experienced over the last year has been particularly in the last few months, it was speech for him. distanced herself after the appearance was announced if the minute aviation had done enough. tillis jumped on her for not oing more for veterans and letting the situation devolve to what it has. host: can you talk about the importance and the focus on both sides on women in north carolina nd how both sides are working to turn out the vote among women voters. >> sure. hagan, very important. women skewed democratic anyway. of about 18nder gap points in one poll recently. planned parenthood is planning to hold a little rally tonight, the row night, outside of debate. and then about $3 million in support of her. galvanize rying to

women themselves. an anti-abortion demonstration hagan's office last week by people who support mr. tillis. groups forre women's him to >> our coverage of the debate between kay hagan and tom tillis is here on c-span tomorrow evening. in a few moments, henry cisneros on the needs of senior citizens. and in a little more than one half hour, oral argument for the second circuit court of appeals phone case dealing with records. and then the field hearing on the challenges facing the industry in the search

for cures. washingtonext journal, a look at the militarization of police forces. our guest is from the american civil liberties union. we will also discuss the threat with nicholas burns, former undersecretary of for put up close fares. -- for political affairs. washington journal is live on c-span every day at 7:00 a.m. eastern. secretarymer hud henry cisneros. looking at a forum the housing needs of senior citizens. this is one half hour. [applause] >> thank you very much. what an energetic recent tatian. -- presentation.

to becomenecessary the mayor of san antonio to become secretary of hud, but it does not hurt. i am proud of san antonio. it is the seventh largest city in the country. there has never been a city larger than san antonio to have had an african-american woman in sanwhich we now do antonio. it is an inclusive place. even though the african-american population is relatively small, she succeeded coolly on -- juli an castro and speaks to the kind of breadth of the city. i am proud of what we have accomplished. lisa, you are a pioneer in your own right. lisa has been a fellow -- presentation -- president of the aarp foundation for 10 months.

she was a president of a college in upstate new york before that thank you to you and the aarp foundation for this report. withhe rest of the team, whom i have worked over the years. best placesf the for analytical work on housing in the country. i thought chris did a great job of taking the mass of information and making sense of it. thank you very much. to you and your team for that could work. these are two organizations deserving of the respect accorded to them. the joint center for its high-quality analysis. foundation for decades of advocacy,

establishing lifelong sustaining programs. iconic programs. insurance. so many other things that touch the lives of seniors across the country. importantly, for sending the warning bell of the work we need to be doing as a country to support older americans. this is a most important report. it is hard to break through the clutter of important subjects at a time when the news is full of worrisome crises. isis advances. the palestinians trade blows. russia threatens the ukraine. we face unaccompanied minors at the border. v.a. care. congressional stalemate. it is hard to raise a subject like this to the level of attention it deserves. on housing and supporting aging americans addressed and -- addresses a set of demographic and financial

demographics which have the power to profoundly impact our nation. and its people. may not be in the headlines daily. they may be slower burning. they have the power to profoundly impact our way of life. they may not affect all of us personally today. the effect some of us today, including people who are suffering deeply because of the way the issues come together right now as we speak across the country. of everythe life american, including every person in this room, will be touched. the challenges of housing and supporting an aging population are not unique to the u.s. japan is the oldest country in the world, and aging most rapidly. because it is not

a country that has welcomed is actually losing population. some of the northern european countries like france, scandinavia, and russia, are on a path to declining population. spain and portugal are on the same path. china, by 2040, will have more people over 65 years of age than the u.s. will have residents. will400 million people have reached 65. the dynamic is impacted by their one child policy. the interplay is huge on the world stage. error aging problem as a nation ngy be different -- our agi problem as a nation may be different. we have a growing population. we were real 6 million in the census of 2010.

inwill be over 400 million 2050. you have resources being generated, taxes being paid. the economy growing. that is hugely important. largely a function of the fact that we have younger populations and immigration. lest you think these things are unrelated, they come together in the national debate. still, despite the fact that we will be growing and will be able to manage some of these issues -- at least will have the resources to do it -- the absolute numbers of aging air americans are starting -- of aging americans are stunnin g. about whateflect some of these things mean.

this report is about housing and support systems. the scale ofby demographic change, and also about money. the personal assets that people have or don't have to provide for their own housing. we have a big problem. the scale of the change is big. population of 20 million americans over 65 will grow to almost 40 million by 2030. the over 65 population will double over the course of the next 20 years or so. that is a mass of people. and get off this, an airplane and see how many we'll chose there are lined up. ourcharter site he -- society is changing because of

the size of the consolation that is aging. we are talking about eating -- doubling the over 65. that is because the blaber boomers, twoy point 8 million turning 65 in 2011. today's population of people over 85 6 million. that will grow to 20 million people in the same timeframe. the over 85 ovulation will triple. by 85 years of age, two out of three adults face cognitive, hearing, mobility, or vision challenges. the scale of the real-life impact -- what this means for real people in massive numbers -- is huge. the second dimension that makes

this an important issue is money. how do we pay for the needed housing and care? if wen make the case, knew at the systems to pay for it were, it would solve itself. the market would respond and the government would have enough money available. if you don't have the money, that doubles the impact of the problem. many aging americans do not have personal savings. governmental budgets are strapped. in 2012, 1 third -- one third of households were burdened. 20 million people were paying more than the suggested 30% of their income for housing. half of those were severely cost

burdened. meaning they paid more than 50 percent of their budgets for housing. that's the number that chris was referring to earlier. they pay 40% less for food than the average household and 70% less for health care because they.do not have it . pay 50% of their budget for shoulder and have anything left over for the other things. these are people over 50. 6.5 million65, households have incomes over $50,000. -- $15,000. imagine trying to live on that. that is an increase in just a day code -- over a decade ago. 77% of those are cost heard and with more than 30% of their budget go to -- going to shelter.

in our country, those who have invested in home ownership have some net worth. assets. it is hard to believe that among the elderly, those who are owners -- people over 50 years of age -- among that age group, those who are owners having it worth 44 times that of renters. 44 times. that translates into realities . among homeowners over 65, most have enough wealth to pay for about nine years of in-home care. 6.5 years of assisted care by cashing in on the equity of their home. for renters, what they have available to spend on care is about two months. of those whoons

are owners and those who are renters in terms of what they can translate that into in terms of their care is huge. as chris said, two out of three older adults with disabilities rely on care from family members. spouses or usually adult daughters. the ratio family caregivers is declining from seven to one 2321 by 2050. to one to three to one by 2050. aging reality, those numbers will increasingly drive the budget deficit. i served on a bipartisan committee. thes abundantly clear that aging dynamic, in particular health care costs, will drive the budget deficit.

as we confront these two realities, the scale of demographics and the financial dimensions, it is clear we will need more housing that is age-appropriate for the various stages of aging. housing that is accessible, affordable, well located, linked to services, with trained staffs. healthy and safe. we must provide it because, first, it is a compassionate and responsible thing to do. it is consistent with our ideals. we don't leave people to suffer in their most vulnerable years. we never have believed that as a country. it is consistent with our ideals that we do not. [applause] it is kind of a printable. -- principle.

secondly, it is necessary to make our communities and society function or we will be overburdened with the cost of caring for those were left behind. and because we can link housing and health. type of step of the housing that is necessary, we can do better. place, for people who say they would like to stay in their own home for as long as possible. new approaches to independent level -- living, the first level of congress and -- care. new ways to pay for assisted living, the next level of care. very costly. more memory care units for the onset of alums related to dementia in its various forms including alzheimer's. where we know brain science is not keeping up with other forms of medical science. people are physically ok but at some point, begin to lose cognitive capabilities.

nursingnew skilled facilities for the number of people who at the end of life will need that kind of clear -- care. let me say a word about these pieces of the spectrum as we need them over the span of life. aging in place. the vast majority of people, when polled, say they want to stay at home. something like 94% of elderly americans live at home now. connection to health and peace of mind for many of them that they are at home. a doctor at stanford has put together a framework called compression of morbidity. to changefind ways the arc of decline over time, imagine an arc that begins

around 50 and declines over time. if we are able to change that trajectory to one that is on a plateau for a longer time, and then inevitably there is a drop but a sharper drop at the very suffering and also, a men's-- cost to society. the end-of-life costs are the most expensive. how do we keep that trajectory it includes many elements such as fitness, illuminating things like smoking, dealing with diseases that were debilitating earlier in life. providing people with physical conditions at which they can stay strong. socialize. get exercise. that is the significance of this whole issue related to the number of people aging in place.

it involves, as chris said, renovations as well as new prototypes of housing. renovations, fixing homes to put in ramps at the appropriate time . the lower kitchen cabinets. change that room fixtures. put different kind of lighting for security. accessorize with security devices by which caregivers can be called at the appropriate time. tole range of things related renovations. new -- interesting work being done on new prototypes of homes. there is a company in florida that creates what they called the liberty home. it begins with zero step interest is and wider hallways. bathroom fixtures at the appropriate height. turned handles instead of knobs that make it hard for the elderly wrist to turn. they are finding if they do it

at the time they construct the home, it ends up being cheaper than having to come back in and it do it later. there is no problem in having these things in place for younger generations. we can create the life span home that lasts over a lifetime. there are things that local government and the national government can do to encourage both the renovations as well as the new prototypes. universal design features by ordinance. builders as is being done in ohio to encourage the inclusion of universal features. grants and loans from states as is being done from massachusetts. hud and the federal government can play a role in community development block grant programs , which has a great deal of discussion -- discretion at the local level. timee always felt it was

to think about something like the weatherization program, which has done a good job in retrofitting homes for energy. we need to think about retrofitting them for life span capabilities. we can adapt that program or the same thing and create lifespan settings. even programs like medicaid can be adapted so renovations are possible under it and medicare as well. i am vice-chairman of habitat international. is to my commitments incorporate a prototype home for our volunteers. if they are going to be building, we ought to be building with some of these use in mind. habitat will be building 100,000 homes a year over the next several years to read -- years. we are about to finish the millionth home around the world. it is not an insignificant

commitment from volunteer organizations. and then there is the reality of changing existing communities. naturally occurring retirement communities. any new communities we build. -- and of the new communities we build. likeognize that places that exists. everyone was older. a place like where my mom has lived until recently, in the neighborhood i live in now in west san antonio. the problems were different. they are not the same problems you encounter any younger neighborhood. they are issues of security. you think about it any different way. the need for in-home care and nutrition assistance. we have whole communities across america.

inn you saw that map, 5% 1990 of those counties. they had populations over the over 50 years of age for 40% of the population. in 2010, that is 33% of counties. at least 40% of the population is over 50 years of age. this is a national problem of importance.transportation is a huge issue. done town hall meetings with elderly populations in these naturally occurring places, the site isolation as their greatest fear. a sense of loneliness as children have moved out. there is no way for them to drive. their fear of going out by

themselves. aging specialists who are able to help them get to doctors' offices and groceries, very important. agingnk the offices on and their emphasis on care in homes. like those offered by mercy housing missions. in san francisco, for example. we are seeing communities doing things like changing zoning. interestingly, one of the most aggressively creative cities is new york city, which is changing, first of all it ranks highly as a place for elderly to live because it is walkable. public transit is available. you wouldn't have thought of new york city as a good place for analysist they did an

of the best places for aging and new york ranked highly. along with other places working to change zoning. zoning units that make it possible to place a unit on a lot adjacent to an in assisting home -- to an existing home. and of course the virtual village network, which tends to be a little bit on the upscale side. they are working very hard to try to find ways to make it more accessible. elementso to the other of housing. things that can be done beyond those living on their own. independent living. new approaches that involve cohousing. approaches to providing services through interagency collaboration. thateality is, for most, many people who need independent

living or other forms of assisted housing cannot get it because two out of three elderly residents a legible for federal assistance do not get it. it is not available. assisted care, the chair i'm sure -- the challenge is trying to pay for it. medicare provides only afterterm care hospitalization. we have some new thinking we have to do about these critical programs and how they pay for assisted care. memory care, we need a lot more of it. my mom lived in the house that she and my dad bought in 1945 where all of my brothers and sisters and i grew up. until one month ago. she made it to 90.

on july 11. two weeks later, had a fall and went into a facility, a hospital. the doctor said, we would not be responsible if we let her go home. and therientation forgetfulness would only result in a situation like this again. we began to look for in memory care facility. we looked for days before we could find a facility that did not have a waiting list that was 3, 4, six month long. found a wonderful place in the end. the truth is, she doesn't want to be there. she wants to go home. it is a sad thing for me to visit her. it ends with her crying as i leave. then i want to go out to the car and cry myself before i drive away. very difficult thing to find quality memory care.

we need more of it to read skilled care nursing is the next step -- we need more of it. skilled care nursing is the next step. facilities are older. we need more of them. we need more ways to pay for this. the long and short is today's report should be heard as a wake-up call. it stresses why we must act. why? because, i will repeat, it is the compassionate and right, the civilized and responsible thing to do. we owe the generations that have gone before. the truth of the matter is the human body wears down. it loses strength. as frailties increase, so do disorientation and even depression. andgivers are saddened frequently at a loss.

i edited this book on the subject of independent living. i have probably made 40 speeches on the subject. easily 35 out of those 40 times, someone, when we get to the questions, stand up and describes a personal circumstance in which they are in complete despair. it is not unusual for somebody to break down and cry in those sessions. there was an article in today's washington post entitled "we are not ourselves." it quotes a doctor. this is what the doctor said about the interface of the problems of cognitive disorientation and aging and housing. he said, this is a disease where you never twin. it doesn't just take down the sufferer, it takes down the

spouse and children and friends. ofare dealing with a reality what the human body can do over time to read it is a practical fact -- over time. it is a practical fact. if we don't have good housing solutions for people, we are not doing what we ought to be doing. when you overlay on top of these physical realities, these chronologic realities, the financial inadequacies, then we are courting family meltdowns. we are also courting the potential for a breakdown of societal systems. we will not have the resources or the ability to deal with people and cannot leave them on their own in this foldable state. ?hy communities cannot sustain economic prosperity. if you go to communities in the rural heartland, the young

people have left. we look at those immunities and and refuseommunities to accept throwaway communities. why do we accept throwaway people? finally, i would say because we know from many other applications of housing policy, the primacy of decent shelter to read -- shelter. homeless, for example. can't deal with homelessness if we don't deal with housing first. we understand the role of a safe, decent, stable place to live. that same logic applies to older americans, too. dosing has everything to with the hope of staying independent and healthy for as long as possible. that means social contact, exercise, piece of mind. familiar surroundings.

trained help. to restand decent place in the most vulnerable years of life. our country must face some basic facts. today's report makes the effects clear. we are aging. we are not ready. we are not preparing well enough. we will reap the sad consequences. we will see many people suffer. it doesn't have to be that way. we can go to work now. we still have time. we are just at the beginning of the baby boom surge. the critical mass is when those theirst turned 65 reach 80's. we must think anew. we must plan comprehensively and act with determination. we must fulfill her

responsibilities as a great and compassionate nation. thank you very much to all involved. [applause] moments, tuesday's oral arguments in the second circuit court of appeals. dealing with the nsa's collection of phone records. house commerce a committee. former will re-air secretary cisneros on the housing needs for seniors. >> on the next washington journal, a look at the militarization of police forces. dansky.ss is kara we will also discuss the threat from isis with nicholas burns, former under stare -- under secretary of state for lyrical affairs -- political affairs.

washington journal is live on c-span everyday at 7:00 a.m. eastern. live events to tell you about tomorrow, including secretary of state kerry on u.s. muslim relations. he is introducing a new special representative to muslim communities. a discussion on the group known as isis. the headso covering of medicare and medicaid services. atat noon eastern -- that is noon eastern. appealsnd court of heard oral arguments for a case challenging the nsa.

they argue that portions of the patriot act piloted the right of privacy. -- violated the right of privacy addicted by the constitution. this is a little less than two hours. >> united states court of appeals for the second circuit. >> good morning. proceed to hear the case of the aclu vs. clapper. er. there is sufficient interest that it is being broadcast. i don't know who will watch it, if anyone. to the extent that it will be watched by people who are not familiar with appellate arguments, i want to say one thing about what is not likely to be seen. the bulk databout

collection program operated by the nsa. see isewers are about to not a debate on the merits of that program, whether it is a good thing or a bad thing. us start withore the goal issues about whether this court has the georgia student gesture addiction to resolve the questions raised by the plaintiffs. and also to continue the questions raised by the plaintiffs about the program. about whether it has been forbidden by specific statutory provisions of congress. and by provisions of the constitution of the united states.

it is not a debate as a matter of form. will involve lawyers making arguments. there will lightly -- they will likely be interrupted. that is not because we don't want them to make their case in an on interrupted manner. they have artie had the opportunity to present in writing their positions in an uninterrupted matter -- manner. it is for us to ask questions of the lawyers to clarify their points. issues that have not been fully addressed. the obligation to not just say their best points, but to respond to the best points on the other side. it is not going to be a free ranging debate where everybody gets to say everything they want about these programs. it will be much more limited

than that. i don't know whether that was useful or not. you may proceed. >> thank you your honor. every day the nsa collects >> i'm going to interrupt you because i have two questions. i find it difficult to approach this argument without understanding that at the outset. , and i did read them, and some cases more than not once, it is not clear to me

whether e-mails are covered by this program or not. maybe does a big secret. i don't know sitting here whether i can get a hold of all my mistresses and say let's distributed by e-mail because the government is watching. [laughter] i assume i wife will not watch this program. i am being terribly serious about the question in so far as we are allowed to know. covered and to what extent? that is the first question. >> and e-mails are not covered by this program for this program of phonencerns records calls made by americans every day. it collects the same information for e-mails. that is not what this case concerns. we cannot take into account thater somebody can say

can say to a co-conspirator of let's just use e-mails third i don't use the phone anymore. takethink the court can that into account when it considers the breath of the governments interpretation. i think the court can take it into account when it considers of the interpretation of smith versus jurisprudence. >> your contention is the government is correct here. the second order could be remade with respect to everybody's records. click yes if fermentable collection. it would not just be phone records it would be permitted not under just section 213, everyone of the bill statute, and not in the context of

terrorism investigations but in the context of investigations that are essentially any crime involving more than one person. >> they remain in the possession of the telephone company. maybe through tens or hundreds of them to get the same information that they're basically gathering using the queries against the database that the government has collected. within the constitutional? >> the government has that authority now. we don't challenge the government's ability to issue targeted demands for records from the telephone companies or for many other companies. >> when you say targeted, are you saying that because the thatnment have a number the fbi or whatever organism -- organizations as we have this number, we want the phone companies to apply this number across the data sets, assuming

that it is the same data sets that the government currently has. -- >> it would be constitutional for the government to issue a targeted demand. are is unconstitutional several things. first, the government is collecting in bulk everything at the outset in a way that has never been permitted. second, once the government has our principalon complaint is about the government's collection of that information. this case was brought less than a week after disclosure of the program.

they mention three things. number of the degrees of separation. three, having to get the vice before entering a clary. that is my understanding. it has been done already. the third thing, this notion they will go back to congress and say that we don't want to do this anymore, we want to keep all this information in the hands of the service providers. and being able to query them in one way or another. i gather that is not a simple thing to do. theill take this out of

hands of the government and out of the -- the data will nobler longer be sitting in the hands of the government. it will be put back where it started and will be clarity from there. done, with that essentially end the controversy here? there is a technical question as to what your standing might be if they did that. thought that if they did what the president said in march they were going to do you would have embraced it and said that is why we started this. i apologize, but i think the declared victory and withdraw.

>> we would love if the government ended the ball collection of phone records. if the government did that, and purged records from the databases they have, that would resolve everything put into place at issue by our injunction motion. that is not the current state of affairs. i think it would be unwise to expect congress or the next to act in that way. there are two bills, one before the house and the senate, they have differences. they have not reconciled their differences. . >> i understand. that theld say injuries are ongoing on a daily basis. we are entitled to a remedy today to the violations they continue and are ongoing. may, i will return where i we have two begin

positions under section 215. >> the government insists that we don't have jurisdiction. that is because congress has concluded implicitly what would normally be our jurisdiction. >> that is right. i will address that. i think the government is wrong. creates a strong presumption for review. that presumption can only be overcome if there is clear and convincing evidence that congress intended to preclude these plans. there simply is not the evidence. sectionrnment points to 2712. the statute by those terms are

exclusive only at the claim within the purview. section 215 is not within the purview of the section of 2712 of the communications act. there are related subchapters. it applies as a textual matter to all claims here. the government also argues that section 215 itself explicitly precludes our claims. congress providing for a cause of action does not in of of itself deprive other plaintiffs. case, thate the would not be much of a presumption at all. instead it turns to the question of intent. that score, i think the legislative record is clear. congress enacted the review procedures of 215 after a

district in the southern district of you new york had invalidated it because it failed to provide for a clear avenue for review for recipients of national security letters. congress fix that problem in 2006. it also provided a review for section of 215 orders. >> perhaps the preside or would make clear how were going to deal. will gonk this matter on as long as we argue. >> i should warn you that i went website to find for --t c-span spans

they, unlike what it says here, they set aside two hours for this broadcast. [applause] >> we will go on at greater length. >> thank you. i think what i was saying is that the legislative history of section 215 makes clear that the recipients did not decide it at all about the target of 215 orders. context, where the legislative intent cannot be concerned, the default rule of the apa governs and provides for injunctive relief. >> with respect to the government argument further, nobody would have anticipated this. that records were demanded.

the intent wasn't people in your position would never even know that this is going on. does that mean that congress didn't expect this type of lawsuit? >> this is a point on which we disagree with the government. congress provided for the possibility that targeted 215 orders would learn about the orders. have about recipients you the right to challenge the gag orders impose on their ability to tell the customers about the orders. i think congress contemplated that targets would learn. it did not then go on to preclude those claims. i think that congress simply had no view .n the matter i'm talking about the gag order imposed. those recipients can challenge

is gag order positions. than a person whose records were at issue would learn that. >> that is exactly right. there is something bizarre about the government's arguments. not even the government contends that the constitutional claims are precluded. the only consequence of the government's claim is that the narrow ground for decision would not be available to it. that is a strange intent to attribute to congress. >> this is assuming that congress a that form at the time. i am not sure that that would be the case. when you are talking about the

statute. congress did address the issue of the recipient. suggest anything to that congress at the time dealing with the recep rent thought about others possible having the ability to challenge the section? >> i don't think there is anything in the legislative history. i think it's important to point out that when congress amended section 215 two review procedures, the government's necessity of those procedures, we think is a statutory matter that there is already an avenue for initial review. that was their position in the litigation over national security. that was also the position in congress.

there is not clarification of the law necessary. reviewifies the judicial that the government had artie told the district court was available to recipients of these orders. congress is addressing that of it beingem potentially unconstitutional for congress not to have provided judicial review for recipients. >> with respect to the secrecy point congress did not imagine , they shouldppen have foreseen this possibility and some contentious circumstances. if they do not think about this at all, then you win. for evidenceoking of a legislative intent to create judicial review. that is already there under the apa.

ofess there is evidence congressional intent of preclude judicial review. >> that is correct. the way that your honor articulated is the way that the supreme court articulated it time and again. it is to show by clear and convincing evidence -- not to demonstrate that congress intended to create that. on to thei will move merits of our statutory plan. sectiont claim is that 215 does not apply. 2001,hey enacted 215 and it added a provision to the stored communications act prohibiting the government from requiring phone records. it created exceptions to that prohibition, but section 215 is not among the list of

exceptions. that is critical. settled principles of statutory construction, it supersedes the authority under section 215. in the past, the government has agreed with that principle. when they were confronted by a senator might yield to two thaton -- in section 215 the privacy protections would not yield. that they trumped the general authority of section 215. they agreed with a related proposition that the exceptions in the stored communications act of precluded. it is not for the government to infer definite -- additional sections. the rule of privacy established by the stored communications act. 2009 to the fbi

concerning the national security letter statute. >> if we agreed with you about this proposition, about the stored communications act, that unless their program -- this could be something of a p or victory for you. one of your arguments about the relevance issue is that if we interpret relevance as the government wants to do, then the government could get the same fbi of records out of administrative subpoenas, for example. that kind of request is covered. >> not exactly. actstored communications limits the top of records the government can acquire.

thean only acquire originating phone number, the receiving phone number, the information about the duration of the call under the stored communications act, including under the administrative section , but they cannot acquire things like the divisive number making the phone call. they cannot acquire the trunk identifier, which is something they acquired on the verizon order here. i think that the defect in their argument, it could use it any run-of-the-mill subpoena statute. that is to a core all of the same records in bulk. it is notable that none of those other statutes include the source of protections of 215. they could rely on the national security letter statute to acquire the same records in balk without the minimization

procedures of saving their a collection from invalidation. >> maybe they will concede that that will be unconstitutional because it is only the procedures in the court order procedures and so on of section 215 and their few defeat your constitutional obligations to what they say about that. >> iphone a little surprising. [applause] there is one other argument that i will quickly mention. that is the grit of our statutory claim. that the coreis problem with the government's theory of section 215 as that it labels elbit -- everything element -- relevant. >> i don't mean to interrupt your statement.

i think we know what that argument is. if everything is classified, nothing is classified. if everything is relevant, then relevance drops out. it does not >> that is rightly >> the more technical question says that theute government can apply one order requirements. of relevance does not come there in terms of the authorization. it comes later when it requires that the application to the pfizer court include a statement of fact showing there are relevant torounds an authorized investigation.

it would be much easier for me if the authorization said an order requiring the production of relevant, tangible things, rather than putting it down later in the papers of the fisa court. troubling i find this or confusing is that it is after all the administrative procedure act. presumably, the administrative procedure act -- what we are talking about -- is the fbi and the nsa. i'm wondering whether by putting this down, the question of , in terms of what miss be sewn to the pfizer court, not beingeing asked asked to review what the fbi and the nsa did, but were being

asked to review what the pfizer fisa court did. i don't know if the question make sense, but when you bring in relevance, i understand that everything is relevant. we -- if we say that that is wrong, that everything is , the pfizer court was wrong. reviewing what an administrative agency has done. or are we reviewing what the court has done. do we have the power to review

what the fisa has done. >> we're asking for the former, not the latter. i will note that. there are any number of --veillance stretches statute structured in that way. they set up the limitations. i don't think that is a novelty of section 215. it is the same in section 1881a . >> i am familiar with it. [applause] questions, weour are challenging the government's daily collection of our records and we are not asking this court to overturn it.

injunctionng for an against continued collection by the government. that would be put in place without saying anything at all. i think that's what our challenges. it is understood as a challenge under the apa. even if you characterize our challenge as one, i don't think that would change matters. the government itself notice that it is true that a district , the physical order. the plaintiffs would be entitled

againstve an injunction ongoing and even legal agency conduct. if -- there are now two district courts. they have come to opposite conclusions. they did it on the constitutional basis. supposing we were two of firm -- where would that leave us?

>> they would ask the supreme court to resolve the conflict. >> it would have to be the supreme court? >> i think so. i think they would permit a state. >> should we permit a stay. ? >? i guess are going to get to this later. we agree with you that this other litigation that is going -- we want the supreme court supposing where wrong and somebody blows of a subway train -- does it make sense for us to say here are our views and wait for the d c circuit to speak.

before actually making an order, an injunction? >> i think it would be relevant. we have not taken a position on that. >> that would be within our power to do? >> yes. >> i will now proceed to the constitution. our claim under the fourth amendment is quite straightforward. the government will collection records intrudes on a resort location of privacy. in 1979 in aded supreme court decision. suppose that we agree that quantity is quality here.

that this program is different. isn't there still quite a bit to the government's argument that even in this context, there is not much of an expectation of privacy in these records. aboutample, if you look all the things the government could find out from these records the government could if metadatafrom this could determine that someone was hiv-positive or summary had an abortion. could not verizon find out those things? could they not release the record it has and make the same claim? can the user for commercial purposes, not remotely important

to anyone as the government whose 60 uses data. just because they might be able to make money selling a list of people that verizon thinks has recently developed an unwanted pregnancy. group,n antiabortion send information on those people. verizon can do that, could night? >> i don't think our contract provides for unregulated access to our call records. only access that verizon has our records is likely through computerized collection of those records. it is a bit ironic that the government claims that the computerized collection of those records extinguishes an expectation of privacy, but it's

collection of those records -- >> do you know something about your contract with verizon that i don't know about mine? is there something in there that the call can use records for anything? >> i don't know what they can or can't do with the records. there are things that regulate what telik can make nations companies can do with records. say take it they could not to abortion providers or organizations, here is all or records it, search them and go see if you can find people who need your services. is verizon has all this information. if theye the capacity chose. >> they may very well have the computer capacity.

i don't know if they have the authority. i think it depends on what the congressional statutes relating customer proprietary network information. they include our call records. i don't know the exact contours. you are correct. i think this is another way of saying the third party records are not the question. i don't think there has ever been an on off switch as you are saying he saying. nonetheless, the person is recognized to have an expectation of privacy. our contents of our phone protected by the

fourth amendment. they are protected by federal statutes. verizon's ability to listen to the content of our conversation extinguishes our expectation of our privacy. that same goes for our e-mail. the e-mail was served on the servers of third parties. i think the courts are starting to grapple with that question. thatpite the possibility google might read your e-mail because the information is on a third-party server, that customers have an expectation of privacy. >> there are many ironies in this case. maybe it makes no legal or constitutional sense, but it is a little strange that once mr. snowden disclosed the existence of this program, we no longer

have a reasonable expectation of privacy. we don't have any privacy. you -- i suspect you can respond because you have thought about it a lot longer than i have. i wish you would focus as you do talk to me about reasonableness. for this case, the word reasonable is actually in the fourth amendment. talk to me about how we figure out what is reasonable and what is not reasonable. may, i will address your first question. the supreme court has recognized

that expectations of privacy can be defined if congress chooses through a statute that could permit will collection. it be the end by analyzing an a normative question, whether people are reasonable and expecting privacy. i think you see that question being addressed. there are several cases that recognize that even if there is the capacity for greater intrusion into our personal privacy by companies and the given the digitization of information, that does not alter the relationship between the citizens of this country and the government. element related to the constitutional issue? suppose this case came to us. engaged in as had

full-scale debate as to whether to offer verizon explicitly exactly this program. and they did explicitly authorize this. could hypothesize they did this before an election ,nd after an election in which the saying congressmen who voted for this return to office. with that have made any estimation ofour what is a reasonable expectation of privacy? >> i think it would be relevant. noted that court has the circularity of the test is not to be turned into a one-way ratchet for government intrusion into privacy. if there werean some bars is a statutory question whether this program , whether we found

this was an executive branch program that was not authorized by any explicit legislation of .ongress as part of addressing whether this was constitutional and not, woulduch an unauthorized stand on different and shakier constitutional ground.

>> i see your suggestion. that could be an element of the expectation of a right -- privacy. >> i think the current debate accepts -- suggests the opposite. the country is not comfortable with bulk collection. the country has recognized that will collection creates a risk of abuse. i think that is a good segue to get us to act to your question

of how to analyze reasonableness. the fact that the government as sufficient for us to for vale on the fourth amendment. question is does this allow for the numbers dialed. people did not have an expectation of privacy in that.

are you saying that because the i thinknts collection that the supreme court would have understood that to stand for something very different.

they would have found that unconstitutional. i still think it would be unconstitutional. here for aintrusive number of different reasons. about looking at this stuff and worrying about this? without any fact-finding at all. i keep wondering whether were having in camera proceedings here. how without any fact-finding at all can we begin to figure out -- how canict court we begin to know whether this is reasonable or not. the way the world is today,

because it's different. how can we without fact-finding come up with some reasonable determination? >> i don't think that is necessary. even the president concedes that the government can accomplish its interest without will collection. sent his lawyers here to say that you should lose. >> he is a awaiting a decision. >> evidently, the president thinks it is necessary to program operating this and that it is constitutional to do so. representatives of the

government are here. they are here to say that they is a reasonable thing for the government. not that the president has conceded the unconstitutionality, but the government has conceded that there are alternatives that are significantly less intrusive. >> fair enough. like the sound rational way to proceed. suppose, because of legislative that politically it won't fly. we are stuck with what we've got. with sayingis stuck this is unreasonable or a

violation of the fourth amendment, or we conclude that it is reasonable under the circumstances, given the nature of the threat and what has to be done to control that threat. -- based do that taste on breeze? court needshink the to get a reasonable response for the government is entitled to demonstrate that the warrant and probable cause of the fourth amendment are implacable. it cannot -- there is record ,vidence, national consensus that the government can accomplish its interest through individualized applications. >> this alternative procedure that we are envisioning is one

where verizon keeps these -- if you had a that thee suspicion government once to look at one person's phone records, they do that all the time by issuing a grand jury subpoena, or a national security letter, without probable cause and a warrant. that is not a fourth amendment event or, if it is, it is a reasonable one. >> that is right. the government is trying to engage in bulk collection. becomes, for person specialr purposes of needs, whether the government can accomplish its interest or targeted demands. if it could, then it is not entitled to forgo the requirements of the constitution. that it can used

targeted to master engage in bulk collection, but the government has conceded that use -- could use targeted demands to achieve its interest here. a quick clear its database. saying, thet you're free floating reasonableness inquiries. ? now ahey're doing reasonable paying to do or an unreasonable thing to do? i don't know where the requirement comes into play. questionose that the of practicability collapses with the question of reasonableness. under the special need doctrine, the first question, dispensing with individual suspicion is practical or not. here, we do not think it is.

impractical for the government to acquire these records in this fashion, we would still say it is unreasonable. is the most intrusive means the government can use to a competence very narrow interests. that is always been held to be unreasonable. i will emphasize it again. concededpresident has that the government's interest in be accomplished in narrow means. it is the oversight board, the president, concluding that will collection is not necessary. it is a conclusion of a group. how the government could re-create this program in a targeted way if you're on or

i still think it goes to the question of practicability. >> once you get to the point of saying assembly emphasize the point you have artie made, we have artie gotten to the end. thank you. it will privacy more than two minutes at the rate we are going. >> may please the court, stewart for the government. it is been approved by all three branches of the government. pursuant to orders of the foreign intelligence surveillance court, under a provision of fisa, we authorize

about this very program. >> you are starting by saying that it has been approved by all three branches of government. you do not want us to address the question of whether it has been authorized by one of them. >> if you are referring to the statutory argument, yes. we think that was a choice that they made and specifying a very detailed provision for applications and approval of those applications. then, with a detailed review scheme following that. allowing for a challenge to providers. courttely to the supreme is appropriate. the supreme court is unclear as to why congress has established a specified form for limited parties for judicial review, then that provision of process -- >> you are going on to adjust specific facts about the

judicial review program there. that suggested that it was reasonable to assume that congress had intended to preclude the review process. that they set out a variety of factors and look at those factors and concluded with respect to that program that conclusion was a reasonable inference. i'm not sure those factors came out the same way here. saying the you depend heavily on the generalization, aren't you? it must have intended preclude judicial review. don't think we are relying on a generalization. the court has made clear that in gray needs to be based on structure of the statutory at issue here.

if you look at that structure, that is alluded to in the first party argument, there is no provision for john -- challenged by third-party orders. as a matter of course, the expectation was that the third parties would not know about that. assume thatnough to congress intended to forbid third-party if a third-party did find out? i understand the idea if we are asking the congress contemplated this type of lawn suit, it --cifically all the resist specifically authorized it. if there is a presumption that judicial review is available, and the question is that congress specifically intend to

prohibit judicial review to they particular people, did not think these people would be around. >> of january couple of answers. -- i will give you a couple of answers. i think other discussions, but certainly the amendment rejected proposed district court challenges to 215 orders. a key provision not addressed in the first part of that argument 2-d says that61 f in order issued for sue and to the procedure shall remain in full effect and less it has been explicitly marked by or set aside pursuant to the procedures that are specified in the section. i think there is a clear textual statement by congress that when theyrders are issued

should be only pursuant to the process that the congress has specified there. occlusion here makes perfect sense given the structure of the section. it provided for applications by the government to an article three court to establish the purpose to review foreign intelligence applications and -- >> i guess one did. maybe we should ask them. i will ask you. has one recipient ever challenge these orders? have there been any claims by their customers that they violated any rights by turning step over to the government in response to one of these requests? what state do they have in to the government, take what you want. >> i think you are right.

it may not be the right people to ask. were practical reasons for making that decision. there has been such a challenge in that led to a reaffirmation of the production order on statutory and constitutional grounds. given that we have not just the situation where congress has said certain challenges to agency action should a broad only in the particular forum but have required judicial approval before the private party is production make the to the government. the program is in makes -- preclusion make sense. interesting and

troubling point. exactly such a challenge is authorized. see that itnt can is authorized under constitutional grounds create we can collaterally review if that is the we want to look at it to test its consistency with the constitution. but not to test whether it is 215.stent with section >> that is the consequence of the supreme court's doctrine as compared to what the court has .aid in webster v. doe standard.gher to avoid serious constitutional --stions created >> is there you're asking us, you are requiring us to choose a side, a

question of constitutional law theecide whether perhaps government is precluded from doing this sort of thing even if congress wants it done. on the other hand to accept an argument that says nobody has any constitutional privacy rights in anything anymore. because surely the same argument [inaudible] the same third party argument apply to bank records and credit cards. >> to some extent there are elements of the same argument. records.re third party >> smith against maryland itself was limited to noncontent records. the court made it point of distinguishing the situation of contact.

there are other cases including miller versus miller in evolving financial records that go with other types of information. and the relevance test , the court haste made clear about the inquiry. it at least as relevant whether someone that you have some reasonable suspicion is engaged in terrorist connections uses a tear -- uses a credit fertilizer a ton of or called a gym using his verizon cell phone? relevance in the sense you are talking about it.

if you wanted to get his precise credit card records you would get that. the same jump that says you can collect all the stuff in advance , toake it easier, quicker make it easier and quicker to make the inquiry and find out where all the connections are and what this guy is up to. why doesn't the same thing apply to credit card records question records?dit card questions aree heard by law enforcement everyday. those are important elements of a set of tools that the government has to pursue counterterrorism investigations. what we are talking about here, the proposition of relevance

that has been advanced here is tied to the nature of their records that are being collected in bulk. putting the smith question aside, the fact that those are -- that is information provided by their own records they have created and maintained. if you look at what the 's use of the metadata is, records in this case including the declarations submitted in connection with the preliminary junction and the orders of the fifth made clear that the purpose of the ball for theon is to allow use of analytic tools and counterterrorism investigations. it is the nature of the data which is interconnected and standardized and can be searched through contact chaining that ine connections and

furtherance of a particular type notnvestigation which are ordinary criminal investigations looking back at who perpetrated a crime that we know about but are designed to be forward-looking. the purpose of this work is to detect and disrupt future plots before an attack can be made. and so -- >> bank records seem to have the same sort of information. they do not have an interest in bank records. there may be certain limitations. governmentan the aggregate everybody's bank records and apply the same methodology to get the same sort

of linkages? >> that is a question that would be relevant to the question of whether that type of collection is authorized. it is important that the -- that they have examined the tide of data and has established a can andollected into a database query in an interconnected way in the way the nsa doesn't. other types of data even if very valuable and used routinely may not have the same benefits from aggregation ex ante and currying based on standardized formats. the answer here would not necessarily be the same. -- s >> is the idea that telephone

records are kept in similar formats by all providers so , they arek records more susceptible to collection as a database. if you had to week, we have this guy's phone number. he is engaged in something suspicious. i take it you can serve a subpoena on his provider and get all the people he talks to and get thatan information. all that information is gettable. the problem is it is time-consuming. having it all on your server in your back room and doing whatever you need to do to translate the verizon records

and the t-mobile records so that there compatible is the point of what makes us beneficial. am i mistaken? .> you are correct >> is not true that every bank that you have got all the bank records, it would be the same thing. you could be -- go through subpoena by subpoena. you can correct -- collect everything they you want to know about everything and collected all about one big cloud. we have internal to the government about what you will a kite -- look at and when. i do not understand an argument about what is so special about telephone records that makes them so valuable, so uniquely interactive for whatever that the same argument you are making do not apply to every record in the hand of a third-party business entity of every american [inaudible]

>> i would like to come back to minimization's. on the question of relevance and think you're correct in your general description as reflected in the declarations about the purpose of the collection of the data. and the advantage of doing it in advance is that of -- it allows for standardization where that is necessary although i do think from records by their nature tend to be and are quite standardized. and to allow for rapid identification of connections between now and and unknown terrorist. that is the purpose of the program as reflected in the record and the district court opinion. the purpose is to be able to

identify from unknown person ath some connection to permissibly targeted terrorist organization who that person is in contact with and might be in contact with in the united states. the analytical tools to make those connections and to identify them rapidly are at the core of this particular program. >> rapidly has to be what it is about. some of us sitting here have done this in criminal investigations and know how exactly in port and -- important it is and it is done every day in the week with targeted [inaudible] burdens. are a lot of targetedd be done by

subpoenas. the efficiency, convenience, and speed of making these inquiries. >> what other it is timely, that is an element. other aspects of our reflected in the record in this conclusion are the need for examination across carriers so you are following the links where people are communicating using different carriers and to build the historical repository for some time. going in, the government does the metadatah of might reveal an important connection to a known terrorist and so if you started only when you identify that person, that information would not be as valuable. >> the question whether the phone company keeps all these theres although i think was a suggestion in terms of

has said.president get back to this question of constitutional avoidance. you're asking us to decide something that is extraordinarily sweeping. without inquiring as to a good this is something that ever could be allowed under the constitution. without addressing whether the congress has ever really thought about this, disturbing and putting aside the issue of preclusion. it is hard to imagine that somebody who looked at a law that says you can have an order that will get anything that you can get with a grand jury subpoena. imagine that means you could get stuff that nobody ever mentions getting with a grand jury subpoena.

it could have been done. it is hard to imagine that that rather innocuous language, they make a showing of relevance to an investigation means that all kinds of records as i read your roof, you are saying they are not relative. you lead to an investigation right now. we want to have them in case they become relevant so we can query at that point this database. both congresses bought that using this. >> congress was briefed about the disciplinary program and it extended to section 215 twice about change. the details are reflected in our brief. this does reflect ratification in a way that the ordinary -- argument ishow the

when you're dealing with the -- we are dealing with something that is public. it. know about i am not sure ratification carries as much a badge as you want it to. if you are talking until june of 2013 when people know what was going on. >> the reason it does here is because we are not just talking about a presumption that if it is in the federal court somewhere congress was deemed to know about it. intelligence committees were program.out the provided ave ranch briefing paper to be made 2010able to all members in

before the ratification of senators in 2011. the details, not only the nature of the program but it was authorized and the statute had been met. some of the statements in the brief that the highlight from some of the senators were maimed -- the connection with the 2011 reauthorization where they called their attention attention to the section 215 and under staying -- understanding how it was being used in conjunction with this program. the chairs made this material available and offered briefings more generally to all members the need forated

members to understand how it was being used. this goes beyond the ordinary ratification. >> i want to make sure i understand whether you are arguing about preclusion or relevance is an appropriate, forgetting the constitution. >> arguing here that congress understood section 215 to cover the program we are talking about. >> you are beyond preclusion. >> i also think that by extending 215 knowing what is -- g on that would be the kind of thing that would get typical ratification argument. ratify heruld not

the preclusion issue. this was before congress and some judicial opinions. you are relying on the original history at the beginning but for the relevance argument you are running on the idea that congress reacts its sticks to section. the program that had been instituted, the fifth court had approved it. of there was this process briefing and congress. i do not think -- you can tell me if it is. could you explain to me, if i am , anmber of congress ordinary member, not a member of social -- special committee.

i do not mean what was in the class five brief. told you better go read this before i vote. what mama did i get? >> they were memos from the intelligence committees. complex.in the joint information had been provided by the executive ranch. it was important for the reauthorization of this authority. readit ass to go and they were telling me. i think of things like what is that of vetoes and other issues where the supreme court has emphasized that legislation gets done [inaudible] theirtion that

legislation has been accomplished because i had a --ber of congress for the look into this. let congress approve whatever was in that secret compartment. >> the further fact that we have here is that they were other members who were pointing to this debate at the time. people got upink on the floor and said you want to vote for this. we can't say what it is but you better go read it. said, indicated that references an committee reports are sufficient. this is beyond what you would look at. >> i think so but justice scalia does not seem to. take it up with him someday.

>> to your point about the current state of discussions of congress and the president's position. it is certainly correct that at -- this is the current subject of public debate and the debate within congress. there are multiple proposals that have been introduced and that process is working forward. -- president has >> this is not a consideration that is entirely appropriate. if they said this was authorized i congress, to ask on whether they think this is something that should be done or not. could put paidt to all these issues as far as the constitution. --would put a to all the

[inaudible] is doing this or alternatively, do not do this anymore and there would be latter. if they did the if the former, the constitutional issue would still be around. ist's some action is that it saidat the president has achieving the goals without the government [inaudible]esting that approachfor to be workable with the speed

and matter necessary legislation would be required. it was important in his judgment, it was important to continue this capability. it has been reauthorized a [inaudible]with the 12 is the day. k i will clarify this conversation. if i might turn to questions about the statutory authorization eyes -- i think i will turn to the fourth amendment if that makes sense.

courtsition is that the d.d conclude by maryland had i don't think i am using the mosaic approach. this and this come a time and this is what the plaintiffs are complaining. when the old-fashioned simple pen register that was used and that we are recognizing it for a long time. the amount of data that you have is so detailed and so extensive the fact is a content divulging

actions rather than not. the whole point of the instructions and i read it again this morning. the point was it is something that you already give out. it is given to a third party. not as though you are listening in which would be different. question.ink a whether the message become so sophisticated and analyzing this kind of data that this, unlike the pen register, in this case you are finding out about content. -- and this is one of the issues that has been a

factor in the public debate over the last year since disclosures. didn't go piece by piece. is thirdhe said it arty and similar type information but doesn't require should require, based if you are talking about [inaudible] you make a determination at that point. why should the court have to go

through that exercise? >> i think that the record reflects if you are talking about the type of information, we are talking about the same type of call detail records that were issued in smith. the number call and number ,eceived, routing information time and duration of the calls. we're are not talking about name and address. -- appendlysis that register does not work anymore. >> the next few points i would make on that. the ability of metadata to reveal useful information to investigators and connections was known at the time of smith the power of the metadata was appointed and smith itself wiped it out, the court

even though the expectation is phone companies are assembling the metadata if only because you know you get a list of all of your calls at the end of the month. not give-- that did rise to a protected fourth amendment interest. >> even that simple stuff that comes from the pen register is used in courtrooms in the u.s. every day of the week when attorneys get up and say this is a chart of all the times that tospirator a talked conspirator b. you should have heard what they were talking about. here is -- we do not have the content of the phone call but we have a record of the insider at