no party has requested that we close the courtroom for this argument however we do have a classified information security officer present and i would ask that he identify himself please thank you very much and your name is mr rucker very good so you will be with us in the court room for this argument  very good so we're prepared if we need to adjourn to that to the roving room over for a discussion of classified material in addition i would want to note that the government has not requested in camera consultation or presentation with the panel so we are prepared to go forward in the open court room this morning very good government to search and seize the communications of u s persons specifically is or has gone without a warrant and subject to section seven zero two of pfizer quite frankly they do not section seven o two is unconstitutional for variety of reasons here there was no warrant there was no probable cause determination there was no prior specific judicial review and there was no particularly you know as is suppose b they don't have probable cause to think that but there's some reason to suspect that they would like to intercept his communications from his cell phone so we've got a person let's assume a russian national living in london can the government intercept the communications from that cell phone without a  and they have the opportunity to plant some bug on his cell phone in london is it unconstitutional to do that without a war i think that would be something more complicated question than what is what's presented here i don't know i thought might be a simpler question that's why i'm asking i'm going to build up to accomplish here what would protect what about the fourth amendment would protect that person well unfortunately under very do go i believe they would be able to conduct a phone maybe it's unfortunate but i guess your answer would be able to do that but now let me complicate the question because of course in several respects that's not what's happening same thing that is a targeted interception of communications from that device in london held by that russian national is that a game changer that they have a technological means to do something in the united states to intercept the communications of the russian national in london yes your honor if it's within the united states supreme court has never indicated at the war that the fourth amendment so what they're doing is in the united states but what they're intercepting are communications originating in abroad made by a jew or from a foreign national seizing it in the united states is what your honor i say so the search and seizure is taking place on u s soil yes that is certainly well within the fourth amendment and of course you know i should say this and we're focusing on the target though is that the critical you know we're not focusing on the target i mean the word target doesn't have a lot of fourth amendment history but whose communications were intercepted and then when back in the simple days of title three intercepts you get a warrant to search the seize the communications of john gotti and you put the tap on his phone because you have probable cause that he would be making communications on his phone in this place in the united states right and that's what you'd get you would hear his communications with a lot of other people now you recall that the target or not you want to i don't think that's a question of who you're subjectively interested in it's a question of what your those communications respectfully yes that's true but you wouldn't be able to and you wouldn't be able to then there after utilize every single communication that's intercepted pursuant to that warrant only those that are related to the  to arrange some prostitution activities that doesn't have to be minimized if it is clearly a criminal conversation right and then it could be used against said governor and then we title three requirements as to you make a report and then the next re up of that you have to identify that person as a target and that's the right word in that context but you are a you overheard legally a communication based with someone that the government had a legal right to be overhearing you could retain that communication and use it against that person yes not every communication you're on i mean there are limits to it united states versus con stated that to paraphrase the ability to collect some conversations of some known suspects hardly leaves the executing agents free to seize at will every communication that comes over the wire but i have not if it's not a criminal conversation and there is this is all like plain view it's plain hearing in these in these primitive days when intercepting communications meant a fellow with headphones sitting in an office actually listening in real time to the conversations now we've got a lot of differences there i'm trying to figure out is that not bedrock law that if the  the f b i agent sitting there with the headphones on monitoring the wiretap that is by hypothesis legal to conduct hears a criminal conversation but that that conversation is available for use in evidence yes or no but that's predicated under the understanding that that initial converse that initial surveillance is subject to a probable cause a term no it's that's what makes it offers me it's because that's what makes that one lawful but what if it's lawful for some other reason i mean the same is true of search warrants right if i get a search warrant on behalf of the government to search a particular place and while i'm there i see evidence in plain view that is obviously evidence of some other kind of crime i can seize it but the same is true if i was there legally not pursuant to a warrant but for some other legitimate reason like i'm a firefighter going in to do an emergency to respond to an emergency right or if i was invited in i had no warrant but i'm legally there i can seize what's in plain view yes yes your honor which is why we're not making a per se challenge to the statute under all circumstances where making a challenge as applied to us a person that is different us personally my hypothetical as i haven't mentioned anyone who isn't a us person i haven't mentioned anyone who isn't protected by the when you're in your hypotheticals you've consistently stated that the basis for the initial search is lawful yet you don't have that here that's the difference we don't have a lawful under the constitution here there is no warrant there is no probable cause determination no but my respect that a calls have all concerned to begin with a foreign person abroad the the one game changer that we've identified that you are contending is that if the united states government seeks foreign intelligence information from a conversations of a foreign person located abroad but does it by means of some technology enables that to be intercepted somehow on u s soil that that's the key difference so far i guess that's the key difference we've discussed so far yes that it was occurring here that every element of it occurred here but of course here also we have all of that the actor who is at the aggrieved person is a u s person it's not the foreigner so it's not the foreigner who is cheap but what ways but wait wait no no the get that is not a game changer because i think we have stablished that if that communication was intercepted in london by a tap placed in london the fact that an american called the person whose phone whose communications were legally being intercepted and says hey i hear you're with the k b g could you help me assassinate the president of the united states that it would be lawful for an agent and again we're in my hypothetical my primitive hypothetical he's listening in real time it would be lawful to turn that information over to the f b i and then pursue other means of lawful investigation in the united states of that person right that would be the reticulated are predicated on initial lawful surveillance that did not occur in this case yes i mean i guess that would be true but when you go ahead and take a few more minutes i just follow up cases against five hundred different people that were relevant to the original reason for the top on goddy that might create some question about why you got that one wiretap i haven't seen any cases that provide that analogy that the volume of incidental crimes that you uncover you can prosecute somehow effects the original warrant or here another way of getting if it's a foreign based person well whether it's the basis really so there is one case on point your honor that would be judged bates's october third two thousand and eleven fiske opinion in that opinion he found that seven o two specifically was on a reasonable as applied to the case now he was examining upstream collection not prison collection but in the context of upstream collection he found that there were so many millions twenty or thirty million communications that were intercepted in that way of surveillance proximately two hundred and fifty million interest options occur per year under seven o two programs and only one percent of that is up spring upstream so judge bates is saying that perspective that song small subset that nine percent two hundred twenty seven point five million intercepts a year of communications a year when judge bates may be confining his conversation to up spring upstream his reasoning is that within that nine percent of the overall amount of seventy two surveillance it is unreasonable how many u s citizens are being intercepted well with respect to prison which he wasn't addressing there it's not nine percent it's eighty in one thousand it's ninety one percent is an intercept cer individual email is that correct in this case yes or ok so it is it is so you're talking about two hundred twenty seven point five million e mails a year that is it could be e mail could be other forms of communication as well or that is ten times over ten times more than what judge bates found to be problematic when talking about only upstream and he was finding it unconstitutional as applied in great part and specifically because of the volume of intercepts that employ impacted statistics better than i could i believe my understanding is that i'm prism is being used at a greater volume now than it was a few years ago but i don't have all the time i have risen for incidental collections yes but have raised concerns about the seven o two program generally but because we need to treat this as an as applied challenge we need to examine the circumstances that as they pertain to the appellant himself and  program was applied in that instance isn't that correct that is that is correct your honor and notably with respect to judge beta's opinion with respect to discussing seven o two surveillance he's discussing seven o two applications and surveillance that took place during the same timeframe that took place with respect to mr has been ramis surveillance interceptions so yes again i understand he was talking about upstream but it's still the same the same time period and he's finding these applications that have been reasonable  go back to another possible game changer i was hypothesizing of course very old fashioned kind of electronic interceptions and there should preface this question by saying i have not looked at any classified documents before this argument so that nothing that i say should be taken as implying we're suggesting that any hypothetical i give is dazed on some factors something the government actually does or does not do because i don't know i haven't looked at the i take it that would have from the public discussion of this case that what's happening here is that the government doesn't actually in real time listen to or look at these communications that sucks them up into a database where they were reside until and unless there is some occasion for someone to look at that it is correct your honor a naked man and them up to five years yeah and what happened here i don't know if it's what happened here but the government and i'll ask them about this seems to be asking us to treat it as if what happened here is what you refer to as a back door search that is to say that someone in law enforcement in the united states requested  that the that the people with access to this information look up to see if there was anything involving mr husband around me that had been intercepted and why i say the government invites us to look at it that way is you attack this concept of vacuous searches they don't conspicuously did not say that's not what happened here what happened here was somebody listening or reading the e mails for foreign intelligence purposes stumbled upon the fact that mr husband dromi had volunteered to go abroad and be a terrorist and and then they reported that the f b i and the f b i undertook more investigation they don't say it was only that so i think we have to assume for present purposes that this was one of these backdoor searches and it's fair assumption till they contradict ok and your argument is that apart from a question about whether this information was ever lawfully seized in the first place that there should be a warrant requirement before that happens there should be some something more than just hey guys check out if this fellow that we've come across in wherever it is is up to no good why i'm sympathetic to that concept but i'm having trouble seeing where it would come from because normally if the government seizes something again lawfully pursuant to warrant or whatever other exception to the warrant requirement makes  reasonable under the fourth amendment then the government's got it and if an f b i agent knows it's there in the evidence vault and is thinks there might be something there relevant to some other investigation is there any precedent that says they need get a warrant or some other justify to a court why they want to look in material they've already lawful i can't think of a case off the top of my head of and he then went oh what what what i'm search the search of the data that's already been seized and is just there electronically on some server to target a u s person's communications that may have been by my i mean if size the fourth amendment what it what i mean you're on about invention of fourth amendment doctrine would say that my hypothesis that the government lawfully seized communications because they were let's even assume for the sake of this argument intercepted abroad by tapping the phone of a foreigner located abroad what would say that there needs to be a separate w requirement to query that data to look at those communications to see whether specifically mr holmes but romney or someone like him in the united states came up in that conversation  but it's in a database no one's ever even you know despite the great national security importance of all this stuff no one's ever actually looked at it at all but now some f b i agent in detroit or someplace has a suspect  problematic but i'm having trouble getting a doctor and like final basis i mean i'll leave that to the a c l u your honor it's just so far afield of what are the facts in this as applied challenge and none of that is relevant to what happened here it's that so i honestly i didn't research that particular issue and i apologize for not having done so well it is one of your arguments that apart from the whole thing is unconstitutional in the first place there needs to be a warrant one reason why it's unconstitutional in the first place is that there's not a requirement that there be a warrant supported by probable cause before someone in law enforcement in the united states looks at the data i thought that was an order they know the argument the argument was not that there was never an argument that the initial presupposed on the fact that the initial surveillance is on is unconstitutional we didn't make the argument that if part of it was cut if it was constitutional then we have to take a second because you wouldn't take a second application of the first one is constitutional the point is whether or not the reasons why it's on law and this is another sort of twist on the back door thing it's a back door argument in a way on your part that one reason why it's unconstitutional is because it permits the f b i or other domestic  forces to look at data without further warrant when they're interested in a u s person in connection with the us related crime director i just ask a follow up that i didn't see in the publicly filed opinion by judge gleason a conclusion by him that has ridge on me was queried here in my right about that always says is a footnote that been put out twenty says after the found some information out then they got the pfizer warrants but what did he conclude that there was an actual query of ha's ridge ami in this case i don't believe he concluded there was an initial query of h from me that's correct i believe he was concluding based upon information that i'm not privy to that he believed individual number one was the one who was queried as at an initial point what's not clear however is  the very initial program in the very initial program and there i don't think there's an there isn't an allegation here that mr husband rami's phone number was listed under the seven o two as as the target of the seven o two surveillance it was individual number where th concluded by him or established in this case that there was a particular query but it was her job to judge gleason bases decision based upon the fact that in his view with individual one was the target it fit into one of a number of exceptions that the government raised he didn't then extrapolate or discuss whether or not there was a back door search that followed he left it with that initial that initial target so whether or not want to hurt after the fact which hopefully this court good morning honors and patrick to me representing me he a c l u and e f f thank you for giving us the opportunity to argue today and may please the court i'd like to do three things with my time this morning in addition to addressing giving the court our view on some of the important questions that the court has raised so far first i want to explain the fundamental problem with this surveillance agents across the government are reading and sifting through americans internet messages without getting any kind of individual i's judicial approval so mr hume you are approaching this statute as a whole program as opposed to looking at exactly what happened to mr has brought me right you know we are focused on the specific loophole that the government exploited in mr husband ramis case which is it collected the e mails without a warrant on the basis that it was targeting a foreigner overseas and then it turned around and it used and we think quite quite likely queried those communications in the way that judge droney you were asking  in order to make use of them in an investigation and mr husband rami so just to just to respond to your question about the role of the of the back door search the privacy and civil liberties oversight board issued a report in which it said that the government uses these backwards the f b i uses its back door searches when ever it opens a national security assessment and the government has not provided any information in the public record to contradict that description by the privacy and civil liberties oversight board and the board also so they used to go for domestic investigations to that's right they said that they are routinely used in both national security investigations and in searching for information in the course of domestic criminal investigations i want to emphasize at the outset as well that we think that the court can resolve this challenge narrowly by requiring stronger safeguards in the minimisation process and  our our solution as i think judge lynch was perhaps driving at involved the government obtaining a involves the government obtaining in visualize judicial approval at the point where it seeks to retain user query and americans communication and u s judgment where would that requirement come from and i want to be clear that there are two lines of cases to support that type of requirement the first line of cases are what the court might call the minimisation cases the cases dealing with with the inherent risks of electronic surveillance and its potential to sweep up private information that judge the lawfulness of surveillance based not just on what occurs at the outset but on the safeguards that apply to the collection once the information is obtained so in this case in this very case the government points to its minimization procedures to argue that the surveillance is reasonable and those minimization procedures in the government's view  i think it's undisputed at least in some way shape or form control the retention use clearing and dissemination of the information but why would it be required that the minimisation minimize that is to say destroyed not listened to not make part of the interception ultimately criminal conversations that are  made by the united states person that would be an old fashioned moral and overheard during what is otherwise a wall full interception of  conversations by someone that the government has a lawful right to intercept what first i think that the lawfulness of the of the surveillance is this is exactly what's at issue yeah i would but you're saying now that the law ss could depend we could say it's lawful to do this stuff if you have minimisation and i'm asking well fine but why would the required minimisation include anything that involves the united states citizen including criminal conversations because the procedures that the government applies are so permissive at the outset reason one this requires the government to apply stronger safeguards to the americans who want to put it why would the safeguard exclude criminal conversations in other words if go back to the old title three domestic situation i'm listening to the government is listening to a the conversations  someone that they've gotten a warrant for and something else is said but it's not private it's not somebody talking about their medical history where their sexual activity or their political views if somebody's calling up to solicit a new crime from the person on the phone is being tapped we don't have to minimize that so why would we have to minimize that in this context title three addresses that sorry your honor it has a provision that is directed at other crimes information that's obtained when the government is is has authorization to collect on one crime and what title three says is even in that context the government has to go back to a court and get approval to use that information  subsequent proceedings and what the mckinnon court also said in those circumstances is that the risk of that over collection is minimized by the fact that the government at least has to show probable cause for the original offense at the outset of that surveillance and here there is no probable cause showing that that restricts the original action in trouble understanding why that should matter if there is a legal basis for overhearing the conversations in the first place if we're saying ok the government can target the foreigner abroad then why would the minim is and i'm fine with the idea we have to do all kinds of things that the other and what does that have to do with if we overhear during that conversation someone plotting a crime in the united states wouldn't any reasonable  requirement say yeah you can keep that and by the way if you've kept it you're not going to sit on it in the cia vault you're going to give it to the f b i to investigate what's going on why is that is there someone is wrong with that your honor the fourth amendment interposes an individual judicial officer between americans and the government even even the government's criminal investigations even when the government has a legitimate criminal purpose and that requirement the  a government agent is invited into premises for some unrelated purpose and happens to see something in plain view that is evidence and we don't say oh wait my god we need to get a warrant before that can be seized if it is plain that this is evidence of criminality it can be seized retained used both as the court i think know as the plain view doctrine gets quite complicated in the context of digital surveillance with a broad and over inclusive nature of that surveillance so i think that the question of how the court should treat that type of over collection in this context where the government is surveilling foreign targets on the basis of their foreign happening here it's like carpenter it's a case where it's one thing to follow somebody around it's a different thing when you're collecting some one thing to get these phone records when those phone records reflect what numbers  it's a different thing to get phone records that actually show every place that the person went is that it's that kind of thing that is makes us much more concerned than in the simple hypothetical of the old fashioned over here that's right your honor in as the supreme court has shown in its recent trilogy of privacy decisions the courts must be quite careful and hundred twenty five thousand foreign targets a year under a single court order and sweeping all of those communications into a database that can be exploited by f b i agents around the country for five years the we of course think that the government's insanity over here its reliance on that rule is wrong on as a matter of law but it would be dangerous to uncritically extend those cases that apply that that were developed in the analogue context to this case just to make sure i understand which are which are arguing for you focused on retention so what the program that you believe would be constitutional would balance privacy in a different way and would say that the government has a duty to review or to toss within weeks after an incidental over here the us press if there a u s person involved on the other into the line and we just kind of designed to a different faster program what would what would you do you're on i want to be very very clear about this because it affects the practicalities of the government has invoked at times in its brief the government says that it would be impractical to and to know in advance whether a foreigner will communicate with an american and i think that the amount information that's at issue in this program shows that it's the government is simply unable to to review it all as it comes in the door instead what we are suggesting is that the government when it knows that it has encountered or seeks to exploit and americans communications at that point it should be required to obtain individualized judicial approval and there is a precedent can retain then you would say because obviously there's more it could ritually privacy concerns with proceeding to review everything as opposed to nothing that's that's correct if the government wasn't aware that in american americans privacy interests were implicated in a particular communication and that communication sat untouched for five years before being before being deleted that's how the process would play out in that context but when the government is is either examining communications and it knows that there is a u s person involved and therefore a protective privacy interest is involved or when it seeks to query the communication to do a back door search of communications that it knows belong to an american at at those junctures it should be required to get individual eyes judicial cruel and i want to stress there's a precedent for this in face itself in e expectation is that communications between embassies and their home countries will be communications of foreign power you said u s embassies on u s soil are foreign embassies on u s soil thank you but when the government discovers that it has in fact obtained a u s person's communication and in the course of that warrantless surveillance it's required to go to the fisa court within seventy two hours to get permission to retain or use those communications and that is that is the same type of process that we are that we submit should apply here when the government encounters a communication in which you know is that there is a protected fourth amendment interest let me just be clear on what you're covering with this requirement  assuming that someone in the foreign intelligence community is looking at these communications of whatever he's called the public record individual number operative we're trying to find that out so they listen to these communications and they hear what is obviously an american calling him up to say how do i get to go get training to join isis  at that point you are saying the thing to do would be to go to court and say we've got this american communication is clearly a  nce potential evidence of a crime can we keep it and use it to investigate that fellow in the united states that's what has to be done and what showing would have to be made we think that the showing that would be the government should make a showing on par with the work requirement that would ordinarily apply but i want to emphasize that there are multiple that ways that this type of showing could conceivably be addressed and these are these types of approaches are illustrated by the range of voices that have called for stronger safeguards for americans so the court could can look at an x and the privacy and civil liberties oversight board report which calls for stronger protections for americans or recommendation twelve in the president's review group report so there is a range of options in the court doesn't necessarily need to resolve that question because the surveillance here didn't involve any of these safeguards like the supreme court did in the berger case the court could identify the flaws in the surveillance and leave it to the government or congress if it chooses to address the precise procedures that would apply and i want to emphasize that the government can can adopt and seek permission to use new minimisation procedures any day it has that power under the statute to seek permission to apply stronger minimisation and to seek the fisa courts approval to use those procedures so this would not require a change in the statute and it would it does not require the court to strike down the statute one thing i do want to get back to though your honor is the second line of cases that support restrictions on the use and clearing of of communications because i think it's important for the court to recognize that there is another set of cases that make clear that the scope of a search is closely tied to the justification that is provided and here the government is relying on the lack of the foreigners fourth amendment rights in its view and this line of cases includes the supreme court's decision in reilly it and i think this court could also look to its own decisions and those of other circuits addressing computer hard drive searches so in both those contexts the government was entitled to seize a whole lot of information based on one justification but when its justification shifted as an riley to seeking evidence on the phone it had to the supreme court said that the government couldn't just rely on its own protocols but had to rely on a subsequent warrant and the same the same thing this court has suggested is at least a good practice by the government when it has obtained a mass of information on a computer hard drive under a warrant for one crime and then wants to search through that information again in order to investigate a different crime very good thank you very much for your arguments we'll hear from the government constitutional requirements and that the underlying principles at play were reasonable within the reasonableness prong of the fourth amendment and were in fact appropriate under the circumstances of the fact of this particular case i want to address of a few questions if i may that i have been listening carefully to from the bench and i think this case is in the light of cases that's come before this court which really highlights the intersection between technology and fourth for to use the term the target of the seven o two surveillance in this case and then it becomes a series of steps to get to the point where the united states government is looking at the e mail content of a u s person and from a so called the back door querrey i think judge gleason's opinion establishes in and if it doesn't the order of things i want to make that clear here today in this case the government had targeted a person or persons who were indeed foreign persons and in abroad who were indeed discussing matters of international terrorism and after the government learned that one of the communications  o in those conversations e mail come communications was a u s person in new york the government sought an order from the fisc and provided probable cause and satisfied the fest so that the government late and that while we gave mr hadley dromi notice of his title one surveillance we did not until much later give him notice of the title seven surveillance that had been incorporated into the fison warrant but i think it's important when you look at this case taliban circumstances and you ask what what is reasonable for government action in matters of international terrorism that involves communicants abroad and communicants in new york i think that case stands as a good example of of what is reasonable you were briefed dealt with the backdoor search issue by saying it wouldn't make any difference if it was not by saying that didn't happen that well i think it's important to judge because had it happened i think that would have also been law that would be a separate  if it didn't happen we wouldn't have to reach that question but i'm not sure that there is some finding or even some record basis at least in the non classified record of the case to establish the that what happened i take it you're telling us is not i agent in new york interested in this person for some other reason to check the database to find out if there was a section seven zero two surveillance but rather that in the course of pursuing the foreign intelligence objectives of seven o two surveillance someone in that side of the government came across this communication and then in effect referred it complete with an application for further surveillance supported by the probable cause the probable cause being what was heard on the seven o two that that's the what what in the record tells us that if it's ambiguous judge who you know frankly you you need not the sky that i think because you could find that even had the government clarity it would still have been lawful i read i was just looking back at judge gleason's opinion which we've cited in our brief at page eighty six and i read judge gleason's finding to stand for the proposition of the sort of order of events but i could see why the court might speculate why frankly defense counsel might speculate about the order of operations so to the extent it becomes a critical question to the court and their ambiguities in our briefing we'd be happy to provide supplemental briefing and certainly not my intent to go outside of the four corners of the of the record here you are correct that in the mohamud case the ninth circuit concluded there was no queering of him i didn't have to address that issue of whether this whole back door searched aspect of it was reasonable that's my recollection of the opinion your honor but i want to make clear i'm not i'm not conceding that even if it's querying is done then it's unconstitutional obviously not conceding it on the one hand we've got people saying the whole program is unconstitutional from moment one and we've got the government saying oh we could do anything we want with that information and it would seem to me if it's not necessary for this court to deal with those propositions because there is some narrower ground it would be who of us to pursue that possibility right i mean you may at this moment you might like it if we reach the back door search issue and agreed with you but you presumably wouldn't like it very much if we reached the issue and didn't agree with you so when you started by proposing that very narrow grounds well i think it's i think it's important because i'm tempted i think as as a husband rami is and the a c l u to take on sort of the whole program but that's really not the burden i don't think that's completely the burden that's on me today because it's it's an as applied challenge and so i think the facts the facts do matter and therefore what is the government's position about what the record shows about whether this resulted from it back to our search or not it did not it did not the criminal case and the record shows that well to the extent the record is ambiguous ambiguous and i trust this court has read it closely if the record is ambiguous ambiguous it's not my intent to supplement the record here today i will endeavor to point to what i think in the record could lead the court to that conclusion if it's helpful in a post during letter but i think the court could find that the search was constitutional in this case without reaching the back door question i respectfully  and have the district court resolve that issue if there is if we still find it ambiguous based on record references that you tell us about you  could your honor if you if you don't want to reach the question of whether or not the lawful collection of these last collection and retention would allow the government to do that and i suppose you can i take it you agree that it is at least one step easier of the case and this is why i think you began by argument this way that if someone pursuing the legitimate foreign intelligence purposes for which this valence exists is looking at the communications of a foreigner located abroad who has putatively no fourth amendment rights at stake and comes upon this  communication with an american that seems to reveal a crime at least where as you put it the next step is to go to a court reveal that that's what the government has learned and seek authorization for further surveillance of the american burson that's an easier case then if someone in the united states law enforcement community just says i'm interested in this guy tell me whether you've ever heard anything in you know that you may not even know about yet that's in your  there shouldn't be and some of it is and not to practicality in the hypothetical that you provided and in fact in our case when you talked about k g b agent in london you had initially a pretty unequivocal statement of illegal activity and so one could imagine in circumstances like that well let's let's let's go straight to the fest because we've now seen that there's a u s person involved in criminal activity but but but i would submit the judge if i can pose a hypo of my own given the types of trade craft that the targets of seven zero to engage in whether they be k g b agents who are members of al qaeda or isis it's not always immediately apparent or even soon apparent that there is a crime afoot and so what you'd be doing essentially is imposing a burden on the intelligence community that i just don't think is required by law is the any burden at all i was suggesting that if in this case you did have such an unequivocal communication giving at least probable cause to believe that the american was involved in criminal activity providing material support then this as applied challenge might might dissipate might dissipate can i ask one other question the other game changer that  wreck referred to is that this surveillance takes place in the united states and if you go back to verdugo i mean the fact that you do go is not an american national in any way shape or form lives abroad if he owned property in the united states why would it i mean there's no precedent is there that suggests that the government could just search that property because the person who owns it is a foreigner who lives abroad without any more and more probable cause i don't think there is judge me to sort of make it real if you imagine the kind of voluntary if you what the term the corps use the voluntary contacts are essentially veiling themselves of some connection with the united states have an expectation of privacy if you have a foreigner come to the united states and rent a summer home here and return to paris say i i i'm not asking this court to find that we could search that home without without a search warrant under rule forty one so what is the difference if they're going to another follow up about this or this particular aspect what's the difference between searching the foreigners property that he owns in the united states and seizing communications at a facility and that are stored or passed through the communications facilities in california i think it's one a function of technology and it's essentially that based on american innovation we've built an infrastructure a technical infrastructure in the united states that affords essentially free communication to those around the world who want to take advantage of it so if you're an internet cafe in a foreign country you can sign up and get a free e mail account innovators in the united states built that and so then the question becomes if the united states government wants to a veil itself in some way of the existence of that infrastructure should they be barred by the fourth amendment the war requirement of the fourth amendment if the owner of that e mail facility let's say is a foreign person abroad and i think if you go back to virginia go and i think if you look at the facts of this case know we don't have a case here where you had sort of a could mean a community of people who had a strong connection to the united states to in our view had an expectation of privacy from the united states in those communications  so i think that it's really a question of importing almost literally importing the reasoning of or do go into a technical world where the infrastructure in the united states now contains communications that c are moving around outside the borders of the united states but can be accessed from within those borders there's good story to ask a question about the database my understanding is that the statue is amended this year to require the f b i receive a court order before searching a seven o two database about a us person is that is that correct it may be your honor and i don't want to speak incorrectly i have tried to focus my attention as much as i can of the on the facts of the case in the program as  existed at this time put it the extent that would be helpful to the court i'm happy to provide a supplemental letter i don't know if i just wondered whether that there's been substantial public debate about the seven zero two program leading up to its reauthorization in january and the concepts of the public hearings and some of the work that p c l o b did there has been an evolution certainly in the way the program is exercised and but the program has also grown in size right i mean we've heard very large numbers about the a number of communications of one kind or another that are retained in built into the database and would be subject to the minimisation procedures as well as the five year age out but given that the statute allows seems to allow examination for any kind of criminal activity not regard to u s persons seems warranted so that's why i'm interested in the current status yeah and i definitely see the appeal of that your honor and i think maybe if you conceive of it as well in the way that information is collected and this goes back to when your questions judge which i wouldn't assume in fact  not not to conceive of the program as a program that just scoops up information and leaves it around indefinitely or for a period of time to be queried at least not not on the facts of this case if i can point back to to this case you know this case very very focused attention by the u s government in real time or close to real time on the communications of foreign persons who were involved in international terrorism so i'm not blind to the possibility that the government can and  i suspect dawes retain some amount of information only later to be reviewed but that's not the again that's not the facts of this and again where do we know even that in other words not just what led to the  involvement of this particular criminal defendant under investigation but where does it say at least in the public record that this information was being reviewed  close to real time with respect to the communications of the target so i would ask you your honor to draw that inference from the timeline of the investigation that the government has laid out in our public brief you know we explained in our brief that the investigation of mr hobbs began in or about april of two thousand and eleven and that his arrest was on september sixth of two thousand and eleven so perhaps it's not fair to ask you to draw the taken place in two thousand and six or something that would sell a very different story about whether the government was pursuing this foreign individual in real time or not yeah well again judge i would encourage you to if you if you look at the background section of our brief in particular the description of the events leading up to the investigation i think we have characterized the relevant communications at the heart of the government's criminal case you know which which we concede essentially were derived from the government's surveillance in seven o two but if it's ambiguous that's that's a failure on my part in a very i just want to ask you about the volume question in other words if the gold seven o two initially was to target people who live outside of the united states but somehow it's shifted because there's this huge collection of documents their emails are kept for five years or so and the number of queries  those people who are in the united states had grown and grown in such a number of that that looks like the program that making this conclusion but i'm asking you whether if that occurred would that would that be a different problem in the  the use of that statue in other words if queering us citizens really became the focus of law enforcement rather than the initial purpose of targeting examination of people living abroad would not be a problem government has relied on a statute that you know that congress has given us there's been public debate on the statute now the handful of cases around the country to look at the statute in the as applied context they found it constitutional so then the question becomes if you're lawfully collecting even if it's a substantial amount of information if you're lawfully collecting that for a proper foreign intelligence purpose and then you have it why ought you not to avail yourself of that information in support of  of a law enforcement mission or or another foreign intelligence directive in other words why if the information is collected lawfully in the first instance why then should the government tie one hand behind its back in pursuing a law yeah look i don't think it's irrelevant your honor i mean i don't think i can you know i'm not trying to dismiss it with the with the back of my hand but i think that if if the information and remember these are just  portions of the communication that relate to the foreign person in a foreign country so we're not talking about amassing as i think some fear all of the communications of u s persons we're talking about collecting a limited number of those communications those portions of of the communications that are had with foreign persons in foreign countries who have some nexus to a foreign intelligence interest and some of the legislative history the statute also suggested that a purpose of the statute is to collect information about u s persons that correct well i think that it's certainly an important equity in the collection so for example i mean looking at acne meaning like a government interest yes absolutely it consistent with both the national security interest and then to some degree i suppose the criminal law enforcement interest but primarily the international terror another way why or why is it a matter of foreign intelligence in for us to the united states to listen to a particular foreigner it might be interesting to know what china is up to in somalia but it would be vital to know what  north korea or someone is up to involving the united states that's really the ultimate point is to protect the united states against attack so to the extent that we're trying to get intelligence about what various foreign enemies might be engaged in a principle bit of what we want to know they're engaging is whether they're planning terrorist attacks in the united states well certainly you're i mean and terrorism has an imminent in the national security interest on like many other types of national security i just want to think about the other other criminal queries and i'm very cautious about referring to these things because they don't know what the terms really are but in the personnel received and reviewed section seven o two acquired information concerning a u s person in response to a query that was designed to return evidence of a crime unrelated to foreign intelligence in the year two thousand and sixteen the number is one and in the year two thousand and seventeen the number is zero zero whether that's true or not and i don't know what is hidden behind these particular terms of you know made as a careful definition there but it does suggest that to whatever extent this data might be of interest to local law enforcement of domestic crimes in the united states that doesn't sound the same kind of number as on the previous page where we're talking about in two thousand and sixteen thirty thousand queries concerning a known u s person of an minimized content minimized none contents local drug dealers where interested but i mean is that are those numbers that are familiar to you you can see they're not all numbers that are familiar to me your honor i don't have a reason you know to doubt them or adopt them one way or the other i mean as a practical matter i know that this court is thoroughly familiar with the sort of conventional criminal case and to be candid you know the f b i and other federal law enforcement agencies in most instances the vast majority of instances i think it's fair to say rely on more conventional investigative tools to solve a bank robbery or drug crime than then then seven o two but that's not to say that they couldn't lawfully do it and i see that that is the question being put to me and i suppose my  right mr disarm is there anything else you like to say before you call it a day unless you have any additional questions i think i think i will rely on our bruce thank you very good thank you very much mr bacharach you have several minutes rebuttal thank you place here was constitutional at the outset in the government said something kind of interesting at the beginning of their arguments that i just want i want to impress upon your honour's so that the one regret here the one regret here was that the notice of the surveillance was late let's be very clear here it was an accidental that it was late it was intentional that it was late and the second see and judge gleason made a specific finding that it wasn't simply this office not blaming studio but actually a system wide d o j wide decision not to disclose not to comply with a notice requirements of seventy if that's the case it asked a simple question thank you your honor first to return to the back door search question i want to emphasize that whether a back door search occurred here are not is not dispositive of the court's resolution of this case because there is no question that the government relied on many of mr sequence to be as i understood it that if someone reviewing these communications for foreign intelligence purposes came upon mr husband's ramis conversations that person should go to fisk and say we just heard this are we allowed to make use of it and then maybe they'd get permission then the next step presumably would be to say well we're here judge at here that there was no back door search what exactly is lost by not having taken that first step because the fisc ort was aware of where this information came from and what it was and said  that sounds like probable cause to pursue a further electronic surveillance of mr has been drumming so first of all some of the facts have been described today by the government are not very well fleshed out in the public record but i do want to say that it's clear that the government relied on many of mr husband ramis e mails to obtain its title one and that the judge says that in his opinion and that makes it clear that the government didn't just look at one e mail didn't realize it had encountered one e mail of a u s person before going to seek permission to examine the rest of mr her husband on the e mail account it parsed through many of his e mails and the  solution that we're suggesting whether or not there's a query or mere use of that information is that at the moment at the moment when they got the junk at the juncture when the government realizes it has encountered an american screen occasions not after it's looked through everything it might already have in its warrantless lee collected database should it go to the face of work and we keep this one ok that's right yes you even stablished a contact when they continue to listen to individual number ones communications and they get a second one from us but for i mean they go back to the this court and say can we keep this one i guess you can and then the third and the fourth and so on until they have enough to come back to that this court again and say now can we now we've got all this information but the first one did not in itself establish probable cause you can't keep the first one or the government has plenty of other tools to obtain information that go into a probable destroy that one and then as you continue to listen you come upon another one or as you but when you've destroyed that one can the is it a fruit of an illegal something for the government to start you cranking up an investigation of husband drummy in the united states by conventional law enforcement message method surveillance talking to his friends whatever else i think he's worth amendment issues think the way in which that type of evidence and the way in which the government would put an application at the court can could be worked out through the minimisation procedures but if the court is asking would the mere fact of the contact between mr husband and a foreign overseas be acceptable to rely on in the course of that broader showing i think yes the mere fact of the of the contact would be available to the right but somebody has read that e mail that we're now going to minimize right the same that be used when the second one comes up to go back to the physical and say remember that first one that wasn't so good and you made us destroy it but you should take that into account when you look at the second one and decide whether we can keep this one this is congress provided in existing provisions of which prevent the government from the lying and the contents of the intercept warrantless the intercepted communication the government in that context is able to rely on the fact of the contact and in addition to whatever other information active the contact i mean it could be that it's a cousin it could be the mother the fact that you had a contact with somebody abroad who's of intelligence interest is very little but the fact that there was something about the conversation that suggested even if it does not in itself justify  a search warrant in new york surely that's more significant and surely that's something that the government agent who reviewed the communication knows but that's going to be excluded at step two i mean it seems like a very peculiar kind of requirement when what happened here was in the course of listening to the things that it's supposed to be listening to at least in your view i'm not sure about mr bacharach's view of individual number one it comes upon the fact that there's this guy in new york who's calling him up all the time and talking about joining a terrorist organization and then what they do is they go to court and say here's what we've got and the court says that looks like probable cause to me i'm going to give you a warrant to pursue further investigation of this individual i'm having a lot of trouble figuring out what's so terrible about what happened in that sequence but as the court i think recognizes the government warrantless lee reviewed many of mr husband trannies communications at the outset of its investigation and i think under and in any other circumstances in the context of its review of forward the communications of a foreign individual but again we don't know why i hesitate to i doubt we don't know that we don't know the government's purpose in reviewing these communications or how it came to pass that it was revealing these communications that there are some new facts suggested this morning but none of those facts appear in the public record and i would urge the court to allow the parties to brief those questions if if this case turns on it but it's  conversation takes to write like a tango so if the targeted person so to speak if the communications that we are listening to in this particular situation are those of individual number one the point is to find out what he's up to right and you're saying as soon as he talks to an american what he's up to is no longer a justification for listening to his conversations the courts should start its analysis where the fourth amendment analysis usually begins which is whether there is a protected privacy interest in the place or the thing being searched when individual number one is communicating with foreigners overseas perhaps that's not present that's not before the court but when individual number one is communicating with mr husband rami and this goes to the incident over here cases t o there is no question the government doesn't dispute that there is a protected privacy interest in that communication and that triggers a different level of protection it's very clear that the government's claim that it can look only at one side of the coin only at the target foreign or under of or do go does not implicate the same facts that are present here and i just i want to say with reference to the incident over here cases more generally it should raise a red flag for the court that the government is relying on a set of cases that all involved warrants in order to justify the warrantless collection of americans here and the implications of its theory not just in the foreign intelligence context but in the broader criminal context are are quite significant and i thank you your honor a much well argued thank you very much for your arguments but that concludes oral argument in our calendar today and we will obviously take this under advisement the final