that's right, your honor. >> 1861, subsection g requires min mization procedures. the statute requires that the element impose the detail in the orders. but that there would be use

around the dissemination of the data. >> and now that we've got some experience with min mization procedures, it wouldn't be possible to spell out something in this program if they were going to be authorized by congress explicitly, that said what made sense and what didn't make sense. this just says the attorney general has to specify. nobody's there saying this would be better. my concern about all of this is

that it's fine to say we've got this program and we never misuse this data and we have rules to have that happen. that's not the same thing as the government not having the information. we don't know what happens when some inhabitant of the white house has a plumber's unit and lets them have access to the data base.

whoever makes the rules, they can be abused. if we're imagining a government that makes all the rules, they could tap all 06 our phones and we'd never know it. there are levels of restriction. we infer from that 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 the point about, in the narnl security area, the point about the branchs being

charged within a range, drawing the lines about what steps are appropriate to accomplish national security needs, something that the supreme court arctic lated urged that the -- i'm not sure if this is the phrase that was used, but because some of these questions are susceptible, in effect, to legislative fact finding about what is appropriate, whatoffs are appropriate to meet the needs of national security. similarly, in the mcquaid and cassidy cases, this court, in evalwaiting types of antimaterial rirk or counter terrorism in connection with the subways and ferries, noted that, again, the court should be relek tant to rest away from the political branchs, the choices about how these judgments should

be made. of course, we should be very cautious. >> right, your honor. and you do have smith and you dough have the same type of information that was at smith if you're reaching if constitutional issues, we urge a focus on the program. >> the supreme court has also recognized that where that is the case, where congress has not provided a cause of action, the consequence may be the examination of a constitutional and not a statutory claim.

that was the result that the court reached a -- or said that the constitutional claim could be reached, not the statutory claim because there was not an apa cause of action available. it seems quite simple by ording against you. >> right. and, again, our position is that congress -- >> i prefer that you not rule against us, that's certainly true. but here, congress has not provided jurisdiction for the court to reach the statutory clinics. so therefore, we're left with the constitutional element 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 fisk has only robust controls over when the data may be queried, what may be done with the results of the queries. nots just the court accepting whatever is offered.

>> is there any more fisk that exposes -- >> i don't know about that question. my point was if you look at several of the recent opinions -- >> >> i'm just saying the procedures there are a little bit different in terms of having a robust consideration, not from what the government says or whatever the judge can say in his or her own experience. >> although these particular orders are not in the joint appendix here, among the declassified materials from the fisk are opinions reflecting

reactio reactions to compliance issues that were identified and steps that the fisk took in response andnot simply thanks by the government. >> you seem material that has been classified and assure us that there is not a special needs or fourth amendment problem. it's odd -- what else -- that's what you've let us know. what else have haven't you let us know. i say this with all respect, all the stuff that we now know is

part of a political understanding that this program is in effect. isn't that so? i mean, right-hand turn you arguing from a good deal of material that was made classified until a june ago and was made public to the reaex? >> certainly that is true. 245 there's now information in the public realm that had not been public before. but this program was subject to article three review from the fisk that the body set up to establish that that the intelligence committees acted on the side of the congressional branch where you're, by necessity, dealing with classified information.

the whole system would give a much warmer feeling inside if the whole thing wasn't expar tide. if it was a pro bono or meekus. i, for one, would find what you say -- i'm not talking law now, that's why it's out of school. but find this a lot more reassuring if it were subject to

an adversary process. >> that's why, your honor, that there's the kind of approach that you're talking about. >> in that case, then i vote for it. >> but in fact, you know, if you look at the -- if you look at the reasonableness inquiry, for example, i think -- and balance the factors that the supreme court have said should be balanced. on the one hand, there certainly is an overriding importance and preventing future test ris attacks. here, the intrusion, if any, you know, subt to the smith argument on the privacy of individuals is carefully cabined to the allow the identification of connections only on finding of reasonable, arctic yubl

suspicion and the other procedures that are 234 place. so they limit the use, retention and dissemination of the records that are collected. there's also an oversight system by the fisk 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. and we all understand that. >> that is certainly true, and because the test is whether it's a reasonably effective means of accomplishing the interest, there's no least restrictive means. >> i think we all understand that. looks like you're folding up. i was about to say -- we've given about -- unless my colleagues have more questions, we've given you about as much time as we've given mr. abdo. i think we understand your argument 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 mr. dellery hasn't talked about it and mr. abdo didn't talk about it in his initial argument and 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. >> mr. abdo, i will hear you -- we will hear you on rebuttal. you're 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 mr. dellery 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 mr. dellery's 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 legislated on the basis 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 their 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, the question of efficiency.

the professor has explained quite clearly that the government could use targeted demands in a nearly instantaneous way if it's structured its 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 that it must. that was precisely the case in katz 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 precisely 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. the 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 the constitutional balance is different and needs to be addressed differently. and i think, judge roderick, you're exactly right that capps 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 that the government heavily relies on would be constitution stall y superfluous if smith governed the case and 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 that they disclaim building in this case with no constitutional restriction. 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 theories 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 it's 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. tonight on c-span3, sports

at school. we'll show you a house hearing on head injuries and other safety issues. also, a senate hearing on academic standards for student athletes. it begins at 8 p.m. eastern here on c-span3. virginia's democratic senator mark warner is seeking a second term. he's being challenged a by former republican national committee chair ed gillespie. they debated in the northern virginia suburbs outside washington, d.c. here's a few minutes of that. >> there are differences i have with, and you know, again, when you're not in the white house, you know, my party doesn't have one, you know, thing to stand up to right now. but i will share with you some things where i think i'm probably at odds with some members of my party and that is i believe that in the early '90s 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 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 in terms of checking after you've served your time and you have 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. >> senator warner, 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 the votes, not just a subsection, ranks me right in the sensible center. and your questionnaire and where i have stood up against my party? well, let me go through a 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. as a matter of fact, i've even protested against in harrisonburg because of that support. i stood up repeatedly against the president on his foreign policy both around isil but also in terms of being stronger against putin and russia, started calling early in march for these kind of stronger opposition to his activities in ukraine and around europe.

you know, 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 this 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. >> and later tonight live from chicago, the democratic governor of illinois, pat quinn, will debate republican challenger bruce rauner 9:00 eastern on c-span and then friday on c-span, live from eau claire, wisconsin, republican governor scott walker will debate democratic challenger mary burke. that's the first of two debates in the widodo governor's race and it starts at 8:00 p.m. eastern tomorrow. a three-judge panel for the

sixth circuit court of appeals in cincinnati heard oral argument on the constitutionality of michigan's same-sex marriage ban. the court has yet to issue its decision in the case. on monday, the supreme court decided not to hear cases involving gay marriage bans in other states. michigan was not among those states so its ban on same-sex marriage was not affected. of next on c-span3, the oral argument in the case on michigan's ban on gay marriage. >> good afternoon. may it please the court it is a fundamental premise of our democratic system that the people can be trusted to decide even divisive rfshs and that's what this case is b