Because there were not looking for evidence of a legislative intent to create a right to judicial review. Your position is thats already there under the apa. Unless there is evidence of a judicial intent, of a congressional intention to preclude judicial review . Thats exactly right. Thats the presumption created by the apa. The way that your honor articulated it is the way the Supreme Court has articulated it time and again. Thats the governments burden to show by clear and convincing evidence that congress intended to preclude our claims, not our burden to demonstrate that congress intended to create them. If i may, ill move on to the merits of our statutory claim. As i said before, our first claim is that section 215 simply does not apply to call records. In the same statute that congress enacted section 215, in 2001, it added a provision to the stored Communications Act prohibiting the government from acquiring phone records. It created i exceptions to that prohibition. But section 215 is not among the list of those exceptions. Thats critical, because under settled principals of statutory construction, the specific prohibition in the Communications Act supersedes the very general grant of authority. In the past, the government has agreed with that very principal. When they were confronted by a senator who worried that the privacy protections of the census act might yield to section 215, the department of justice assured that senator that the privacy protections in the act would not yield, that they trumped in effect the General Authority of section 215. They have agreed with a related proposition which is that the exceptions in the Communications Act are exclusive, that it is not for courts and it is not for the government to infer additional exceptions not already created by congress to the background rule of privacy established by the stored Communications Act. That was the governments position in an olc memo i believe in 2009 to the fbi concerning the scope of the National Security letter statute. Am i right that if we agreed with you about this proposition about the stored Communications Act that unless you are also right about the meaning of relevance that this could be something of a victory for you, only a transient victory for you . In other words, your whole one of your arguments about the relevance issue is that if we interpret relevance as broadly in section 215 as the government wants to do, then the government could get the same kind of records out of just fbi administrative subpoenaed. And that request is covered as an exception of the stored Communications Act. Not exactly, in part because the stored communication act limits the type of call records the government can acquire. So for example the government could not acquire it could only acquire the originating phone number, the receiving phone number and information about the duration of the call under the stored Communications Act, including under the administrative subpoenas youre referring to, but they couldnt acquire things like the identifying device number of the device making the phone call. It couldnt acquire the trunk identifier, which is something they acquire under the verizon order here. But you are correct that they still would have the very broad interpretation of relevance available to them. I think thats a defect in their argument. On the governments theory, it could use any run of the mill administrative subpoena statute including the National Security letter statute, to acquire all of these same records in bulk. Notable is the fact that none of those other statutes include the source of protections that the government relies in section 215. In other words, they could rely on the National Security letter statute to acquire these very same records in bulk without the minimization procedures they point to as save tharg collection from invalidation, without the same sorts of limitations that the fisk has imposed. Maybe they will concede that that would be unconstitutional because its only those minimizationtype procedures and the court order procedures and so on in section 215 in in their view defeat your constitutional argument. It will be interesting to see what they say about that. I would find that surprising. I think their argument is broader, that smith controls this case. Yes. Yes. So maybe theres one other argument i will quickly mention under our statutory argument, which is the real grit the our statutory claim before proceeding to the constitution. And that argument is that the core to problem with the governments theory on the merits of section 215 is that it labels everything relevant on the premise that some tiny portion of everything i dont mean to interrupt your statement of that. I think we know what that argument is. It reminds of Justice Stewart who said that if everything is classified nothing is classified. If everything is relevant, then relevance drops out. It doesnt exist. Thats right. A more technical question, i guess, is, this is the well, the statute says that the government can apply for an order requiring the production of any tangible thing, et cetera. The question of relevance doesnt come there in terms of the authorization. It comes later when it requires that the application to the fisa court include a statement of fact showing there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. I hope ive got that right so far. Im wondering i mean, it would be easier for me if the authorization said for an order requiring the production of relevant tangible things rather than putting it down later in the papers to the court. The reason i find this troubling or confusing, difficult is it is the administrative procedure act. Presumably the administrative procedure act, the what were talking about is the fbi and the nsa. And im wondering whether by putting this down, the question of relevance down in terms of what must be shown to the court, were not being asked not to review what the fbi and the nsa did but that were being asked to review what the fbi and the nsa did, but were being asked to review what the fisa court did, the fisa court being its certainly not an agency under the apa. I dont know if the question makes sense. But i wonder whether when you bring in relevance and i understand the notion that everything thats relevant is very troublesome, at least. But are we if we say that thats wrong, that everything is relevant is wrong and the court was wrong by saying that everything was relevant was fine, are we then reviewing what an Administrative Agency was done or are we reviewing what the court has done . If the latter, do we have the power under the apa do we have the power to review what the court has done rather than what the agency has done . I think the quick answer is that were asking for the former not the latter. Even if the latter, i think the suit would be appropriate. I will elaborate. I will note that there are any number of surveillance statutes that are structured that provide authority at the outset, set out the limitations below. I dont think thats a novelty in section 215. Its the same in section 1881a under the fisa amendments act. It sets out a grant of authority at the outset. I know, your honor and judge lynch are familiar with section 702. To get to we were once. To get to your we werent as familiar with it as the Supreme Court, but we should have been. To get to your precise question, we are challenging agency conduct. We are challenging the governments daily collection of our records. We are not asking this court to overturn the fisk. We are not asking this court to said aside the verizon order. Were asking for an injunction against continued collection by the government. That could be put in place without saying anything to the fisk at all, only with an instruction to the government. Thats what our challenge is. For that reason, its understood as a challenge under the apa. Even if that were not true, even if you characterize our challenge as one to a fisk order, i dont think that would change matters. The government itself filed it was challenging the verizon order said the appropriate avenue for relief was a District Court case such as the one we are in appeal on. But that was the appropriate avenue. The government noted that its true that a District Court action may not achieve the same relief as whack being sought in that case, vacating the fisk order, but the plaintiffs would be entitled to receive an adequate remedy, namely an injunction against ongoing and illegal agency conduct. What happens, now that you mention that, what happens if there are now two District Courts, at least two District Courts which have come to opposite conclusions within a week and a half of each other on the issues before us. And they did it on the constitutional basis. Supposing we were to affirm and the District Court the d. C. Circuit were to affirm. So you have one circuit that says its unconstitutional. Here is an injunction. Another one says, oh, no its perfectly constitutional and we are certainly not going to give you an injunction because its constitutional. Where does that leave are they allowed to get records in d. C. And not in new york . Where would that leave us . I imagine the government would simply seek a stay from the d. C. Circuit. If they were not successful, they would ask the Supreme Court to resolve the conflict. It would be the Supreme Court that would have to deal with it in that case . I think so. The Supreme Court likely would permit a stay pending the resolution of the conflict. So if i may, ill turn to our constitutional claims. Should we permit a stay subject to resolution of that . Suppose we agree completely with you. In order to avoid this sort of circumstance i guess you are going to get this to this later. Might we say, great, we agree with you. But theres other litigation going on. We want the Supreme Court to have a kick at the ball. Were very much concerned. Supposing were wrong and somebody blows up a subway train . Does it make sense for us to say, here are our views and wait until the d. C. Circuit speaks and until the Supreme Court has an opportunity to speak before actually making an order of an injunction . I think it would be well within the courts authority. We havent taken a position on that. We would be happy to if and when that arises. That would be within our power to do if we thought that was wise . Yes. So if i may, ill proceed to the constitution. Our claim under the 4th amendment is quite straightforward. Its that the governments bulk collection of our call records intrudes upon a reasonable expectation of privacy. The governments primary defense of course is that this case was decided in 1979 when the Supreme Court issued smith versus maryland. Thats simply not the case. Lets suppose that we agreed or at least entertained the argument that quantity is quality here and that the nature of this program is different than what was at issue in smith. Isnt there still quite a bit to the governments argument that even in this context theres not really much of an expectation of privacy in these records . For example, if you look at the opening of your brief, you have this nice parade of things about the government could find out from these records. People could the government could, if it chose, if someone looked into it, from this metadata, could determine its likely that someone was hiv positive or its likely that someone was hiv positive or its likely that someone had an abortion. Couldnt verizon find out those things if it chose . Couldnt verizon go into the records that it has and make the same kind of search and determine the same kind of private information and use it for purely commercial purposes, not remotely as important to anyone as the reasons the government seeks this data to use this data to do, but just because they might be able to make money by selling a list of people that verizon thinks have recently developed an unwanted pregnancy and they could sell that list to abortions r us or an antiabortion group to send information to those people. Verizon could do that, couldnt they . I dont know if they could as a matter of our relationship with verizon. I dont think our contract provides for unregulated access to our call records. In fact, as a matter of fact, the only access that verizon typically has to our records is likely through its computerized collection of those records. And so its a bit ironic that the government claims that the computerized collection of those records extinguishes an expectation of privacy but its collection of those records does not are you hypothesizing something about your contract . Or do you know something about your contract with verizon that i dont know about mine . That theres something in there that says they cant use the call records for anything but billing . I dont know the precise contours what have they can and cant do with the records. There are statutes that regulate what Telecommunications Companies can do with their customers records. Including the stored Communications Act. I take it they couldnt just say to abortion providers or prolife organizations, here is all our phone records. You go search and see if you can find people who might be interested in your services. Well, anyway, the point is, verizon has all of this information and presumably has the computer capacity to probe them if it chose. They certainly may very well have the computer capacity. I dont know whether they have the authority. I think it turns on the question of what the congressional statutes regulating i forget the long form of the name but cpni, Customer Proprietary Network information. I think you are hypothesizing i dont know the exact contours. Youre correct. But i dont think anything turns on that question. The third i think this is another way of stating the Third Party Records doctrine question. And i dont think that has been an on off switch in the way you are suggesting. There are frequently contexts in which information is shared with a third party and yet the person whose privacy is reflected nonetheless is recognized to have an expectation of privacy. Could you illustrate . Sure. All of our the contents of or phone calls are routed through verizon communications. The contents of our calls are nonetheless strongly protected by the 4th amendment. They are also protected by federal statute. No one has ever suggested that verizons ability to listen to the content of our communications extinguishes our expectation of privacy. The same is true of our email. Our email is routinely stored on the party on the servers of third parties. And i think courts are beginning to grapple with that question. The 6th circuit in a case called warshack held that despite the possibility that google might read your email because the information is stored on that thirdparty server, customers nonetheless have an expectation of privacy. Lord knows there are enough there are many ironies in this case. One of them maybe it makes no legal or constitutional difference. But its a little strange that once mr. Snowden, through the guardian and others, disclosed the existence of this program, we no longer had a reasonable expectation of privacy. Weve just been told we dont have any privacy, that the government has it. I would like you i suspect you can respond to that because you probably thought about it a lot longer than i thought about the question, but i wish you would focus as we do this even forgetting smith versus maryland talk to me about reasonableness. How do in this case for us originalists the word reasonable is actually in the 4th amendment. Right . Talk to me about how we figure out the three of us figure out whats reasonable and what isnt reasonable. Sure. If i may, i will briefly address your first question. Which is now escaping me. The first question is, now that Everybody Knows about it and they are watching it on television the Supreme Court has recognized theres a circular ti to the caps test and it can be define if congress so chooses through a statute that permits bulk collection. It has guarded against that by analyzing a question along with the caps test, which is whether people are generally reasonable in expecting privacy. And i think you see that normative question being addressed by cases like jones and by cases like riley, both of which recognize that even though theres the capacity for greater intrusion into our personal privacy by companies and by the government given the digitization of information, that doesnt fundamentally at ter relationship between the citizens of this country and their government. Is the statutory issue at all relevant to the constitutional issue . In other words, suppose this case came to us purely as a constitutional question. After congress had engaged in a fullscale debate as to whether to authorize explicitly exactly this program and they did explicitly authorize this program i suppose one could further hypothesize they did it a few months before an election and after an election in which this was an issue, the same congressmen who voted for this were returned to office. Would that make any difference to our estimation of what is a reasonable expectation of privacy . I think it would likely be relevant to the inquiry. But cannot be dispositive. It is not to be turned into a oneway ratchet for government intrusions into privacy. I am wondering if that means even if there were some bar to our considering purely as a statutory question, whether or not this program was authorized, whether or not we found this was an executive branch frolic in detour that was not authorized by any specific legislation of congress and was in fact prohibited by congress, as part of addressing whether it was constitutional or not, and an executive branch excursion would stand on different and shakier constitutional ground and might even be an unreasonabl