this week and on the c-span networks, tonight at 8:00 eastern on c-span, more reaction to the midterm elections. on saturday night at 8:00 am a debate on the future of the internet, and sunday evening at 8:00 on "q&a," author and television host tavis smiley and his newest book, "death of aching." saturday night at 10:00 on book tv's "afterwards," jeff chang on racial progress in america. wilson on what makes us different than other species. medal of honor recipients reflect on their service on vietnam, world war ii and afghanistan. and on lectures and history, the social prejudice immigrants faced. and also the fall of the berlin

wall. find our television schedule at c-span.org and let us know about the programs you're watching. call us at 202-626-3400. email us at comments@c-span.org. or send us a tweet. join the c-span conversation, like us on facebook, follow us on twitter. a three-judge panel at the d.c. circuit court of appeals here in washington heard oral argument tuesday on the constitutionality of the national security agency's mass collection of americans' phone records. we're going to bring that to you right now. it's about 90 minutes. >> thank you. may it please the court. here on behalf of plaintiff. i'd like to reserve is 10 minutes for rebuttal. they improperly joined a government intelligence program that's designed to advance our counterterrorism efforts by

identifying known and unknown contacts of individuals associated with international errorist groups. the court's injunction for multiple reasons. first, the plaintiffs have failed to establish that they have challenged the program at all because they alleged, first, they're only subscribers of verizon wireless but verizon, as the district court acknowledged, is is not the company subject to order of the foreign intelligence surveillance act -- fisa court that demonstrates that any information about verizon wireless subscribers have been -- >> doesn't the government rely n the proposition that the numbers are virtually universal and if that's the case, is it

safe to say that verizon wireless numbers are brought in? >> quite the contrary. we made the footnote in our opening brief, and the foreign surveillance intelligence court said under this program the government does not and never has acquired all or nearly all of the telephone call data records of americans in this -- as part of the program. therefore, it's improper to assume it would be only speculation, in fact, to assume that subscribers of any particular telephone company other than the one company, verizon bissonette work services, which has been acknowledged by the united states for a three-month period last year, to have participated in the program that any other company in any particular period had participated subject to an order. the district court's assumption that because verizon wireless is a large telecommunications

company, therefore, it must have been participating in the program. >> is it the largest? >> i don't know whether it's the largest telecommunications company, judge williams. the district court pointed out, i believe they said it's the largest of the wireless telecommunications company. but remember here there is no evidence that either verizon wireless or any other provider has participated. and that is important to maintain the classified nature about the details of this program, how it operates. unfortunately i'm constrained in what i can say, of course, about it. but what i can say is as in the amnesty international case and the supreme court, it's plaintiff's burden to demonstrate and they failed to do so here, not only because their theory as subscribers of verizon wireless, which they cannot substantiate the district court acknowledged there's no evidence that verizon wireless participated, but also because the injury

they assert is not based on the mere collection of metadata itself but the possibility that the government might misuse the metadata of these particular plaintiffs. >> if there is an invasion of privacy by the collection of the metadata and the supreme court in jones recognizes even in the opinion of the court that it is the protected interest under the fourth amendment, then is it necessary that they show any misuse against them or is the collection an invasion of privacy sufficient to meet that element of standing? >> well, on the standing and on the merits, we think it's -- >> let's stay withstanding for the moment. >> sure, your honor. the plaintiffs assert in their briefs but not in their complaint with their evidence in sport of their injunction motion that mere collection might be sufficient for the standing but it's important then to ask in what way that

would harm a protected fourth amendment privacy interest. >> no. the question is, is it not a harm in itself to invade the privacy interest without showing any further harm? >> if there were a privacy interest in the metadata that a company maintains in its own business records about the calls of its subscribers, where that company maintains its business records for fraud prevention and billing, then if the court were to find if there were a fourth amendment privacy interest, that argument might be sufficient. but here that argument is precluded. >> the merits and -- >> well, this is why i mentioned in response to the judge's question. i think the point is mere relevant to collection as to the argument of mere collection is -- both of the standings and the merits. in other words, there are similar points to be made. there is no protected

constitutional interest that's been invaded by the mere collection of the business records of a telephone company. >> what, if anything, beyond the -- let me back up. concern the information or data as to whom the caller had called -- >> yes, your honor. >> is the metadata that you're collecting here broader than that? does it go beyond the information as to who has called? >> well, judge sentelle, i think it does in some senses but not in a material way. >> we'll be the judges in materialality. you tell me what it is. >> i think the question becomes, is there any way in which the particular metadata that's been authorized by the foreign intelligence surveillance court is different from the metadata that's different in smith? it was required by a pin register.

it was the number dialed from the subjects, the defendants. in this case, that information is included as well as the number of the phone that's calling or the -- both calling and receiving numbers are acquired. in that sense it's like the trape device as well which is the kind of technology that's been around for a long time. it also includes the information about the call when it was placed, how long it was before it was concluded and the date and time, for example. there are some unique identity fires about telephones that are listed in footnote 2 of the primary orders that are included in the appendix here at include things like inei, imsi. these are associated with telephones and devices. so that information is acquired. again, this seems to us is very much the same kind of information that was at issue. >> what -- if i may interrupt. what, if any, information is gathered about the physical

location of wireless callers, if anything? sorry.udge sentelle -- >> tower information. >> tower information is not included in this metadata. the courts have specified that it's not included. in passing reference, they suggested there's something about trunk identity fires. trunk identity fires are not like cell tower information in the sense that they could be used to identify a location. they just identify where a call is routed and interconnected within the network but not in the same details or closely way to cell tower information. and so because the fisk orders, the judicial orders that authorize this program and impose limitations on it specify the type of metadata, the courts -- the court in that case, in the many orders that

it has issued, has specified that it has concluded this kind of metadata is within the supreme court decision in smith. so that's the judicial determination by the fisk itself. we think that supreme court's decision is therefore depositive of this case and requires reversal of the injunction because this is not a search under the fourth amendment as the supreme court emphasized. there's no reasonable expectation of privacy in the numbers one dials to complete a call nor any other information as the fisk has concluded about when a call takes place and the like. this information also does not include any content of communication and content of communication is specifically orders. in the fisc it was not an issue in smith and therefore the court flagged

that aspect of it as another relevant consideration. we think it's likewise relevant here and so does the fisc. this information is not being acquired from a pin register capturing from transmittal to the telephone company but from the business records of the company itself which maintains it for their own purposes. we think that's an additional reason why this information is not subject to protections of the fourth amendment in this context. so just as a business may be required to turn over its records in the context of a subpoena of grand jury, etc., cases we cited there, it's very clear that this information is owned by the telephone company, not by the subscribers in themselves. -- that was ith to

he continuous pursued of jones over, i guess a week or so. if that's true, if that's the limit on smith, then does it make a significant difference that these data are collected for a five-year period? >> no, judge williams. because remember, one of the differences here is that unlike a g.p.s. tracking device which is placed on an individual vehicle for the purpose of tracking that individual, as in maynard and jones, here the data is actually acquired on an ongoing basis by the telephone company for its own business purposes. so the fact that the company -- so one of the points that this court -- and i think even perhaps the supreme court, one of the opinions might have made is you don't expect the government to be tracking your movements moment-to-moment, 24 hours a day for 28 days. whereas here you do expect and

you have to expect when you dial a phone number your telephone company has a record of that phone number every time you use the phone. >> but certainly maynard seemed -- your expectations would be different depending upon the degree and five years substandingly longer than one would expect the -- in fact, i don't think the telephone companies kept them that long, right? >> it's not clear in the record of this case, judge williams, as far as i know about the length of time the telephone companies keep the data. but the point is there is a 90-day period that requires the telephone companies to turn over the information from their records to the government for purposes of this program. now, the government may then retain it for five years, but that's not the same as asking whether the telephone company must keep it for five years. this is an order from a court requiring turnover for a 90-day

period. that's the relevant consideration for purposes of -- >> why is that relevant consideration rather than -- how can we discard the five-year term that government keeps it? >> because under smith and miller, the question is, who's information is this and is there an expectation of privacy by another person? and here the information belongs to the telephone company just as the financial information in miller belonged to the bank. and the fact is once the bank has them or the telephone company has them, it can turn them over to the government. that's the -- >> phone company ownership has an on and off switch, right? phone company owns it, no expectation of privacy. that's not the view that court took in maynard. >> well, i think in maynard and jones the question was quite different, your honor. the question there was not about whether there had been a third party that had the information. and that's the key point about smith and miller and why we think this case is governed by

that supreme court precedent and really not by maynard and jones. in maynard and jones, the courts were concerned -- this court and the supreme court were concerned with the question about whether the government had intrusively acquired the location information, not from a third party but from the department deft's movements directly. here that's just not at issue. here the acquisition of the information comes from the business records of the telephone company. >> this third party approach creates a really nice bryce line. but does it matter to whom the information is conveyed? for instance, medical records. that would be -- you know, a third party's record, but could you draw the same line? >> judge brown, i mention this because it's important to recognize in the context of medical records just in the context, by the way, of telephone records, wiretap

provision, etc., congress has acted to protect privacy in all of these areas. for example, following the miller case, congress passed a statute governing the secrecy of bank records. following the smith case, congress passed a statute governing wiretaps. hipaa, in your example, judge brown, would govern the restrictions, would impose restrictions on the proper use of medical information. so, too, here, fisa imposes requirements that are then enforced by the foreign intelligence surveillance court. and those protections are essential to understanding the program and the very limited intrusion on any privacy interest. we made the point that smith says there's no fourth amendment search here. but it's important to recognize if there is a fourth amendment search, this would be a reasonable intrusion because it is so limited, because it is governed by those pretickses in

he fisc order that needs a prior judicial order that a particular sort of actor is associated with an international terrorist group that only permit use of the metadata to the -- limit use of the metadata to seeing the two teps of contacts from that reasonable articulate suspicion. those protections are very important to understand the way in which this program is tailored and the way in which any intrusion on privacy, whether protected or not, is so limited and therefore quite reasonable in light of the important government interests served by the -- >> so the government doesn't take the position that this falls outside the warrant requirement. you're actually saying it falls within it and you're right or you're wrong? >> yes, your honor. >> it falls outside? >> no warrant is required here just as no warrant is required for drug testing students, athletes or drug testing

customs -- certain government employees. so there are certain programs or -- >> right. >> there are certain programs that have been recognized to be reasonable even to the extent they do implicate fourth amendment interests and in those context the warrant is not required but a reasonableness is. >> so in your view, what is it provides? ourt ou're not meeting some idea of a warrant requirement. reasonable suspicion and all of that is part of what they're looking at, but your view is that you wouldn't need that intervention? t's just that it's statutorily required? >> judge brown, yes, it's statutorily required. the ruling in this case ensures that certain privacy interest that the president recognized in his statements earlier this year is protected as part of this program.

it's important to recognize, too, there are two steps to our fourth amendment argument. the first part is smith, miller, those cases and ensures and guarantees that this is not covered by the fourth amendment at all. there's no surge. there's no reasonable expectation of privacy in the business records of the third party. but even if it were a search, the second part of our argument is it would be a reasonable one that satisfies the requirements of the fourth amendment because it is so carefully tailored and the privacy protections are so expansive. i'd like to reserve the remainder of my time for rebuttal, if i may, unless the court has further questions. thank you, your honor. >> you may.

>> good morning, your honors. it's my pleasure to be in front of you on a case that has monumental importance. in fact, it was judge leon who said at the lower court level that this case is one of the pencal of national interest. pennicle of national interest. >> before you get to riley, can we talk about standing for a moment? >> love to. >> ok. it's your position that just querying the database is a search, correct? >> that's correct. >> in other words, there are -- in your view, two intrusions here. one is the collection, one is the query? >> the collection is enough at the inception, but what can aggravate that without a showing of reasonable sprigs or

probable cause, which is not present here for the plaintiffs, and particular for all americans who have no ties to terrorism, it's an aggravated violation of the constitution. just just collecting the data is sufficient to implicate the fourth amendment, as judge sentelle pointed out. footnote number 1 of the verizon order at issue, the fisc order, he defines what metadata is and that's buttressed by the evidence of edward felton. there are two afts. i know your honors -- there are two evidences. i know your honors have read them. the metadata is defined by the fisc court for purposes of this order, telephone and metadata includes comprehensive communications, routing information, included but not limited to identifying information, for example,

originating and terminating telephone numbers, international mobile subscriber identity. the government would like you to think they don't get into identities but they do. >> the identity comes from the phone number, right? >> that's correct. sorry, your honor. >> as in smith, right? >> that's just one part of the metadata. from that, as expert felton testifies to, a computer expert at princeton, from that you can derive virtually every aspect of your personal and professional lives. who you met with, the duration of the call, that's not, of course, an issue which would be involved in a pin register or trace and trap. >> doesn't your understanding theory really turn on a kind of telescoping and elimination of the imminence requirement? because the harm you're concerned with is what follows, not merely from the so-called querying, but once the querying is conceived from examination

of the particular phone transactions to see what's going on and that occurs -- that's two steps away from the collection. so by turning collection into a standing creating event, you've eliminated imminence. your real concern -- and this is expressed very well, i think, i believe it's the aclu brief, is that there leads to government officials doing something. >> the aclu brief did make that point and we make that point as well. but it's not an issue that's doing something. they've done something when they obtain or metadata which is highly invasive which leads the government to have the ability -- when you take all of the factors of metadata together and my esteemed counsel here from the government admitted that it goes far beyond pin register or trap and trace. the --

>> i didn't hear that. >> well, it's an admission because -- [laughter] >> broke out. he broke out the various components which go far beyond the pin register. you know, it's ironic -- >> if you could stop there. explain to us how it goes way beyond the pin register. >> because you're not able to get information with regard to who an individual has called but also calls into that person. >> trap and trace. >> yes. then you go three steps down the line and it mult plies, as they eon pointed out -- got 300 identity fires. judge leon does a very good job of identifying how 300 identity fires leads to -- identifiers leads to hundreds of millions of others. and expert felton testified under oath in his affidavit --

>> the identityifications never occur until -- the identifications never occur until the querying step is complete and the identification process begins, right? >> that's an interesting question, ok. the answer is, that's what the government says happens. but unfortunately, and it's built into section 215. and rely heavily on the so-called minute anyization procedures. the inspector general of the n.s.a. and other intelligence agencies have documented in a short period of time over 2,000 violations of the use of metadata. 2,000. workers -- and this is in the record from the n.s.a., and it's very broad in terms of who can get access. it's not defined what their expertise has to be -- has actually got in to the telephone records of their loved ones, their girlfriends, their boyfriends, husbands and rifes. this has been repeatedly

misused. to come in front of this court and say we don't get identifiers, we don't get into people's underwear, so to speak, is absolutely false. there's a documented record that judge leon went through and we briefed it of the n.s.a. and our national intelligence director not telling the truth to congress. in affect, lying under oath. you don't have -- in effect, lying under oath. you don't have to go that far. trapping -- that's a good ing, judge williams -- for a long period of time, as set forth in jones, as set forth in maynard and other cases -- without a particularized showing of a reasonable suspicion that the subject is communicating with terrorists or terrorist groups or committing a crime is a violation of the first -- of the fourth amendment. it's also a violation of the first amendment. i am a public interest lawyer. i'm someone who challenges the government. i have my clients in the courthouse who had me

communicating with me over the death of their son in afghanistan who died in a shootdown of a chi neck helicopter in a mission called extortion 17. they allege that government covered up their facts. my clients have been critical of the government. we have on the record -- and judge leon didn't rely on it -- affidavit showing their computers had been accessed by the government. that's in the record. -- and a lawyer and the by obtaining my metadata, seeing who i'm calling and having in fact going three steps down the line to what i do violates the most sacrosanct privilege in the law. my attorney-client privilege. so this case needs to be seen, not just in the context of what's happening to all americans which is perhaps the biggest violation of freedom and constitutional rights in american history, but it has to be seen in the context of the particular plaintiffs in this case who have had their

attorney-client privilege desecrated, destroyed, vylate. >> the desscregs of which you speak -- the desecration of which you speak is which the government officials reached the third step of this process, that is move from collection through querying to actually examination of the numbers and following out what the -- who the holders of the numbers are and so forth. so, again, seems to me you're telescoping the process in a way that obscures analysis. >> we're not telescoping it, your honor, because the government has no right to that information any more than in riley, as chief justice roberts pointed out with great strength, that you couldn't have warrantless searches in the years leet leeding up to the revolution going into people's homes. there's no right to grab -- >> this is a lot like riley

than it was smith. riley had cell phones that had all sorts of information on it. isn't this more like smith than it is like riley? >> they're trying to extend riley in registers rather than trap and trace. >> what is the information they're getting here that is beyond what you get with a pin register or a trap and trace? >> yes, it is. >> i said what is the information here that you're getting that is beyond what you get with a pin register or a trap and trace? >> because they're able to with the confluence of factors -- i was reading what metadata is and his expert -- as expert felton testifies to and they don't rebut that. they rely on their own state statement. >> what do you understand my question to be? >> i understand your question. the confluence of information allows them to piece together where an individual is, the duration of the call -- >> where it is part.

>> his social -- >> where it is part, is that part of the metadata they collect, the location? >> it can be obtained that way, yes. >> it can be obtained that yes. i'm told by counsel for the government that they are not collecting the cell tower data which is what would tell you where the person is. now you're telling me that they are collecting something that tells them where the person is? >> i'm telling you they are. and i'm -- >> what is it that they're collecting -- what in the record shows me that they are collecting data that says where the person is? >> the references in the record to the inspector general's report, which are in the record. that they have violated section 215 and the constitution of the united states. it's in the record, your honor. >> tell me where it is in the record. >> the details. >> we understand people claim violations of the constitution in section 215. the question is, what -- how is

the data acquired different from the data acquired in a pin egister? we keep asking it and you keep evading it. >> judge leon pointed out, it's not just simply incoming phone numbers or outgoing phone numbers. >> well, the incoming would be obtained by trap and trace. >> yes, i know that. >> what is it that goes beyond the data that could be obtained by pin register and trap and trace? >> trunk identifiers. >> what does the record show you that trunk identifiers give you? >> sorry >> what does the record show that the trunk identifiers give you? >> the record, and i urge you to look very closely, as i know you will, the affidavits of edward felton, i which are unrefuted other than the denials of the federal government, which are frankly not to be believed, the reality is that this can be pieced

together from what they have to identify information and to in fact locate where a person is, the duration of their communication and every aspect of their social and professional lives. >> can you tell us where to show where a to person is? don't tell me to look carefully. show e where to look to where a person is? >> what i'm saying is this -- >> you made the statement just now that the metadata they're getting would show where a person is. i'm asking you to tell me where in the record i would find that. >> you'll find it in the affidavits of edward felton. >> i'm looking at it right now. i'm trying to find trunk aspect which i don't. he seems to make a very good case that once you get to what

i call the third step, the tual analysis of the data, with respect to a particular telephoner, you can get an awful lot of data. don't see -- draw inferences from the location of the particular land lines, but i don't -- i don't see him making has e how the trunk data any effect at all. >> i'd like to reserve my time and i'd be happy to point that out in rebuttal. >> if you're going to point it out point it out now please. we're asking you know, tell us now, please, unless you need to look it up before the rebuttal. i'm sorry if you need to look it up. look it up. i'm sorry.

>> well, he says -- it's a very detailed affidavit. but he points out, for instance, in the context of public interest groups how you can tell who the donors are by the duration of the call, that kind of thing and that you can, through trunk identifiers, find the location of an individual. >> remember that in smith, the government found out that smith as making abusive phone calls. i'm not sure you can get much more extreme than that. >> look at paragraph 118 of the felton affidavit. 18 of the felton affidavit, your honors. the information sought from

verizon also includes the trunk identifier of telephone calls. this provides information how the kowal was routed through the phone network which reveals information about the location of the parties. for example, even if the government never obtains cell site location of the call, trunk identifier information revealing that a domestic call was carried by a cable from hawaii to the main land, united states, will reveal that caller was in the state of hawaii at the time the call was placed. and what's important -- judge leon, one of the most important findings in his ruling was at page 57 where he says, no court has ever recognized the special need -- because they're trying to rely on special needs here and that's an extreme circumstance to justice continuous daily searches of virtually every american citizen without any particular suspicion. in fact, the government urges me to be the first judge to

sanction such a dragnet. your honors hit on this before. this is a long-term proposition that's different than a pin register. it's different than a trace or trap. there's no particularized showing of probable cause. to simply grab these records because the government can do it -- >> rin numbers require probable cause -- pin registers do not require probable cause. >> a reasonable suspicion. >> under the statute as well here, your honor. and we're not talking about -- >> excuse me. you jumped ahead to the actual thirt step. the examination of the calls. you never attempted to show standing there. because there's no data in the record suggesting that your calls have been examined. >> yes, there is, your honor. the affidavits -- we have my affidavit and the affidavits of charles strange in the record. >> and how do those establish that those calls have actually been examined?

>> because i in receiving telephonic information -- >> i'm sorry, people are -- >> been violated. that's in the record. >> say it again what it is that what is the phenomenon that you attribute to this. >> the phenomenon -- >> people are getting -- >> telecommunications have been breached. >> where is the evidence for that? >> we put forth evidence in our affidavit. the government said they can't confirm or deny. the government had an opportunity to reveal to judge leon in camera what was going on. it shows not to. heads i win, tails you lose. they hold the cards. the americans be damned. >> i'm trying to get cleared what phenomenon from which you infer that your calls collected in this program have been not merely turned up in a query but

then examined. >> number one, i want to make clear here what our problem is. the gathering of the information at its inception is a fourth amendment violation. >> understand the claim. >> secondly, there has been a showing under the minimumization where they claim to protect identities and locationes that they have been repeatedly violated by the n.s.a. and the other government defendants. >> what is -- you still aren't answering my question. what is it that has happened to ou that shows that it must have come from this -- the abuses or exercise of rights under section 215 under this program? >> the totality of the evidence, the nature of metadata, the fact bev had invasions into my cell phones and into the computers and cell

phones of mr. strange. >> what are the invasions? >> set forth in the affidavit -- i can give you an instance. the strange is on a computer and all of a sudden a picture by aken of them purportedly some intentity related to the f.b.i. they don't have a camera on their computer. they are getting calls from afghanistan, strange calls that has nothing to do with their having to communicate to afghanistan with regard to their dead son. their son was a -- >> this sounds very peculiar. i am not sure how it links up to this program. >> regrettably, it's not peculiar because our government, and i'm a former justice department lawyer. i'm the found of judicial law, freedom launch. i founded freedom launch. regrettable fact is the government has not been telling the truth to either lower court judge leon, to congress. we had the director of national security lie under oath, commit

perjury with regard to this program. we had whistleblower edward snowden. they said they were forced to do so. judge leon pointed out, the government holds the cards. so they come in here, you know, arrogantly -- i'm not -- i'm not disparaging these lawyers. but the government as a whole comes in arrogantly and says we are above the law. we don't have to tell anybody what we're doing. and by the way, since we don't have to tell anybody what we're doing, we win. we'll get to continue doing it. you know, it was thomas jefferson that said, our founding father, second american president, when the people fear the government there's tyranny. we have tyranny. and if king george iii had the same powers as this n.s.a., our founding fathers would have never got to philadelphia, they would have been picked up and arrested before they got to sign the declaration of independence. this is not an academic matter. this is a matter of our rights as a people to be free from having the government stand over our shoulder and we have first amendment claim here,

too. a chill effect on freedom of speech, freedom of association. i can't talk on the phone anymore, that's in the record, with my clients for fear they will reveal attorney-client privilege. this is the most outrageous abuse of freedom in our history. it's not to be taken lightly. i take offense of the government coming in saying we hold the cards. you are not entitled to know. this is exactly why we fought the revolution. it's why, your horn, we have faith in you. -- it's why, your honor, we have faith in you. if the courts don't step in here, we are going to be in the streets again regrettably. i don't want to see that i don't think you do too. >> thank you, mr. klayman. > thank you. >> good morning, your honor. may it please the court. my name is cindy cohen and i represent the electronic frontier foundation, the american siffles liberty union

and the aclu. i want to thank you very much for giving us the opportunity to address you here. i'm happy to answer questions. a few things i would like based on the commentary before that i hope i can assist you in sorting through the situation. first, we all believe that smith vs. maryland controls the situation and that government is attempting to expand smith to cover a program that is significantly larger than what -- than what smith had to deal with which were just the calls made by a suspect over three days. this is the only targeted mass collection of the communications patterns of millions of people over nine years and kept for five years. this information isn't volunteered, which was the center argument in smith.

the information that you -- >> i thought smith acknowledged that the companies didn't give telephoners as a choice as to whether they would have their -- the data that was recorded there recorded? >> well, that's correct. what smith was gathering was just the pin registers, just the numbers dialed out. it didn't include whether the call went through much less the duration of the call or the patterns of the calls that are happening here. so it's not information -- >> has the smith principle been applied to trap and trace as well as to pin registers? >> it has. it has not by the u.s. supreme court and i don't believe it has by this court either. >> ok. >> but, yes, there are some cases out there. >> if that's the case, that the smith principle applies to trap and trace as well as pin ridgester, then it does cover the kind of data that you're talking about where the call

comes from or what number the call comes from? >> i think that's correct, your honor. i think what's going on here is significantly bigger. and the government is trying to larger program involving a lot more information that they ultimately can receive into a pretty tiny box. >> the salient difference between smith and the present case is one of magnitude rather than kind? >> i think that's fair. the information being gathered, i think trunk lines definitely give you a rough location of somebody which you wouldn't have gotten with the pin trap. the identifiers that are -- one is an identifier of your phone. the other is the identifier of the similar card in your phone -- sim card in your phone has information than just the phone in -- >> if we go back to the trunk identifier, that at best gives you some information about

location, but in the era of smith, the phone number itself gave you conclusive information about a particular geographic point, did it not? >> well, it gives you the area code and a rough location. there is additional information. >> that's easy as pie to get, right? >> yes. the identity of the person whose phone -- >> and the location? >> correct. >> because they were land lines. jrges there is additional information being gathered here. i don't think that's the most important thing that's different here. but it is true that there's a different information being gathered here and the government wants that information for a reason. you know, just four years after smith, the court recognized that it was going to think differently about gathering collection than it might think of the targeted collection. in smith itself, in footnote 5, the supreme court recognized that in situations in which the

reasonable expectation of privacy had been perverted for one reason or another because the government came out and admitted they were spying on everybody, you have to go back to a different aprofe. i think if you look at smith itself and you look at knox later and if you look at riley and jones, you see that supreme court doesn't seem to think that it's stuck in this little box. that if metadata then we're done. or if they're -- these are both factors that goes into a calculus of reasonable expectation of privacy. once you start thinking of that as a calculus you can see in riley the court said just because you can get a small amount of information from somebody's pocket doesn't mean we have to be blind to the much, much larger mfings you can get from somebody's smartphone. we can think about those differences. we can think of the information in jones. the concurrences in jones say we are not stuck in the small box of smth vs. maryland.

we can look at the big difference of the amount of time that somebody's location being tracked might make. where at a single point in time maybe no reasonable expectation of privacy. at some point between that and 28 days, a reasonable expectation of privacy, that's hat sdwrs alito's -- justice alito's occurrence and justice soto mayor's occurrence. >> jones involved what otherwise might be -- i'm talking about concurrence. what otherwise would have been public knowledge just by observation became an invasion of privacy only because it created the mosaic. i'm using a phrase they didn't use. in this case, applying smith, the data that's being gathered was not -- was not public knowledge by observation but was willingly transmitted to a third party. >> correct. >> if that is not an invasion

at all, then does it become an invasion because there's a lot of it? i mean, a thousand times nothing does not still equal nothing? >> i think a thousand times n.g.o. -- i'm not going into math with you. [laughter] >> the supreme court doesn't follow my math in jones either. >> no. no. ou know, i do think there is a difference that can come from the difference in scale. i think the felton declaration -- we give you examples in ours as well. i don't think that the reasonable expectation of privacy analysis should be blind to those differences. >> do you think the reasonable expectation approach is the correct approach? >> i do think that the reasonable expectation privacy approach is the correct approach. i think that metadata here, especially aggregated -- you know, a lot more -- if i got a

call from my husband, you know one thing. if you know i got a call from my husband after he got a call from his on congress, you probably know a little bit more. the aggregation gives a more invasive picture into somebody's life. >> well, that's true if you get to that step where you're doing those kinds of queries. but the conceptual implications here, it seems to me, are vast because on the one hand you're saying people continue to have a privacy interest in information they have voluntarily conveyed to a third party. and that is, i think, different from any way -- i mean, the reason that smith works is because it draws that very clear line that says, ok, if you've given this up, you no longer have a privacy interest in it. so if -- if we go with you, you know, if we follow the line of reasoning that you have, how do -- how do the police ever figure out what it's ok to look

at and what it's not ok to look at because they would have to, i suppose, look at your subjected intent? >> well, i think -- honestly, those are difficult questions that i think a court may have to address at some point. i don't think they are issue here. we have the government collecting everybody's record over a 13-year period of time and keeping them for five. so sometimes -- >> yeah, but how does that change the fact that this information was voluntarily conveyed to somebody else? in fact, if there is an invasion of a right, it appears to be the right of the telecoms because it's their business record, right? >> don't agree. the third party doctrine i don't think is an on-off switch for people's privacy interest. it wasn't in the ferguson case in 2001. the u.s. supreme court, the hospital records case you referenced earlier. i don't think the constitution has nothing to say about whether the hospital can just hand you information over and it is only congress that's ever

said that it matters, that the constitution has nothing to say about whether the hospital hands over your medical records to the government. you're sitting on a bus doesn't mean you lose your privacy. in the chapman case, it didn't change the first amendment analysis. in the young case. even in cats. in cats, the person who was found to have a reasonable expectation of privacy was standing in a phone booth. they did not own that phone booth. >> the different with cats, i think, it was content, right? i mean, in other words, they could hear what was being said. it wasn't at the level of just information that you turn over to your carrier just by virtue of using that technology, right? >> yes. but i think that has the argument before. you're right. it was certainly about content than it was about noncontent. what cats was saying is that the fourth amendment protects

people, not places. i think if you think of the third party doctrine as an on-off switch, you're falling backwards in that you're thinking about the places, not the people. the telephone records exist because you make the call. the government doesn't -- the telephone company isn't -- they have tons of records that have nothing to do with you. this one you have an important role in. >> i understand this is a new world and that the aggregation of all this information is unlike anything we've dealt with before. but what i'm trying to understand is, you know, if we make this the rule, then, you know, what does that do? it seems to me the implications go out in many different directions. for instance, if you say that conveying information to a third party has nothing to do with it, then what happens to the use of informants, secret agents, all these kinds of issues invariablely now has to be sorted out?

and so that's what i'm asking, what line would you draw? >> well, i would draw the reasonable expectation of privacy line, honestly, and i think the courts have really held you don't have an expectation of privacy in sharing information about future crimes with an informant. the courts said you don't have any reasonable expectation of privacy in possessing contraband. that's fine. here we're talking about millions and millions of innocent americans who are making their everyday phone calls and that government is swooping that up. there's no expectation of privacy in everyday calls you make. it's not like, you know, the special needs case where is you got somebody who is running a train or students engaging in behavior. these are regular people making everyday calls. i think the failure of the government's position is that you can't take doctrines that were designed for specific situations and just decide that everybody is a suspect class. everybody has to reduce that you are expectation of privacy. i think you have to look,

first, what the government is doing. and i think you can begin to draw the line. i don't have you have a reasonable expectation of privacy in a co-conspirator conversation. >> is there a line of legal or illegal activity? >> the courts have drawn in the contraband cases. you know, the other instance here is that the question is whether you can find any kind of suspicion whatsoever. here there's no suspicion whatsoever. they're trying to do away with that piece of what the constitution protects us with. you could imagine a special needs case or something where there was a category of people who you were looking into. >> what's the category of people in these stops for drunk driving which are aimed at preventing drunk driving? not by catching people who are driving drunk but catching the sense of then prosecuting but making sure that they don't continue on their way.

that's -- there's certainly no individual targeting there, right? the police pick a place that they think is particularly suitable for catching in the sense that i just explained, drunk drivers. the overwhelming majority of them are totally innocent, and yet everyone in that dragnet is stopped. >> it's certainly the case there's dragnet. i don't think there's dragnet if they were everywhere and everybody. the police has to do some targeting of places. this is completely indiscriminant. and the kind of stops -- >> in terms of the drunkenness of the people who are stopped, for purposes of that kind of program, it's completely indiscriminant. they're stopped because they're driving through a particular cross-route or down a

particular street, not because there's any evidence whatsoever that any of them, any particular one of them has ever had a drink. >> that's true, but given in a special needs context, you have categories. you have people who are driving -- >> people driving past the intersection of first and main. >> yeah, there is some tailoring that is going on. so in the michigan department -- the stop case -- the drunk driving case in the supreme court, the court distinguished another case -- the priest case, right, where people were being stopped in order to check whether they had proper licenses and what the supreme court said is the difference between sits, where we're looking for drunk driving and the other is there's some likelihood you'll drunk drivers here. in priest it was completely random and they didn't sew any -- show any efficacy. >> the efficacy seems very strong and i understand that

judge leon discounted any possible benefits to this. but it doesn't seem to me there's much of a factual record supporting that discount. >> well, the government has admitted it could accomplish less invasive means. >> less invasive in the sense that database remaining in the hands of the phone calls until they're queried, right, but the same process of query would go on. there would be no difference as far as i could make in the querying and no difference in the examination of the particular records found to be relevant in the querying. >> well, the statutory -- the legislative language is still influx. i would take -- you're correct. there's a fourth amendment moment, an important one at the moment of collection. the moment of collection is when people are no longer secure in their -- it's the

moment that a conversation is seized that matters. under the wiretap act, which was written in order to comply with the supreme court's decision, the seizure, that's when it occurs under title 3. it's not what the government does afterwards. there may be a -- >> you don't think it makes a different whether the government collects, say, a trillion things and looks at 25 versus the government collects 100 things and looks at 100? >> i think there's significant difference, your honor. >> well it doesn't count against you here. here the government -- the allottests elected and virtually nothing is examined. >> your honor, i do think it matters. first off, nothing is examined because of government protocols. >> yeah, those were part of the case, right? >> those are part of the case.

>> and they arrived out of statute. >> i think that justice roberts was correct in riley when he said the founders didn't fight a revolution in order to earn the right of protocols. that's what the government is arguing here is that protocols keeps you safe. the protocols keep them safe. i think the contrary rule -- >> they are all court orders, right? >> yeah. they sign the proowe calls. -- protocols. well, it's been stepped up in recent years. but it doesn't make any sense. if you think about why we have the first amendment to try to stop general searches, they said it was ok for the -- you know, the king's troops to go into everybody's house and it only mattered what they pooled as to the actual going in it didn't matter, record every phone call, get a copy of the mail and the list of organizations and put a vitio camera in every bedroom and --

they got protocols and rules that say they can do it, i think the first amendment actually means what it says which is you should be able to be secure in your papers and not have to trust that the government will collect it but they'll do the right thing with it after they receive it. i do not think that is consistent with what the supreme court was talking about in riley. -- i do not think it was sufficient here as well. thank you. thank you.

>> call smith for the center for national security studies. our view is the court can should decide this case on the alternate ground that section 215 does not authorize the nsa data collection program. the statute points to a different variety of features -- >> before you get to the conclusion language and the defects in the statute, what do we do with the fact that mr. k l leinman has modified his complaint to exclude the statutory claim? think the court has discretion in this, especially with the principle of constitutional avoidance with the state to decide the issue on statutory grounds -- >> do you have an example of a case that a court has done

it? >> the united states versus underwood, where the court reached the additional argument, and -- >> thank you. >> the features the statute points to our a variety of things, not just the relevance requirement, but it is supposed to be done by the fbi, and the fbi is supposed to be retaining and protecting all these records -- >> what was the statute adopted? there was an enormous amount of interchange between government agencies, data -- the nsa has computer capabilities. rely, it is anticipated that the nsa would -- >> that is if you assume congress had in mind there would be a massive database created --

focusing on the nsa versus the fbi issue. being thee fbi, identified agency is the agency that maintains the records, suggests that they do not imagine anything like the continuous collection of everybody's sensitive records, that they were imagining something that the statute says more likely to get with a one-time grand jury subpoena. you get information about a particular investigation, retrieved by law enforcement, and used for those purposes. the other thing that is important to recognize is the statute has a number of different features in other parts of the statute where they are authorizing continuous collection. every time that congress did best in fisa, section 702 four intelligence surveillance provision, it always provided a

time limit for periodic review o f continuous collections. here there is no such time limit. allfifth had to make that up and create the entire structure under which this program is operating, because the statute was not intended to authorize continuous collection of massive amounts of data that is entirely irrelevant to what this government is investigating. that is not what this statute was meant to do. statutellusion in the to grand jury subpoenas, basically grand jury subpoenas and other subpoenas, suggests very broad sweep. there are loads of cases where ae government collects data, huge multiple of the actual data that is going to find anything in -- >> the largest grand jury

subpoena allowed must have been a tiny fraction of the amount of data being collected here, and there is always some category that makes sense. all the records of this doctor who is suspected of malpractice or bad activities, all the records of some corporation that is suspected, something that defines the records being collected other than everybody in the united states who is engaged in using a telephone, which is they say is not every telephone company. that i think is different in type in what congress intended to 15 to do. under the doctrine of constitutional avoidance, you should not only press the statute first, your approach is supposed to be try to construe the statute in a manner that avoids this major constitutional pronouncement that you are being asked to make here, and i cement given all those features of the statute together -- >> how can we do that on a

statutory claim that is not in existence? do you have a case, and i'm not sure what underwood said, where that says we are going to grant relief, not only under a different period under a district court, but under the theory it was pled? >> it was decided by -- >> it was abandoned -- >> that was the decision on the preliminary injunction motion. it is not like you are acting without the benefit of a record. all this is in the record -- >> i'm not sure just about the record, but the jurisdiction. do we have jurisdiction to base relief on a claim that was made? >> there is no limitation on this court's ability to-- >> you might not think that, but i'm asking you for some reason why i should think that? i have never been in a case where regretted reap leave -- --nted relief

was that a case in which they were using a statute to give a basis for relief that was not raised? here you are asking us to retain in being extraordinary relief, preliminary injunctions, based on something that is not raised before us. did that happen in underwood? >> it is not exactly the same, and -- >> underwood had to do with certificate of -- or was it a hate bs type case -- habeus type case? >> i do not know the specifics, but it expressed the waiver of the discussion the does not deprive us of the power -- in the supreme court -- ordinarys not just an situation of waiver of an argument, but where you are asking us to grant relief based sought.hing that is not

>> the principle of avoidance suggests it is the right way for courts to behave in the situation instead of having a massive new constitutional --- >> that is not usually the way comes up. i have been in a number of avoidance cases, and i do not believe any of them involve granting relief based on a statute that was not raised before us. >> it was raised, it was decided, it was waived after the court on appeal here, and in that situation at least it should not be -- i would not think, controversial that the court should avoid the fourth amendment constitutional issue. the government response that you are precluded from addressing the statutory issues because the congress created a review remedy for recipients of the orders, but i think that argument has a variety of defects in it.

indication that congress excluded anybody else other than -- because they did not think the people in ordinary courts would be aware of these orders. you would not create a remedy from custodians of records. there's no indication that covers had a desire to put this court in a position of having to address the constitutional argument, which the government concedes is before you, but not decide in advance of that whether or not their actions are consistent with what congress mandated. i think the block case on which they rely is entirely different and there is no basis for finding that congress intended that you be put in a position of having to decide a constitutional issue instead looking at the statute is statute which is after all -- >> indication in at least one of the cases for the fisa court, one of the recipients of the orders raised the constitutionality -- perhaps a

statutory question. at any rate, raised whatever issues here on behalf of a particular telephone subscriber. that suggests that telephone subscribers' statutory claims can get heard even if they preclude the provision as read up to the hill. that council of urologists, particularly, that seems to be enough for us to stop looking for a way around conclusive language. >> the only time that such a claim has been brought was after judge leon ruled that this telephone, taking back to this is meant said tell us for sure this is what we are supposed to do. judge callier issued an opinion say he disagreed, he things it is authorized by statute, keep giving the data. the reality is the recipients of

these orders have no incentive to enforce any of these requirements. they're completely immunized from any liability for complying with the orders. it is not their privacy that is at stake. that is what for many years up until 2014 no one -- >> why did this telephone company raising them? they wanted to cover themselves because if there was some problem after judge leon ruled. they do not appeal it. that is a one-time event probably or at least not an indication that the structure is such that we are going to have meaningful enforcement of these requirements in an adversarial setting. real enforcement by the recipients, they have no incentive to take that action except in that one-time situation. now, the other thing i wanted to mention, if you will indulge me, the government has this idea that all this was ratified by congress in 2010 and 2011, years

after the court started collecting this metadata and after the fifth was authorizing them on these things. extension, two extensions up 215 along with a couple of other provisions in 2010 and 2011. there are multiple problems with ratification argument they made. problem is they do not claim that most members of congress were aware of the program when they voted to extend it. >> were there senators on the floor of the senate saying before you vote for this you should go and look at this data? >> no indication of how many senators took them up on this. , tond the other senators the accent that was true, the other senators thought that warnings that senator wyden, senator udall, they were willing to go ahead in the face of them? >> the question is the intent of

congress to authorize a program which is not authorized on the face of the statute. that intent can exist by the virtue of the fact that the senators did not heed senator warning, and read the secret memo, which they cannot tell anybody else about. we have no record saying that anybody in the majority of covers was aware of the program at the time that extended the statute. >> this is a silly question, but it comes to mind, had you compare it with a level of awareness of congress, but generally, as to what -- [laughter] usual case of passing a statute, you assume that covers intended what the statute says that they voted for. that doesve a statute not support what they are doing, estimate, and five years later, what they are saying is we got to change but putting this memo in a secret room and having people read it or not read it, and suddenly the statute in something different. all of this happening without the american people having any

awareness of it at all. it is like they passed a new secret law that says they are going to be able to take all your metadata and put it in a vault somewhere and hold onto it. i think the ratification in this context is extremely troubling ons,a variety of reas in addition to the fact that there were three different programs they extended. what some of the was thinking, i do not like this program, in order not to extend that and be charged with ratification, they had to shut down three different programs, and then you would not have been able to tell constituents what he did it because it is a secret. they are not allowed to tell other members of congress that you did it. the situation is fraught with problems in terms of ratification, that is the final point i wanted to make, your honor. thank you. >> thank you. you had 12 minutes remaining. >> thank you, your honor.

couple quick points on rebuttal. first, a number of the questions that the court has raised when i was before and counsel, correctly reflect that this program has to be assessed on the basis of what it actually is, not what the plaintiffs or micis might fear. and here, the program exists in a particular way, not nearly by executive discretion or choice, weight thatell -- would still be relevant, but here because congress passed a statute directing a court, and article three court, to take action, and that court has taken extensive action, issuing multiple orders over many years addressing many of the same questions that the plaintiffs here have raised him explaining

the basis for the program come and carefully limiting how the program operates and how the government can use the data 215ected in this section metadata program. for example, the judicial involvement requires now a prior judicial determination of a reasonable, articulable suspicion. requires oversight, reauthorization every 90 days, careful limits on how this data can be used, only after a query, and the query can only show that steps of contact. that confirms the limited inclusion to any privacy interest. the president's own statements are also relevant, but by emphasizing the ports of protecting privacy and the importance of preserving this capability. the president's speech and statement in march of this year following his earlier speech in january did emphasize as well the importance of transparency,

and so the executive has gone -- >> what does that have to do with our decision? >> one of the arguments on the other side is the government has not disclosed everything, but the government has disclosed far more in the context of this case than one would normally expect for a national security program. he have done a great deal to ensure transparency in a robust program, and thereby made available very public materials that the plaintiffs -- >> should we establish a dent that speeches of the present are part of the record for granting a pulmonary junction? >> it does not need to be part of the record. >> ok, so you are arguing outside the record? that is not what we normally expect out of you. [laughter] >> i think i have made a point about the court's involvement in a limited use of the program. but the court's question also reflects that it is not accurate

to articulate fears about the possible uses of this metadata when we do know because of the orders that have been released publicly exactly the limitation that the court imposes on that use, and therefore, the relevant questions are is there any possibility that information about these plaintiffs' phone calls would be reviewed by any person, and that contrasts this program with the kinds of cases that the supreme court decided highlights the lesser privacy interests here, because unlike in miller and the many criminal cases, the supreme court has decided, the government is not using all this information in order to go after individuals. >> that reiterates if the government is not arguing it is not a violation in obtaining the data in and of itself, that is not a fourth amendment violation? >> absolutely, and one of your questions earlier reminded me of an important point on that in that aspect. so go through your papers but

do not do anything with what you find in your paper some of the fourth amendment is not violated? >> it is a very different question than when individual effects and property have been invaded. >> property is the interest protected in the fourth amendment. it has a historical basis, property, and it is the basis fourd on by the opinion of -- i do not know if that is the tothat was enjoined in -- make five, but the protection of privacy is the interest relied on by the alito concurrence in jones, recognized by the scalia opinion in jones. property is an important interest, and it is the original

interest, but not the only interest. is there not a privacy invasion in the very fact of reviewing phone calls, or collecting phone calls? let mee is not, emphasize you're absolutely right, both property and privacy are in play, and protected by the fourth amendment. what we know of in this case is those property interests are those of the telephone company, and in a subpoena contexts, records can be subpoenaed without indicating fourth amendment concerns. that,ue, one example of the many other grand jury cases we cited can also make the point. the discord in maynard, the judge point, but the talking about the privacy interests, and emphasizing also that this think wished the supreme court's decision and made the point that the customer in this context of metadata actually expects all

phone numbers dialed to be collected in a list, unlike an individual traveling on the public -- that might not expect that aggregation. that goes to the question we were talking about earlier, doesn't it? i would think it is important to focus on this program and the nature of it. metadata version alone is not sufficient. you were asking earlier if the government collects, pick a number, a million whatevers, and then only looks at two of them or 25 of them, it is a very different case than where in a criminal investigation the government looks at everything anan effort to prosecute individual defendant. there we have that example where -- -- to're looking at the decide whether to prosecute, not just in order to prosecute? >> here remember, the very looking is limited by the orders, and that is an important privacy protection. >> in the end, it comes down whether smith controls or does not? >> and we think smith clearly

does control here. eight lott said on that proposition. we said smith was an applicable inapplicable, that would take us to the issue. what is the relationship between the alternative program outlined by professor feldman in his second declaration and the president's plans, proposals for change of the program? both of those seem to be intended to remove the collection, the government collection aspect of the program. >> judge williams, the various alternatives that have been produced -- proposed, including the one that the president urged congress to pass, all of these alternatives are predicated on

an important fact, which is under current law we could not do, we would not meet this need, we cannot fill the gap that the president and the intelligence moody have identified without first doing it pursuant to section 215. we would need a different legal structure, inl order to adopt those alternatives. that is the president made that we think is relevant. it is important recognize -- >> i'm not sure how that fits in on reasonableness. under theonableness, special needs doctrine, or generally, there is no requirement that the government offer the least restrictive -- ofof a couple she a couple she its compelling interests or goals. the case law is clear under the the programat needs only a reasonably effective means of a compass and these goals. the evidence in the record,

including the holly decoration -- declaration, make it clear it is a reasonable means of identifying terrorist contacts within and outside the united states in order to help prevent terrorist attacks against the united states. that is a compelling government interest indisputably -- >> do you think national security is itself an exception to the requirement, or do you need special needs? >> we have not made that argument. i do not think there is any basis, any need for this court even address an argument that would be that broad in scope. there are a number of exceptions that the stream court has recognized as reasonable under the fourth amendment, and the --cial needs i doctrine all of them require a balancing of government interests against the degree of an intrusion of

privacy, and in that context especially, it is important to recognize the limitations in the orders on the use of this information and the fact that for the vast majority, all but the tiniest fraction, none of this metadata will ever be seen by any government analyst, and any use of it is carefully limited and overseen by the courts. the point briefly to about the statutory arguments raised by one of the amici, i would like to emphasize the question highlighted that what is at issue here is a preliminary injection that the district court has entered against the operation of a government program. there's no way to support a claim, and remember, under the preliminary junction standard, plaintiffs must show a likelihood of success on the merits. there's is no way to support that determination with respect to the argument. the plaintiffs had not only abandoned, but withdrawn and the court itself by filing an

amended complaint that no longer relied on that basis. if there were any question about whether the district court , thed, this court plaintiffs should have talked about a statutory claim that is not in the case of the only answer would be that this court should reverse and vacate a preliminary injunction that is not supported by the kind of thinks ishat amicus now the appropriate one to invoke. the fact is that the plaintiffs have raised a constitutional claim, and that is what is before this court, that is the basis for the claim, and a member, the district court found in the government's favor on preclusion that the fisa itself precludes this kind of claim. if we addressying the statutory issue and found it tobe a winner, we would have vacate the injunction and then what? >> i do not think you have to

address the claim. if you agreed -- and i see my time has expired, i would like to answer your question -- if the court were to agree with amcisu that the claim should be raised before the case can be decided, the answer to that question is that there is no support for the preliminary injunction at the district court entered in. it must be vacated and with strong. i would emphasize if there is any reason for the court to believe the information, the argument that historically in play, we would like to address it in a supplemental brief. >> why would that follow? it seems to me that the concern by are voicing could be met our addressing the statutory claims. of course, if we rejected it, is -- anger a conference constitutional claim, no problem.

if we accepted it, then we would still have to vacate the injunction, because it was based on something totally different from the plaintiff's claim. that would be the thing to do. >> i think, judge, williams, williams to our multiple reasons for doing this. why emphasized in this point that is they are limited only -- and it highlights the strange nature of the argument raised by amicus, is that it was decided against an in district court that they have abandoned on appeal as well. separate two banks reasons the court should not address it. if there were any reason to address, that that argument should be in play. the proper basis would not be for the court to uphold the permanent injunction, but to vacate and reverse it on the ground as well as -- >> isn't that outcome different

from what happened in u.s. national bank of oregon where i think both parties disclaim to and the court charged ahead and resolved it on the ground that it had discussion to resolve logically interior issues. >> your honor, i'm struggling to remember the facts of the case. that waslly, the fact discovered in the course of oral arguments here that it was quite theible that the statute parties had argued about had never in fact been lawfully enacted. it does seem rather anterior, more so than i think the statutory claim -- >> and there the statute was in play in the case. i think a better -- ,> the meaning of the statute

yes. >> but meaning turned on its validity. one point that i would be happy to provide the court if necessary is the supreme court hillsrom 1993, catalina talking specifically about the constitutional avoidance rule making the point that the fact that there may lurk in a case a nonconstitutional ground for decision is not a sufficient basis to invoke the rule of constitutional avoidance. 1993, thease 1, supreme court. i would also like to -- i see my time has expound. judge brown, you raised the point about the conceptual invocation of the case came and i would like to point to one of the authorities we relied on in our brief that the district court also discussed, and that is the article i -- about the third-party doctrine in which he makes the point because the exclusionary rule, the ordinary remedy for violations in the

fourth amendment, that it is very important to have a bright line standard in place for law enforcement. to follow smith provides that. miller provides that. the argument that the plaintiffs would not invoke that and raise the kinds of concerns that your question raised, judge brown. i know the plaintiffs made no mention in their argument on that point which we addressed on our brief. thank you, your honors. we urge you to vacate. >> thank you very much. there is a cross examine, so he would perhaps two minutes. >> two minutes. >> you should restrict yourself to the cross. >> yes, your honor. >> judge leanne did not reach the first amendment issues in this case. tothought it was sufficient

decided and the court, but the supreme court decision in naacp, this has a chilling effect on free speech. the fact that everyone's records are being obtained by the national security agency and other intelligence agencies. the naacp features a very strong case. i'm a public advocate. i am the head of a public interest group. as a result, it does have the chilling effect on people coming to see me, talking freely, being able to defend themselves against actions by the government and others that have harmed them. >> do you feel you are targeted like and him while -- targeted like the and of why abc naacp was?like the >> my being targeted, i would be surprised if i'm not. with regard to the issue of grabbing everybody's records,

clearly, the nsa and the other government defenders can go to that telephone companies with a showing ofr reasonable cause. if there is a reason to believe, a reasonable reason that infect someone is in contact with a terrorist organization or a terrorist, that no one ask that specific need. the extent of the constitutional violation here is is beyond any imagination in america law, as fore leon pointed out, and this government to come in front of us and say we do not look at identifying information, we do not violate the privacy of individuals come up because we do not know who they are, flies in the face of the nsa's only inpector general, who found a limited time, six months in

over 2000 violations of section 215 and the constitution. not beingemselves are candid with the court, the government defendants. they do systematically highly those rights, even to the extent that they are getting into the communications of people that they are worried about are cheating on them in their private sex lives. the capability here is anonymous, and this has going back to the cross, appeal notwithstanding the fourth amendment issues, huge oflications on the right free speech and the right of association. this cannot be permitted in a civilized society. the mac and people do not need to be under the sword of damocles every moment they pick up their friends to make a call, and myself in particular, when i talked to a client in a public interest capacity. i thank you for your time. the american people look to you to protect them from the tyranny of this kind of government. thank you. >> thank you.

labor department report came out today, and it announced that the unemployment rate has 5.8%.d to you see the graph that was house, out by the white saying our businesses have added 10.6 million jobs, over 56 straight months of growth, extending the longest streak on record. the blue, showing the gains since obama/ --obama. samantha power will talk at 1:00 p.m. eastern. at the same time robert mcdonald will talk about efforts to improve medicare and other services. c-span2 you have live coverage at 1:00 p.m. eastern. obama is traveling to china, burma, and australia next

week. he will attend a series of asia-pacific meetings, including that g-20 summit. discussed u.s. policy in the region, relations with china, and trade agreements. this is about 90 minutes. >> i would like to welcome you all this morning. i would like to first say congratulations to a good friend journalist of us who just got married, julie pace, who is just back from her honeymoon. [applause] mazel tov. i would like to introduce my colleague, dr. mike reed. >> thank you. congratulations. we're going to give you an overview of the president's trip to the asia-pacific region, and opened up to questions. the president will be in china november 10 two 12 for the

asia-pacific cooperative leadership summit and the associated ceo summit, and then there will be a state visit with president of china. he will be in myanmar. he will have a meeting with leaders. he is in brisbane, australia, for the 15th to the 16th the g-20, and he will be a major speech on asia policy. he will go through those and ofvide whatever the opposite monday morning quarterbacking is, friday evening previews. i will start with an overview and talk about what is at stake for the president and the country on this trip, particularly after the midterm results. matt goodman will focus on the the economicand

issues. ernie bauer on the summit. and the engagement with myanmar, burma, and this trip, and steve whatson will conclude with is happening on the ground in myanmar based on a trip he and others took recently. i will also address some of the u.s.-china security issues upfront, too. so looking at the results of the midterm for those of us who travel to the region, the polling that shows that in some cases 2/3 americans are not satisfied with president obama's leadership style, half a with,ats that squares withof us with who travel what we see in governments across agent. in fact, we found in surveys we

s, think tanksi experts in 10 asian countries that the rebalance to asia has 80% support, but there were questions in the survey of a majority of respondents who said they have questions about implementation. ult mayction res reinforce those concerts from new zealand to china, whether the administration has the wherewithal to actually follow the pivot or rebalance as advertised. there are some substantive areas of progress. the obama administration has the best attendance record in asia of any u.s. administration. regional made every forum, held for more consultant meetings with japan, australia,

and korea. the president now attends regularly the east asia summit. in terms of showing up, ready consistence and a high attendance record. the defense department, although it is in a smaller intriguing budget, shifting relative resources to the pacific, especially the navy. tpp is clearly being prioritized over the other aspects of the trade agenda. questions of implications about the pivot and obama's leadership, in our strategic survey of thinkers in asia, which we published last spring, it was that a significant majority of elites in asia think the u.s. will be the leading power in the region in 10 years. outside of china one or two other countries, a significant majority, particularly among our

allies said they want the u.s. to be the leading power in asia in the coming years. there is a lot of opportunity for the rebalance of the pivot to succeed, but there are problems in the president -- and the president's trip will be important in addressing that. these are things we have noticed for some time here at csis/. ow therst is h president talking about the pivot keeps changing, and even the kind of number sticker keeps changing. for a little while -- [no audio] senior officials, cabinet members were talking about a new bottle of great relations with china, a phrase that is not popular among our allies because in the chinese formation of a new model of relations, no other asian country is a great power.

the administration has appeared to drop that. we have an article coming out in washington quarterly next week that catalogs all the descriptions of the pivot or rebalance in every major speech on it, from the administration, and there is always a list of three or four priorities. i will not read them all, but they change all the time. kerryecently, secretary said the core of the pivot will be sustainable economic growth, a clean energy revolution, a rules-based table region, dignity, security, and opportunity. very different list than tom tomlin, susan rice, the president in past considerations.

the president usually speaks most consistently about asia, in the opportunity to lay down but the strategy is, what the priorities are, and what his commitment will be, which gets to the second problem right now which is most people who look at tpp, thed argue that transpacific partnership, is an essential pillar of a credible u.s. focus on the asia-pacific. r is working hard. administration's strategy is to get a deal on tpp, particularly with japan, and then use that to fast track promotion authority to the hill, convince them to pass the fast track authority that would allow the deal to be completed. it makes some political sense, but it is completely backwards. every other trade deal we have done we have done, the trade promotional fasttrack first, and then tpb.

that is harder in the u.s. congress, but without it we have not been able to get deals with major trading partners. why? because they question whether they should be putting their best deal on the table if the president has not secured authority from the congress. i was in japan, quebec monday. -- came back monti. at the highest levels of the japanese government there's a sense there are a few issues left him but they are done, they had a sickly put the best deal on the table of the they had put until they see evidence and there waiting for the midterms, that the white house will reach out and work with congress to get fast track or trade promotional authority. in my view, it does not have to pass before tpp, but there has to be some movement. the ambassador gave a very compelling strategic speech on tpp to a form we organized with the chamber of commerce, best rationale i've ever heard,

he never mentioned the three letters tpp. it has to be some sense in japan that a republican congress is on board where we will possibly be stuck where we are. with tpp, the rebalance of the pivot will have a real legs in the last few years of the administration. the president will meet prime minister abe. the dynamics are frosty right now between japan and others on this, but as a chance to reboot, i hesitate to use that phrase, to try to get it done. challenge of the pivot is there is a broad impression, hardly knew, that the u.s. has lost interest in asia, syria, isis, ukraine. it will be key for the president to demonstrate that we are focused on our security commitments in asia. it is a tough balancing act because china react everything

that is coming out of the administration and calling it containment. very unforgiving chinese interpretations of what the u.s. is up to. let me turn briefly before i handed over to matt on the specifics of the u.s. china security problem, and that will be the economic piece. secretary kerry gave a generally positive view of china, optimistic view, which is appropriate. he did not pull punches on some of the key security and political problems we have. he called for self-restraint and completion of a code of conduct with respect to the south china sea and territorial disputes where china is using mercantile and maritime pressure, coercion on smaller states in the region. , try to frameer it where we could agree, because china has a commercial interest in intellectual property rights.

he raised hong kong and human rights. it is a good framing of the issues in trying to avoid turning these in 20-some topics in u.s.-china nations. the problem is, although there have been some important chinese contributions, china sent a thousand medics to help with ebola in africa, is promised cooperate on terrorism, with rs,pect to -- and the uighe naval exercises that we do in the pacific, but the fbi has been clear there is no change in china's policies on cyber. the fbi has been more open about the increase in hacker attacks treated to china. attacks attributed to china.

the fbi has revealed major data nonmilitary u.s. health care data from china. on the south china sea and east tennessee, on the maritime front, also, no real change. there was some hope that the coast guard and naval activities in the south china sea, vis a whenietnam last summer, they ended that there might be a more relaxed chinese attitude, certainly in the east china sea and japan, the number of encourages by chinese ships went out, but when the south china sea, the vietnam operations japan the incursions into went back up her in october there was a two-week period optimistic,ere but when the data came out that was because of a synonymy, because of typhoons and we

ather. and in fact operations in the south china sea are at a routine level now with daily incursions by the coast guard, and what is troubling, the navy which used hours, sailing, with, is now within 2 hours sailing time. in the south china sea, you have seen reports that china is expanding its military runway at annuity -- at woody island, which beijing has announced will be used for patrolling of the -- district, in which a lotta people of the region c is a precursor to another defensement of an error identification zone, comparable to what china did in the east china sea. this is a tough nut to crack for the president. redder, buildt in confidence, but the facts on the

ground are still not a crisis, but are still trending in a way that is going to make this a challenging trip. there and turn it over to matt. are we still going to -- [indiscernible] >> ok. [indiscernible] ok. thanks, mike. so economics is going to run almostout this trip on every stop, and i think there are broadly three themes that --l run throughout the trip growth, trade, and infrastructure. the good news is that everyone in the region wants all three of those things. the challenge is that there are some pretty significant differences about how to go about achieving those things. so that is just a sort of

preamble. just to take the three economic stops as it were, first, apec. the apec summit will be handled on november 10 and november 11, which is in a suburb of beijing. quick background, it is established as a foreign ministers leader in 1989, elevated in 1993, so this is the 22nd something. 21c is a group made up of asia-pacific economies, and make sure you say economies and not countries. it is designed to promote regional economic integration. china last hosted, the first and last time, was in september 2001, a few weeks after 9/11. basichas laid out three themes for its apec year. what is regional economic

integration which is a standard thing for apec. every host has that as one of its themes. secondly, economic growth, particularlyerform with the adjectives innovative and inclusive growth and reform to that theme. thirdly, connectivity, meaning both hard and soft connections of infrastructure, people, institutions across the asia-pacific region. thirdly, connectivity, meaning both hard andthis is whe comes up. it is going to be a major topic. there has been a lot of work in apec over a number of years, and there will be a focus probably -privater on public partnerships treating infrastructure in the region and generating long-term private sector financing for infrastructure. then apec does a hole punch of pick and shovel work,

acluding as a commitment to 10% improvement in supply chain so i focus by 2015, on global value change which is the story on trade in asia, fossil fuels subsidies, women's empowerment -- audio] there are three non-headlines as it were from apec. one is tpp. tbp is in some sense born from the rib of apec. it is a path towards the ultimate vision of a free trade area of the asia-pacific. as mike said, right now the negotiations are not completed.

there had been a hope that tpp might be agreed by the time of this summit. it is now we can say with great certainty not going to happen. the key dynamic that needs to change is the u.s. and japan need to agree on a bilateral market access deal. that is quite close. there is maybe a tiny hope that that could be done before next week, but i would say that is also pretty unlikely at this point. as mike said, pta is key to this -- tpa is key to this. by these yesterday president and republican party leaders with promising -- was promising because it said tpa was one of the things they might be able to agree on. a second thing that is probably not going to be a headline here except in a way that i am sure some of you will write, about the free trade area of the asia-pacific, there was a

chinese gold this year of setting a deadline for achieving a free trade area in the asia-pacific and doing a visibility to start negotiations toward that end. going to beably not part of this. the free trade area is something that the u.s. champion back in 2006, 2007, so is part of the apec story, but the u.s. and other tbb partners are reluctant to agree to a firm deadline to achieve a free trade area of the asia-pacific and a feasibility study towards that end until tpp is completed. the and then the third thing that will be looking around, but not central to the apec agenda is the asian infrastructure investment tank, which china proposed recently and an mou was signed last week amongst 20 asia-pacific , and this is the

chinese initiative to promote greater infrastructure investment in the region. so far some of the major countries in asia have not been asked have not signed on. india, indonesia, may sign on soon, but korea, australia, japan, the united states have not signed on to this bank, and i can talk more about that. that will be lurking around the apec corridors. it works now? ok. there we go. ok. to do g-20 come i'm skipping the muster the trip chronologically, we are now skipping from the apec meeting to the g-20 meeting which will be held november 15, 16, in brisbane. quick background, this is the ninth summit of the g-20 leaders

since the first summit in washington in november 2008. -- the g-20 is actually a g-49. i counted last night, it is actually 19 individual countries plus the european union, which brings another 28, minus four their owns that have seeds, for six invited guests, and those invited guests are spain, singapore, myanmar, as the chair, martini a as the chair of the a.u., senegal as the chair of the new economic partnership for economic -- arican development, and for reason that is not entirely obvious other than oceanic --itary teddy new zealand solidarity, new zealand will be there. australia has laid out two things, growth and resilience, of the global economy.

growth is very traditional core of the g-20. that is what the leaders of the talking about since they met how to enhance global growth rate of is a rino global plourde is weaker that globaldy -- right now growth is weaker that everybody would like. everybody else has great challenges, and europe is on the brink of recession, possibly deflation. china is slowing, japan is still struggling to it on to a faster growth trajectory. growth is something everybody in that room at the g-20 will be concerned about. australian approach to deal with growth is to get the finance ministers in the g-20 back in february to agree to a target for raising global growth, actually, raising global

fromy 2% over five years the level of gdp that would be implied by current policy trajectory. by 2018, the goal is to have an and to put2% of gdp in place new policies that would achieve that objective. so everybody is going to come to the brisbane summit with individual growth strategies to achieve that target or contribute to that target, and those growth strategies will center around infrastructure, deregulation, competition, and structural reform. just a quick word on trade. the g have 20 has done two things on trade since the first summit. one is to make a commitment to stand still on protectionist measures. that commitment has been honored

and breached in many small ways, intoe have not slid 1930-stop protectionism. it is encouraging the doha round of multilateral trade to get the conclusion. that has not conceded yet, although last year they india did not agree to the agreement. there will be another topic of conversation. this year will be a focus on trade and global value. rest of the agenda, there will be financial, revelatory reform. that would be the core. financial stability board was to strengthen bank capital.