notice of section seven hundred and two surveillance this surveillance presents a set of novel issues that's only become clear as courts have learned more about how the surveillance is turned back on americans i'd like to focus on three points at the outset today st i'd like to explain the fundamental problem with the surveillance it allows agents across the government to read and sift through the e mails of americans including mister mubarak's here without ever getting any kind of individualized judicial approval nd i'd like to explain why this surveillance violated the th amendment especially in light of the government's back door searches and rd i want to explain one way the court can resolve this challenge narrowly by requiring stronger safeguards for americans as part of minimisation and i think you know so as you elaborate on those arguments  one thing that would i think be helpful is if you could distinguish between making a facial challenge to the seventy two  process as opposed to an as applied challenge relative to your client i found it challenging to sort through that in your brief and in the district court's treatment of issue and i understand you're bringing both facial and as applied challenges i'm particularly interested in the as applied and you're speaking more directly to that of course your honor now i think that in some ways this issue is blurred in the context of a bit of electronic surveillance and that's because when courts review electronic surveillance regimes going back to the supreme court's decision in the berger wiretapping case they consider not only not only to scope of the intrusion at the outset but also the procedures that govern how the government is allowed to exploit the private information that it collects in the course of the surveillance and that's because courts since the supreme court in berger have acknowledged the inherent dangers and inherent over breath of that into privacy that electronic surveillance poses and so courts beginning with berger continuing with this court's analysis of video surveillance in the mesa wrinkling case with the federal appellate court's consideration of traditional fice and its procedures and face a court of reviews analysis of surveillance under the protect america act all of those courts look to the procedures that govern how the government may exploit the information that it that it collects in the course of the surveillance and we believe the court here has to follow the same analysis the th amendment analysis requires courts to consider the totality of the circumstances and when it comes to the amount of information that these new technologies and that electronic surveillance puts into the hands of the government the procedures that control how agents are allowed to use disseminate retain and query that information bears on the scope of the intrusion and here the procedures i want to be clear are bury her missive the government says that the procedures are good enough to protect the bedrock th amendment interests of americans but when you look closely they are weak by design they allow the government to retain the communications it collects under section seven hundred and two for five years by default and and so this is one of the practical things i really want the court to  i hope the court understands and that is that they're the agents in general are not reviewing these communications at the moment that they are required in order to filter out or to minimize america's communications instead the communications are automatically amassed in the government's databases and then can be review or queried after the fact for up to five years and even when it comes to americans communications they can they can be reviewed or quer virtually any investigative purpose for intelligence purposes or purposes of ordinary criminal investigations and and in that way the per the procedures permit the government to conduct exactly the type of intrusion into protected communications at the th amendment is designed to guard against when it is the looks those consider the gather information say you sure the search is when the government turns to that information and starts probing for discreet particularized information  require and based on the versions of those procedures that are public and i want to emphasize the defense here has never seen the procedures that applied to the section seven hundred and two surveillance of mr matter of but the publicly available procedures indicate that agents can examine these communications when they are recently seeking foreign intelligence information or evidence of criminal activity so for any of those broad investigative purposes including investigation of domestic criminal offenses so it's not limited to national security it's not limited to terrorism and in fact agents query these databases to the feis a court reported in want to in its opinion  two thousand and eighteen more than three million times a year and one government lawyer enough in a face a court proceeding refer to these database searches as the f b i s google and just to give you a sense of how frequently these searches required to write down the justification or the reason for their query so it's just to put things in context it seems like it would be helpful to recognize the steps that the key steps in the section seven o two area and as i understand it maybe you can break it down in different ways but the st step is the attorney general director of national intelligence proposes the procedures to the foreign intelligence surveillance court step one step two the fisc reviews that application and decides whether to pre clear step two step three is the collection step where the intelligence agency properly i think so you're on there there are are different ways that agents can explore or review the communications and clearing is one of the principal methods alright my question though is if the steps break them that way it seems like your or your jumping to step four the query but you're not addressing anything up until then my misunderstanding your argument i just like to have this a little bit better in cont of communications so that includes the collection the retention they use and the clearing of those communications and i i want to help you or your understand why that's the case and it's because when courts are evaluating an intrusion in the context of electronic surveillance the court analyzes the lawfulness of the collection that st step based on how the government is permitted to exploit the communications that private information at later steps and and so when a court has to evaluate was this collection lawful in the st instance it looks through the procedures that constrain the government's use of that information down the line and so part of our argument here is that the collection of mister moody communications was ultimately unlawful because the safeguards that were in place in terms of how the government would later review them query them retain them were not sufficiently our our position is that the collection of this of these communications to the extent that it encompasses the communications of americans which it certainly does as the privacy and civil liberties oversight board has observed as the face of court has observed that that the collection of americans communications under this regime which are which of course are protected by the th amendment as even the government concedes that when those communications are collected without sufficiently strong safeguards at that the collection itself is tainted and what what we have argued in our briefs is that there is a lot to the extent the government says well we don't always know when to advance whether we're going to sweep up some american communications that practical issue can be addressed through stronger minimisation procedures when the government knows that it is that it has encountered an americans communication or that it is querying and americans communications at that point in the process it can seek the type of judicial approval that the th amendment has consistently required for an intrusion on americans private communications so i'm mister jimmy let me let me be a little more specific with the october that accurate yes they did your honor all right so why shouldn't we do the same thing here course in those cases made two mistakes when it came to the senate over here doctrine at least t mistakes your honor the st is that the incident over here cases that they cited all involve warrants so the government in those cases had a warrant at the outset and what that warrant did was it ensured that the privacy of both the individuals identified in the original wiretapping application and others who were overheard were protected the the warrant of course is the th amendment gold standard and when the government has a warrant it authorizes it to intrude on americans protected communications in search of evidence for a particular crime and in this case the government has no warrant in fact what it points to to justify the surveillance in the st instance is the fact that it's foreign targets have no th amendment rights whatsoever in its view and the absence of any th amendment justification that would satisfy americans protected interests makes this case very different from that one and to start certainly dealt with the rights of someone whose home was searched abroad but that case dealt only with the rights of non u s persons and justice kennedy and his key concurrence in that case was very clear the nd thing that those cases said that the two other courts said in addressing this issue was that it doesn't matter why the government's intrusion was lawful in the st place and that is in conflict with the supreme court with supreme court precedent in cases that involve exceptions to the war requirement so that for instance the supreme court's decision in riley where it dealt with seizures of cellphones incident to arrest the court there was a very clear that the reason for the government's intrusion the reason that the government was i passed in the war requirement in the st instance mattered and that it limited the extent of the government's intrusion into all of the private data on that cell phone so the supreme court has said similar things in terry when he talked about searches there in in rodriguez in in considering when a traffic stop may escalate into a dog sniff and in ferguson when i talked about the special needs searches that work and drug tests that were conducted there so when the government is relying on no exception to the war requirement as it's certainly doing here it matters what its justification is and the justification  adverting collection you contend that there's any issue in this case about inadvertent collection not that we know of your honor but i want to be clear that we have very few facts related issue prior to that court's decision but regardless we don't have a reason to think that's the case here but your honour's are far more familiar with the factual record relate to the surveillance than than the defense is unfortunately and to the extent that that there are facts that that presents significant issues we would ask the court to provide access to the defense if the government is arguing that some in the classified record that some version of the plainview doctrine which would justify its intrusion on mister wood arrives communications that something we haven't ever had an opportunity to challenge and we would ask that the court permit us to to brief those issues if the court identifies could if i may your honor i want to come back to one important point about how the court can resolve this case narrowly if it wants to because one way for the court to  to find that the surveillance of mister moody was unlawful is to look to the fisa court's opinion in two thousand and eighteen and the flaws that rendered this seven section section seven o two surveillance and that cour analysis unreasonable there that the court identified a number of flaws in the f b i s procedures that that amounted to and on to rendering the surveillance they err on reasonable and one of the factors that the court identified was that f b i agents didn't even have to write down their reasons for querying and americans communications in the government's database and similarly here the court can point to flaws to weaknesses in the minimisation regime as a basis for finding a surveillance on reasonable and it can then leave to the government the task of of proposing and obtaining fice a court approval of strengthened minimisation procedures to continue to conduct the surveillance going forward and i want to emphasize that a ruling like that would not bring the collection to a halt but it would find that americans are entitled to greater protections when the government shifts from its investigation of the of the foreign targets which it uses to justify the surveillance to intruding on the communications of americans when it knows that it has encountered  americans communications or but when it was hold on so quick how is the government to know that if the query hasn't taken place it seems to me that when you're arguing is that if there is surveillance of a known u s citizen abroad that the what we should do is limit our opinion somehow to those cases in which the surreal and either through inadvertence or non intent it picks up conversations of an american citizen or information regarding an american citizen in the united states but that information isn't known by the government or anyone else until that data is queried and so i don't understand your point you're asking us to make a distinction on the basis that has it's a non fact ha was is more akin to a search at that point you either the government or the court stepping in on behalf of the defense have to determine whether it is it the search has been conducted under some kind of a traditional due process principle but but you're presuming that the that we know that that at the time searches comments which i think is just there's no basis on the record that i've reviewed to conclude that that is possible and star you are now i may not have been clear we believe that the protections for americans can be can be applied at the point when the government knows that it has encountered an americans communication or seeks to query in americans communication that's the point at which we think the end and i want to draw an analogy because i think this this court especially the th circuit has developed some very analogous law in the in the hard drive search context so when agents have permission to see he's and then search a hard drive for evidence of one particular crime and they then and counter evidence of a different crime what this court has said is that the agents at that stage have to pause and have to obtain new authority new new judicial authority  to search further for evidence of that nd offense and and i and i believe judge i the colorado supreme court and the herrera case i doctored a similar approach and that's in essence what we're proposing here what the government may be able to conduct the surveillance at the outset if it believes that only it only foreigners communications are swept up now i want to caution there may be cases where they're tapping a phone line and they can see quite well that there's an american on one end of the phone line and a foreigner on the other but in other context they may not always known advance but our point is that when the government does know that an american th amendment interest their bedrock protection of their papers and effects is at stake and at that point in the process the government should have to obtain some further authority to intrude on americans communications and i want to emphasize the court doesn't have to resolve all of the details of this framework itself the supreme court in berger when it analyzed the wiretapping in that case the supreme court in chief when it analyzed domestic intelligence gathering did not you know the supreme court and burgard it didn't write title three it left to congress the task of drafting a wiretapping regime that would satisfy constitutional minimums in the same way here the court can look to the government to propose a new set of strengthened minimisation procedures that would accommodate these th amendment interests properly going forward but what what matters for mister moody is that the surveillance that the government conducted of his communications in two thousand and eleven was done under a framework that did not have that you know these even even minimal protections the agents didn't even have to write down the reasons for their queries they were allowed to freely review americans communications for any investigative per virtually any investigative purpose and that the fact that those safeguards are so lacking even when the government is well aware that it's looking at an american communications or seeking to extract all of an american screen occasions through a database query is what renders the surveillance of mister rooter of in two thousand and eleven unreasonable so so pale so let me shift gears for just a minute and i'd like to ask you about your article three separation of powers argument why isn't the fisc court performing more of a judicial function in preclearance seven o two procedures th so the sentencing commission doesn't promulgating senate seat guidelines under mistretta so the problem here your honor is that the court is being asked to issue advisory judicial opinions in the absence of any factual dispute or even any factual elaboration about how the surveillance will impact individual americans or with any factual basis to show that the intrusion on americans communications is justified under the th amendment and that's very different from the types of traditional fice of proceedings that the government has pointed to and well so i can ask you about how do you  square your position relative to the mistretta decision the mistretta decision as i understand it your honor was about the function that the judges were playing in their role d on the sentencing commission and here we're not we're not just shalen jean we're not saying the judges are not are playing our century taking on some other role we're saying that they are issuing the types of opinions that article three does not allow which is advisory opinions issued in the absence of a genuine case or controversy well wouldn't it be more constitutionally problematic the statute authorized section seven hundred and two surveillance with no judicial oversight at all it might be more constitutionally problematic but this goes back to the government's th amendment defense of the surveillance because it relies on the feis accords abstract general review of these procedures to claim that the surveillance is reasonable what we think the they answer is not to have no court involved in section seven x or surveillance but to have courts involved in an of valuating the  intrusion in concrete specific instances on and on americans communication or he just asked if we agree with your article three argument what's the remedy i think the remedy is just to strengthen article three at our position your honor is that the statutory sarette suppression remedy encompasses constitutional violations doesn't it doesn't only require suppression in instances where the statute is violated but it also mandates suppression of if the surveillance violates the th amendment or violates any other provision of the constitution including article three does the  face the court had no involvement and any of the review or querying of our client's communications i'd like to reserve the remaining time if i can but of course i'm happy to answer whatever questions come so if you are you ready to address a speedy trial issue and you have any authority for your answer i'm afraid i don't have a i don't have guidance for that for the court on that point but we would be happy to address it in a letter if the court would like assuming the pfizer court has passed on the issue of the collection of information in this case and that we are here only to inquire about the the final court has approved the procedures under which the government's conduct of the section seven hundred and two collection in this case and the procedures that govern the government's treatment of the information that was obtained of court has approved the procedures that governed the querying that occurred those specific procedures at issue in the case are in the classified record but the but the the description the there are publicly available ms ation procedures and descriptions of how those procedures function that we would invite the court in this public setting to consider including in the report of the privacy and civil liberties oversight board and that report explains essentially that the government's queries are required to be likely to return for intelligence information or in the case of the f b i evidence of a crime and those d the pfizer court has held that according to that under that standard and comply with with that with those standards are reasonable under the th amendment president presidential way but the court should be able to see from the pfizer courts cases that the court subjects those procedures to exacting review and it considers not only the procedures as written but in the way in which they're actually implemented and it has before it substantial information about how the government actually implement section seven or two and it continually receives updates and it's in light of all that information that it has we we think that in the context of this case the court should focus not on the general facial validity of the procedures but instead focus on how those the specific searches that took place in this case that resulted in the evidence that was used in this case whether those searches were reasonable thank you  in a very similar case follow that approach it considered it rejected broad challenges to section seven dollars and two dollars and instead focused on the particular search that produced the evidence against the defendant in that case and it found that that collection was reasonable without reaching broader question questions that were not necessary to resolve the case and we think that the course of follow that same procedure in this case how does the nd circuit decision contrast  decision well i think the nd circuit's decision is consistent with it in that the nd circuit did consider to find that the incidental collection of the communications and their use in traditional pfizer orders was reasonable in that case and the nd circuit though it determined that if the record as regards any potential querying that may have occurred in that that the clear if there was oversight procedural oversight to the clearing of the data that was used in the trial of this case or that was produced to discover the the classified record in this case includes the government's declarations regarding its good faith compliance with the minimisation procedures that i have been i think i am privy to that information  i could find no specifics in the classified record conducted at my request that allow me to conclude one way or another whether there was than these general statements you refer to will be classified record be augmented so that we can make that determination or do we need to also  determination to be made ready we're certainly prepared to supplement the record if the court works in the direct that but we've our position is that that's not necessary in the circumstances of this case that this court can find like the th circuit said that the querying issue isn't presented on the facts of this case because the court can at the court's classified record can show are the courts review of the classified record  supports the government's contention that the evidence that was ultimately used the trial in this case wasn't derived from any querying using identities associated with the the support for it depends on the court's review of the sequence of events that occurred in the case from the targeting of the foreign person outside the united states and the review and discovery of communications that in to which the defendant was a party and that and that those if that sequence of events occurred without the use of queries then there's no causal relationship between any querying that may have occurred and the use of the section seven to communications in the applications for traditional  the evidence in the case was itself came from those traditional five orders and not directly from section seven hundred and two and so the the court based on that review of that of the chain of events that occurred can find not reach the clearing issue but find that the events that occurred here were reasonable in the same way that the th circuit in the mohammad case one thing you said in response to j advisory and where's the case or controversy why how can an article three happen article three judges do that it's not an advisory opinion your honor because the order has real concrete effects without the court's issuance of the order the government is not authorized to conduct the acquisitions and the result of the fis order is that binding directives are issued on the communications service providers and so this is not a case where the court is simply offering a hypothetical advisory opinion adversary proceeding where is the case or controversy what about what about the example in the reply brief the t s a asked a federal court to determine the reasonableness of a new airport screening procedure are courts allowed to do that article three courts if the results of the of the procedure were that the agency were then issuing binding process then that would be we think consistent with article three inconsistent with section seven dollars and two dollars are and i and i'm going to belabor this issue too much longer except for one more question and that is i'm interested in what you think is the best court and l s s of this question that we could look to for guidance and that supports your position so any court really addressed i know that i know it's come up in these other cases but i haven't seen extensive analysis what should we where are we going to get help in the case law well the th circuit relatively briefly rejected the article three challenge the fandom as a race here and as did the district court in the underlying the th circuit's case and and so did another district court in the northern district of illinois  that the review takes place at the program at a level doesn't transfer us article three or take the fists review outside of that context because article three courts are fully capable of conducting facial analysis  with traditional th amendment rights reserved than to the american people that call for article three review prior to a search not prior to a search or of a search and what you're asking us to do it seems to me is to bypass that traditional function of the article three courts and instead rely on some forseen general approval granted by another court  case but if we would have group agree with the nd circuit and i'm not saying i do i'm just saying if we were it seems to me we would ask the trial court below to conduct that review or indeed as i asked mr to me perhaps that review has already been conducted in the confidential orders or the trial court in which case perhaps we may be made privy to  those orders so that we can determine the procedural propriety of the th amendment procedural propriety of the queries made in this case that's all i'm saying and then i certainly for one the alike i should know about it and be able to review has it been conducted by judge payne already has all this already been done and we just a needless lee concert having concerned that we really don't need i don't think th a an opinion or a review by the district judge that that hasn't been that the government hasn't clearly described in in it s in the classified materials i'm the the the general but i could come back to your honor's point about the nd circus of the nd circuit agreed with the government's general argument as applied to the a series of facts in which the government targets a foreign person who is appropriate target of foreign intelligence surveillance and in that process collects communications as a collateral result that indicate that a u s person in contact with a foreign target is potentially acting as an agent of a foreign power and that the government uses those  communications in order to obtain orders under traditional pfizer provisions the nd circuit held all of that was reasonable it it decided that a rematch was necessary principally be in that because in that case there was a conditional guilty plea in that circumstance the nd circuit was concerned that the defendants defendants decision whether to plead guilty may have been influenced by  e the what the court called the alternate evidentiary landscape this case like the th circuit case there was a trial and we think that on the basis of the classified record here the this court can determine i my concern is and my questions go to the record and what record there is for us to review on that point to determine whether the querying was conducted in accordance with traditional due process th amendment principles of the government prepared to meet that burden i mean and or perhaps it already has done that it is in the classified record my preliminary review didn't find that but indeed it was preliminary and you might be able to give us some guidance in that regard which is what i keep probing for and i realize it's a bit awkward i'm not trying to prove classified information in a public setting but wish we could have some sense that it's available to us  classified review perhaps it's helpful if i say this your honor i think the government's basis for its argument and that the evidence in this case wasn't derived from any querying as is set forth in the attachments to the classified brief that it filed as regards further relevant information in the classified record regarding the government's  treatment and use of the of the information that material is in the to the extent that it's available it's in the declarations that the government submitted in support of its opposition to the motion to suppress and the government is prepared to move to provide additional information and to supplement if the court were to direct us to do that but maybe you can answer is that did judge kean go to these procedures did he ask these questions did he make these determination  as a procedural review already conducted by the trial court the district court had before these procedures and it in its public decision contains its  analysis of the collection that occurred here when it determined that the defendant on the facts of this case the collection was narrowly tailored the district court said to the government's foreign intelligence purposes required which is i understand that's what that's what those courts decide it's the other option would be well there's an exception to the warrant requirement because there's a no warrant there too but if but but but i don't know that they require that they relied on an exception why isn't the better analysis from your perspective from the government's perspective that that there should be the that is that an exception to the requirement should be recognized well we're we're we don't see anything have any issue with characterizing the supreme court's verdugo decision as having described an exception to the work requirement that applies when the government targets foreign persons outside the united states that whether that you're saying that the th amendment doesn't even apply is that what you're saying that's right and  exception to the warrant requirement there's no warrant requirement that applies as to them and and we've also argued in the alternative in this case that there's a foreign intelligence exception to the want requirement that also applies in the context of section seven  the nice work in the nd circuit didn't reach that alternative argument but the fiscus hell that the foreign intelligence exception is fully applicable here as have some of the district courts that have considered such in seventy two in the context of of  legislation in two thousand and eight the idea was that the collection would be targeted at a non u s person broad wasn't  understood then and continues to be understood that even though that's for targeting the communications u s persons in the us would be captured and in light of that why wouldn't the better th amendment analysis again from your perspective from the government's perspective be the foreign intelligence exception to the warrant requirement instead of simply saying oh the th amendment doesn't apply because going into the collection based on what was known then and what has happened since all kinds of communications of americans that's it's true your honor we don't dispute that congress understood in acting the statute that the communications of americans would be a collateral result of collection interception seventy two dollars and as the nd circuit explained when the government targets for foreign intelligence purposes say hypothetically a suspected terrorist of herat the government's always has an interest in determining the associates of that foreign intelligence target and the government's interest is increased rather than decreased when it turns out that that those associates might be located in the united states it's it the reason why we think that the exception for non u s per targeting on u s persons abroad applies even in the context of incidental collection is the intell incidental collection principle itself which under which as the nd circuit and the th circuit and all the courts to have considered section seven hundred and two to this point in place that made the collection lawful in the st place but we don't have that here they analyze the issue what's our what is what is our alternative pathway if we're going to side with you on this case is that the foreign intelligence exception is that where we need to go that's our alternative argument warrant requirement here your honor but if i could just briefly speak to the the limitation or the in some a question principle and none of the cases have held that it is necessarily limited to the warrant to when the government has a warrant the government needed a warrant in those cases because a warrant was required in the st place the limiting the principle to only warrants and not warnings the options that lead to strange results for example your honor consent is a exception t and but if i give consent to the government to see a communication on my phone it isn't the case that the government would then need a warrant as to the rd parties with whom on the other end of text messages or e mails the collection that's all well and good the assertion here is is that there are billions of that that are collect let's say that that's all ok that passes constitutional muster that any collection is inadvertent that still doesn't address the question or the allegation that the hundreds of thousands of times the i that the law enforcement agencies domestic agencies or querying that that against american citizen information on american citizens in this country even that's a broad and very general and interesting question and i'm sure that we could spend hours talking about the constitute soon ality of that practice a again that's not this case what we're charged with is to determine whether in this case against these american americans protected with citizenship status waive th amendment rights of american citizens are i just don't know i mean i'd like to have a case before i went down that path i don't have any case that says that law enforcement agencies in the united states can query data tamed legally can query that data against american citizens residing in the united states if there is such a case i need to know but it certainly would put my mind at ease specially if it has  totally completely agree with your honor that the focus of this court's review should be what the government did with respect to the information in this particular case but the government in this case doesn't present the potential issue of of what would happen in a domestic criminal investigation in which there is no basis for a foreign intelligence purpose for searching in the section seventy two dollars data this case was a terrorism case in which the defendant in contact with the website administrator of a foreign terrorist organization in gauged in combat with our forces in afghanistan that's what this case was about foreign intelligence from the beginning and i think when the court reviews what occurred in this case it should find the good not only the initial acquisition but also the the the steps that the government took leading up to its turning to traditional phase a already the authorities that are specifically designed when the government's investigation turns but i'm just going to repeat a question the judge who sero put to your counterpart in the previous case and that is without i mean there are a lot of details on the speedy trial issue but  six years as a lapsed from indictment to trial and the court said there was no speedy trial violation just so we're familiar with the legal landscape and i know you  best one or two or three examples where something comparable has happened i mean we're talking six plus years here your honor i had to defer to the answers that were given by by co counsel who focused on the speedy trial issues i don't know that i can cite to any specific examples beyond what's in our brief and what he spoke in response to the earlier argument you would agree though wouldn't you that we're we're probably at one end the specter of we don't dispute your honor that the the the case it took a long time and the question  issue really is whether there were good reasons for that extended graciously all the time government needed so you case first of all the government waive that argument there i think the reason that it's been hard for your honour's to find a record to evidence even the classified record going to any analysis of that question a district court is because the government didn't present that argument couldn't we firm on an alternative ground is that really wavered but if you're going to rely on here well if the government didn't put in sufficient facts and didn't make the legal arguments that that go with those facts for the court to to reach that decision i think it would be improper not least because the defense had no opportunity to address those arguments below or to investigate or ask for access to any of the facts to bear on that question and what the government is essentially arguing is that it's evidence at trial was not derived from a particular in its here one slice of the ways in which section seven  so we think the government didn't raise this argument and i want to emphasize at least my impression of why that is and that's because the government has long argued including to the face of court itself that the reasonableness of the surveillance depends on the and the procedures they deal with many different ways the evidence can be used minimisation or retention dissemination querying because all of those uses go to how broadly the government may intrude on an americans privacy like mister the other point i want to emphasize is that even if the queries are put aside even if the court were to agree with that regardless of the queries we believe the surveillance and collection and use of mister wood routes communications was unlawful and to the extent that the courts analysis turns on how agents encountered these communications in the st instance how they reviewed them how many of them day they reviewed and exploited before filing  vice application to target mister rudolph specifically to the extent that that those are facts the court would look to we have never had access to those we have never had an opportunity to address how reasonable this would apply to those facts whether if the government is a real again relying on some type of plainview theory by another name how that would apply and i think those facts are relevant for the same reason they were relevant in the hard drive cases like low era and like kerry where the court it for the defense to have a chance to address them the the rd point i think goes to the consent counterexample that i counsel for the government raise now that's an interesting counterexample but it doesn't apply here because when you have a consent situation what has happened is that the privacy interest in the communications has been eliminated by virtue of the consent if there are two parties to a communication one of them puts that communication online that communication is public it's not private anymore just as if one of the parties chooses to turn it over to the guy verman so it's not that it's not the same analysis as one where here the government is relying on an exception to the warrant requirement based on the fact that its target explicitly in the government's view has no th amendment rights whatsoever and then is turning around and saying we get a free pass essentially to investigate and americans communications for any foreign intelligence or criminal purpose without any additional court review and my last point your honor is that the foreign intelligence and exception that the government urges this court to adopt is broader than any foreign intelligence exception that courts around the country have adopted in the cases dealing with foreign intelligence exceptions what the courts have typically look to you is traditional fice where which doesn't do away with the war requirement but instead  d makes it makes the problem cause showing relate to the target status as a foreign agent but i want to be clear that that no court has ever said that simply because the government is pursuing what it calls foreign intelligence and  very very broadly under section one thousand eight hundred and one that simply because the government is is pursuing something that it considers foreign intelligence it can intrude on americans protected communications those bedrock papers and effect let you all cases submitted counselor excuse