q this case involves an appeal of a district court's order in forcing an i r s summons requiring responding to produce foreign bank account information required to be kept under the bank secrecy act over the assertion of the respondents fifth amendment right the record stablish is that the government has information concerning respondents foreign back record at the documents and souths were protected that's correct ok thank you but in the government also believes based on statements made by a revenue agent in the case for court recognized shapiro that a woman needs any consideration of the fifth amendment right or the purpose of the government saying it also eliminates any consideration of before this one have applied the government's mechanical application of the court records doctrine to reach that closure in the wake of shock and i'm sorry what do you mean by mechanical application all of those circuits have ruled as a matter of law i think what we have is the bank secrecy act involved that the fifth decision and at one end of the spectrum we have the shapiro's which which the government advocates is a standard worth government should regulate or fire records to be kept record isn't clear in shapiro on that point but but what is interesting about the shapiro holding is the government didn't make direct use of the act of production against the defendant in that case they simply used the contents of the records to investigate they gonna fight a customer name and use that information provided by the customer to bring a criminal prosecution based on a year that was not covered by the document production so it's different and it really dealt with the issue of whether the contents of the records what the act of production was testimonial incriminating so and so and in this case the government already has much of the information i assume because of other requirements of the foreign banks similar information which they require in your client yes roger and in you know our position is the only reason the government is acting in the manner that it is is to compel the the record below shows we requested it we actually did a freedom of information act request the government of the law enforcement exception so we don't know exactly what the government is but it does consume but if for example  government already had saved them to a chip on information that your clients had in fact opened an account that they had the name the address of your client the respondents custody control and possession of the foreign back and that is the purpose of getting him to produce the documents  and what justice harlan was concerned with and his concurring opinion buyers was the balance of the public interest and of changing him from nation with the individual's constitutional protections and he set forth some factors to consider he looked at the government's non criminal purpose and obtained information it looked at the nature of the self reporting and looked at the individual's fifth amendment right was the was the compelled production testimonial incriminating and he concluded that in that case which involved it's one statute that the compel nature court and say and compel him to say yeah i hit the victim and ran with it so i don't see where the distinction is between your description justice for owns rational and what we have here all the compulsion in buyers number is such and such the income from the bank account was so many dollars that that information can either be neutral or incriminating depending on the circumstances and i don't see where you draw the line between that and the and the the hit and run information which he had to give to the police at the accident well it minutely the information could be incriminating or neutral and only when the information is incriminating  into the government's knowledge because the foreign bank gave the government four kinds of information about accounts and so that all the government is trying to do are and by closing the circle by compelling them to make the testimonial communication it's relieving itself of the burden of proving a criminal case  preclude your argument and they've done it using the usual supreme court cast i had thought you were going down argue that the reason the required records doctrine doesn't apply here is that congress had a criminal purpose to assist in law enforcement purposes  quite seem to be making that argument and it's true congress did have a criminal purpose but it also had a purpose of getting people to pay their taxes not cheat on their taxes have a purpose of anti terrorism investigations have a purpose of just knowing data for regulatory purposes so you all agreed that the purpose is here go far beyond merely criminal law enforcement i would agree there are aspects of the bank secrecy that from go ahead i'm what information the record establishes that the government already has its session on page fourteen of the joint appendix is the this is the paragraph from the i r s revenue agent but what the ira's had at the time the summons was we're dealing with the domestic records of the foreign records and there's nothing in the affidavit about what the purpose of the i r s is inquiry is other than the statement as it's required under paul that there is no criminal referral in the fact that is that  assume and correct me if i'm wrong that you get from under the other statute you get from the foreign bank the list of their american citizens who have accounts in their bank in this quite a but the first part of your questions also the premise is incorrect the government cannot simply go to a foreign bank and get account records and certainly not the bank secrecy act now certainly in the recent years you have that you have an increasing number of well under some circumstances with some countries it's possible to get some information not directly from a foreign bank but through the foreign government that the bank secrecy act had a different purpose the function of bank secrecy act was to do  what what congress could to allow the government if not the same information that hasn't domestic context where it really can go to the bank and get information at least to require those parties of the government can regulate that is u s persons to keep some basic account records because that's the best that they could do in other words the reason the bank secrecy act has requires people for accounts to keep their foreign account records is certainly one hundred seventy essential the only place the government can get that information and even today they say under attack street it's extremely difficult in many circumstances to get information from a foreign government indirectly from a foreign bank to a foreign government so the purpose of the bank secrecy account records going back five years because the only party that can be regulated there is the u s person the u s resident so it's not true we can simply go to foreign bank that's that's the reason you had this in the first place as for the obtain records that have a high degree of usefulness in criminal tax and regulatory investigations as i understand it though you were making a broader argument in your brief if i remember correctly you said what what the government can forbid the government can regulate in whatever the government regulates by requiring records to be kept generates admissible records in if i understand your argument if the government took the position that for for any particular act it was going to criminalize it and it did not let's say have a civil aspect of wanting to raise money to fund the non performance of that criminal act that the records would therefore be admissible over a fifth amendment objection does the number one do i understand that argument correctly and number two if i do do you want to stand on that argument this morning as distinct from the answer you just gave the judge still i think i'll skip the justice souter question too because i disagree with question one if i understand your question correctly as to your first  in particular in character and louis he said in a brief the federal government took that logic from shapiro and wrote statutes that did what you just described as a suitor that took criminal activity like marijuana to file reports with the government which by the way will make available to the state prosecuting authorities and the court in your kitty in verse one hanging from the sheet on the same day said no you can't do that so you really have is but the focus is on the underlying activity not the particular governmental in korea before the court otherwise known of these cases what would be resolved the way they are because most of these cases are coming up in a criminal con shapira came up in a criminal context he was being prosecuted so the inquiry is the underlying activity the underlying activity here that triggers the record keeping and reporting requirement is having enough trouble i think and we're not suggesting we could we suggest that having enough for a bank account is inherently suspect affirmatively for is almost necessarily criminal and i think a good example of that i think sion is the supreme court's decision dealing with firearms and this court's decision within the year i think in most dealing with firearms in haynes the government lost because the statutory scheme there was set up complicated it was set up to target only illegally obtained firearms and the court actually says yes it's the right of a possible someone some innocent person could have gotten an illegally obtained fire on without committing a crime and then would have to report himself but that possibility so remote that they can say that statute is almost exclusively directed at people in the agent in criminal activity by contrast for reaching those in the most this court dealt with a recording scheme that applied to the question is are we dealing with a regulated activity that is almost always criminal in other words is that a real regular activity or is it a fake one that the government said you were going to call selling marijuana or gambling every regular activity and in a criminal stuff report that's clearly not what's happening here yeah that's interesting argument but the government has gone to great lengths recent years to get disclosure of these accounts  i think you're out of the question is you look at the underlying activity that's triggering the reporting or record keeping requirement and you ask is that criminal or almost always criminal the purpose inquiry is i think the angry because it's not a question subject of congressional purpose question is who's covered by the reporting a record can be seen but just to take examples from other break the choice for the doctrines and applied the securities industry for example i don't think anyone would the broker dealer can't sale fifth amendment we're not going to let you in one of the very conditions of being a securities broker dealer is you let us see come inspector records the fact that the u s attorney's office for the southern just of new york also brings securities criminal sexually oriented businesses that interstate trucking there are all kinds of rated activities where the disclosure requirements had a civil purpose i think buyers also i guess glad  colleagues spend so much time talking about buyers in this reply because i think buyers is a very instructive and useful case for government the government's position buyers does not say that the id hidden run stop and identify yourself admitting that you were engaged in the underlying accident you were driving the car and you had an accident you're admitting that by stopping and identifying yourself and nonetheless because one cannot without distorting the normal connotations of language as just harlan said characterize being involved in an accident as inherently suspect the fifth amendment does not allow you to keep on driving and refuse to stop and identify yourself suppliers a very good example of where there that the doctor and we agree with mr chen that the doctor is narrow and limited that's what he said below we agree with that the supreme court has set out the limits of the doctrine in  have an administrative scheme and when people violate it actually be able to enforce that scheme the issue doesn't come up only in the case of offer bank accounts comes up in a myriad of cases throughout the economy such as the ones i mentioned earlier you know the deferential senate review then the answer would be to affirm if this court feels applying it use of discretion review that they can uphold the district judges determination as to the domestic records then yes you have that they didn't send it back the united states is unable to take a a number of them come with criminal law enforcement provisions and if the government can simply require somebody to produce the records they can be produced and either prosecuted based on the production of the records o prosecuting them on the other hand for not keeping records then the fifth amendment is meaningless there were a number always the government could achieve the same goal of obtaining these records without amendment you may recall the dough case said in our brief in that case the government had taxpayer can sign a consent order which was not on its face in front of a authorizing the government to receive foreign bank that we have not offered to do it but on the other hand the governor hasn't asked but it seems to me that that would be a fair resolution so the limiting principle here is set forth in the analysis in buyers in book nine and it's not whether the government can proffer some regulatory non criminal purpose for requiring records to be kept the inquiry is looking at the nature of the government's compel production is it for reasons in the book my case was it for reasons unrelated to lauren foresman and that case it was it was a concern for safety of a child thank you