to do with the free right to search. those people who are refusing to do it are going to refuse to do it. a recordkeeping requirement has no constitutional challenge. what does is the unfettered access to that record. >> agreed, your honor. let me just break it down. >> those people who don't want to do it aren't going to do it anyway. >> that's right. those people who dent want to do it go somewhere else or don't commit their crimes. but if they are forced to do it which is to say the motel won't let them stay there unless they register, then they will not commit those crimes in the motels and the only way to make sure that the motels are enforcing that obligation is to descend on them without notice, as justice ginsberg was saying, and frequently so that they never know when the police are going to come. why? to make sure that they are indeed recording the information and why is the real-time

observation key? it's because say, the police show up and they have a register and they notice room number 2 is unoccupied according to the register but they see someone in room number 2. they know only from real-time observation that there's a violation here. if they get the register a month later they have nothing to -- >> you mean they can walk up and down the halls and see that nobody's in a certain room? i don't know quite how you do that. >> the way it works in particular -- >> when you have room number 2 as if it's right there. but suppose it's room number 1204. >> motels for example-r out in the open. you can sit there -- >> what about my question about room 1204? you seem to say the police can wander all over the hotel. >> the police may be allowed to wander around the hotel. they probably will not see much if what they're doing is wandering back and forth looking at particular rooms gsh. >> i suppose in motels they can

see what rooms have cars in front of them. and i smoez as to room 1204 they can see usually behind the desk what keys are missing, what rooms appear not to be occupied. >> that's correct, your honor. and that's why the real-time observation is so key because you can't do that a month later. and that's why we have the sameness sti -- >> i mean, what you're saying is it's easier to prosecute but it doesn't mean you can't devote some resources and find this out. you do a surveillance, which is what police do for a lot of crimes, and you watch people going in for two hours and leaving and you keep a record of it. you can even stop those people who are leaving to ask them. there's a whole lot of law enforcement techniques that could be used to combat the situations you're talking about.

>> but not nearly as effectively, your honor. >> since when has the fourth amendment completely been abandoned to how effective the proof that the police can get at a moment should be? >> well, your honor, that's not the test but dewey refers to the fact that it's not as effective. and it simply doesn't work, your honor. let me give you an example. if all the police are doing is looking for who's in what room and what keys are missing, they don't actually know what to look for until long after the fact they may be looking for the wrong thing. and there are many motels where they can't do it for example, look at the keys because they're not available and easy to see. and so it's having the information right in front of them and then comparing it to things they might be able to observe. >> why rosenkrantz, why isn't

this just like barlow's where it's not available on the following rationale? number one most people will consent. sought police go into a hotel and say we'd like to see your registry, most people are going to consent. if somebody says no and there's a real basis for believing that the evidence is going to be altered or destroyed, you can seize it pending judicial review. or you can get an administrative warrant ex parte and conduct a surprise compassion if you want to. we talked about all 6 those things in barlow's about why that suggested these warrantless searches were not necessary. what makes this different? >> your honor, what makes this different is the distinction between barlow's on the one hand and berger dewey, biswell and colony on the other hand. that is the movability of information. that is the transyens of information you use to verify. if barlow's if there is an unsafe condition there is an

unsafe condition and it's hard to see. biswell distinguished see on that ground. if it's the sort of condition that doesn't change over time you can get a warrant and it doesn't affect your -- >> what's going to change here? the registry is the registry. and as i just said if in an unusual case you have the feeling that the hotel is complicit you can make sure to freeze the registry. but that's going to be an unusual case and mostly the registry is going to be there. as i said mostly people are going to consent. to the extent not you can go get a warrant. >> what changes is the information on the basis of which you draw that comparison. if you only compare the register -- if you get the register a month later, you can't compare it to facts on the ground. >> it's an hour later.

>> you mean get i warrant within an hour? warrants within an hour are not that easy to get particularly -- >> what's the probable cause for the warrant? if you haven't seen the register, what's the probable cause? >> there is no probable cause. >> do you have to have a policeman sit outside the hotel for days? you don't have probable cause unless you know there are people who are in the room for a short time who haven't registered. >> right. that's exactly right. warrants are for probable cause. that's why berger and biswell said no, you don't need to get a warrant when you're doing an administrative inspection. >> if you prevail in this case and a member of the court sits down to write the opinion, does he or she have to use the phrase reasonable expectation of privacy and say there is no reasonable expectation of privacy in our society in our

culture or do we just forget our phrase? in a way we know it's circular. if there's a reasonable expectation then there is. >> the answer depends on which fourth amendment rubric one uses. under the berger line the court looks at the statute. was it necessary? is it a legitimate non-law enforcement purpose? >> another way of talking about reasonable expectation of privacy. talk about that in the katz case, the telephone booth case. >> i don't know -- >> but i'm not sure. is that still a phrase that's necessary and required for us to address? an opinion like this? >> if the court adopts the berger rubric, what the court was doing in berger was saying because this is so heavily regulated in the context of this case, because everyone knows that these registers have been reviewed by the police for 15 years no, one goes into the hotel business unaware that

their registers will be -- >> which expectation of privacy are we talk about? we're talk only about hotel guests, right? >> no, your honor. the plaintiffs have taken the position that this is not about the expectation of privacy of the guests. >> yes. that's what i thought. of the hotel. you can't see my register. >> even though i have entered a business that for 115 years has revealed these registered and for 100 of those years actually revealed the registers to the guests. >> mr. rosenkrantz, suppose there's a statute that says that the tax authority, the irs or the equivalent on the state level, that the taxing authority can go into businesses at any time and check payroll records and the reason is they need to conduct these surprise searches because there's a serious problem with businesses joining up false payroll records. is that constitutional? >> i would think not, your honor. at least not without more information. the difference is there isn't

this long history of the government reviewing payroll records. and secondly -- at least it's a closer question. and secondly, payroll records are not the sorts of things about which you need spot inspections. >> if you wait until they submit everything at the end of the year they'll falsify a lot of records and we need to see what's happening on the ground in really time. >> i believe payroll is false or it's not. you don't need real-time verification to figure out -- >> no, you do because you don't want to give them the time to falsify things till the end of the year. we could have 1,000 examples like this. >> and my answer is still the same. it doesn't have the same real-time need to verify against facts that are -- >> checking to see if people are actually registered. you don't know that until you

see a person looking. you say let me see your recordkeeping for your employees. that's a real-time need. >> but either the ultimate record that is submitted is false or it's not. you don't have the real-time ability to verify whether those records are correct. >> you just keep a registry -- you falsify the register the way you're saying these people would. my problem with the closely regulated is i don't see one regulation that's not applicable to virtually every public accommodation entity. whether it's a telephone company or a day school or a hospital. virtually all of these requirements that you list are part of the normal state regulation of entities that serve people. is it your position now that once we say this is closely regulated that everything is?

>> no, your honor. >> that serves the public in some way? >> no. i'm eating into my rebuttal time. so if i may answer quickly. no. first of all, the closely regulated exception is way more than just closely regulated. there are three other elements to it. you need to demonstrate the necessity. you need to demonstrate it's not a criminal justice purpose. and you need to demonstrate there's an adequate substitute for a warrant. so if there are no further questions i'd like to reserve the remainder of my time for rebuttal. >> thank you, counsel. mr. dreaben. >> this court may resolve this case on a much narrower basis than it has look at ein spex schemes such as the one in barlow's. the 9th circuit itself realized this case did not involve entry into the non-public working

places of a business. it did not involve entry into a residential property. it involved an entry only into the public lobby area of a moat sxl a brief inspection of the registry of the motel. >> that's significant. it could very well involve an entry into a drawer. we wouldn't normally say because you can -- our rule is not simply because you can get into a house, for example, that you're free to rummage through desks. >> that's certainly right. but what this statute requires is that the registry be produced for inspection. and the way in which the officer gets to the registry is to walk into the lobby. >> i'm sorry. you're saying it a police officer stands outside a house and says bring me whatever it is i want from inside and he brings it out that's not a violation of the fourth amendment? because he under compulsion tells the person you have to bring me what's inside because i can't enter under the fourth amendment. >> justice sotomayor, it would

be a search and the reasonableness of it would depend on the facts. my point here is we're dealing here with businesses which have reduced expectations of privacy and we are not dealing with entry into the non-public areas of the businesses which is what marshalls was concerned with colonnade, bizwell, berger, all those cases. the ninth circuit itself did not apply the rules that governor those situations where the court has said sometimes an administrative warrant is required and sometimes it is not. >> were there any substantial instances where the application of this statute would be constitutional? >> i think there were, justice alito. if there were ex-gent circumstances that would justify access to the registry. and most importantly -- >> but then you don't need the statute. >> statute helps because it informs the --

>> there are ex-ijent circumstances. >> the statute provides encurrent kurnlth for a potentially recalcitrant hotel owner to produce it because it's offense for him not to. but the challenge issue, there's no record in this case about what kind of privacy expectations actually exist with respect to hotel registries. it's largely a matter of conjecture, speculation, and everybody's intuition -- >> i don't see why we've ever required more. all we've required is a person to say this is my business record. and why do they have to prove more? what are they supposed to prove that they don't show it to anyone else? >> i think they should show there's a certain degree of confidentiality associated with it -- >> well, there is today when the federal law requires that you not disclose credit card information and driver's license information and these registries

contain that information so you can't have it both ways. the registry's bylaw are required to have the driver's license information taken for people who are paying cash. >> that's right. >> and requires the credit card information of people who are otherwise registering. >> the registry doesn't have to have the credit card information unless they're checking in at a kiosk. this brings up an important point. what the 9th circuit did was facially demonstrate the statute. regardless of any facts it can't be enforced against anyone. >> i assume if the problem is license plates and credit card information and all of that it's not up to the hotel to complain about that invasion of privacy, it's up to the guests, right? >> i would agree with that. >> and this case does not involve the guests. >> it's just the hotel. it's a range of situations in which different information is maintained in different ways. treating it as a facial challenge is problematic. but if you reach the merits what the 9th circuit itself did is

conclude that this case doesn't trigger the very strong safeguards that are triggered when there is an invasion of a non-public space of a business. they treat it as if it's an administrative subpoena case which does have fourth amendment requirements associated with it but those requirements are that the subpoena be relevant that it be reasonable in scope, and that it be specific. and the ninth circuit conceded that all three of those requirements are satisfied. section 4149 by itself establishes the relevance of the information for the administrative purpose that the statute serves. it is specific and it is narrow in scope. and anybody that goes into the hotel industry knows that that is an inspection that they are inspected to. >> is it marshall and barlow -- >> the distinction is that involved entry into non-public areas of a business which exposes a much wider range of

information to the inspection of the authorities. marshall covered every industry in interstate conference and it allowed osha inspections without any limitation. >> i don't understand mr. draeben. you're saying it makes a difference constitutionally whether you keep the registry at the front desk or in the back office. >> what i'm saying, justice taken, is that the 9th circuit analyzed it precisely that way. you can walk into the lobby of a hotel. the court said in the lone steer case. you're not violating any ppgs expectation of privacy. all you do is ask the hotel people, the front desk clerk to show you the register, which can be done as -- simply by moving the computer screen so the officer can see it. and that is the most minimal intrusion on privacy interests if they exist. >> well if i were running a hotel i think i might have preferred to have two uniformed detectives in the back room so the guests don't see it. i think it's quite intrusive. >> 9th circuit treat td it as a lesser degree of intrusion than

inspection of all of the private areas of the business. that's why it applied the subpoena line of cases. but once you apply the subpoena line of cases you realize that the statute itself serves the purposes that that line of cases is supposed to serve. the judicial review would be very difficult to accomplish in this case because the whole purpose of this administrative scheme is we regulate prostitutes, we regulate narcotics activity through the criminal law. the place where they are frequently conducting it with low budget motels that have a strong incentive to take care, not fill out a registry and allow this criminal activity to flourish. the regulatory purpose of 4149 is to target not the criminals but the place they conduct their activity and do it in a administrative way. this is lawful activity. you can rent a room. you just have to not rent it to people for cash for short terms for no reservations when they don't have an identification to

know who they are and not keep a record of what you're doing. >> let me give a hypo, which is say that it's not a hotel but it's a hunting lodge and there are recordkeeping requirements about how much people shoot and when they shoot them and so forth and so on. the fish and wildlife service or some state equivalent of that says we do not want to rely on people reporting this to us at periodic points we just want to make spot inspections, surprise inspections all the time. would that be all right? >> it seems like a much more difficult case to me justice kagan. >> a public hunting lodge? >> a private hunting lodge. >> it's a big difference isn't it? >> i would have to defer to members of the court on hunting lodges. but i think the interest that's being served there is far yeah, than the interest being served here, which is a genuine problem reflected in the fact that there are 100 statutes like this across the country in

different -- >> that's how you're going to distinguish, it just because it's more important? because the fish and wildlife people think it's really awfully important to make sure that all these rules are complied with. >> i agree with that, justice kagan but i think this court in its classic fourth amendment analysis balances the public interest to be served against the nature of the intrusion. i don't know enough about the hunting lodges you have in mind to really gauge the nature of the intrusion. i will say this, that a mere requirement that you expose books and records you're required to keep as a regulatory matter and no one disputes you're required to keep to a law enforcement officer in a public area of your facility, that's this case. >> there's no dispute here that you can require the hotel to keep the records. >> that is correct. the hotels are not challenge that. >> i think there would be a big dispute with regard to private hunting lodges. >> and there would be second amendment concerns that the court would weigh in the

balance. i think the court can resolve this case in an extremely narrow fashion. >> i think it's even more dangerous. look at almost how many businesses businesses, retail businesses transact their recordkeeping in public areas. talk about any shop in the country. they don't go to the back virtually, any of them, and transact their businesses, keep their credit card information. they put it right on the computer in front of them. so i mean -- merely intruding on someone's private information in a public place eliminates the fourth amendment. >> can i answer? i think you asked three questions, justice sotomayor. first the substantiality of the government interest. second the nature of intrusion on privacy. and third necessity. there's a strong need in the case of these hotels where prostitution and narcotics activity flourish because

criminals do not want to identify themselves when they check in to have regular unannounced inspections to give the hotels the incentive to comply with the registration law. >> thank you counsel. mr. goldstein? >> may it please the court. we ask the court to hold the city does not need a judge to get i warrant but simply it issues a one-page subpoena. we can object to that subpoena but it's going to be enforced unless the city isn't actually implementing a legitimate administrative scheme because they're searching us to harass us or to investigate a crime. >> is it your position that there is no instance in which this statute and the implementation of it would be constitutional? >> it is because the hypothesis you would use it for ex-gent circumstances or when you're waived the right to privacy by putting it on the desk don't violate the enforcementment of

the statute. what's necessary here the value in the fourth amendment is the requirement there be a regularized scheme. it's going to be a regularized scheme that either appears in the administrative rule itself that doesn't exist here. there's no limit on when they can search, how often they can search, or the reason they can search. and if there isn't that then we put a court into the process. we make preenforcement judicial review available. and the reason is the fourth amendment protects our sense of tranquility. the hotel owners individuals, and other contexts need to know that beat officers aren't going to at their whim conduct these searches. >> suppose a city or a state wanted to establish an administrative inspection regime along the lines of barlow's. what would it -- what would it have to include in your judgment? could the warrant be issued by an administrative law judge as opposed to a superior court judge in cal?

would it require probably cause? could it be done without prior notice? >> yes. >> could you have different standards for different types of hotels? inspections for all hotels but much more frequent inspections for hotels that rent by the hour hotels that have a large number of guests who pay in cash and so forth. >> yes. >> all those things could be done. if that's okay it's really not clear to me what that would add to the ordinance. >> that was and justice kennedy asked how barlbarlow's plays out in this context. mr. dreaben is right the court said fur not physically inspecting the premises then you don't have to ahead of time get a warrant and justice scalia, it's not a proable cause criminal warrant. all the court has required in this live cases is the government showed it's part of an administrative scheme. but the second part is what's missing and the key case is

mentioned in passing by mr. dreaben. it hasn't gotten enough attention in the case. it's called donovan versus lone steer. and it was decided in an opinion by then justice rehnquist a unanimous opinion and it considers a circumstance very similar to this, and that is under the fair labor standards act the government can do just what it does here, and that is it demands employment records. and the reason this court said that that comports with the fourth amendment is there's a balance. and that is that the government has to issue a subpoena to which the employer can object and that accomplishes to-two thingswo things. the first is without burdening government is interjects the judicial review. that way you know the -- >> the nature of the objection. going back to mr. rosenkrantz's answer to my question. he said there is no notion of probable cause, reasonable cause. the hotel owner is required to beat these records and that's not disputed. they're required to keep them.

and the police don't have to have any reason. that would be simone by that kind of hearing? >> this court's consistent line of precedence, there are six case that's have dealt with this subpoena rule, have said the following. that is the concern when you have a scheme like this one that doesn't tell the officer how often or when to search is that the officer will do two things that are forbidden by the fourth amendment. one is they'll do it in a harassing way. and the second is they'll use it for crowd control. the latter is a real concern here. the city is saying it wants to look at the record to for example find prostitutes or the johns who are involved in renting the rooms. so that's why what you do is let the police issue the subpoena. they don't go to the judge ahead of time. but the prospect that there can be an objection and that you can go to a judge is what protects the sense of tranquility of the business owner. >> what's the purpose -- you

agree it's constitutional to require the register. >> absolutely. >> why is the state interested in requiring the register if they can't go look at it with little notice? what's the point? >> well, justice kennedy, the fact it its only interest is in law enforcement is i think a point in our favor. but just recognizing what mr. rosenkrantz is recognizing as the scenario that gave your question as to room 120 it2, his point is as follows. an officer shows up at a hotel and sees the light on in room 1202. what he wants to do is go and look right then is there a registration card for 1202. he doesn't know that anything inappropriate is going on in room 1202. but it doesn't matter. what the officer does is makes a record. there was someone in room 2 june 1st at 12 a.m. and he comes back two days later and serves a subpoena. there's no reason in the world that doesn't give any advanced notice to the motel owner.

if he has a particular concern he can sequester the records so they can have them held separately if there's going to be an objection which is extremely rare. there's no reason -- his concern is about contemporaneous observation. that's not the issue in the case. he can sit outside and look outside the room. the issue in the case is do you have to go in and have no opportunity for a judge to be involved before you search the record? >> seeing the light on doesn't improve anything unless you know that the hotel has not registered the person who is in the room. >> remember, our objection is not to them being able to either require the register or inspect the register. neither one of those is at issue. the question is can they do that without giving us any opportunity to say to a judge what's actually going on in here is law enforcement or harassment? they're come in five times during the day. in that system, which they issue the subpoena they give me a subpoena, right?

and they say we want the records. and if there's an objection, the officer has made the observation about room 2 and they can go ahead, telephonic warntsze icic warrants are easy but there's no reason the subpoena objection can't be heard by a judge later on. he's already observed and made a note about what's going on in the hotel. >> they could fill in while he's running off getting a subpoena. they fill in. >> justice scalia, he's not running off anywhere. the subpoena is simply handed at the desk. this is a administrative one-piece page of paper. but let me just say -- >> no, no. >> sorry. >> i don't understand. he has it in his poblth? >> . >> yes. >> all you're asking for in this litigation is just the one that wants into spectacular it just pulgz out a piece of paper and hands it to them and that makes it okay? >> there's two parts to it justice scalia. that's how a subpoena works. the reason this court has required that as a bare minimum except in the very limited berger context is that when you hand the subpoena, the person who receives the subpoena says

this is an unusual case, i'm going to go to the trouble of objecting, i think i can tell a judge and prove to a judge that this is law enforcement in disguise. >> he could show the same thing without the subpoena. >> yes. but that's our critical point-s this guarantees him the right to say that to a judge. >> it allows him the opportunity while the policeman is getting his subpoena to fill in the name of the person in what is otherwise a blank space. >> mr. chief justice, he's not going to get a subpoena. subpoenas don't work that way. subpoenas are -- >> i thought you said if he serves a subpoena the other person can demand preenforcement judicial review. >> yes. >> so the police officer has to go somewhere to get judicial review with whoever the hotel owner sends. >> it might not work that way and that is the hotel owner may have to file a motion to quash. it's not particularly important to your hypothetical. mr. chief justice here's the problem -- >> it is important because we're trying to figure out how this

works. the policeman goes with the subpoena. the hotel owner says i object. >> yes. >> now what happens? >> he files -- >> how long does it take? >> it doesn't take any amount of time, which is why the court has consistently required it. he says i'm not going to give you the records i'm going to file a motion to quash. if the police want to enforce it right away they can go to an administrative judge and -- >> they go somewhere. >> yes. >> during that time doesn't the hotel clerk take his pen and say didn't register this guy in room 2, i'm going to get in trouble? then he fills in whatever's left to be filled in. >> no. for the reason given by justice caig sxn that is you can sequester the records. and the question is searching the records. that is, we're talking about a set of cards. if this is a real concern -- i will say it is a concern made up by the city's lawyers in this court when at trial they did not introduce any evidence of this and it would be equally applicable in every kind of required record. the same is true in a construction site or -- >> in a standard subpoena you say i'm going to take these

records and keep them in the police car trunk until we resolve this? >> yes. you can do that. >> there's authority for that? >> i'm sorry? >> there's authority? >> oh sure. it's very similar to what this court has said in the fourth amendment context. remember, when the police show up at someone's house and they're concerned about the destruction of evidence inside what they do -- >> it seems to me that's much more intrusive than this you're objecting to. >> justice kennedy, i don't think the government can have it both ways. these are our private records and they want to do something unusual that the fourth amendment forbids. they want to have a scheme that says when they'll search, how often they'll search -- >> they're not private records. they're records required by law to be kept. and you are not objecting to that at all. >> well justice scalia, that's absolutely right. the other side makes a good point. and that is these are business records that receive reduced fourth amendment protection. so did the unanimous court in lone steer. what it said is that's the

reason we don't have a probable cause requirement here. that's why we require the minimal amount of judicial process, which is the prospect that if the owner has a good objection they can go to a judge. that's why we don't have the fourth amendment's full protections. but remember -- >> i thought they can be sequester sequestered. >> now you're saying if the hotel owner says you can't have these, the police can say give me the books and take them away. >> they can not inspect them. just hold them aside. if this is a real problem which there's no evidence, but if they hold them aside that can be sequestered. >> that is a seizure. >> why is that justified in looking at the information -- >> this court has held that in the identical circumstance when the government is concerned about the destruction of

evidence before it can acquire a warrant it can sequester the property. that is, it can seize control of the property without searching. >> that's if it has probable cause. >> your honor, it has the relevant level of that's required in the particular context. >> the city could have a regime under which an administrative law judge issues a warrant not a subpoena for a periodic inspection. the officer would have the warrant go to the hotel here's your periodic inspection. it would be no prejudicial review. it could be a challenge to it later. >> no, your honor. what this court has said in cases like kamara and see and it's the distinction drawn in lone star and barlow's is that when you get the preenforcement judicial review that is the judicial involvement that's

required. the difference between your hypothetical and this one is that a judge is involved and ensures it's for the orderly operation of the administrative scheme whereas what the city wants is for a beat cop to be able to go in anytime as often as he wants. >> the surprise i have at some of your answers may indicate that this is not a basis for a -- not a case for a facial attack. it seems to me we have to go back sxand decide these issues on a case-by-case basis. >> justice kennedy, i'll give you my responses to that obviously. the court nall of the colonnade cases and kumara cases has dealt with things on a categorical basis it ha never dealt with them on a case by case basis because it has looked at the structure of the scheme. which this is a scheme -- they don't need any justification to come in we know what they can seize. it's limited. it's a particular record. but they can do it anytime. and in that kind of scheme what the court has consistently insisted on. and i hope the court will take a

look at lone star is there will be a minimum of subpoena process. i just described -- >> i'm sorry. i thought the stronger answer would be we've always looked at a lack of procedural protection under a facial challenge. >> cibron says exactly -- >> exactly. so anytime the challenge is to the lack of process we've looked at it fishelly or as applied, whatever, but it doesn't need to be as applied. >> let me just add one other point, not only is it as applied challenge. there was a trial on the as applied challenge. and the record on the as applied challenge is the record in this case. we pursued our facial challenge only before the second trial they stipulated they had only facial defenses of the statute. that's the reason we have this oddity that we're here on a facial challenge. the evidence has already been collected. there's nothing to be gained by having a second trial.

>> you've constantly said one of the objections that the hotel owner can make is you want these records for the enforcement of the criminal law right? you say that's bad. >> but the whole purpose of this thing is tone able the criminal law to be enforced isn't it? >> there are two different points to be made here. one is you're quite right they have an administrative scheme. the point of the administrative scheme is to judge her criminal violations. imagine on tuesday a police officer comes in and says look i think there's a prostitute in room 3. okay? what i'm going to do is invoke this 4149 and see if that person's name matches up as a prostitute. that's criminal law enforcement. it requires probable cause. the fact they have an administrative scheme doesn't mean they can investigate crimes through using this evidence. this court has said time and time again in its administrative decision that's it's really

important it involve the courts because there's this concern. this case presents it more starkly than any other. that you will misuse the administrative process -- >> i think there may be an exception to that principle where the whole purpose of the scheme is to enable the detection of criminal activity. and then the objection would be the whole scheme is bad, you cannot require them to keep books because its whole purpose is to detect criminal activity. but that's not what you're arguing. they can keep the books in order to detect criminal activity. but if they request the book in order to detect criminal activity it's bad. that doesn't make any sense at all. >> because it's not the argument. and that is -- >> well, what is the argument? >> the argument is their defense of the statute is not that the records are used to detect crime. it's they're used to deter crime. they don't look at the records to define criminals. all they do is look at the records to make sure they're keeping records. my point is one day a police officer under this -- it can happen regularly, a beat officer will come in and say i'm not

concerned about whether you filled out the form. i think there might be a prostitute in room 3 and use it for -- >> mr. goldstein, i thought an equally important purpose behind these laws is is to as you said earlier prevent harassment, prevent -- >> yes. >> i don't like this hotel owner, i want to drive this hotel out of business. i'm going to be showing up in his lobby every day. that that's part of what's going on here. isn't that -- >> the principal thing that this court's precedents have pointed to -- and just look at what's you missing in this ordinance. every time the other side will say to you we identified specifically the records. but the question isn't what the records are. it's the loss of the sense of tranquility provided by the fourth amendment, that we don't know how frequently and for what harassing purpose and for what reasons at all that a police officer's going to come in over and over again. >> have we used that phrase before? >> which one your honor? >> tranquility. >> i don't think that word -- >> you talk about privacy but i'm not sure the fourth

amendment should be expanded to protect the sense of tranquility. >> i have a problem imagining tranquil hotel owners. >> i'm just trying -- >> i associate with owning a hotel. >> it is the sense of certainty that the fourth amendment provides that what you do know is there are going to be limits on when the police come in and say show us your papers. >> i think there's some rule at least they do it they have these notices posted all over about where the first emergency exit is. could the police come in and make sure the hotel has those posted without any type of a warrant? >> because they're in public spaces. >> is the back of a hotel room door, is that i aprivate place? >> say for example in the back of the restaurant, in the back of the kitchen -- >> no, no. i'm talking about every hotel room is -- >> oh, inside the room. >> and they go say look this is a very important thing and make sure people don't die in a big fire, we want to make sure we've

got them. let me go look in room 12. >> it's a great example for us. that's a kumara nc. that's a fire inspection regime. what has to happen is there has to be a procedure ahead of time. the lowest standard the case has ever applied is in a case called dewey. what dewey said is at the very least if you're not going to involve a court you have to have a set of rules about when these searches are going to be conducted and how often. >> i don't quite understand your answer about harassment. maybe it's because this is in the record or maybe it's because this wasn't as applied. but the police even if this ordinance were invalidated the police could show up whenever they wanted couldn't they? and ask for the owner or the person at the desk voluntarily to disclose the register. so they could be in the lobby as much as they want. so exactly what does -- how does this aid in the harassment of hotels? >> because of the fact they're requiring us to produce private records. it was always the case in case

like barlow, kumara see, that police couldn't inspect the premise buzz they could show up and harass. everyone agrees now this is a fourth amendment search. >> but it's a public space. i don't know if it's dispositive but it's of some relevance. two scenarios. one with the ordinance, one without. without the ordinance they walk in and said would you in the kindness of your heart let us look at the register and the owner says no, i don't want to. and then they come back the next day and do the same thing. that's the first scenario. the second one is they come in and say let us see the register. you show them the register and what? it's a harassment because they sit there for a while and the guests coming in see the police in the lobby. i just don't understand. >> it's the fact that day after day after day we have to give them our private information. pl involve the problem that it can harass and be intended to put them out of business. let's imagine the following scenario. we are put in this position because they've come up with

this hypotheticals about when it could be valid. each time they see someone come into the motel they say hey, i'm the police let us see the records. >> it really can interfere -- >> if you had a case-specific example that might be one thing. but maybe it will help if you can tell me what goes on in this precompliance judicial review. the hotel owner says sorry you can't look at the registry. i want precompliance judicial review. what is the nature of that review? >> this court has considered that question in the fair labor standards act, context of the tax, and banking context. california bankers donovan and lone star. what it has said is that the administrative agent with the police officer, whoever enforces the law, don't have to go to a

judge, gives a one-page subpoena. then there's an objection by the business owner. remember in banking these are documents the government requires you to produce. then what happens is what generally will be the rule. it's up to the city. the city will put the onus on us to go to a judge. the fact the own sus on us to go to a judge and the fact our objections are very limited which is to say we don't get to object this is harassing or for law enforcement means we almost always give over the records because it's going to be a completely futile objection but it is the prospect we can go to a judge that tells the beat cop that he needs to behave. >> and those are the only objections that would be successful harassment and using this for law enforcement? >> yes. that's detailed in this court's precedence, including barlow's. that's the rule of kumara and see. >> how many of these court precedents involve a business that has been treated like a public utility? i mean there are requirements for hotels how big the room has to be, how many people you can

put in the room. even ifn many locations how much you can charge for the rooms. the hotel owner is not like a private business. he is a regulate edd provider of public services that has traditionally been regulated closely over the years. >> the first question you asked is how many times have you been asked that question. the answer is none. the second answer to your question is but in the relevant sense which is to say how much of this property is protected and private is that overwhelmingly hotels have constitutional protections. remember, 95% of this hotel is going to be the guests' rooms. and unlike in cases like berger remember they go out and search the junk yard. unlike commonwealth and biswell where you inspect the open doors or go behind the scenes here the police can't do it. the fourth amendment everyone agrees protects privacy at the hotel. so there's a much greater expectation of privacy on our part. >> but i think the question that justice scalia is asking is is

there a reason to think that hotels are a more heavily regulated industry than all the other industries we can think of? >> no. just think about it, california bankers and miller are cases involving banking. banking is incredibli heavily regulated. you have to have a charter. the government requires to you keep all sorts of records. those are the bank customer's records. they're about the bank customer's transaction. and what this court said in both of those casesize with rare exception title one of the bank secrecy act is constitutional because it requires a subpoena. that is, there's the prospect of getting a judge involved. if the bank secret environment, the investigation is too onerous. >> but inn keepers have been regulated not for decades but they've been regulated for centuries. and they have duties to the public that are enforceable. i'm just puzzled by this. you can see the records have to

be kept. >> that we disagree with justice kennedy. we've kept these records and inn keepers have these rep recordscords from time immemorial. we use this information to keep in touch with our customers. every business does. it's quite proprietary information. and while it's the case that -- >> motel 6 does this? geez, i've never received anything from them. [ laughter ] my goodness. >> you may not be in their frequent guest program. but nobody doubts. remember, this is an ordinance that applies to the four seasons and the ritz carlton and everything else. they've carved out a very specific subset. let's not lose sight of the fact these records can show very personal information, not just the driver's license information but whether you stayed at a hotel during a religious or a

political convention -- >> you're not complaining about the privacy interests of the guests. that's not your complaint. >> justice scalia here's the point. they agree this is a fourth amendment search. point one. then what you are doing is you have to make an honest assess assessment of whether this information really does further the fourth amendment value of privacy. and it does. because this has private stuff in it. there's just no real dispute about that. and i'm sympathetic, justice kennedy, to the fact inn keepers have been regulated for a long time. i will simply say that in 99.4% of the jurisdictions in this quourntd this is not the rule. there are 100 but there are 18,000 other jurisdictions where this has never been the rule. and the nature of that regulation is not one that in the berger sense impinges on our sense of privacy. we have to take guests but what does that tell us about whether our records are private. and certainly we can identify a huge array of other businesses that are regulated. in 2002 the department of

justice did a study and it found that 335 different provisions of federal law is the system that i just described for you. the subpoena first in order to get the records. there's a bare handful of them none of them involving just bare records with the possible exception of the occ that use this exception that says you never have to get a judge involved. >> 99.4% jurisdictions. are you comparing a little hamlet in los angeles or new york? does new york city have something like this? >> i don't know the answer to the question of that particular city. but your honor they're including big and small, and so am i. so there are a lot of big cities that don't have this rule. my point is this -- >> but you're saying the hotel has a private interest because it wants to hold on toyotas customers. but they can do that by keeping their own record consensually. you have conceded that they can require the information as a matter of law. >> that's because your precedence say they can, your honor. and my point is this your

honor. because your precedence -- >> that means it's true. >> i enhance my answer yes. but my point is this. because they can do it here, justice kennedy, they can do it everywhere. the government can require any business to keep track of there's a final point i'll make is that don't be confused with the idea there's something special about hotels. the amount of government regulation here is massive. the reason that the deputy solicitor general is here on behalf of the united states is there are hundreds and hundreds and hundreds of regulatory schemes the federal government administers where it is now required to use a subpoena. but what self-respecting regulator -- >> a subpoena is worthless when what is sought is something that can be easily destroyed hidden or falsified. it's very useful if you're trying to get complicated records that can't be easily altered between when the time the subpoena is issued and the

time when the subpoena is enforced. nobody issues a subpoena for the murder weapon, you know, that you suspect is in somebody's house. this if these record are more like the murder wem upon or something that can be easily falsified, you seem to concede when you say the police can seize them them the subpoena is worthless. >> lone steer says is opposite with all respect and that is the records there are how many hours did someone work, at what amount of pay. if you can't falsify that just as quickly as you can falsify who's in room two, i don't understand the nature of recordkeeping. the court has insisted on this as a bare constitutional minimum both to keep the enforcement officer in line and to let us know the enforcement officer is kept in line. it has been attentive to the fact we don't want to put undue burdens on the government and that is it's just a subpoena and we have the fourth amendment -- >> you think payroll records in general are no more complicated than the ledger at a motel that runs by the hour? >> in the relevant respect

justice alito, if the question was did the person work 50 hours or 55 and the record says 50, and i i want to fill in 35 yes. the court didn't even think that that was a remotely plausible argument in the line of cases i'm describing. >> thank you, counselor. four minutes, mr. rosencrantz. >> thank you. let me start with the fascia point then circle back to the merits. to hear mr. goldstein describing the rule the only objections that are going to be raised are harassment and whether this is for a legitimate purpose. but if that's the concern, that's a classic as-applied challenge. if a hotel has a cop coming up to them five times a day, they come in and say this is really harassment, these searches are inappropriate. and if it's the purpose of the officer

officer, he's doing criminal investigation rather than compare caring about whether my records are complete that is an as-applied challenge. the plaintiffs have not tried to demonstrate this ordinance is unconstitutional in every circumstance. on pages 19 to 20 of our brief we develop numerous snare yoes and mr. goldstein mentioned only one of them. so, for example, where the hotels require's required to upload the records to the police department every day, it may not even be a search but it's certainly less intrusive. >> that's not the statute. i didn't understand those examples because some of those examples, the police could act without this -- without this warrant. >> not that one, justice kennedy. in some of them the ordinance has the purpose of requiring someone to do something that they would not otherwise are to submit to. but the one that i just gave as an example the scenario of

uploading the documents rather than the police conducting a search on the spot, is less intrusive. and the problem here is that the plaintiffs have tried to invalidate every possible application of this ordinance but they haven't done the intrusiveness, privacy government interest balance one needs to do for each of them. let me then circle to the merits because -- >> i'm still very confused about this. there is always a potential exception to a warrant. eve an fourth amendment warrant going into a home. exigent circumstances there's someone sick on the other side, if there's a fleeing felon into the place. but that doesn't eliminate the need for a warrant. it's not a -- police can't just keep going in and fish around

for an excuse. that's a process issue. >> understood, your honor. >> they're entitled to a warrant. you're entitled to a subpoena. you're entitled -- that's what they're challenging, which is they're not challenging all of the other reasons why the police could go in legitimately. an exception to the fourth amendment. they're asking whether this kind of search generally without all of those other exigent circumstances or other fourth-amendment exceptions, is constitutional. >> right your honor. >> it's the process here right. >> understood. so let's not talk about the exceptions. let's talk about another example where the motel continues to keep the register in the open hike they did for 100 years then snatches it away when the police come. >> you know something, but that's a different issue. it's in the public. >> and for that reason they would have no expectation of privacy and the fourth amendment

calculus would be totally different. >> then it's not a search at all. and once again it's not this statute that's doing the work. >> well, no your honor. if they snatch it away it is certainly this ordinance that's doing the work. >> you're saying they have no expectation of privacy, we wouldn't say it's a search at all and the police can take it away. it doesn't depend on this statute. >> exactly. we would win the fourth amendment case, but that has been invalidated by deciding this on a facial basis. >> counselor, questions intruded on your rebuttal time. take an extra minute. >> thank you, your honor. let me just emphasize that this is a very narrow rule that we're talking about. we're talking about a rule that is unlikely to be repeated in so many of the other circumstances that have been discussed today. it's about an inspection of a single book that the information the government requires hotels to maintain and that mr. goldstein has admitted the

government can require hotels to maintain. it's in a context that is especially prone to criminality. the people are using these hotels precisely to commit crimes where the gaps are quite detectable in real time but not detectable otherwise in an industry where there's been hundreds of years of regulation including a history of warrantless searches that haveare even broader at the time of founding. the hotels were being searched at the time without warrant. and a history of a hundred years of police inspections in los angeles itself and a hundred years of these things being open to the public. if the court has no further questions, we request -- >> thank you, cowboys el. the case is submitted.unsel. the case is submitted. >> here are some of our featured programs for this weekend on the c-span networks. saturday 1:00 p.m. eastern c-span2's book-tv is live from

the university of arizona with a tucson festival of books featuring discussions on race and politics, the civil war, and by the nation magazine writers with call-ins throughout the day with authors. and sunday at 1:00 we continue our live coverage of the festival with panels on the obama administration, the future of politics, and the issue of concussions and football. and saturday morning at 9:00 eastern, on american history tv on c-span3, we're live from longwood university in farmville, virginia for the 16th annual civil war seminar with historians and authors talking about the closing weeks of the civil war in 1865. and sunday morning at 9:00, we continue our life coverage of the seminar with remarks on the surrender of the confederacy and the immigration of confederates to brazil. find our complete television schedule at c-span.org and let us know what you think about the programs you're watching. call us at 202-626-3400 e-mail us at comments@c-span.org or send us a tweet at

c-span #comments. join the c-span conversation like us on facebook follow us on twitter. this sunday on "q&a," director of the georgetown university medical center watch dog project farmed out on how pharmaceutical companies lobby congress and influence doctors on what medications to prescribe. >> the promotion of a drug actually starts seven to ten years before a drug comes on the market. and while it's illegal for a company to market a drug before it's been approved by the fda it's not illegal to market a disease. so drug companies have sometimes invented diseases or exaggerated the importance of certain conditions or exaggerated the importance of a particular mechanism of a drug, for example, and then blanketed medical journals and medical meetings and other venues with these messages that are meant to

prepare the minds of clinicians to accept a particular drug and also to prepare the minds of consumers to accept a particular condition. >> sunday night at 8:00 eastern and pacific on c-span's "q&a." coming up tonight on c-span3, british foreign secretary phillip hammond testifies about uk foreign policy. then a look ahead to uk elections during question time in the british house of commons. that's followed by a discussion on faith and politics. and later, international ceos on emerging markets. british foreign secretary phillip hammond discussed a range of foreign policy issues at a parliamentary hearing tuesday in london. he talked about the role the uk would play in the ukraine/russia conflict, the impact of israeli prime minister netanyahu's visit to the u.s., and the progress of

iran nuclear negotiations. this is an hour and 20 minutes. order. welcome the public to this foreign affairs committee and what i strongly suspect will be the last opportunity to question the former secretary and his team on world events. foreign secretary welcome. good to see you here today. >> thank you. >> foreign secretary, this committee published a report a couple weeks ago on the finance performance and administration of the foreign office. we rather felt the foreign office was at a bit of a crossroads. in our judgment, it had done a

good job over the last five years but it is spread rather thinly. the choice now is whether or not we maintain that spread or deepen it which requires extra resources, or we narrow the band width of the foreign office and tailor our aspirations accordingly. which direction do you think we ought to be going? >> it is certainly the key decision, threat versus debt and this is not a new discussion in the foreign office. i asked the league nonexecutive to conduct a review of the network shift policy that was introduced and changing the allocation of resources and opening some new posts. and i, in the course of doing that piece of work, i discovered that actually this debate has been going on in the foreign office not just during the course of this parliament but for many years about the tension

between breadth coverage and depth intensity of resources. clearly -- and by the way, that review suggested that the network shift decisions that have been taken had been broadly the right decisions and it had broadly satisfactory outcomes. i think when we know what our resource envelope for the next parliament is after the next spending review i think this is a discussion that the foreign office needs to hold once again. between breadth of coverage footprint and depth of coverage and also around the balance between the resource that's devoted to the core bilateral and multilateral relationships and what i call the thematic resource that is focused around

the, if you like, diplomatic themes within the foreign office in london. when i came to this debate, it started with a slight prejudice that perhaps we were thinning ourselves too thinly and we needed to put a little more depth in some places. i think the evidence suggests that actually we've been quite successful in most places managing to maintain a high proportion of output even where we have taken out resources in the interest of broadening the footprint. i think the jury is out. i think it's the right question to ask. i don't think from my perspective i've got a definitive answer yet. i don't know whether either of my colleagues has any more to add to that.

>> as you say, a lot will depend on the resources that we have to deploy in the next par element. i don't know if you can say more than that. >> clearly if there were a substantial reduction in resources i think the option of just thinning out the current footprint of overseas posts would be challenging. i think if we were talking about a substantial reduction in resources we would have to look to footprint. >> given the foreign offices had quite a pounding here in the last five years, i hope we won't come to a reduction in resources. have any preliminary conversations taken place with the treasury on any of these aspects? >> no. the discussion on the next spending review clearly will be a discussion for the next parliament and there's been no discussion about that as yet. >> if you had to pick a reform that you'd like to -- if you --

you know, commence in the foreign office, what's the area you'd most like to pick on? >> well, as i said and you'll appreciate that i've been there a relatively short time and we have had quite a lot of other things going on but if i were looking to start a big new piece of sort of inward facing work it would be around the balance between the resource that's invested in bilateral relationships and the resource that's invested in subject matter expertise. that sort of crosscutting versus vertical agendas. and i slightly have the perception that the department in the past has had too much of its resource in the crosscutting thematic areas. that balance has been redressed somewhat over the course of the last five years. but i'm not sure that we've got that exactly right yet. we may need to put more of our

resource into what i regard as the jewel in the crown which is the bilateral and multilateral relationships which the foreign office manages. >> as far as the present membership is concerned we'd probably agree with you. can i bring the subject to defense spending. you said on the andrew marl program on the weekend that you remain committed to the 2% figure. is that the government's position? >> well, as you know, what i said i think on the andrew marl show, to get him in the record, the prime minister led the charge at the nato summit in newport along with president obama urging our nato partners to sign up to the commitment, the target of 2% of gdp. we are one of the very few nato countries, certainly one of only two large nato countries that are currently spending 2% of our

gdp on defense. now, i can't second guess the outcome of either the strategic defense and security review or of the next spending review. but clearly we have -- we have signed up to that target at newport and not only passively signed up to it, we actively sought the adherence to the target of all our other nato partners. >> so it would be pretty inconsistent if a future government had a figure below 2%. >> well we're clearly committed to maintaining strong defense maintaining britain's armed forces, and as again i said on the andrew marl show on sunday during my nearly three years as defense secretary, the prime minister was absolutely consistent in making clear to me

that he had no appetite for any further cuts in the size of our regular armed forces. the cuts that we had to decide upon in 2010 because of the black hole in the defense budget that we inherited were extremely painful, and we've been very clear and consistently clear that he wasn't prepared to see any further cuts. >> thank you very much. >> thank you, mr. chairman, foreign secretary. i want to move you on to the ukraine crisis. general sir richard scherr reef command of europe on the record saying we're going to be absent in the -- why has not the uk been more

directly in negotiation with resoling that crisis? >> first of all, i don't accept the arguments that are being made. general sir richard scherr reef said several things starting the day he retired from office. i never heard him say anything in office. he's been quite vocal since he left office. i'm not sure he's approved to comment on this. this is a diplomatic discussion that's been going on. we agreed amongst ourselves last summer the best way of trying to explore the opportunities for a peaceful solution to the ukraine crisis was an approach thread by chancellor merkel simply because she is of all the european leaders the one who has the closest thing to a working relationship with vladimir putin.

the discussion took place at the normandy celebrations and for no other reason became known as the normandy event. we were not included. the americans were not included. our view always was that the russians wouldn't have agreed to have the conversation if we and all the americans had been included. and we think our german and french colleagues have done a good job in very difficult circumstances in trying to take forward a negotiated diplomatic solution. meanwhile, we have played a very significant role in, if you like playing the bad cop role. we've focused on stiffening the resolve of the european union on

sanctions, using the resources of our own intelligence agencies to identify targets for sanctions, and we've played a very large role in that process within the european union, using our diplomacy to encourage our partners in europe to maintain robust on sanctions and to make the argument for sanctions, and using our relationship with the united states to make sure that the european union and the u.s. sanctions regime remain well alone nape ear not exactly synchronized but they are wail lined and the u.s. is looking now, i believe at making some adjustments to their regime so that we are more clearly in lock step. and that requirement will continue making sure that while the minsk forces is taken forward and we all wish it well, the resolve of the eu to maintain the pressure on russia is strong and unbroken over the coming months. and that's the role we've

assigned to ourselves. >> and just on the good cop bad cop, did you as bad cop have any relevant conversations with both france and germany about the second minsk agreement before a deal was reached, or did you find out about the deal after it was agreed? >> well, we had continuous conversations with french and german colleagues including meetings, but i have regular telephone conversations with both my french and my german colleagues at official level, particularly political director level, in close and regular contacts, on this and a range of other issues. talking to them about the iran negotiations the minsk process, and many other -- you know, the isil challenges, many other things besides. so we have very close working relationships. i met all european union

colleagues in riga on friday and saturday then we had a quad meeting in paris on saturday afternoon, which we discussed again all of these issues. by the way, i was in kiev on thursday discussing with president poroshenko, and the prime minister, where we are at in the minsk process and how we can be helpful to ukraine in discharging its obligations over the next weeks and months. >> channels of communications were open all the way through. >> channels of communication were open at my level, at the prime minister's level and at the senior official levels. >> you mentioned the sanctions regime and our role in that. do you think you have enough support within the eu to secure an early extension of the existing tier three sanctions, and, b, commitment to immediate expansion if sanctions -- if violence reignites? >> on the latter point, i think there is a very clear acceptance across the european union

ranging from enthusiastic in the case of the hawks to reluctant but understanding in the case of the dots if there is a significant breach of cease-fire or major assault, for example the european union would have to respond and respond immediately with a significantly increased regime of sanctions. beyond that if we look at the scenario where the mincing process rumbles on more or less, albeit there have already been significant breaches of it from the russian separatist side, but if it more or less rambles on there is i think a broad acceptance that the logic of minsk is that the sanctions regime would need to be extended to the end of the year because it is only at the end of the year that we'll reach the point where russia has to comply with

the most onerous requirements on it, handing back to ukraine of control of the border between ukraine and russia. the timing of extension of the existing sanctions for that period is going to be a subject of discussion within the european union, and there is certainly some appetite for waiting to see what the level of compliance with the obligations the minsk agreement is. i'm sure it will be discussed a at the european conference march 19th and 20th opportunities then and at subsequent european councils. a decision doesn't need to be made on extension of sanctions until the end of june, early july. >> and you mentioned a moment ago the alignment between the united states and europe on the

existing sanctions. what discussions have you had with the government the united states, about coordinating a potential expansion of sanctions? you say if things ramble on. >> we have had such discussions. if we decide to extend -- to expand the range of sanctions, we would be -- the eu would expect to agree broad shape of the package with the united states. there might still for various specific reasons be differences at the margin between the two packages, but we would expect them to be broadly aligned. we would certainly expect to act in tandem to make maximum impact. >> my final question, on the supply of equipment the prime minister has said that the uk is not at the stage of supplying lethal equipment to the ukraine but did not rule it out completely. at what point would the uk consider supplying lethal equipment to the ukrainian

government, do you think? >> well, to answer your question precisely, i think we would consider it again but not necessarily do it if the circumstances on the ground materially changed, if we found the ukrainian army was crumbling crumbling, for example, or if we saw clear evidence that the ukrainian army was being -- was under sustained attack and was not holding the line because of inadequacy of equipment and weapons, then we would certainly want to consider again -- the prime minister has made clear we want to keep our options open here, but we don't believe there is a military solution to this conflict and we're very wary of giving the misimpression that we perhaps do think that if we were to focus on supplying lethal equipment to the ukrainians. but equally we can't afford to see the ukrainian armed forces crumble. >> mr. john stanley. >> foreign secretary committee

on arms export control, which, of course, the foreign affairs committee is part, in the latest information which you per sfrooef thereceived from the business secretary a couple months ago on the arms export high senses to russia in other words, the existing export licenses that were in place so, that there were actually a total of 248 export licenses to russia and the value of those, not only the standard individual licenses, doesn't include the open individual licenses, was 169 million pounds, why is the british government still in this situation with the russians engaging in sequential territorial annexation quite apart from the human rights dimension in russia, still carrying out a still very expansive arms export trade to

russia? >> i'm not sure that i'm going to be able to answer technically the question why those licenses still extend. they are of course to the extent that they relate to export of military or dual-use goods to military end users, they will be superseded by the sanctions, the arms embargo. so the answer to your question, but i don't have it written down here i'll have to write to the committee. the answer to your question may well be a technical one, that it isn't necessary to cancel the licenses because they've actually been superseded by the embargo. but if i may i'll -- unless miraculously the answer to that question should come to me during the course of this hearing, in which case i'll inform the committee. if not, i will write. >> all i can hold out to you is you say superseded by the embargo. this is information provided by the business secretary on 15th

of december last year, the 21st of january. so either you're saying that the business secretary's information is wildly out of date or possibly you're not fully informed as to the scale of extent licenses to russia. >> i'm simply making the point that it may be that the extant licenses simply sit there effectively extant, but ineffective because no goods can be exported due to the embargo, which, as it were a superior instrument to the licenses. but i believe that we may be able to find the answer to this question during the course of this hearing and i'll -- >> i'll wait for the answer. >> -- break in if i may. >> the extensive correspondence we've had on extant licenses they are lie senses which are still up and running and they do not include licenses which are either suspended or have been revoked. and that is --

>> i understand that. and i don't think it would be necessary -- i think it would be -- in fact i sam certain it would be the case that if you were an exporter of an item for which you held a relevant license, that that item was now subject to an embargo notwithstanding your license, you would not be able to export that item. >> i'll await your letter, foreign secretary. is it still the government's policy to stop exports of equipment to russia only that which might be used in ukraine? >> can you be more specific about equipment? do you mean military -- >> i mean the totality of arms export, previous statements made by ministers is that the arms block export to russia is in relation to dual-use goods which might be used in youk ukraine.

>> no. >> in order a very specific geographical limitation applying to that policy. >> the ban -- the eu embargo is a ban on the export of dual-use goods for military end users and for military end use in russia. >> thank you. >> can i turn now to the issue of exports to ukraine? >> mm-hmm. >> you said in answer to mr. harvey's previous question that the government policy is to export only nonlethal equipment. that being the case, when the government gave export license approval in december last year, recently to the 75 saxon armored personnel carriers was not the government fully aware that they were going to be armed once they

got to ukraine? >> no. we had no knowledge of the intention, which has been announced, but i understand not carried out, to fit light machine guns on these vehicles. but since we have become aware of that, we've reviewed the license in respect to these vehicles against the consolidated criteria and have concluded that there are no grounds to revoke the license on the basis of that information. >> foreign secretary you'll be aware that mr. alexander chech november nov, has quoted these saxons arrived without any armament. we will mount arms. we should provide cover for the national guard or other units to which they would be supplied. surely the british government was aware that that was the intention of the ukrainian defense ministry. >> no.

the government was not aware when the original license was granted. we're clearly aware now because the ukrainians have said publicly that they intend to mount weapons on these vehicles. but this would be no different from supplying land rovers and then discovering that they intended to mount machine guns on the roofs of the land rovers. the assessment was made that supplying the vehicles would not increase the offensive capacity of the ukrainian army nor would it alter the balance of military force in the conflict in eastern ukraine. that is the relevant criteria against which we have to judge this export. so the position is that the export of these vehicles without any weaponry on them is licensed and will be permitted to go ahead. >> but the crucial point, former secretary, in terms of the government's policy, mounting weapons on them turns them from being nonlethal to being lethal.

>> no. i think -- >> sorry. if i might just continue. is it not a matter of genuine concern to you and should it not be that the foreign office and the british government are clearly so ill informed about the intentions of the ukrainian government that they were apparently in december of last year apparently wholly oblivious as to what was the clear intention of the ukrainian government in respect to the saxons to turn them into lethal -- >> with respect, we only know it was the clear intention of the ukrainian government because they've now told us that it's their clear intention, and we are now apprised of all the facts. they didn't make this clear at the time when they originally contracted to make this purchase of vehicles. and the -- i don't need to tell you as chairman of the committee on arms exports that the point at which the assessment is made of the capability of the equipment is the point of

export. and we judge that the -- applying the consolidated criteria to this second basm of 55 vehicles does not change the decision, that they are still eligible for export licensing, none of the consolidated criteria is engaged on the basis that the vehicles carry no armaments. >> mr. gates. >> foreign secretary, just before your foreign affairs council meeting i was in riga as well at the parliamentary meeting. and we had a lot of discussion there about the concept of hybrid warfare. can i take you to your remarks yesterday where you said, "there is a hard red line protecting the baltic states"? and you also said, "any russian

incursion would entitle the baltic countries to seek to invoke article 5 of the washington treaty. and you were asked which is what are. and you said "and mr. putin knows that very well." can i put it to you that article 5 of the nato treaty is not necessarily clear in the sense that it refers to an armed attack against one or more of the allies? if you are damaging the electricity grid, if you are undermining the infrastructure of a country if you are using special forces in covert activities but not openly attacking, is it not hard to determine at which point there is an armed attack on a nato power? >> yes, it is.

and that's a subject of as you well know of a lot of discussion on both side of the atlantic about how hybrid attacks are to be treated and, indeed attributed because it isn't always that straightforward to be clear about the attribution of such attacks. and i think our position is that we are not clear that being completely unambiguous about this is necessarily helpful. a degree of ambiguity can be strategically advantageous. we're also clear as the committee will know, that the response in any case to any attack to be lawful in international law has to be proportionate and therefore this might go as much to the nature of the response that would be made to a hybrid attack if it were attributed to a particular state as to whether or not there

should be a response. and i think, you know there's a really very interesting intellectual debate about when and whether it would be appropriate to respond i can net kinetically to a nonkinetic attack. that's not just a question of international law but a question of reality public opinion. i think this is a very interesting and real debate that we need to have. >> is there a consensus amongst the nato ministers as to when article 5 would be triggered? or is there an ongoing intellectual debate as you put it? >> well i'm sorry to answer the question. i suspect rather technically. but i think any member state can seek to invoke article 5, and article 5 is only considered invoked if all member states by

consensus agree that the member states seeking to invoke is under armed attack. i think that's the correct -- that is the position under the washington treaty. so consensus is required for there to be deemed to be an armed attack on a member state. >> can i put it to you for a country like latvia or estonia with a substantial russian-speaking minority amongst its population, right on the front line with russia, facing a president who has shown that he is actually prepared to admit that he planned the annexation of the territory of ukraine and who has said that the collapse the ending of the soviet union was the greatest disaster of the 20th century, that there is understandably deep concern about not having clarity from united states

united kingdom, france, and the other big nato partners about under what circumstances article 5 would be invoked? >> no i'm not sure that's right. i was with you until the last ten seconds. of course we understand the concern that there is in the baltic states and nato members and the uk has been leading among them, have sought to reassure our baltic partners, for example, by offering strike aircraft for the baltic air policing commission by taking part in military exercises in baltic countries and poland. and we will continue to do so. but i think the interest of the baltic countries are best served by a degree of strategic ambiguity around the asymmetric warfare question and by a very clear and unambiguous distinction between nato countries and nonnato countries.

and one of the challenges i think we face around the management of the ukraine crisis is-nato countries. and one of the challenges i think we face around the management of the ukraine crisis is that ukraine is not a nato country and while we want to show clear support for the ukrainians in their struggle to defend their sovereignty, we must be always cheer that there is an air gap between the kind of support that we can offer to ukraine as a non-nato country and the kind of support that we would and should offer to a nato member if it faced the similar kind of challenge. >> we're coming up to general election, and after march the 30th the house of commons is dissolved. and there is a convention about parliamentary approval for military action, sh which has seemed to develop over recent years with regard to syria with regard to iraq.

with if a crisis develops in the period after march the 30th and before a new government is formed whenever that is, it could be several months, how are we going to hand that will situation if there is a case of clear interception of united kingdom alongside nato partners or even unilaterally in terms of defense interests? >> well the convention that's grown up and established de facto by the last government and we've confirmed thatwy acknowledge it is that where it is possible in terms of time and in time of the need for secrecy to consult parliament, parliament will be consulted. where parliament is not sitting it clearly will not be possible to consult parliament and in no circumstances would bit right to

postpone military intervention that was required for the safety and security of britain or the alliance because we were unable to consult parliament because it was dissolved at the time. so in compliance with that convention, my understanding is that it would require the government to bring that issue to parliament as soon as the new parliament was formed for what would be retrospective endorsement. >> would there be any plan to consult with the opposition? >> i mean that depend on the circumstances. but when matters of great importance and certainly a matter of intervention but of great importance, where the circumstances allow even while parliament was sitting, to engage with the opposition on council terms. >> well, hopefully it won't be

necessary. given the way russia is behaving with regard to breaching the helsinki agreements and other international agreements they signed up to? >> it is more difficult but we've made a clear decision that our approach would be to engage with russia where our vital

national interest requires us to engage on a case-by-case basis, and many of the examples you've given are such cases where our national interest requires us to engage. and the russians have given clear signals that they want to compartmentalize and treat the dispute that we have over their behavior in ukraine as separate from the not necessarily terribly deep relations we have over things like syria on the one hand and the actual quite sensible working relationship we have, for example, in the iran nuclear negotiations. and i think it suits both side to maintain practical working relationships where it suits both sides. >> do you think it's a fair

summary to say the militants or iranian aligned shia militias are one of the main forces in the country -- territory? >> particularly -- >> trying to recapture -- >> okay. i think iranian aligned or prod broadly iranian sympathetic militias have been for a long time probably one of the most if not the most significant forces in iraq. and that's part of the problem that the government of iraq has. and i think there is in evidence some of military action that's been going around tikrit a little bit more than the iranian-aligned militias. we are seeing iranian forces engaged in the conflict around

tikrit playing a direct role. iranian regular forces. that's another step. and of course while one can understand that the government of iraq facing the challenges that it does with the iraqi security forces is anxious to make some progress in recovering control of territory is tempted to welcome any assistance, we have always been clear that iraq will only be a successful state if it manages to two-point a form of governance that embraces all three of the main communities -- kurds shia, and sunni in iraq ap to the extent that the iraqi government appears to be allowing itself and its authority to become dependent on interventions by iranian regular forces that is likely to make that much more challenging, much more

difficult. >> there's nothing new, is there. >> nothing new on the shia militias. >> iraq secs have been fairly close over a long period of time. >> yes there is nothing new about the presence of the shia militias and the role of the shia militias has been established for many years. >> do you foresee it as a problem in the longer term? >> it is potentially a problem, and in an ideal world the government would be raising sunni forces to balance the shia militias and integrating them together in a new iraqi security forces. but we don't live in an ideal world and the reality is probably going to be less perfect than that. but the government will have to show that it is not beholden to direction from tehran enforced

by the power of the shia militia, because if it can't show that it will not gain the trust of the sunni population who are present in large part in the areas which are occupied currently by isil and will have to be part of the process of evicting isil from that territory. >> relationships between the krg and baghdad seem to be a fit bit fragile again. what do you think is the reason for that? >> the oil crisis prince pli. and i think last autumn major progress was made but a deal was done that was predicated on $100 oil, and when oil is the currency of deals, suddenly the value of the currency is virtually halved you get a problem, and there isn't enough to go around to do what

everybody thought. if the kurds deliver the oil that they said they were going to deliver to the baghdad government, their own budget will take a massive hit because the residual oil that they're able to sell is worth half what it was. equally, if the baghdad government doesn't get the oil it was promised from kurdistan the hit to its budget from the falling oil price will be amplified by the reduction in supplies from kurdistan. so i'm afraid that is at the root of the problem. i'm visiting both iraq and kurdistan in the next couple of weeks and i will have discussions with both side as to where they are on their private discussion about how to try and solve this problem. >> is the fco on the ground in iraq trying to mend fences? beefed up the representation in irbil? >> we have a good representation in irbil, and i monitor that

regularly and i hear good things about the role that our people on the ground in irbil are playing, and i have been able to cross-check that with members of the krg administration, that they are getting the access to and input from our mission in irbil that they seek and they tell me they're very satisfied. >> there was a lot of publicity over the -- continuing subject for documentaries on television. i was very unclear when i was asking questions about the plight of these people. what we did to try and protect them what we are doing now to try and protect them and, in fact all the religious minorities of iraq who are under threat. >> i think in the case of the uzidis, going back to when they were trapped on mt. sinjar, we

were involved with the united states and others in airdrops of food and emergency supplies to them and supporting kr g-forces in trying to secure an escape route from the mountain for them, and it became clear over time that the overwhelming majority of those that wanted to get off the mountain had been able to do so. and i think in the north certainly our engagement with krg forces, the leverage that that engagement gives us the anyway quite generous instinct of the krg forces towards minority communities in the north, is the best -- the best support to offer to those minority communities. but of course it remains the case that those who belong to religious minorities in areas

controlled by isil can expect a horrendous fate to await them. and as the iraqi government eventually rolls back isil control, i have no doubt we will uncover atrocities that we are not currently aware of and i'm afraid that's a horror that awaits us in the future. >> we also know that the position of uzidi women and the fact that many of them have been sold into slavery. we've had accounts from some who have managed to escape talking about the horrors of their existence under isil. are we actually doing anything on the ground to try and rescue some of those women? >> i don't think there are any -- we don't have people on the ground in any numbers. we have trainers supporting and technical advisers supporting

krg forces, but we do not have significant boots on the ground. neither do any of our western allies. not least because neither the kurds or the iraqis want outside forces on the ground. so we are independent on what in this case is peshmerga kurdish forces can do. and of course they are seeking as a matter of urgent priority to eliminate isil-controlled territory, but i'm not aware of any sort of specific rescue missions or raids being planned. it is a systemic program to roll back isil control and retake territory that has been lost to isil. >> a ghastly spectacle, we're doing what we can to provide other countries with counseling services for women who have been

brutalized in the form that you describe, and it is happening on a horrendous scale, as you say. and there will be a lot more to be done but the issue is access. >> i know the pyd were act itchi along with the peshmerga in taking part in some of those rescues. also helped the peshmerga in various situations. but still prescribed organization in this country. is that still our view and if so, why? >> would you like to answer that? >> at the risk of sountding bureaucratic, we don't go into cities -- can't get into sort of who is being considered and who isn't being considered for prescription. they nonetheless continue to

have a difficult relationship no higher with turkey. and so it's -- it's not an entirely sort of straightforward thing. >> it's also a matter for the home secretary, of course. >> yes. i've heard the answer from the home secretary. i was hoping your answer might be different. the iraqi didn't attend january's anti-isil conference in london. this caused considerable hurt to them apparently and also annoyance. were you aware that they would not be part of the iraqi allegation and if so did the fx co have any responsibility to persuade the iraqis to take a more inclusive approach? >> well, we did -- clearly we couldn't invite them in their own right. it was a conference of nations and we did encourage the iraqis

to include kurdish elements in their delegation, and we will continue to encourage them to take an inclusive approach. >> thank you. >> foreign secretary, on that inclusive approach point and around your operation that's currently ongoing tikrit, would you say that that's for the coalition, certainly a test to see the intentions of both the actors like iran of course the militias themselves as to how they win the peace in tikrit when they eventually drive isil out and it would actually signal to the coalition as to the intent from baghdad a to how they are going to behave towards both -- in the first place the sunni population but then of course with kurdistan as well? >> i think that's right. it will be a test case and it's very important that it's handled

correctly. and one of the messages i would be wanting to reinforce with prime minister al abadi when i go to baghdad shortly is precisely that that >> but is there is always the danger of snatching defeat from the jaws of victory. and the engagement of iranian regular forces in the battle for decree is a further complexity in this question. >> foreign secretary, because you will you you've had to cut your stay here for perfectly understandable reasons and tipped off the vote coming as well, it would be great if colleagues could truncate their questions and perhaps their answers could be to focused? >> could i turn to syria? prime minister said at the liaison committee last month

that it was the policy of the government to hold up the moderate opposition in practical terms. are we actually dealing with the same people? i think for most of us it's confusing as to where we are today. >> it's a large number of often very small groups.

>> many of them had areas to make sure that there are proper services and policing and rescue services on. we expect to make our main impact through a commitment to engage in the u.s.-led training and equipping program for the moderate opposition. you'll remember that the u.s. congress last autumn allocated $500 million as an initial trench of funding. it has been quite slow not least because of the difficulty of setting out mechanisms to vet candidates for training.

>> in the short term rngs is it policy to work so closely with opposition when you consider the main opposition to the west is now isil. and actually not the sad. >> well, it's inconvenient. but we've got to fight both enemies. there's a moral reason why we should do that. he's bombing them on a regular basis. his conduct is completely inexcusable and it would be wrong of us to align ourselves.

it's a practical reason, as well. asaad and his brutality is what gave birth to isil. it was anyceps that we were aligning ourselves with the regime which kills the attempts, particularly in iraq, to win over moderate sunni opinion to the government of iraq and the coalition effort to roll isil back. we're dealing with bad and worse, but i'm not quite sure which one was which, but we have to tackle both.

>> what would it be worth with the violence that's going on. >> how the kurds meant to perceive if we don't give them some recognition from what they're trying to achieve. >> the kurds have the potential to be an important part in the moderate opposition in fiekting against the machine and against isil. historically, they have occupied, i think it's probably fair to say a somewhat ambiguous relationship with regime, where the regime left them alone and they left the regime alone. and i hope that we're moving into a phase to play a more engaged part and help deliberate syria as well as defending it against isil. >> on a completely sprat

subject, if i may, you would be aware that yesterday was commonwealth day, indeed. >> indeed. >> isn't there a reason why the commonwealth office was not able to fly the flag of the commonwealth for that important occasion. >> we are often asked to fly flags by various organizations and to support various causes. and while it's a little bit like wearing the emblems while any request may be sensible and worthy of support looked at in the roubd across the entire range of requests to provide

some support. we do not fly flags of other organizations or to commemorate other events. >> but that of course, is a new rule that the government brought in to fly the flags of the overseas territories and, indeed, the formations of the united kingdom. so why not the commonwealth in e? it is, afterall, the foreign common welt office. and, if i may say, isn't it also the case that we fly the flag of the european union? if we've got to be consistent, shouldn't we instruct to not fly the flag of the eu if they can't fly the commonwealth flag? >> on that last question the position is that outside of british european missions to fly the emblem alongside the union

flag where there is a case in doing so. they have to make a business case for flying that eu emblem. >> last question, briefly. that it's showing not consistent with your previous secretary. but on the day her majesty is here for the commonwealth surface at westminister abbey, we should surely make it a position. would you make that change before the general election? would you consider doing that? >> no. we've made a decision about flag flying this year.

i know the number of people are disappointed with the commonwealth flag wasn't flying. but if we were to fly the commonwealth flag on commonwealth day i can promise you we will be inundated with requests to fly other flags and other emblems in support of articles as in other organizations. are there any grounds for optimism about the u.n. media towards the parties in libya? >> yeah, i think there are some grounds.

>> and when i meant the special representative, i have to be candid having listened to him. >> we have at least got people talking. we have people with a focus on a catalytic event. the growing presence of isil in libya, which is i think, no cussing the minds of both people on the sides of the civil war. >>