the authors of had a chance to speak to each other and respond and hear your questions and give awful responses, think deeply and revise. we will publish these as it goes through review. certainly appear in a professional volume. it is a thoughtful way to try and contribute to a thoughtful discussion. we greatly appreciate it. we welcome these contributions. i would like to thank the authors and commentators. you that this is

just a step. this is a very high-stakes set of issues that will determine the destiny of individual two minutes -- students, communities, racial equality, mobility. i urge all of us to continue to interesthis with great , careful and critical judgment. it is a lot smarter than the policymaking done in elementary and secondary education when soundbites were enacted into law and we have been stuck with them. i would like to thank everybody for their participation. thank you very much. [applause] moments, arguments in the second court of appeals

dealing with the nsa's collection of phone records. in about two hours, a field hearing on changes facing the medical industry. secretary onhud senior citizens. is on a tripma that begins with a stop in estonia, where he will meet with the baltic country leaders to discuss issues. president obama will then attend a nato summit in wales before returning home. our coverage of the president's trip includes his speech to estonia leaders and students. you can see that tomorrow morning on c-span tune -- c-span2. the second circuit court of appeals heard oral arguments today on the constitutionality

of the nsa's collection of phone records in america. the aclu oh argues that portions of the patriot act signed into law on 2000 ones violate the right of privacy. this is less than two hours. >> please be seated. good morning. we are about to proceed to hear lapper.e of aclu versus c there is sufficient interest that it is being broadcast. i don't know who will watch it, if anyone. to the extent that it will be watched by people who are not familiar with appellate

arguments, i want to say one thing about what is not likely to be seen. the bulk databout collection program operated by the nsa. see isewers are about to not a debate on the merits of that program, whether it is a good thing or a bad thing. us start withore the goal issues about whether this court has the georgia student gesture addiction to resolve the questions raised by the plaintiffs. and also to continue the questions raised by the plaintiffs about the program. about whether it has been forbidden by specific statutory provisions of congress. and by provisions of the

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

gets to say everything they want about these programs. it will be much more limited than that. i don't know whether that was useful or not. you may proceed. >> thank you your honor. every day the nsa collects >> i'm going to interrupt you because i have two questions. i find it difficult to approach this argument without understanding that at the outset. , and i did read

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

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

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

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

a week after disclosure of the program. they mention three things. number of the degrees of separation. three, having to get the vice before entering a clary. that is my understanding. it has been done already. the third thing, this notion they will go back to congress and say that we don't want to do this anymore, we want to keep all this information in the hands of the service providers. and being able to query them in

one way or another. i gather that is not a simple thing to do. theill take this out of hands of the government and out of the -- the data will nobler longer be sitting in the hands of the government. it will be put back where it started and will be clarity from there. done, with that essentially end the controversy here? there is a technical question as to what your standing might be if they did that. thought that if they did what the president said in march they were going to do you would have embraced it and said that is why we started this. i apologize, but i think the declared victory and

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

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

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

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

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

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

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

i am not sure that that would be the case. when you are talking about the statute. congress did address the issue of the recipient. suggest anything to that congress at the time dealing with the recep rent thought about others possible having the ability to challenge the section? >> i don't think there is anything in the legislative history. i think it's important to point out that when congress amended section 215 two review procedures, the government's necessity of those procedures, we think is a statutory matter that there is already an avenue for initial review.

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

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

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

the rule of privacy established by the stored communications act. 2009 to the fbi concerning the national security letter statute. >> if we agreed with you about this proposition, about the stored communications act, that unless their program -- this could be something of a p or victory for you. one of your arguments about the relevance issue is that if we interpret relevance as the government wants to do, then the government could get the same fbi of records out of administrative subpoenas, for example. that kind of request is covered. >> not exactly.

actstored communications limits the top of records the government can acquire. thean only acquire originating phone number, the receiving phone number, the information about the duration of the call under the stored communications act, including under the administrative section , but they cannot acquire things like the divisive number making the phone call. they cannot acquire the trunk identifier, which is something they acquired on the verizon order here. i think that the defect in their argument, it could use it any run-of-the-mill subpoena statute. that is to a core all of the same records in bulk. it is notable that none of those other statutes include the source of protections of 215. they could rely on the national security letter statute to

acquire the same records in balk without the minimization procedures of saving their a collection from invalidation. >> maybe they will concede that that will be unconstitutional because it is only the procedures in the court order procedures and so on of section 215 and their few defeat your constitutional obligations to what they say about that. >> iphone a little surprising. [applause] there is one other argument that i will quickly mention. that is the grit of our statutory claim. that the coreis problem with the government's theory of section 215 as that it labels elbit -- everything element -- relevant.

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

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

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

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

daily collection of our records and we are not asking this court to overturn it. injunctionng for an against continued collection by the government. that would be put in place without saying anything at all. i think that's what our challenges. it is understood as a challenge under the apa. even if you characterize our challenge as one, i don't think that would change matters. the government itself notice that it is true that a district , the physical

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

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

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

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

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

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

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

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

snowden disclosed the existence of this program, we no longer have a reasonable expectation of privacy. we don't have any privacy. you -- i suspect you can respond because you have thought about it a lot longer than i have. i wish you would focus as you do talk to me about reasonableness. for this case, the word reasonable is actually in the fourth amendment. talk to me about how we figure out what is reasonable and what is not reasonable. may, i will address your first question.

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

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

some bars is a statutory question whether this program , whether we found this was an executive branch program that was not authorized by any explicit legislation of .ongress as part of addressing whether this was constitutional and not, woulduch an unauthorized stand on different and shakier constitutional ground.

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

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

are you saying that because the i thinknts collection

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

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

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

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

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

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

with individual suspicion is practical or not. here, we do not think it is. impractical for the government to acquire these records in this fashion, we would still say it is unreasonable. is the most intrusive means the government can use to a competence very narrow interests. that is always been held to be unreasonable. i will emphasize it again. concededpresident has that the government's interest in be accomplished in narrow means. it is the oversight board, the president, concluding that will collection is not necessary. it is a conclusion of a group.

how the government could re-create this program in a targeted way if you're on or i still think it goes to the question of practicability. >> once you get to the point of saying assembly emphasize the point you have artie made, we have artie gotten to the end. thank you. it will privacy more than two minutes at the rate we are going. >> may please the court, stewart for the government. it is been approved by all three branches of the government. pursuant to orders of the foreign intelligence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

phone company keeps all these theres although i think was a suggestion in terms of has said.president get back to this question of constitutional avoidance. you're asking us to decide something that is extraordinarily sweeping. without inquiring as to a good this is something that ever could be allowed under the constitution. without addressing whether the congress has ever really thought about this, disturbing and putting aside the issue of preclusion. it is hard to imagine that somebody who looked at a law that says you can have an order that will get anything that you can get with a grand jury subpoena. imagine that means you could get

stuff that nobody ever mentions getting with a grand jury subpoena. it could have been done. it is hard to imagine that that rather innocuous language, they make a showing of relevance to an investigation means that all kinds of records as i read your roof, you are saying they are not relative. you lead to an investigation right now. we want to have them in case they become relevant so we can query at that point this database. both congresses bought that using this. >> congress was briefed about the disciplinary program and it extended to section 215 twice about change. the details are reflected in our brief. this does reflect ratification in a way that the ordinary --

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

briefing paper to be made 2010able to all members in before the ratification of senators in 2011. the details, not only the nature of the program but it was authorized and the statute had been met. some of the statements in the brief that the highlight from some of the senators were maimed -- the connection with the 2011 reauthorization where they called their attention attention to the section 215 and under staying -- understanding how it was being used in conjunction with this program. the chairs made this material

available and offered briefings more generally to all members the need forated members to understand how it was being used. this goes beyond the ordinary ratification. >> i want to make sure i understand whether you are arguing about preclusion or relevance is an appropriate, forgetting the constitution. >> arguing here that congress understood section 215 to cover the program we are talking about. >> you are beyond preclusion. >> i also think that by extending 215 knowing what is -- g on that would be the kind of

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

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

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

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

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

to be workable with the speed and matter necessary legislation would be required. it was important in his judgment, it was important to continue this capability. it has been reauthorized a [inaudible]with the 12 is the day. k i will clarify this conversation. if i might turn to questions about the statutory

authorization eyes -- i think i will turn to the fourth amendment if that makes sense. courtsition is that the d.d conclude by maryland had i don't think i am using the mosaic approach. this and this come a time and this is what the plaintiffs are complaining. when the old-fashioned simple pen register that was used and that we are recognizing it for a long time. the amount of data that you have is so detailed and so extensive

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

the issues that has been a factor in the public debate over the last year since disclosures. didn't go piece by piece. is thirdhe said it arty and similar type information but doesn't require should require, based if you are talking about [inaudible]

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

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

content of the phone call but we have a record of the insider at theman sachs talking to trader. here is a record of the purchase of the stock in question right before the announcement of some new public information. what do you think they were talking about? leakwas proof that was a from the insider. metadata can reveal content. >> the point about the technology that allows analysis leads me back to the point i wanted to make in response moment ago. it is important not to lose sight of all of the other protections that are built acquisition and retention and use of the data the oldis program given production to the

government in light of the technology. that is critical to understand. in addition to being non-content information about the telephone queriedata can only be for counterterrorism purposes and only if there is a reasonable suspicion that the selection turn or number or aceever is associated with this fight foreign terrorist. subsection g requires minimization procedures. it was understood that this tool data be used to obtain

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

to be more restrictive. they are operating in an expert take complex. here is what would be better or we think this is what the constitution requires. saysovernment looks and there are things that you should tell us to do. those are approved. this isrn about all of it is fine to say we have this program, whenever ms. use this data and we have rules to -- for its use. that is not the same thing as the government not having that , sitting there. i do not know what mr. stone and could have done. instead of leaking the order he could have linked the database to somebody. when not know what happens

some inhabitant of the white house, this one or another one, has a plumbers unit and decides to let them have access to the database. these are realistic concerns about letting the government have this massive body of data -- i am sureing your answer could he it whoever makes the rules, they could be abused. could get it anyway somehow. there -- they are levels of restriction. it is one thing to have congress adopter program and say this is what it is and we have considered what needs to be done to give protection and one that says "what is relevant but they

should be careful how they use it. and then we infer from that this massive program. enactmentord on the of section 215 and its extensive -- extensive needs -- extensions go past the argument that you articulated. the point in the national security area that clinical ranches are being charged within a range, drawing the lines about what steps are appropriate, something that the supreme court has articulated in the fourth amendment context. draw some ofngress these lines, i am not sure that this was the phrase that was used. some of those are immune to legislative fact-finding about what is -- what trade-offs are

appropriate to meet the needs of national security. similarly, in the mcquaid and cassidy cases, this court and types ofg antiterrorism or counterterrorism activities in connection with the subways and again theted that courts should be reluctant to rest away from the political branches the choices about how these judgments should be made. >> i would be cautious about making a constitutional determination. >> that is why you should evaluate the program that we have. there is obviously a desire to what mightns about arise. given that the supreme court has made clear that [inaudible] you do have smith in the same type of information that was in smith. if you are reaching

constitutional issues we are to focus on the program. i was talking about your preclusion point. that is a regime that congress established and the supreme court has recognized that where that is the case, where congress has not provided the cost of action the idea might be [inaudible] the constitutional claim could the reached. there was not a cause of action available. >> the only way we can achieve constitutional avoidance in this one is by ruling against you something statutory. we are forced to get there anyhow. >> our position is --

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

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

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

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

critical aspect of the design, was subject to article three review from the beginning by bodytion of the fisc, a set up to commission that. and others act as a channel for oversight from the congressional side where you are dealing with classified information. >> the whole system would you've won a much more warmer feeling inside. it -- if it was not all ex parte. there was some recreation of the other side. amicus.ono --

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

there is an overriding importance in preventing future terrorist attacks. the intrusion if any subject to the smith argument on the privacy of individuals is -- cabined toand allow findings. use forguards limit the dissemination. there is an oversight system by congress as well as other entities. all of this we submit should leave the court if -- to conclude that the program is reasonable. >> nothing can be constitutionally reasonable if

gives us a warm feeling. >> the test is if it is a means of a composting be interest. unless my colleagues have questions i think we understand your argument. unless there's something you think you have not gotten to that is critical. we will consider that based on the brief. he will not be able to pick it up in her bottles. rebuttals. the -- he is relying on his brief but i do not think we need to year more about any of these things.

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

interpretation of statute that congress was aware of and legislated and that is not the case here. many members of congress were not aware of the program. those who were were not provided legal analysis. they were not able to discuss it with colleagues or constituents in a way that the supreme court has pointed to in past cases of ratification. second point is an exchange that you had relating to efficiency. could usement targeted demands and and nearly instantaneous way if it structured its arrangement with the telecommunications companies in a certain way and congress could provide for that mechanism. the fact that congress has not yet provided for that mechanism is no bar to this court ruling. the supreme court ruled that the government could not wiretap individuals without a war and and it led to the

enactment of title iii, the supreme court ruled that for an intelligence surveillance, it had to be individualized. smith is different from this case from a lot of reasons. it is not just the government is acquiring certain types of information. government is acquiring information about millions of individuals and not just one but also that it is requiring -- acquiring information definitely and not a few years after smith's. when the government scales up a surveillance operation, the constitutional balance is different and needs to be addressed differently. you were exactly right. the court is to assess the expectations of this program and

not just of these -- the supreme court decided. a quick related point. the minimization procedures would be constitutionally superfluous. if smith governed this case, they could collect the records without any of those protections in place and they could store all of them indefinitely and clear it for any reason or no reason at all and they can build the dossiers with no constitutional restriction. the government tries to explain why it is asking for a narrow ruling of this court but the -- this is a roadmap to a world in which the government routinely elects vast quantities of information about americans who have done nothing wrong. it is not the world that the framers envisioned when they crafted the fourth amendment. if there are no questions. >> thank you.

very much appreciate the arguments of both sides which careful andly learned. we will take them under .dvisement and render a decision. thank you. that is the last case on the calendar. we will adjourn. >> court stands adjourned. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014] >> our coverage of debates leading up to the midterm elections continues tomorrow evening at 7 p.m. eastern with a candidates for senate in north carolina. such are kay hagan and her republican challenger, tom tillis. airing on local television and then we will talk with a reporter covering the race. >> tired of being disgusted by the news? touch.ton has lost

the federal budget is a joke and senators ever pay the price. i came up in the real world. a warehouse clerk and eventually a partner at ibm. the senate could use more people .ho had to swing for living and let's make this right. >> i get results for home. at mosts ranked the moderate senator. just right.

morrow, a political reporter with the charlottes onner. night, the first debate between the state house speaker om tilllis, the republican, senator kay hagen, the democrat in north carolina. that's happening at 7:00 p.m. is each side need do in this debate? lose?s more to gain or >> a good question, john. both sides have a lot to gain this.o lose from this is really the first head-to-head matchup of tom pretty much on the sideline for the last three months, in fact, almost every nomination in e may because he had a legislative session, the house speaker in north carolina. a session to deal with weeks ust a couple of ago. e's falling behind in fundraising. he had to stay off of the trail in the last few days and raise money. really sort of the first chance for a lot of people to see him since the -- the primary.

and for hagen, it's a chance to, you know, turn the agenda off of president obama, which the republicans are trying to put it in on. the real clear average of polls, average of all of the polls that are out there on the a th carolina race showing very tight race between tom tillis and kay haggan. ahead to hagan according to the average on all polls. heading to the debate saturday night. watch it on c-span. it.ing what is the strategy? is it a matter of trying to avoid a major mistake? trying to do that. the broader strategy for him is to tie hagan to president obama to washington. bama's popularity is at 41% in north carolina. which is slightly below his average.

her strategy is going to be to going tillis to what's on in raleigh, which is also unpopular. think a poll has shown the north carolina legislature was controlled by the republicans to unpopular here too. host: asking viewers this morning what races they're 2014.ing for campaign love to hear from viewers in north carolina. the phones are open for viewers from around the country to talk about the races they're watching. president obama, mr. morrill. he visited north carolina last week, an appearance to make some announcements about veterans' sides frame both that trip by the president to north carolina? >> she was quick to disstance herself from the president about that. she's been very supportive of veterans generally. to speak to e down the american legion convention. and all of the trouble that the experienced over the

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

women themselves. an anti-abortion demonstration hagan's office last week by people who support mr. tillis. groups forre women's him too. >> our coverage of the debate is here on c-span tomorrow evening at 7 p.m. eastern. in a few moments house energy and commerce committee field hearing on challenges facing the medical industry. cisneros on, henry senior citizens. and challenging the constitutionality of the collection of americans own records.

-- phone records. >> a look at the militarization of police forces. sky.guest is cara dan we will discuss the threat of the islamic militant group isis. as always, your comments are we welcome by phone, facebook, and twitter. we are live every day at 7 a.m. eastern. >> a house energy and commerce field hearing as it searches for cures for diseases. witnesses include the heads of the national institutes of health and the the fda and narrow surgeons and drug developers. this is two hours.

>> welcome. this meeting will be streamed live. c-span is here same i want to keep that in mind. i would like to welcome everyone here, especially our distinguished panelists and i have a short introductory comment to set the stage. through the 21st century initiative, congress is taking a comprehensive look at the full arc of accelerating cures from the discovery of clues in basic science to streamlining the drug and device development rss to unleashing the power of digital medicine and social media at the

treatment delivery phase. development and delivery is what saves lives. want the cycle to work effectively and efficiently so there is no gap between the 21st-century science and the washington regulatory process. together we can achieve our common goal and keep america at the forefront of medicine and discovery. conductedn, we have six hearings and three roundtables. of the the first roundtables in the country and there will be a series in the roundtablesr so of across the country. we are eager to hear from interested stakeholders and that

is why i am posting today's event. i want to welcome all of our distinguished members, panelists, presenters, and our attendees to this 21st-century cures roundtable. the discussion will showcase the innovative work owing on in pennsylvania and elsewhere to help us understand the ideas that can accelerate the pace of cures for patients. given the advances in molecular medicine we will examine how fda is using existing pass ways and there are new ways to improve the developing of new drugs and medical devices. it understands -- advances our understanding of disease and quickens the pace of clinical and capturing the impact

provides new data to share with caregivers, and patience, information that can serve to fine tune the discovery can be so treatment fine-tuned to help even more people in the future. of course, the most important goal is generating that her health and saving lives, and achieving these goals will only occur through greater teamwork and collaboration among nih, the fda, industry, academics, medical professionals, and others, and it is unclear if the management and organizational structures to achieve this teamwork are in place today or can be improved. i think america must maintain its leadership role in this effort, and this effort to accelerate viewers will put the nation and our researchers on a trajectory to make the predominant diseases of toa