>> the california highway patrol will protect the rights of all california drivers and we are still foyting with the obama administration to get a mark that we feel will not lead to discrimination. but the most important thing is so many people over a million people will be able to legally drive to work and that has been really a shock thing that we depend on labor but won't let them legally get to the job. we will not let the difference and it is a difference because the federal law requires an indication this is not good for federal identification purposes. it is only good for california. but that is a big thing. there were people who were getting arrested, taking kids to school, go together job site or going out to the farms. i think the big thing is california is empowering so many good hard-working californiaons and its really in the face of no action in washington, gridlock like we used to have in sacramento before i got there. places in shambles. we didn't have a water plan.

didn't have pension reform. we had a huge wall of debt. we are getting stuff together and with respect to immigration california is setting the pace whether a trust act, we are not arbitrarily holding people in jail so the immigration service can pick them up. i signed the dream act so kids who qualify for the university can go to school and get a scholarship. i think that will build for the future because so many of our kids almost about 30% are either undocumented or don't speak english. >> governor, very quick. >> the main thing is do you have a strategy to monitor that this is not going happen? even though they train the c.h.p. people, the police they will have that driver's license. anybody can see it in. if they go and try to open a bank account or buy something in the supermarket. >> i will instruct the commissioner of the highway

patrol to take whatever steps are necessary to prevent that. i will do the same thing working with the local police and sheriffs and thirdly to the extent that we hear anything he wouldle take immediate action upon those reports. >> mr. kashkari, would you have signed it, by the way? >> we need federal immigration reform. one of my criticisms of governor brown is there are a lot of issues that affect california that he said he it is not his issue and it is federal law. i will be fighting on federal issues, too. if that means i have to go to washington to fight for federal reform i will to that. in driver's license, i want them to be safe, i want all drivers to be safe. but we can't just solve this at a state level. we need federal legislation for the whole country. but the discrimination was the key question. we have to fight it throughout society. as the son of immigrants myself, as a brown kid growing up, we have to make sure that every kid from every nationality in every background and every community is free from discrimination.

i will do everything to make sure that happens. >> would you have signed that or vetoed it? >> i would have signed the driver's license. >> governor brown's predecessor was like you, a republican, a moderate. the last republican governor of this sit. how do you rate schwarzenegger's legacy? >> i really admire governor schwarzenegger. he came to america with nothing. he was an immigrant. he came here with his dreams and hard work and talent and look what he accomplished? he built an amazing life for himself, tremendous success and frankly an inspiration for all of us. i feel that resonates with me as a son of immigrants myself from a middle class background. my dad wasn't governor. i grew up mowing lawns and bagging groceries. for me to sit here as the republican nominee for governor i'm proud that people like me and like schwarzenegger could achieve what we are achieving. i don't think that he was as successful as he would have liked to have been. i spent three years in washington, d.c. tackling the worst economic crisis our nation has faced since the great depression.

everyone told us you can't get republicans and democrats to work together and can't navigate the house and senate. we got them to work together. we got the leaders of both parties to put their country before their political careers and that inspired me to run now. because if we can do big things in washington, d.c. for the american people, in a time of national crisis, you know, the people of california many of them are in crisis today. 24% poverty. governor brown doesn't like to talk about it. 24% poverty today. those families are in crisis and i'm running for governor to fight for them. >> 30 seconds, please. >> i have seen nothing in his program that will help poor people. >> jobs, governor. >> follows from the bonuses to the buddies at goldman, sachs. >> i think the way arnold had big plans but takes insider knowledge to get it done. our state was in a shambles. they were calling it a failed state.

it is back. it is not all the way back and he likes to create the construct if we are not perfect we are not making progress. we are making incremental progress. 1.4 million jobs and recovering faster than the rest of the nation. we are moving forward. we have more money going to our schools, 30% more instead of layoffs and we have a water bond proposition one and a rainy day fund to save funds for hard times if they come. i hope everybody on the ballot november will vote for proposition 1 and proposition 2. >> the next question from me, governor, it's to you. may be one of the simpler questions. one of the most talked about bills at the state capital was a statewide ban on plastic bags. let me ask you the simple question first, paper or plastic?

>> paper, i guess. >> will you sign this? >> no, i probably will sign it, yes. i tell you what, in fact i will tell you why i will sign it. normally i don't tell you ahead of time and we get the bill get enrolled and i can read it. here is the key thing. there are about 50 cities with their own plastic bag ban and that is causing confusion and the grocers said let's have one statewide ban that is reasonable. this bill has been worked through. this is the nature of the legislative process and a compromise and taking into account the needs of the environment and the economy and grocers. i think on balance this will protect the environment because we have far too much waste and throughput but at the same time we are doing it in a standard way that will not disrupt business in california. >> mr. kashkari? >> no chance would i sign that. they have been working on for the last month banning plastic bags.

regulating football practice because the families of california can't decide how much football practice is enough. a and now i can now bring my dogs to restaurants. i'm a dog lover. i'm grateful for that. they are not working on rebuilding the middle class. you are making incremental changes. we are 46th in education. 44th for jobs. number one in poverty. the time for incrementalism is long since past, governor. we need reform to build the middle class. plastic bags and bringing my dogs to restaurant is not going to do it. neither is regulating football practice or soccer or baseball. we need jobs to get people back to work, governor. >> there are awful lots of california families that would like to see the governor do more when it comes to bringing down the cost of attending colleges. what is the best way to make

college affordable for all? >> this is a critical issue. when i went to graduate school i took out $100,000 in loans. let me tell you something that is a really scare where thing to do for a kid. are you going to be able to pay it back? i was fortunate and able to get a good job and able to pay it back. a lot of california kids can't get into the california universities first of all because they are taking out-of-state students because they pay higher students. or graduating with thousands of dollars in debt and no jobs. there are big issues here. our california schools are funded per student. so the more stow dents they have the more money they get from the state. that sounds right except it creates a a per verse incentive. they are incentivized to collect students and hoard them on campus and not to graduate them and move them on and get the classes that they need. other states changed the funding model so the universities are actually incentivized to make sure that the kids get the classes they need and can

actually graduate on time and make sure that we can have more students come in and the incentives are aligned. the first thing i would do is change the incentives so the universities are focused on student outcomes. he would have to put students first. my dad was a professor at the local college. the students have to come before the faculty and making sure california kids not out-of-state students, california kids come first and get the classes they need and then if we grow the economy with jobs reforms that are good jobs waiting for them when they graduate here in california. >> governor brown, what can you do about college costs? >> i froze tuition for three years at the university of california and cal state. half of the kids who go to the community colleges pay no tuition and it is among the lowest in the whole country. kids graduating from california colleges have about half the

debt that others have. there is nothing that will help the middle class in my opponent's plan. >> have you read it? >> i have and i was unimpressed to tell you the truth. i signed to help kids that don't get the scholarship. the middle class scholarship and we have frozen tuition. >> what are you most worried about his plan? you said he read it. >> he said the answer to poverty is to create jobs. the only thing to do about creating jobs is get rid of unspecified regulations and reduce taxes. he opposed proposition 30 which is putting the money into the colleges and universities, $500 million and $5 billion in the k-12. >> i realize i cracked open the door here. >> which taxes in my plan, cuff, am i cutting? curious if you know? >> it is very vague. >> it is not very vague. it is very specific, governor. very specific governor. you can read if yourself.

it is very specific. >> we are at the time we have to do closing statements. i will ask a question quickly. this has been fun. >> it has been fun. >> would you another debate, governor? >> i think we exposed the differences. they are clear to me. and this is kind of a format you can play it over and over again at your house. >> and i'm sure we will have it on the california channel and other places. we are at the place for closing statements. both candidates one minute. the first from governor brown. >> thank you. this is the spirited debate. real differences of opinion. but i just want to get back to fundamentals. four years ago when i went to sacramento the place was in a shambles. majority of people in california feel we are on the right track. five years ago only 13% felt we were on the right track. we are taking care of water and workers compensation and created a rainy day fund.

i know there is coming back and forth. we lost 1.4 million jobs. since i have been elected almost 1.3 million have come back to $and that isn't by accident. we lowered the sales tax on manufacturing. we were encouraging biocom and agriculture. california has challenges but we have momentum and we are headed in the right direction. >> jerry brown the incumbent. thank you for your closing statement. now from neel kashkari. >> the real question, is your family back? are your kids in good schools today? do you have the job that you want and the job that you deserve? i'm running for governor to fight for your family and to fight to rebuild the middle class so every kid in california has the same shot in life that i had. my parents were immigrants, i was a middle class kid. i got a good education and got a

good job and worked hard and lived the american dream. i'm running for governor so every kid in california has the same chance that i had and you can get the job you want and work hard and build a better life for yourself and your family. dedicating not just my candidacy but if i'm elected my entire governorship to rebuild the middle class so you can live the life that you want to live. i don't think we are back. we can make big changes. we have to make big changes. i have the plans and experience to do it and i'm asking for your vote. >> thank you, republican challenger. and let me thank also jerry brown. spirited debate. could have brought the dogs in the next time. thank you to both candidates being here for the california debate. an early depate in the election season. the first ballots go out by mail in three weeks and overseas and military before that. my thanks to jim newton of the

los angeles times and duni of telemundo 52. and to the california channel in sacramento and all of your partners in the debate. the only other message here, folks in the debate is really to all of you who are watching and listening at home, vote in this election. it really matters. thank you. good night. [captioning performed by the national captioning institute] >> later today, the working group on the future of u.s. russia relations talks about opportunities and challenges in the areas of military and strategic cooperation. particularly in nuclear strategy and forces. george washington university here in the nation's capital hosting the event. he gets underway live at 3:30 p.m. eastern time. tonight, c-span's american history to her on westward expansion explores the lewis and clark expedition, the so-called migrated towho

california and the decibel of the 1930's. that starts at 9:00 p.m. eastern. >> in hollywood movies we see them circling the wagons and the indians coming to attack. barely rarely if ever do that happened. there were very few deaths along the trail that had anything to do with the indians. the indians actually helps the pioneers of more than hurting them. allers came in first of disease, which killed about 10% of the people who went west -- .ostly colorado -- colorado over climbing on wagons and wheels roll over them. side to this grim mass migration.

it was unprecedented. we are talking about over three and a thousand people during the time in question who packed up everything and literally went west. our american history to run westward expansion also explores john fremont's expedition, and the creation of the transcontinental railroad. that's tonight at 9:00 eastern on c-span. the second circuit court of appeals heard oral argument on tuesday in a steel you versus -- clapper. the american civil liberties union is seeking to have the program and all data collected deleted. the nsa arrives its intelligence gathering authority from the patriot act that was passed by congress in october of 2001, in the aftermath of the 9/11 terrorist attacks.

argues that section 215 violates the right of privacy and free speech. they charge the program exceeds congressional authority given in the law. >> good morning. proceed and hear the case of the american civil liberties union versus clapper. this case is apparently of sufficient interest that it is being broadcast. i don't know who is going to watch it, if anyone. to the extent that we watched by

iyone who is not a lawyer, wanted to say something about what is not likely to be seen here. about both data collection by the national security agency. what viewers are about to see is the merits ofn that program, whether it is a good thing or a bad thing. one is a matter of substance, the issues before us start with legal issues about whether this court even has the jurisdiction to resolve any or all of the questions raised by the plaintiff. and then continue, the questions raised by the plaintiff are not about whether the program is a good thing or a bad thing, but about whether it has been authorized or perhaps for bitten byspecific -- forbidden

specific provisions of the constitution of united states. debate, it is a matter of formal, but the procedure here will involve lawyers making arguments. they are likely to be interrupted and asked a lot of questions by the judges. that is not because we are rude or because we don't want them to make their case in an uninterrupted manner. they already have had the opportunity to present in writing their positions in an effort to -- and uninterrupted manner. this is our time to ask questions of the lawyers, to clarify the point they are making and the applications of those points. to perhaps raise issues that haven't been fully addressed by the party, and to give each side the opportunity and obligation to not just say their best points, but to respond to the best points of the other side. it is not going to be a free ranking debate, where everyone

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. certainly not useful to any of the lawyers here who already know what is going to happen. , you may proceed. and you of reserves times for rebuttal. morning. may please the court, every day, -- i'm going to interrupt you. >> i have two questions, that are essentially questions of fact. have to understand this from the outset.

me whetherlear to e-mails are covered by this program. it's possible that is a big secret as to whether or not they are. that sittingnow here, i can get a hold of all of my mistresses and say let's do it by e-mail, because the government can't watch. i'm sure my wife isn't going to watch this program. in so far as we are allowed to covered, andails to what extent? >> e-mails are not covered by this program. it solely concerns records of phone calls made by americans everyday. the government has operated that allow the past it to collect the same information for e-mails, but that is not what this case concerns. we cannot take into account one way or the other whether

someone can say, and lord knows i mean this very seriously, that they can say to a co-conspirator of some sort, let's just use e-mails. i don't use the phone anymore anyways. >> the court can take that into account when it considers the breadth of the governance intervention of relevance. i think the court can take it into account when it considers the breath of the government's interpretation of smith and fourth amendment jurisprudence. >> that would be because it is your position that if the government is corrupt here then congress has authorized the same sort of order to be made in respect to everyone's bank records in the country. >> that is the cut -- correct. boat collection would be permitted not just for phone records but for any records. it would be permitted not just under section 215, but under

every run-of-the-mill subpoena statute. and not just in the context of terrorism, but investigations of any crime involving more than one person. >> let me ask you this. if the data remains in the possession of the telephone companies, and the government thought that maybe through tens of hundreds of subpoenas, to get the same information there gathering by using the queries, would that be constitutional? >> the government has that authority now. we don't challenge the governor's -- the government's ability to issue targeted demands are records from the telephone companies. >> when you say targeted demands, are you saying he cut number,rnments has a that the fbi or whatever organization comes in and says we have a number that we will like to ask for, we want the

phone companies to apply this number across the data set, excluding -- assuming it's the same data set the government currently has. is it your position that that is constitutional? >> it would be constitutional for the government to issue a targeted demand for limited set of data and is always done. there are several unconstitutional things. the government is collecting in ulk in a way that is never been permitted either's attached to share -- as a statutory or cost usual matter. our printable complaint is about the government's collection of that information. >> that raises what i said would be my second question. and that is -- there appears throughout this -- this case was week afters than a

the disclosure of the program. there has been a fair amount of water and the bridge since then. to technicallyd as the red brick, which is to say the government's brief, they mention three things. one, fire member, it's the number of hops. it's two degrees of separation rather than three. and also having to get the fight is a court's approval before and that's they, second thing that is done. thing is this notion that they are going to go back to congress, and they will say we don't want to do this anymore.

we are going to take this out of the hands of the governments, and the data will no longer these sitting there in the hands of the government, it will be put back word -- where it started, and will be queried from there. done, if congress were to pass such a long, with that essentially end the controversy here? question aschnical to what you're standing might be. aside, i would've thought, having read that, that if they did what they said they were going to do, you would have embraced it and said that is why we started this. but i think of senator aiken, 40 some odd years

ago saying the clear victory and withdraw. love if the government ended the boat collection of phone records. if you did that and purged are records from the database is a currently had, that would resolve i think everything that is put in place by our parliamentary junction motion. that is not the current state of affairs. i think it would maybe be unwise to expect congress to act in that way. there are two bills, one before the house one before the senate. they have differences they haven't yet reconciled. there are only a handful of days left in the legislative session of this term and trade. >> i'm thinking about the things of the moment. >> the injury is ongoing come on a daily basis. even if congress acts in several months, we are entitled to a remedy for today.

return to where i was going to be in hell with the statute, which is i think this offers a narrow ground for decision. we essentially have 215. thate government insists we don't have jurisdiction to reach the statutory issues because congress has precluded what would normally be our jurisdiction under the miss rate of procedural act. >> i think the government is wrong on that score for a couple of reasons. the presumption can only be overcome if there is clear and convincing evidence that congress intended to preclude the injunctive claims, such as the one we bring here. there simply isn't that evidence. -- theernment spends

governance points to section 12. not within the purview of section 2712. it applies to several unrelated sub -- subchapters. they say it applies as a textile matter to our claim here. government also argues that section 215 itself implicitly .recludes our claim to congress is providing for cause of action does not in and of itself deprive other causes of action. the presumption as justice scalia said would not be much of a perception at all. instead, the question turns on one of congressional intent. what did congress intend when it enacted 215?

on that score, i think the legislative record is clear. congress enacted 215 after a district court in the southern district of new york had invalidated the national security letter statute, because it failed to provide for a clear avenue for review for recipients of national security letters. cover specs that problem in 2006. it is similar provided in the same legislation. ormay no provision at all, it spoke not at all of review. >> perhaps you would make clear how we will deal with the red light after 12 minutes. longe matter will go on as as we find it valuable to go on. >> and went on the c-span website, which that's a technical i am. i went on the purpose of finding out what c-span stands for.

i would be happy to share with you at another time. they, unlikehat what is such a, they have set aside two hours for this broadcast. >> so we have something to shoot for. [laughter] >> we will go on a greater length. >> thank you. the legislative history of 215 makes clear that the recipient review procedures did not decide the question at all about whether congress wanted the target of 215 orders to have available statutory review. the livesntext, where live intent cannot be discerned, the default rule of the apa governance, and provides for injunctive relief. respect, the government makes an argument further that no one would've anticipated the lawsuit like this, that is one brought by someone whose records

were demanded because the intent was that people in your position would never even know that this was going on. congressean that didn't anticipate this kind of lawsuit? >> congress clearly provided for the possibility of that target up to 15 orders would learn of those orders. recipients would have a right to challenge the gag orders enforced upon their ability to tell the customers about the orders. they might do chores tell their customers. the fact that it didn't preclude claims it wanted to preclude speaks highly of the matter. >> you talk about recipients, that's security companies.

>> and talking about the gag orders imposed on recipients by section 215. those recipients can challenge those gag order provisions. a person whose records were to she would learn of it. there is something a bit bizarre but the government's argument. it attributes to congress the intent to deprive this court of a narrower path for decision. not even the governments contends that our constitutional claims are precluded. there is no question that the court will add very least have a narrowe -- resolve ground of preclusion. there's not really a coherent theory offered by the government on why congress would have wanted to preclude our statutory claims, knowing full well that our constitutional ones could proceed. >> at the assuming that congress actually gave that thought at the time.

measure that would be the case. when you are talking about the statute, congress did address the issue of the recipient. they didn't say, recipients and others. is there anything to suggest that commerce at the time thought they were dealing with recipients, thought about others possibly having the ability to challenge the statute? >> i don't think there's any thing in the legislative history, and that is stable to the government's claim area when there is no intent to severable one way or another, the background rule of the apa control. i think it's important to point out that when congress amended section 215, to have the recipient review procedures, it asked the government its view of the necessity of those procedures. the government with the congress and said we think as a statutory is already anhere avenue for judicial review for recipients of these orders. that was their position in the

.itigation that was also their position in congress. they said they don't think that clarification of the law is necessary. we welcome it because it doesn't harm it. it clarifies the species of judicial review that the government had artie told the district court that was available. congress is really addressing that narrow problem of it being steps to shirley unconstitutional for congress to not have provided ready judicial review for recipients. >> with respect the secrecy point, if congress didn't imagine that this thing was ever likely to happen, assuming you haven't arguments that they should've for seeing this possibility, at least some contingent circumstances, thin thick about this at all, then we win. there -- we are not looking for intente of legislative

to grade a right to judicial review. your position is that 30 there and the apa. >> that is the perception created by the apa. the way that your honor articulated it is the way to the spring court has articulated it time and time again. that is the government's burden in this case, to show a clear and convincing evidence that congress intended to preclude burden.ms it is not our if i make him i will move on to the merits of our statutory claim. our first claim is that section 215 simply does not apply to call records. to the very same standard that they enacted 215, it added a provision to the storage medications act prohibited the government from requiring phone records. it acquired exceptions.

that section 215 is not among the list of those exceptions. unders critical, because settled principles of statutory construction, the specific prohibition in the stored communications act supersedes the very general grant of authority under section 215. indeed in the past, the government had agreed with that very principle. when they were confronted by senator the word that the privacy protections of the census act might yield section 215, the department of justice assured that senator that the privacy protections would not yield. that they trumped in effect the general authority of section 215. it agreed with a related proposition which was that the exceptions are exclusive. that it is not for courts and it is not for the government to infer additional exceptions, not .lready crated by congress

that was the government's official position, in a memo in 2009 to the fbi. concerning the scope of the national security letter statute. >> if we agreed with you about proposition, that you would have the meaning of relevance, this could you something of a pure victory for you. in other words, one of your is that if we interpret relevance is broadly in section 215 is the government wants to do, then the government could get the same kind of of just having fbi administered of subpoenas for example. covered. of request is >> not exactly come in part

because that act limits the type of call records the government acquired. for example, the government it can onlyquire -- acquire the originating phone number, the receiving phone number, and information about the duration of the call. under the storage medications act, including an administrative subpoenas you are referred to. they couldn't acquire things like the identifying device number of the device making the phone call. the couldn't acquire the trunk there was still in a broad interpretation of relevance available to them. in the governments there, can type of statute, including national security statute to require all of the same records involved. notable is the fact that none of those other statutes include the sorts of protections that the government relies on in section 215. in other words, they could rely on the national security letter statute to require these same

records in bulk, without the minimization procedures they point to a saving their collection from invalidation. without the same sorts of limitations that the system imposes. >> maybe they would say that's unconstitutional because its only the medivation type section 215 that defeat or constitutional argument. >> i would find that surprising. [laughter] i will mention one more argument. that the coreis problem with the government's theory on the merits of section 215 is that it labels everything relevant. on the premise that some tiny portion of everything --

>> i don't mean to interrupt your statement of that. i think we know that argument is. stewartds me of justice , who said that if everything is classified, nothing is classified. if everything is relevant, then relevance simply drops out. it doesn't exist. the technical question i guess statute says that the government can't apply for a reduction of any tangible things. relevanceon of doesn't come there, in terms of the authorization. it comes later. applicationires the to the pfizer court included a statement effect concluding there was reasonable grounds to believe that the tangible things are relevant to an authorized

investigation. it would be much easier for me if the authorization set in order of requiring production of the relevant tangible things, rather than putting it down later in the papers to the fisa court. the reason i find this troubling or confusing is that it is after all the administered of procedure act. and presumably, the administered of procedure act -- administrative procedure act, we are talking about the nsa. i'm wondering whether by putting this down, the question of relevance down in terms of what aust be shown to to the fis court, we are not being asked not to review what the fbi and

the nsa did, but we are being asked to review what the fisa court did. it is certainly not an agency under the apa. i don't know the question make sense, but i wonder (202) 585-3883 when you bring in relevance, and i understand the notion that everything is relevance is very troublesome. if we say that that is wrong, that every thing is relevant is fisa court was wrong, are we then reviewing what an administrative agency is done, or are we reviewing what sa court has done. and if the latter, do we have the power to get constitutional,

do we have the power to review what the fisa court has done? >> we are asking for the former, not the latter. even if the latter, i think the suit would be appropriate. i will note that there are many of the surveillance statutes that are structured in that way, that provide a grant of authority at the outset, sitting at limitations below. i don't think that the novelty in section 215. it's the same in section 1881a under the fisa administered of act. i know your honor honor and judge lynch originally familiar with section 72. >> we are not as familiar with it as the papers that we should have been. [laughter] agencyre challenging conduct. we are challenging the

government's daily collation of our records. we are not asking this court to overturn the fifth. we are not asking this court to set aside the verizon order. we are asking for an injunction against continued collection by the government. that could be put in place without saying anything, only with an instruction to the government. i think that is what our challenges. it is understood as a challenge under the apa. even if that were not true, even if you characterized our fisaenge as one to a order, the government itself in opposing an original petition there, that was asked of challenging the verizon order, said that the appropriate avenue for relief was the district court case such as the one we are litigating and are now in appeal on. but that was the appropriate avenue. and the government itself noted that it is true that a district court action may not achieve precisely the same relief as was being sought in that case.

but the plaintiffs would be an activeo receive remedy, namely an injunction against ongoing and illegal agency conduct. if -- there are now two district courts. to oppositeme conclusions within the week and a half of each other on the issues before us. and they did it in the constitutional basis. supposing we were to affirm, in the d c circuit court, so you have one circuit that says it is unconstitutional. here is an injunction. and another one says that is perfect constitutional, and we are not going to give you an injunction. leave -- areat they allowed to get records in d.c. and not a new york?

>> i imagine the government would seek a stay. they would asked the supreme court to involve that. i think this spring court would likely permit a stay, pending its resolution of that conflict. it toake him i will turn our constitutional claim. >> would we permit a stay subject to resolution? supposing we agree completely with you. might we not come in order to avoid the sort of circumstances, we agree withay you, but there is other litigation going on. we want the supreme court to have a kick at the ball. we are very much in the wrong, and summary blows of a subway train. does it make sense for us to

say, here are the rules, and this -- and then wait until the d.c. circuit speaks, and the supreme court has an opportunity makingk before actually an order of an injunction? >> i think it would be well authority tourt's take a position on that. >> that would be within our power to do. >> this intrudes upon a reasonable education of privacy. the government's primary expurgation of forces that this case was decided in 1979. that is something out the case. >> let's suppose that we agreed, or at least entertain the arguments that quantity is

quality here, that the nature of this was an issue in smith. wasn't there still quite a bit to the government's argument that even in this context, there's not really much of an excitation of privacy in these records? at thisple, if you look nice parade of horrible's, the government could find out from these records. the government could come if it shows, if someone looked into it, from this metadata could determine if it is likely that someone was hiv-positive, or it is likely that someone had an abortion. couldn't verizon find out those things if it shows -- it chose? and couldn't verizon going to the record it has and make the same had of church -- search,

and use it for purely commercial purposes, not remotely as important to anyone as the reason for governments seeks to use this data to do? just because they might be able to make money by telling a list of people that verizon thinks have recently developed an unwanted pregnancy, they could or's,hat list to abortion or an antiabortion group, to send information to those people. verizon could do that, couldn't they? >> i don't know that they could come in a matter of our contractual obligations with verizon. i don't think it provides an -- unrelated access to our call records. the only access the verizon typically has our records is --ely through its computer computerized collection of those records. it is ironic that the government claims that the computerized

collection of those records extinct as a excitation of privacy, but it's collection of those records does not conflict. >> are you hypothesizing something about your contract? do you know something by your contract with verizon that i don't about mine? is there something in that says they can't use the call records for anything but billing? >> i don't know the precise contours what they can or can't do. there are statutes that regulate what tell you medications companies can do with their customers records. they regulate -- tothey couldn't just say abortion providers, or proliferate as a nation's, here is all our phone records. you search them and see if you can find people who might be interested in your services. up verizon hasme all of this information. they presume we has the computer theyity to broke them if

chose. >> i don't know whether they have the authority, i think it turns on the question of what the congressional statutes -- i forget the long form of the name, see pni, customer proprietary network information. their regulars is the protect that information. that includes our call records by unrelated access to. i don't think anything turns on that question. i think this is another way of saying the third-party records doctrine. i don't think that doctrine has never been an on off switch and the way you are suggesting. inre are frugally context which information is shared with a third party. the person whose privacy is reported in that information, nonetheless is recognize to have an expedition of odyssey. -- privacy. >> could you illustrate?

>> our phone calls are routed through verizon medications. arecontext of our calls protected by federal statute. no one has ever suggested that verizon's ability to listen to the content of our can occasions extinct is our recordation of privacy. the same is true of our e-mail. our e-mail is routinely stored on the parties'servers. i think the courts are just now beginning to grapple with the question. despite the possibility that google might read your e-mail, because the information is stored on that third-party server, customers nonetheless have a tradition of privacy. there are many ironies in this case. them, and maybe it makes no legal or constitutional difference, but it is a little strange that once mr. stone --

snowden this close the existence of this program, we no longer had a reasonable expectation of privacy. we had just been told we don't have any privacy. that the government has it. you -- i suspect you can respond to that, because you probably thought about it a lot longer than i thought about the question. -- as you would focus on we do this, and even forgetting smith versus maryland, just talk to be about reasonableness. reasonablee, the word is actually in the amendment. talk to me about how we figure out what is reasonable, and what isn't reasonable. >> if i make him i will briefly address your first question. the supreme court has

recognized that there is an element of circularity to the katz test. expectations of privacy can be a statute that permits bulk collection. but it is guarded against that possibility by analyzing a normative question along with the katz test, which is whether people are objectively reasonable in expect privacy. normativeu see that question being addressed by cases like jones, and by cases like right. thatof which recognize even though there is the capacity for greater intrusion into our personal privacy by companies, and by the government, given the digitization of information, that doesn't fundamentally alter the relationship between the citizens of this country, and their governments. >> is the statutory issue at all relevant to the constitutional issue? uspose this case came to purely as a constitutional

question. after congress had engaged in a full-scale debate as to whether to authorize explicitly exactly this program, and they did explicitly authorize this program. one could further hypothesize they did it a few months before an election, and after an election where this wasn't an issue come the same congressmen who voted for this were returned to office. with that make any difference to our estimation of what is a reasonable education of privacy? >> i think would likely to be relevant. it cannot be dispositive. the supreme court has noted again the circularity of the katz test is not to be turned into a one-way ratchet for government intrusions into privacy. >> i wonder if that means that even if there weren't some barto

are considering -- bar to considering purely statutory, whether we found this was an executive branch frolic and detour that was not authorized by any expose the legislation of congress. and was in fact prohibited by some provision of congress. part of addressing whether this was constitutional or not, that such an unauthorized executive branch excursion would stand on different and shakier constitutional grounds, and might even be an unreasonable intrusion on privacy, without necessarily concluding that it would be unreasonable for the same program to operate if it had full, clear congressional authorization. >> i suppose that is right, though i don't think anything in our argument turns --

>> your constitutional argument leads to the conclusion that even if congress authorizes the program explicitly, it is still unconstitutional. i realize that is your position. >> that is right. but i see your suggestion. i think that could be an element of the reasonableness of the expectation of privacy. the fact that the executive intrusion is not been authorized by congress. has not been one delivered over by congress. >> if there was a real debate in the democratic branch of government, that led to a decision to re-up this program. >> i think if anything, the current debate that is ongoing suggest the opposite. it suggest that congress is not comfortable, and the country is not comfortable with bulk collection. indeed, the president himself has now recognized that bulk collection creates an intolerable risk of abuse, and should be ended.

i think that is a good segue to get us back to your question, as to how to analyze - reasonableness. it's balancing the intrusiveness of the search for its rationale for doing so. i don't think the court needs to get to conducting that balance. the fact that the government's withoutroceeds individualized suspicion, without satisfying the requirement of the warned of probable cause clauses of the constitution, is sufficient for us to prevail in the fourth amendment. >> my first question is, in smith allowed for the numbers dialed. they said that was not covered, and people didn't have an execution of privacy in that. let's assume that with regard to the program, is it your contention that it would be unconstitutional for them to

collect just that information in bulk? >> just the information that was at issue in smith? >> yes. >> it would be. smith dealt with specific with primitive technology directed at an individual over the course of three days. of all. to the extent but with regards to what is being captured, are you saying that ? because it had from the moment of his birth greeted the database of every phone call created or received. i think the supreme court would understand it to stand for a

different position. i think they would've found that collection unconstitutional. it is more choose of here on a number of different reasons. -- intrusive here for a number of different reasons. ,> how do we go about knowing ,ithout any fact-finding at all can we begin to know and figure whether this is reasonable or not? , because begin to know

of the way the world is today which is different from a week ago and a year ago, how can we without fact finding come up with some reasonable determination of reasonableness? >> i do not think fact-finding is necessary. i think the president was waiting a legislative solution. in the interim -- >> the president thinks that it is necessary to continue operating this program and that it is constitutional to do so.

representatives of the government are here to say that blesses -- that they think this is a reasonable thing. thehis is not that president has conceded the unconstitutionality of the program, but that there are alternative, significantly less intrusive means for the government to accomplish -- >> fair enough. it does sound like the rational way to proceed. supposing because of legislative blocks, that politically it will not fly, and we are stuck with what we've got , that is to say our country is unreasonablehis is

and 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 the threat. how do we do that based on briefs? >> i do not think the court even needs to to the reasonableness balance. if they can determine the the want of probable clause impractical ande --t the government can

warrant and probable cause of the fourth amendment are implacable. there is record evidence, 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 records -- if you had a reasonable suspicion that the government wants 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. the question becomes, for person -- for purposes of special 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. we don't think that it can used to engage inands bulk collection, but could use targeted demands to achieve its interest here. sayingisn't what you are the free floating reasonableness inquiries? what they're doing now a reasonable thing to do or an unreasonable thing to do? i don't know where the requirement comes into play. >> i suppose that the question of practicability seems to collapse 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. even if it were practical for the government to acquire these records in this fashion, we would still say it is unreasonable. it is the most intrusive means the government can use to a accomplish very near interest -- narrow interests. the president has conceded that the government's interest can be accomplished in narrow means. the oversight board wrote a very lengthy report that will collection is unnecessary. there is record of it in this case from a professor at simplyon explaining very

how the government could do this and a target a way that would not require bulk collection. i think that goes to the question of arctic ability and reasonableness -- practicability and reasonableness. i think once you get to the point of saying it is time to reapply for the points you've already made, we have probably gotten to the end. argument.ou for your may please the court, stewart valerie. -- delery.

>> you're starting off by saying it has been approved by all three branches of government, but you do not want us to address the question of whether or not has been authorized by one of them. >> if you are returning to the statutory argument, yes that is right. we think that that was a choice in specifyingmade a very detailed provision for applications and approval of those applications. then, with a detailed review scheme following that, rolling for a challenge to providers and a review by the court and ultimately to the supreme court as appropriate. the supreme court is unclear as congress has established a specified forum for limited parties for judicial review. in that process --

>> you are going on to address some very specific faqs about the judicial view program there. that suggested it was reasonable to assume that congress had intended to preclude the review by other parties. they set out a variety of factors and the that those factors and included with respect to that program that it was a reasonable inference. i am not sure those factors came out the same way here. really saying you depend heavily on a generalization, art you? >> i do not think we are relying on a generalization. the court has made clear that inquiry needs to be based on the

structure of the statutory scream at issue here -- scheme at issue here. is no provision for challenged by third parties to these orders because, as a matter of course the expectation was that at the time the third parties including people other than recipients would know about them. >> is that enough to assume the congress intended to forbid -- by thirdeview party if the third-party did find out. contemplate this kind of lawsuit and specifically authorize this kind of lawsuit. it is a good argument to say of course not. it could not ever happen if secrecy were maintained. but if there is a presumption that judicial review is

did longer specifically intend to prohibit judicial review to these particular people? >> limiting the category of people who challenge the orders was a deliberate choice made and effective in the legislative history. the amendment that rejected district court challenges. the key provision that was not 1861.sed was section

--y should be set out only >> why would a recipient of her challenge one of these? there is an absolute immunity by any claim by customers that they anything by turning stuff over to the government in one of these requests. what stick to they have in saying anything other than a year ago off take what you want?

>> i think you're right, then it may not be the right people to ask. business reasons or practical reasons for making that decision. there has been such a challenge to in order recently and that led to reaffirmation by the government order on both statutory and constitutional grounds. given that we have here not the situation were congress has said certain challenges to agency action should we brought in a regular forum, that have required judicial approval before the private party is required to make the production to the government. the preclusion makes complete sense, and the plaintiff's arguments makes a challenge to

-- challenge -- but not to test whether it is consistent with 215. >> that is the consequence of the supreme court's implied what theas compared to court has said in webster versus know about what is required for congress having pretended to preclude constitutional claims. is there any role to the doctrine of christian visual

avoidance -- constitutional avoidance? to assignsking us to decideonal law whether perhaps the government is precluded from doing this sort of thing even if congress once it done. done.ts it on the other hand to accept an argument that says nobody has any constitutional privacy rights in anything anymore. the same third party argument apply to bank records and credit cards. obviously to some accent there are and was of the same argument. quite fair third-party record. smith against maryland itself

was limited to non-content record. the court itself made a point of distinguishing the situation of the context. there are other cases including miller versus miller that dealt with other types information. the key and the relevance test under the statute, the court has made clear about the inquiry. >> isn't it at least as relevant whether someone that you have some reasonable suspicion is engaged in terrorist connections uses a credit card to buy a ton of fertilizer or called a gym using his verizon cell phone? there is 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 to make it easier, 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? >> asking those questions are 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 government'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 fisk made clear that the purpose of the bulk collection is to allow for the 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 made connections and in furtherance of a particular type of investigation which are not ordinary criminal investigations looking back at who perpetrated a crime that we know about but are designed to be forward-looking. the purpose of this work is to detect and disrupt future plots before an attack can be made. and so -- >> bank records seem to have the same sort of information. it appears that they do not have an interest in bank records. there may be certain limitations. couldn't then the government 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 type of data and has established they can be collected into a database and 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. it is --

>> is the idea that telephone records are kept in similar formats by all providers so unlike tank records, they are more susceptible to collection as a database. if you had to wait, 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 then he can get that 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 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 everything. >> i would like to come back to the point of minimization's. on the question of relevance and i 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 it allows for standardization where that is necessary although i do think phone 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 with some connection to a 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] and there are a lot of burdens. this could be done by targeted 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 not know which of the metadata

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 records although i think there was a suggestion in terms of what the president has said. i want to 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 -- >> i wonder how the argument is when we are dealing with something that is public. they know about it. 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 briefed about the program.

the executive branch provided a briefing paper to be made available to all members in 2010 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 they highlight from some of the senators were named -- the connection with the 2011 reauthorization where they called their attention to the

section 215 and 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 and also repeated the need for 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 about whether relevance is inappropriate, 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 going on -- >> that would be the kind of thing that would get typical ratification argument. congress would not ratify her

analysis of 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 statute.d this the program that had been instituted, the fifth court had approved it. and there was this process of briefing in congress. i do not think -- you can tell me if it is. could you explain to me, if i am a member of congress, an ordinary member, not a member of

some special committee. i do not mean what was in the class five brief. what was i told about you better go read this before i vote? what memo did i get? >> they were memos from the chairs to intelligence committees. they are in the joint complex. information had been provided by the executive ranch. it was important for the reauthorization of this authority. >> if i was to go and read it as 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] the notion that their legislation has been accomplished because i had a letter from congress saying read this before you vote. 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. >> i do not think people got up on the floor and said you want to vote for this. we can't say what it is but you better go read it. >> the court has said, indicated that references and 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 thatthe wisdom of this program 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. the president has -- >> this is not a consideration that is entirely appropriate. if they said this was authorized

by congress, that would put it to them, to act on whether they think this is something that should be done or not. >> he is doing this or alternatively, do not do this anymore and there would be nothing if they did the latter. if the former, the constitutional issue would still be around. that's some action is that it is -- what the president has said is he supports achieving the goals without the government actually ingesting the blue bulk metadata.

he also noted for that approach to be workable with the speed and matter necessary legislation would be required. if he thought it was important in his judgment, it was important to continue this capability. it has been reauthorized a second time with the next reup date. >> september 12 is the day. so i just think i will clarify this conversation. if i might turn to questions

about the statutory authorization i think i will turn to the fourth amendment if that makes sense. our position is that the courts did conclude by maryland. >> i don't think i am using the mosaic approach. does there 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. it is not as though you are listening in which would be different. it is i think a question. 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. this didn't go piece by piece. he said it is third arty and similar type information but doesn't require that, or should require, based if you are talking about [inaudible] [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 received, routing information,

time and duration of the calls. we're are not talking about name and address. >> the analysis that the pen 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 and in effect the power of the

metadata was appointed and smith itself wiped it out, the court which concluded 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. that was -- that did not give 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 conspirator a talked to 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

goldman sachs talking to the trader. here is a record of the purchase of the stock in question right before the announcement of some new public information. what do you think they were talking about? that was proof that was a leak from the insider. metadata can reveal content. >> the point about the technology that allows analysis leads me back to the point i wanted to make in response moment ago. it is important not to lose sight of all of the other protections that are builthe acd retention and use of the data under this program given the old nature of the production to the government in light of the technology.

that is critical to understand. in addition to being non-content information about the telephone calls, data can only be queried for counterterrorism purposes and only if there is a reasonable suspicion that the selection turn or number or whatever is associated with ace foreignified terrorist. subsection g requires minimization procedures. it was understood that this tool

could be used to obtain data that could relate to a number of u.s. persons. the statute requires that the government proposed and then an element of the program be robust minimization procedures. they spelled out any orders of the fifth but that there would be rejections around the use and dissemination of the data. >> it would be possible to spell out something in legislation of this program were going to be authorized by congress explicitly that said what made sense and what did not. this as the attorney general has to specify. the record is basically just sign off on what the attorney general asks for.

it made more restrictions. that was because of the effort to be more restrictive. they are operating in an expert take complex. here is what would be better or we think this is what the constitution requires. the government looks and says there are things that you should tell us to do. those are approved. my concern about all of this is it is fine to say we have this data and we have rules for its use. that is not the same thing as the government not having that information, sitting there. i do not know what mr. snowden could have done. instead of leaking the order he could have leaked the database

to somebody. we do not know what happens when some inhabitant of the white house, this one or another one, has a plumbers unit and decides to let them have access to the database. these are realistic concerns about letting the government have this massive body of data without anything -- i am sure your answer could be whoever makes the rules, they could be abused. they could get it anyway somehow. there are levels of restriction. it is one thing to have congress adopt a program and say this is what it is and we have considered what needs to be done

to give protection and one that says we have determined what is relevant but they should be careful how they use it. and then we infer from that this massive program. >> the record on the enactment of section 215 and its extensions go past the argument that you articulated. the point in the national security area that clinical ranches are being charged within a range, drawing the lines about what steps are appropriate, something that the supreme court has articulated in the fourth amendment context. urged that congress draw some of these lines, i am not sure that this was the phrase that was

used, but because some of those are immune to legislative fact-finding, what trade-offs are appropriate to meet the needs of national security. similarly, in the mcquaid and cassidy cases, this court and evaluating types of antiterrorism or counterterrorism activities in connection with the subways and ferries noted that again the courts should be reluctant to rest away from the political branches the choices about how these judgments should be made. >> i would be cautious about making a constitutional determination. >> that is why you should evaluate the program that we have. there is obviously a desire to ask questions about what might arise. given that the supreme court has

made clear that the reasonableness is in question. you do have smith in the same type of information that was in smith. if you are reaching constitutional issues we are to focus on the program. i was talking about your preclusion point. that is a regime that congress established and the supreme court has recognized that where that is the case, where congress has not provided the cost of action the result may not be a statutory claim. the constitutional claim could the reached. there was not a cause of action available. >> the only way we can achieve constitutional avoidance in this case is by ruling against you on something statutory. we are forced to get there anyhow. >> our position is -- i prefer you not rule against

this, that is certainly true. we are left with the constitutional argument. whether you do it at the level of smith versus maryland. and it answers the question about whether it is a fourth amendment search to get the records from the telephone companies in this context. if you go to the special needs inquiry and look at the program as a whole, not just the initial collection but the act that the fisc was organized, what would be query and set out in the primary owners reporting that to the fifth.

this is reflected in the court's opinions which have been declassified. not just the court accepting whatever the government offered but making determinations according to its own statements that with these procedures the program strikes an appropriate balance with providing the capability -- >> that opposes more restrictions than the government sought at the time? >> i didn't know the answer to that question. my point was that if you look at several of the recent opinions -- >> the procedures there are little different than the procedures that would be in place in a district court or in congress. in terms of having --

a real debate. >> what i think, what i can say is that although allowed -- these orders are not in the joint appendix. among the declassified materials are opinions reflecting reactions to compliance issues that were identified. and steps that they took in response. it included orders that were not technically proposed but that is a general recollection. >> material has been declassified and should serve to assure us that there is not a special needs problem.

you were pushed to that -- i say this with all due respect. i am not saying that is a bad thing. all of this stuff that we now know and we do not know we do not now, all the stuff we now know is as part of the political reaction to the understanding that this program was in effect. after arguing a good deal from material that was made, that was classified until june and was made public as a reaction to that.

>> some of that is in the public realm that had not been public before. this program and this is the critical aspect of the design, was subject to article three review from the beginning by operation of the fisc, a body set up to commission that. and others act as a channel for oversight from the congressional side where you are dealing with classified information. >> the whole system would give one a much more warmer feeling inside if it was not all ex parte. if there was some recreation of the other side.

if there was was amicus. i would find what you say, i am not talking long now. i find this a lot more reassuring. if it was just subject to an adversary process and it is not. >> among the proposals that are pending would include provisions that allowed for more than one option on the table. the kind of approach that you're talking about. >> in that case i look for it. >> if you look at the reasonableness inquiry i think and balance the factors the supreme court and this court have said should be balanced. there is an overriding

importance in preventing future terrorist attacks. the intrusion, if any, subject to the smith argument, on the privacy of individuals is carefully guarded to allow findings. the safeguards limit the use for dissemination. there is an oversight system by congress as well as other entities.

all of this we submit should lead the court if evaluation the fourth amendment question, to conclude that the program is reasonable. >> nothing can be constitutionally reasonable if it -- whether it gives us a warm feeling. >> the test is if it is a means of a -- interest. >> we have unless my colleagues have questions i think we understand your argument. unless there's something you think you have not gotten to that is critical. we will consider that based on the brief. he will not be able to pick it up in rebuttals. he is relying on his brief but i do not think we need to year hear more about any of

these things. unless there's something critical they have not gotten to, we have given it probably more time than you will get in the supreme court. let alone the regional argument. >> if and when you get to the supreme court you will not see two of these. >> thank you, your honor. >> we will hear you on rebuttal. we have had a very thorough discussion. i hope you'll be able to be relatively brief and respond only to points that you have not had an opportunity to address so far. with that, go ahead. >> the first is their response to the discussion of ratification. the question is always whether there is an official interpretation of statute that congress was aware of and legislated and that is not the case here.

many members of congress were not aware of the program. those who were were not provided legal analysis. they were not able to discuss it with colleagues or constituents in a way that the supreme court has pointed to in past cases of ratification. the second point is an exchange that you had relating to efficiency. the government could use targeted demands in a nearly instantaneous way if it structured its arrangement with the telecommunications companies in a certain way, and congress could provide for that mechanism. the fact that congress has not yet provided for that mechanism is no bar to this court ruling. that was the case when the supreme court ruled that the government could not wiretap