good morning good morning your honor is out of jail for the government may have please the court at issue here is a procedure that's used by federal and state law enforcement officials who believe that there are some critical emergencies such as a bomb that can be activated by a cellular telephone in order to weigh the harms and the benefits of turning off that cellular network against for example people not being able to access the nine one one system using their cell in their halls can i ask the question is there any reason the government didn't provide the court with a of the procedure the district court did not initially request a copy of it and so it was not presented hording camera obviously as the court is aware for you had you know generally in visions that these things can be done by declarations and i it talks about events such as all right it doesn't say limited exclusively to so this such as says to me well what else is covered all right and it's just odd he doesn't tell me that he personally has read this and he doesn't tell me with whom he's woken that has told him what this document says and i thought well what does it say on him does it say yes the type of emergency you're talking about why does it also drift off into other things as well isn't that relevant here well let me a the procedure itself as the declaration in the record spells out is a series of steps that can be used to weigh the benefits of turning off the cellular network to stopping that high different version see against those various harms now in some kind of a different scenario than us so they are activated bomb obviously if someone has a procedure in their filing cabinet in theory they could pull that procedure out but when they then go to weigh the harms in the benefits obviously the benefits of turning off a cellular network are very different if you have the threat of a cellular activated bo if you have you know some other kind of scenario that somebody might imagine could come up and that's my question you're not i want to make sure that i'm understanding your honor squashed in the declaration says such as kind of run of the mill case would not be a critical emergency and that is why i would it depends how you define emergency well if it does say critical emergency but you are me if i don't want to fight your honour's question i'm i'm just trying to understand sure whether we're just supposed ask for that but had they asked for it and were it necessary the government would make it available presumably to the district court applying the correct standards understanding after and said i'm getting at is that you may be totally correct on your legal point sort of how to expand the scope of law enforcement personnel some had discussed maybe just having a cover people in the law enforcement sphere of life families of law enforcement personnel something like that and the decision that they ended up landing on was that they should protect anyone and i think that's probably why congress wrote it this no it does seem that if you just said life or physical safety you're probably right that in contacts no one would think that that applied to animals or property but someone could come here and make the argument sale of physical city includes physical safety or property or the life of animals so perhaps congress could have written this more clearly although to be fair i do think that the way that congress wrote it provides a certain degree of clarity that might actually be lacking in the alternate way to write this i don't know why you would want to go into the legislative history and it's what the which is of course to inform the public about the activities of government and the activities of government concerning the disruption of cellphone service impacts virtually everybody in the country today and which even the chief justice noted in his opinion concerning cell phone searches this term also is don't trotters and her question of the outset suggests the fact that this procedure can be used in circumstances that do not simply involve the possible remote  interpretation of seventy and seven out you were happy to argue that judge posner found correctly that the government had not sustain its burden in asserting those exemptions but as to the broader purpose of the statue which we think also must be document what you want to do with it is totally a relevant question with your title we would agree with judge randolph but at the same time the nature of the dispute here also speaks to the outer casie of the holes or there that we were following the second circuit on that boat what we were attempting to do there was as in the second circuit opinion and your own opinion here it was significant that the government was able to establish from the with but let me ask you to the extent that you cite it here for the reason you cited it why why isn't that likeable here as well i'm not sure if i understand the crowd in other words if the government is concerned about a possible threat to the census go someplace or something like that people who are on the subway people who live near the subway i mean those people  we have that same sort of specificity here well we believe that the burden is on the government to establish the nexus between the harm that they have described and the population that would be impacted but i'm getting at is that  greater the harm then the more likely the harm to be prevented more likely it is that you're entitle to the car i don't don't think that's our argument well it is your argument and the reason is your opinion is that if you had a particular procedure in place for example to prevent nuclear attack on the entire united states you would say well that's not good enough because there's no discrete population volume therefore you have also turned on your reading and judge kavanaugh his reading of justice alito concurrence and milner and justice alito those concurrence and miller did speak to the seven issue seven at issue and pointed also to the fact that there were critical infrastructure of documents blueprints and mouse at issue and that was also the matter before this court and kia it was that them vulnerabilities it was the emergency action plan and it was the maps these are all specific of the government's description of the possible harm which we believe is also what judge posner berg was underscoring in his opinion the government simply failed to establish sufficient specificity that doesn't go to how large the grid could be it could collapse that exemption into the other exemptions which is precisely what the court warned about in milner because in looking at b to the court said we should not allow this one and should be two to engulf others that's the outcome that would be  produced in fact just centrality of a couple of opinions i believe which point to the scope of seven eight in protecting against the disclosure of information that might adversely affect the law enforcement prosecution with the government's argument for this broad reading of seven out reaches we believe you choose the similar outcome to several of your opinions concerning seven eight because they are saying in effect that one of the reasons that would support their broad interpretation of seven f is to prevent  possible destruction of useful leavitt's for that of course and the type of concern that you've addressed in the seven eighty opinions now when we're talking about the freedom of information act we do believe that the thumb is placed on the part of the determination and seven out is the relationship between the effect it off elation and the harm asserted if the government is simply able to argue that the disclosure of the document could possibly impact speaking about individuals it's not speaking about you know property or animals there's is a contemplation that in addition to people there's some some circumscribed population and you've been here certainly not adopting  of the now but also to the extent that you're willing to consider the legislative history of seven or if it's significant that senator hatch when he was the chairman of the judiciary committee seeking to address the concerns of law enforcement had raised about the narrow phrase law enforcement personnel and recognizing that there are other people associated with an investigation confidential informants witnesses of family members trying to come up with some language to protect the information of those thank you your honors it seems like the court is the issues on hand judge were enough i might be able to answer your question to my friend about the legislation my understanding is that it was a specific piece of legislation which said that if the secretary of defense made a particular finding about the danger of releasing the photographs that were at issue in