Instituted, this court had approved it. And there was this process of briefing in congress. And i dont think theres anything classified. You can tell me if it is and if you cant answer it. But could you just explain to me. If im a member of the congress, an ordinary member, not a member of some special committee, what exactly was i told . I dont mean what was in the classified briefing. What was i told about you better go read this before you vote for this. What memo did i get from whom . So, i think, there were memos from the chairs of the two intelligence committees. And they are in the joint appendix. They identified within the connection of the reauthorization, information has been provided by the im paraphrasing but information provided by the executive branch that was important for evaluation of the reauthorization of this authority in section 215. And it was up to me to go and figure out if it was worth it for me to go and read it as they were telling me i should. And i think of things like legislative vetoes and other issues where the Supreme Court has emphasized that legislation gets done when each house votes for it and the president signs it. This notion that the legislation has been accomplished because i as a member of congress got a letter saying you should go read something thats in a secret compartment before you vote on this. That its therefore assumed that Congress Approved whatever was in the secret compartment. The further fact that we have here is there were members, including senators wyden and udahl, who were pointing to this very debate at the time. Some people got up on the floor and said, listen, you bozos, you better read it, because we dont want to vote for it because of whats in there. We cant tell you what it is in public, but you better go read it. And nevertheless, they voted. And so, in other context, the court has said, you know, Supreme Court has indicated that references and committee reports, for example, are sufficient. This, i think, goes beyond what youd look at in an ordinary ratification given the classified. I think so, but Justice Scalia doesnt seem to think to as far as counts of legislation. And to your point, your honor, about the current state of discussions in congress and the president s position. I mean, i think it is certainly correct that the wisdom of this program in light of its nature and scope is the current subject of public debate and debate within congress. As indicated, there are multiple proposals that have been introduced and that process is working forward. The president has we could this i suppose is not a consideration thats entirely appropriate for a court. If this court said we dont think this is authorized by congress, that would kind of put it to them, wouldnt it . To actually act on whether they think this is something that should be done or not. And then they could take their vote and that would put to all of these issues as far as short of the constitution. It would put paid about all the issues about whether this is elective authorized if Congress Just voted and said. Has to take out the word relevant. I could say we think this program is okay. Keep doing this, or alternatively dont do this anymore, and then there would be nothing if they did the latter, we wouldnt have a constitutional issue either. If they did the former, then the constitutional issue i suppose, would still be around. And the section 215 authority will sunset in june of next year. So some action has to be taken one way or the other. Either to extend it or to change it in light of the current ongoing debates. What the president has said is that he supports achieving the goals, National Security goals reflected in the section 215 Authority Without the government actually ingesting the bulk metadata. Allowing querying at the providers. Although, in the same statement in march, he also noted that in order for that approach to be workable with the speed and in the manner necessary to accomplish the goals, legislation would be required. And so he directed that in the meantime because he thought it was important in his judgment it was important to continue this capability that the government go to the fisk and seek continued reauthorization of the program. 90 days there now. And its now been reauthorized a second time with the two restrict two changes that your honor spoke about earlier. September 10th is the next reup day. I believe september 12th is the expiration of the current order as reflected in the briefs. But so i just think that clarifies some of the discussion earlier about where things currently stand. And if i might turn to the no more questions about the statutory reauthorization, i think the ill turn to the Fourth Amendment if that makes sense. Our position is that the fisk and the District Court in this case did correctly conclude under smith versus maryland, the acquisition of Business Records reflecting the data was not let me tell you what problem i have with that. Its not just, you know, those were the old days. But does the question is and i dont think im using the mosaic approach. But doesnt there come a time. And isnt this what the plaintiffs are contending. Doesnt there come a time when the oldfashioned, simple pen register that was used in smith versus maryland or and that we are recognized it for a long time where the amount of data that you have of that sort is so detailed and so extensive that, in fact, it is a content divulging action rather than not. The whole point of the direction the whole point would suggest i write it again this morning. But the point was, youre just its something that you already give out. Anyhow, its given to a third party. So its its not a big. And its not as though you are listening in, which would be different. And the question is, i think, or a question is whether the methods have become so sophisticated of analyzing this kind of data that this, unlike with a pen register in this case, you are finding out content. Is there any oomph to that idea . Okay. So certainly, this is the one of the issues, i think, thats been a factor in the public debate over the last year since the disclosures. Id make a couple of points. First, here, again, we are, in fact, talking about the same type of information that to that point, to the point, judge pauley didnt go each piece of metadata by metadata and do the analysis that was done in smith. Right . He did so it was sort of a he said that its third party and its like similar type information. But wouldnt doesnt the, doesnt it require that actually he well, should it require that determination is made based upon if youre talking about a right to privacy. You look at each part of the metadata and make a determination at that point. Why shouldnt the court have to go through that exercise . I think that the record in this case reflects that if youre talking about the type of information thats at issue that we are talking about the same type of call data record call detail records at issue. So the number call, number received. The routing information, time and duration of the calls. Were not talking about name or address or Financial Information or cell site location. The question is whether the technology hasnt changed so much that the analysis that its just a pen register doesnt work anymore. The next two points i would make on that are, one, the ability of metadata to reveal useful information to investigators and particularly connections was known at the time of smith and was actually, you know, in effect the power of the metadata was a point pointed out, obviously did not carry the day with the court, which concluded that even though the expectation is that phone companies are assembling the metadata if only because you know you get a list of your calls at the end of the month, that did not give rise to a protected Fourth Amendment interest. So, you know even that very simple stuff that comes from the pen register is used in courtrooms in the United States every day in the week when assistant u. S. Attorneys get up and say heres a chart of the all the times that conspirator a talked to conspirator b on his cell phone in the days leading up to the drug transaction. You, the jury, should infer from that what theyre talking about. Theyre talking about the drug transaction, or alternatively. Heres a record, we dont have the content of the phone call, but we have a record of the insider at Goldman Sachs talking to the traitor right before heres the record of the traitors purchase of the stock in question right before the announcement of some new public information. What, ladies and gentlemen of the jury, do you think they were talking about . Thats proof this was a leak from the insider. So theres no secret about the fact that metadata never was, never was in smith any secret about the fact that metadata can reveal content. The point about the power, the technology now that allows analysis leads me back to the point i want to make in response to judge lynch. Which is, its important not to lose sight of all of the other protections that are built around the acquisition and retention and use of the data under this Program Given its bulk, you know, the bulk nature of the production to the government and in light of the technology. And i think thats critical to understand. That, you know, in addition to being only noncontent information about the telephone calls, the data can only be queried for counterterrorism purposes. And then only if theres a reasonable articulatable suspicion, is connected, associated with a specified foreign terrorist organization. None of the safeguards are built into the legislation. The legislation totally silent as to any of that. I dont think thats right, your honor. So in 1861, subsection g, i believe it is, requires mine minimization procedures. This could be used to gather data that would relate to a number of u. S. Persons. So the statute requires that the government propose and that an element of the program be robust minimization procedures. Theyve been spelled out in orders of the fisc, but there would be protections around the use and dissemination of the data. Now that youve got some experience with the procedures, it presumably would be possible to spell out something in legislation if this program were going to be authorized by congress explicitly that said what made sense and didnt make sense. After all, this just says the attorney general has to specify. So far the record is that fisc signed off. And when it was made more restrictive, that was because the attorney general asked for it to be more restrictive. Nobodys there saying heres what would be better minimization procedures or we think this is what the constitution requires. The government goes in and says heres a list of things we think you should tell us to do. And the court says, okay, thats what those restrictions are approved. Right . I mean, that my concern about all of this is that if, you know, its fine to say weve got this program and this is the we never misuse this data. We only use it for these purposes and we have rules to have that happen. Thats not the same thing as the government not having that information sitting there where, you know, i dont know what mr. Snowden couldve done. Maybe instead of leaking the order, he couldve leaked the database to somebody. We dont know what happens when some inhabitant of the white house, this one or another one, has a plumbers unit and decides to let them have access to the data base. These are realistic concerns. About letting the government have this massive body of data without anything, but even the, of course, look, anyone im sure part of your answer has to be and it makes sense. Whoever makes the rules, they could be abused. If we told the government it cant do this, it has a technological capacity. And imagining a government that breaks all the rules, they could get it anyway somehow. They could tap all our phones and wed never know it. And if theyre bad guys, these are all paper restrictions. But there are levels of restriction and, you know, its one thing to have congress adopt a program and say this is what it is and weve considered what needs to be done to give protections, and one that says, well, they can get whats relevant, but they should be careful how they use it. And then we infer from that this massive, this massive program. So i think, your honor, i think the record on the enactment of section 215 and its extensions respectfully goes beyond the last version that you just articulated. But i do think that the point about in the National Security area, the political branches being charged with, within a range drawing the lines about what steps are appropriate to accomplish National Security needs, something that the Supreme Court has articulated in the Fourth Amendment context, for example, in the keith decision urged the that congress draw some of these lines. Almost, im not sure this was the phrase that was used but because some of these questions are susceptible in effect to legislative fact finding about what is appropriate, what tradeoffs are appropriate in the to meet the needs of National Security. Similarly, in the mcwade and cassidy cases, this court in evaluating types of antiterrorism or counterterrorism activities, in connection with the subways and ferries noted that there, again, that the court should be reluctant to rest away from the political branches, the choices about how these judgments should be made and we should be be very cautious about making a constitutional determination. Which is why, i think, your honor, should evaluate the program that we have. Theres obviously a desire to ask questions about, you know, what might arise in other context. But given that the Supreme Court has made clear that the examination, a tally of the circumstances type question and you do have smith and you do have the same type of information that was at smith. If youre reaching the constitutional issues, we urge a focus on the program. You have to reach the constitutional yes. I was referring to your point. Which, respectfully is a function of the regime that congress established. And the Supreme Court has also recognized that where that is the case, where congress has not provided an apa cause of action, the consequence may be the examination of a constitutional and not a statutory claim. That was the issue in webster versus doe and that was the result. The constitutional claim could be reached, not the statutory claim. There was not an apa cause of action available. It seems to me quite simple that the only way we can achieve constitutional avoidance in this case is by ruling against you on something statutory. Otherwise were forced to get there anyhow, right . Again, and our position is. Would you prefer we not rule against you . I prefer you not rule against us, thats certainly true, but here, congress has not provided jurisdiction for the court to reach the statutory claims. Theres not an apa waiver of sovereign immunity. We are left with the constitutional argument, there, we think, that whether you do it at the level of smith versus maryland, which we think remains binding precedent and answers the question about the whether its a Fourth Amendment search to get the records from the Telephone Companies in this context. Or if you go to the special needs inquiry and the reasonableness approach. If you look at the program as a whole, not just the initial collection, but the fact that the fisc has authorized that collection only upon the imposition of robust controls of when the data may be queried, ha may be done with the results of the query, set out in the primary orders and reporting back to the fisc. This is not, respectfully, and this is reflected in the courts 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, its the program strikes an appropriate balance with providing the capability that is that is fisc order that imposes more restrictions than the government sought at the time . I dont i dont know the answer to that question. My point was that if you look at several of the recent opinions, which i had occasion to i never suggested there being some kind of rubber stamp. Im saying the procedures there are a little different than the procedures that would be in place in a District Court or for that matter in congress in terms of having a robust consideration, not just from what the government says is a good idea to minimize and whatever the judge can bring to bear in his or her own experience. But to a real debate. Right. So what i think i what i can say is that although these particular orders are not in the joint appendix here, among the declassified materials from the fisc are opinions reflecting reactions to compliance issues that were identified. And steps that the fisc took in response. Which as i recall included orders not only things proposed by the government, but that is a general recollection on that front. You seem to rely in part, improperly so on material that has in the last year and a half or so been declassified and should serve to assure us that there is not a special needs problem or Fourth Amendment problem. Its odd. What else, thats what youve let us know. What else havent you let us know . You were pushed to that i say this with all more than all due respect. With all respect. Im not saying thats a bad thing. But all of this stuff that we now know, and we dont know, we dont know. All of this stuff we now know is as part of a political reaction to the understanding that this program was in effect. Isnt that so . Arent you arguing a good deal from a material that was made that was classified until a june ago and was made public as a reaction to that . I mean, certainly that is true that theres now information public in the public realm that had not been public before. But this program, and i think this is the critical aspect of the congressional design was subject to article 3 review from the beginning by operation of the fisc which was a body that congress set up specifically to accomplish that. Just as the intelligence committees act as the channel for oversight of the executive branch on from the congressional side where youre by necessity dealing with