thank you may please the court and thomas byron from the justice department here on behalf of the government defendants appellants like to reserve ten minutes for about a place in the district this case improperly enjoined the operation of an important government intelligent program that's designed to advance our counterterrorism efforts by identifying known and unknown contacts of individuals associated with international terrorist groups the courts injunction was improper for multiple reasons first the plaintiffs have failed to establish that they have standing to challenge the program at all because they allege only first that they are subscribers of arisan wireless as the district court acknowledged has not been identified as a company subject to an order from the foreign intelligence surveillance court and therefore there is no evidence in the record or in the public domain that and the foreign intelligence surveillance court itself has made clear as well that under this program the government does not and never has acquired all or nearly all of the telephone call data records of americans in this  part of the program therefore it's improper to assume it would be only speculation in fact to assume that the subscribers of any particular telephone company other then the one company horizon business network services which has been acknowledged by the united states for a three month period last year to have participated in the program that any other company in any particular period had participated subject to a fiske order for that reason the district courts assumption that because verizon wireless is a large telecommunications company therefore it must have been participating in the program or just i don't know whether it's the largest telecommunications company just williams that district court pointed out that it i believe the court said that it was the largest of the wireless telecommunications companies but remember here there is no evidence that either  other provider has participated and that is important to maintain the classified nature and about the details of this program how it operates so unfortunately i'm constrained in what i can say of course about it but what i can say is that in the amnesty international case in the supreme court it's plaintiff's burden to demonstrate standing and they failed to do so here not only because their theory is that as subscribers of horizon wireless which which they cannot substantiate the district  acknowledged that there is no evidence that rising wireless because they did but also because the injury that they assert is not not based on the mere collection of metadata itself but on the possibility that the government might misuse that evidence in support of their claim their injunction notion that mere call to action might be sufficient to show standing but it's important then to ask in what way that would harm a protected fourth amendment privacy interest no no no the question is if it's not a harm in itself to invade the privacy here you know they're doing it for you if there were a privacy interest in the net it data that a company maintains in its own business records about the calls of it subscribers where that company maintains its business records for its own business purposes such as for prevention and billing then then if the court were to find that there were a protected fourth and privacy interest in that information by the subscribers that argument might be sufficient but here that argument's precluded by smith itself you're not thinking very merits welch's williams that's why i mentioned in response to judge sentence question that i think the point is relevant as to mere collection as to the  argument about whether your collection is sufficient both as to standing and the merits in other words there are similar points to be made in that there is no protected constitutional interest that's been invaded by the mere collection of the included as well as the number of the phone that that's calling or or the both called calling and receiving numbers are quired so in that sense it's like a trap and trace of ice as well which was also the kind of technology that's been around for a long time it also includes the information about the call when it was placed how long it was before it was concluded the date in time for for example there are some unique identifiers about telephones that are listed in footnote two of the primary orders that are included in the appendix here that include things like i in the i am i saw i these are just identifiers associated with telephones and devices so that information is acquired but again this it seems to us is reference to suggest that there's something about trunk identifiers trunk identifiers are not like cell tower information in the sense that they could be used to identify a location they just identify where  judicial orders that authorized this program imposed limitations on it specify the type of metadata the courts the court in that case in many orders that it has issued has specified that it concluded this kind of meditate is within the supreme court's decision in smith so that's a judicial determination by the fisc itself we think that this is pretty court's decision is therefore dispositive of this case  requires reversal of the injunction because this is not a search under the fourth amendment as the supreme court emphasized there is no reasonable expectation of privacy in the numbers one dials to complete a call nor any other information a has concluded about whether a call about when a call takes place and the like this information also does not include any content of communications and content of communications is t in the fisc orders just as the supreme court in smith specifically pointed out that the content of communications had been it is in caps but was not at issue in smith and therefore the court flagged that aspect of it as another subscriber to the telephone company as in smith but from the business records of the company itself which maintains them for its own purposes we think that's an additional reason why this information is not subject to the protections of the fourth amendment  this context just as a business may be required to turn over its records in the context of a subpoena grand jury context etc cases we've cited there it's very clear that this information is that is the is owned by the telephone here the data is actually acquired on an ongoing basis by the telephone company for its own business purposes so the fact that the company so one of the points that this court and i think even perhaps the supreme court one of the opinions might have made was you don't expect the government to be tracking your movements moment to moment twenty four hours a day for twenty eight days whereas here you do expect and you have to expect that when you dial a phone number your telephone company has a record of that phone number every time you use the phone up but certainly may not seem to conflict you your expectations different depending upon the degree five about the length of time the telephone companies keep the data but the point is that there's a ninety day period during which the fisc orders are operative and require the telephone companies to turn over the information from their records to the government for purposes of this program now the government may then retain it for five years but that's not the same as asking whether the telephone company must keep it for five years this is an order from a court requiring turn over for a ninety day period that's the relevant consideration another person and hugh the information belongs to the telephone company just as the financial records in miller belong to the bank and the fact is once the bank has them where the telephone company has then it can turn them over to the government that's the risk  he question was quite different your honor the question there was not about whether there had ben a third party that had the information and that's the key point about smith and miller and why we think this case is governed by that supreme court precedent and really not by maynard and jones in maynard and jones the courts were concerned discord in the supreme court were concerned with the question about whether the government had intrusively acquired the location information not from a third party but from the defendant's movements directly here that's just not at issue here that the acquisition of the information comes from the business records of the telephone companies this third party  approach creates a really nice bright line but does it matter to whom the information is conveyed for instance medical records that would be  you know a third party's records but could you draw the same thing just because you mention this because it's really important to recognize in the context of medical records just as in the context by the way of telephone records  statute governing wiretaps hip in your example judge brown would govern the restrictions would impose restrictions on the proper use of medical information  so to hear five imposes requirements that are then in force by the foreign intelligence surveillance court and those protections are essential to understanding the program and the very limited intrusion on any privacy interest now we've made the point that smith says there's no fourth amendment search at issue here but it's also important to recognize that even if there were a fourth amendment search this would be a reasonable intrusion because it is so limited because it is governed by those protections in the fi orders that ensure a prior judicial approval that there's a reasonable articulable suspicion that a particular sort of actor is associated with an international terrorist group that only permit use of the net a data to that moment use of the metadata to seeing only the two steps of contacts from that ross approved reasonable article suspicion approved selector those protections are very important to understand the way in which this program is tailored and the way in which any intrusion on privacy whether protected or not is so limited and therefore quite reasonable in light of the important government interests served by that so the government doesn't take the position that this falls outside the warrant requirement you are actually case certain government employees that are so there are certain programs or driving checkpoints for example there are certain programs that have been recognized to be reasonable even to the extent they meeting some idea of a warrant requirement reasonable suspicion and all of that is part of what they're looking at but your view is that you wouldn't need that intervention it's just that it's statutorily required and the role of congress and the court in this case ensures that the important privacy interests that the president himself recognized in his statements earlier this year are protected as part of this program but it's important to recognize too that there are two steps to our fourth amendment argument the first part of it is smith and miller in those cases ensure in guarantee that this information is not covered by the fourth amendment at all it's not a search there's no reasonable expectation of privacy in the business records of the third party but even if it were a search the second part of our argument is that it would be a reasonable one that satisfies the requirements of the fourth amendment because it is so carefully tailored  privacy protections are so extensive i'd like to reserve the remainder of my time for about oh if i may unless the court has further questions thank you you may good morning runners my pleasure to be in front of you on a case that has monumental importance in fact it was judged on the side of the lower court level that this case is one of the pinnacle of national  it's your position that just querying the database is a search correct that's correct and that in other words there are in your view to intrusions here what is the collection when is the query the collection is enough at the inception but what can you make that without a showing of reasonable suspicion or probable cause which is not present here for the plaintiffs and particular for all americans who have no ties to terrorism it's repeated violations of the constitution but just collecting the data is sufficient to implicate the fourth amendment as judge sent tell pointed out that footnote number one of the rising order communications routing information including but not limited to session identifying information for example originating and terminating telephone numbers international mobile subscriber identity you see the gun or the like you think they don't get that as expert felton testifies to a computer expert at princeton from that you can derive virtually every aspect of your personal and professional lives who you met with the duration of the call that's not of course an issue which would be involved in a pen register a trace and doesn't your standing theory really turn on a kind of telescoping and elimination of the imminence requirement because that the harm you're concerned with is what follows that's that's two steps away from the collection so by turning collection into way standing creating hand you have eliminated minutes  point and we make that point as well but it's not an issue just doing something they've done something when they attain a method of data which is highly invasive and which leads the government to have the ability when you take all the factors of medi and examination process begins right that's a interesting question ok the answer is that's what the government says happens but unfortunately and spoken to section two fifteen and they were heavily on the so called minimisation procedures misused so to come in front of this court and to say that we've got identifiers we don't get people's underwear so to speak is absolutely false there's a documented record that judge me i'm going through and we briefed it of the n s a our national security and national intelligence director not telling the truth to congress in effect lying under oath but you don't have to go that far because the tracking and that's why it's a good question judge williams about all of this information for a long period of time as set forth in jones set forth and maynard and other cases without a particular showing of a reasonable suspicion that the subject is communicating with terrorists or terrorist groups or committing a crime is a violation of the first of the fourth amendment and it's also a violation of the first amendment i am a public interest lawyer i'm someone who challenges the government that the government has covered up those facts michael strange their son was an n s a cryptologists my clients have been critical of the government we have on the record and judge me and didn't rely on it affidavit showing that their computers had been accessed by the the most sacrosanct publish in the law my turning point privilege so this case needs to be seen not just in the context of what's happening to all americans which is perhaps the biggest by lation of freedom in constitutional rights in american history but  f government officials of some sort of breach the third step of this process that is like move from collection through query to actually examination of the numbers and following out what they government has no right to that information any more than an allele as chief justice roberts about with great strength that you couldn't have searches in the years leading up to the revolution going into people's homes  denials of the government which frankly are not to be believed the reality is that this can all be pieced together from what they have to identify information and to in fact locate where a person is the well he says a particular levingston very detailed affidavit but he points out for instance in the context of public interest groups how you can tell who the donors are by the duration of the call that kind of thing and that you can through trunk identifiers find the location of an individual and say i mean remember that in smith the government found out that smith was making abusive phone calls but i'm not sure that  the information sought from horizon also includes the trunk identifier of telephone calls this provides information about how a call was relative to the phone network which naturally deals information about the location of the parties for example even if the government never obtained self site location information about a call trunk identifier information revealing that a domestic call was carried by cable from hawaii to the mainland united states will reveal that the caller was in the state of hawaii at the time the call was placed and what's important i think most important findings in his ruling it was a page fifty seven where he says no court has ever recognized a special need because they're trying to rely on special needs here too and that's an extreme circumstance to justify continuous daily searches of virtually every american citizen without any particular i suspicion in effect the government just need to be the first non judge to sanction such a dragnet and you're going to get on this before this is a long term proposition is different than a pen register is different than a trace or trap there's no showing of probable cause to simply grab these records as well here on ok and we're not talking about you've jumped ahead the actual third step examination because you never attempted show standing there because there's no for the evidence in our affidavits the government doesn't refute it they say we can't confirm or deny they had an opportunity the government government an opportunity to reveal to judge leon in camera what was going on they chose not to it's heads i win claim to protect identities and locations that they have been repeatedly violated by the n s a and the other government defend its repeatedly as you still are it's in my question what is it that happens has happened to  that shows that it must have come from just the abuses or exercise of rights under section two under this program instance the strangers are on the computer and all of a sudden a picture is taken of them reportedly by some entity related to the f b i they even have a camera on their computer it's being done that way they're getting calls from afghanistan strange calls that have nothing to do with their having communicated with afghanistan with regard to their dead son their son or that i mean there wasn't a single practically are not sure how it looks up to this program regrettably your honor regrettably it's not  iar because our government and i'm a former justice department lawyer i'm the founder of judicial watch now freedom watch no longer which you just watch but i found freedom watch that regrettable fact is the government has not been telling the truth to either the lower courts actually on to congress we had the director of national committee lie under oath commit perjury with regard to this program we have whistleblowers i was snowden and the government's had to admit that they were doing this only because they were forced to do so and i anybody what we're doing and by the way since we don't have to tell anybody what we're doing we can look at to continue doing it you know it was thomas jefferson who said our founding father second american president when the people fear the government there's  said it had the same powers as this and i say i founding fathers would have never gotten to philadelphia it wouldn't picked up arrested and executed before i got a chance to sign the declaration of independence this is not an insignificant matter this is not an academic matter this is a matter of rights as a people to be free from having the government stand shoulder and the first amendment claim here to a chilling effect on freedom of speech freedom of association i can talk on the phone  to be in the streets again regrettably and i don't want to see that i know you don't want to either thank you thank you good morning your honor please the court my name is cindy cohen and i represent the electronic frontier foundation the american civil liberties union and the a c l u of the nation's capital zz as an equal in this case and the thank you very much for giving us the opportunity to address you here and i'm happy to answer questions of a few things i would like based on the commentary before that i hope i can assist you in sorting through the situation first let me leave that smith versus maryland controls the situation and that the government is attempting to expand smith to cover a program that is significantly larger than what then what smith had to do with which were just the ca made by a suspect over three days this is the targeted mass collection of the communications patterns of millions of people i know many years and companies didn't didn't give telephone as a choice as to whether they were there but out of that was recorded they are recorded for the smith principle been applied to trip and train as well as  that best give you some information about location that your smith phone number itself gave you clues if your nation about a particular geographic point  calculus about reasonable expectation of privacy and what you thought thinking about that as a calculus you can see that in really the court said just because you could get a small amount of information from fundies somebody is pockets does that mean that we have versus maryland we can look at the really big difference that the amount of time that somebody is being location is being tracked might make whereas a single point in time maybe no reasonable expectation of privacy at some point between that and third party correct if that is not an invasion at all then does it become an invasion because there's a lot of it i mean there's a fair bit nothing not illegal nothing i think that sometimes nothing true if you get that step where you're doing those kinds of queries but the conceptual implications here it seems to me are vast because on the one hand you're saying people continue to have privacy interests and information they have voluntarily conveyed to a third party and that is i think different from any way that i mean the reason that smith works is because it draws that very clear line that sa ok you've given this up you no longer have a privacy interest in it so if if we go with you you know if we follow the line of reasoning that you have how do how do the police ever figure what it's ok to look at and what it's not ok to look at because they'd have to i suppose look at your subjective internet well i think that honestly those are the questions that i think  we have to address at some point and the issue here because we've got the government collecting everybody's records over a fifteen year period of time and keeping them for five so sometimes that change the fact that this information was voluntarily to somebody else and in fact if there is an invasion of a right you know appears to be the right of the tell comes because it's their business records right well i don't i don't agree and i  the aggregation of all this information is unlike anything that we've dealt with before but what i'm trying to understand is you know if if we make this the rule been you know what does that do it seems to me the implications go out in many different directions for instance if you say that conveying information to a third party has nothing to do with that then what happens to the use of informants secret agents all these kinds of issues invariably now have to be sorted out and so that's what i'm asking is what lie would you draw well i would draw the reasonable expectation of privacy line honestly and i think the courts have really had that you don't have an expectation of privacy and sharing information about future crimes with an informant the courts upheld you don't have any reasonable expectation of privacy and possessing contraband that's fine well you know we're talking about millions and millions of innocent americans who are making their ethical phone calls and that the government is ho every day calls and this and i think the failure of the government's position is that you can't take doctrines that were designed for specific situations and just decide that everybody is a pick a place that they think is particularly suitable for catching for catching the sense that i just explained drunk drivers they overwhelming majority of them are totally innocent and yet everyone the drunkenness they people who are stopped for purposes of that program it's completely indiscriminate they stop because they're driving through particular cross roads or down a particular street not of first and me right that is so tailoring that is going that is that is going on so in this its case for instance the michigan department the the sa case the drunk driving case in the supreme court  invasive in the sense that database database is remaining in the hands of the phone companies until their career right but the same process of query would matters what it says which is you should be able to be secure in your papers and not have to trust that the government will do anything with it after after the receiver that i think that's consistent with the fourth amendment i don't think it's cases we cite for this is that the court has the discretion in a situation like this especially when the principle of constitutional avoidance is at stake to decide the issue of statutory grounds that its own discretion of any case where court has done that in the face of an explicit is specified over and over again if you don't maintain the records etc suggests that they didn't imagine anything like continuous collection of everybody sensitive records which is what we have here that they were imagining something as the statute says more like what you get with a one time grand jury subpoena you get relevant information about a particular investigation that is the truth by law enforcement are used for those purposes the other thing is i think important recognizes the statute has a number of different features in other parts of the statute whether it's expressly are authorizing continuous collection and every time that congress did that in pfizer the pen register provision the section seven zero two four intelligence surveillance provision others always provided a time limit for periodic review of the continuous collections here there is no such time limit the the fisc had to make all of that up  of the entire structure under which this program is operating because the statute wasn't intended to authorize continuous collection of massive amounts of data that that is entirely irrelevant to what the what the government is investigating that's what that's suggests a very broad sweep i mean there are loads of cases where the government collects data that's a huge multiple of the actual data it's going to find anything  bad activities or the records of some corporation that is suspected something that at least defines the records that are being collected other than everybody in the united states who is engaged in using a telephone which is which is as they say it's not every telephone company but it's got to be pretty much all of them or the whole thing wouldn't make any sense and so that that i think is a different type than what congress intended to fifteen to do you know under the doctrine of constitutional avoidance you not only should press the statu first you're supposed to be to try to construe the statute in a manner that avoids this nature close to two tional pronouncement that you're being asked to make here and i submit if you look at all of those features of the statute together act and we do that on a grant relief based on something that's not hot but that's not the point of principle of constitutional avoidance suggests is the right way for courts to behave in this situation and stead of having this massive new constitution for below there's a full analysis of it it was waived after the court's ruling that is on appeal here and i think in that situation at least it shouldn't be i wouldn't think controversial that the court should avoid the fourth amendment issue here and look at the statute and construe it in a manner that avoids that issue  and you know the government responds that you're precluded from addressing the statutory issue because the congress created a review remedy for recipients of the orders but i think that that argument is has variety of defects in it first of all there's no indication that congress excluded anybody else other than because they didn't think the other people in ordinary course would be aware of these orders so you wouldn't create a remedy for people who weren't aware that their data was being collected from the custodians of records there's no indication that congress had affirmative desire to put this court's in a position of having to address the constitutional argument which the government concedes is before you properly but not decide in advance  of that the whether or not their actions are consistent with what congress mandated so i think that the block case on which they rely is entirely different and there's no and there's no basis for finding that congress intended that the you be put in he giving the data but the reality is that these decisions of these orders have no incentive to enforce any of these statutory requirements they're completely immunized from any liability for complying with the orders and it's not their privacy that at stake and so that's why for many years up until twenty fourteen no one why didn't the telephone company raise it probably just because they wanted to cover themselves in case there was going to be some problem after judge leon rowe that's that would be the natural inference people it would just call you so it's ok to keep going so i mean i think that's a one time event probably at least not an indication that the structure is such that we're going to have meaningful enforcement of these requirements in the adversarial setting that obviously has the  party setting but but in terms of really forced by the recipients they have no incentive to take that action except in that one time situation now the other thing i want to just mention if you if you'll indulge me is the government has this idea that all of this was ratified by congress in two thousand and ten and twenty eleven years after the court started they started collecting this data data and years after the fisc was authorizing them and all these things  to go ahead in the face of that but but the question is what is the intent of congress to authorize a program which is not authorized on the face of the statute and that intent can exist by virtue of the fact that the senators didn't heed senator wyden what warning and go to the secret room and read the secret memo which they couldn't then tell anybody else about we have no record suggests that anything like a majority of congress was aware of this program at the time they extended the statute and the other thing is this silly question and suddenly the statute means something different all of this by the way happening without the american people having anywhere in this of it at all this essentially like they passed a new secret law that says they're going to be able to take all your method data and put it in a in a vault somewhere and hold onto it i  program in order not to extend that and be charged with ratification he would have had to shut down three different programs and then he would have been able to tell his constituency his him or her why he did it because it's a secret you know you're not allowed to even tell you or other members of congress why you did it so  and to opposing counsel in the media i think correctly reflect that this program has to be assessed on the basis of what it actually is not what the plaintiffs are meek even my fear is that it could be in a different version or in a different world and here in the program exists in a particular way not merely by executive discretion or choice in a way that would still be relevant it seems to us but but here because congress passed a statute directing a court in article three court to take action in that court has has taken extensive action and issuing multiple orders or for many years addressing many of the very same questions that the plaintiffs here have raised explaining the basis for the program and very carefully limiting how the program operates and how the government can use the data collected in this section to fifteen tw meditative program so for example the judicial involvement requires now a prior judicial determination of a reasonable articulable suspicion it requires extensive oversight reauthorization every ninety days careful limits on how the data can be used only after a query the crew can only show the two steps of contact and therefore that all confirms the limited intrusion into any privacy interests the president's own statements are a relevant here both by emphasizing the importance of protecting privacy and the importance of preserving this capability the president's speech and statement in march of this year  following his earlier speech in january did emphasize as well the importance of transparency and so the executor it has gotten too good to do with our weather center one of the arguments on the other side is that the government has not disclosed everything but in fact the government has disclosed far more in the context of this case than one would would normally expect for a national security program we've done a great deal as the president emphasized to ensure transparency and a robust debate about this program and thereby made the court's questions also correctly reflect that it's not accurate to articulate fears about the possible uses of this net a date of when we do know because of the fisc orders that have been released publicly exactly the limitations that the court has imposed on that use and therefore the relevant questions are is there any possibility that information about these plaintiffs phone calls would actually be reviewed by any person and that contrasts this program with the kinds of cases that the supreme court decided highlights the very lesser interests in privacy here because unlike for example in smith and miller in the many criminal cases the supreme court has decided the government is not using all collect you know you get phone calls from just until there's not and let me emphasize that you're absolutely right both property and privacy are in play and protected by the fourth amendment what we know about this case in this case is that the property interests are those that the telephone because he can also make the point the discordian maynard its course that's the jones point but this court in maine are talking about the privacy interest emphasized also that distinguished the supreme court's decision smith and made the point that the customer in this context the context of method they actually expects all phone numbers dialed to be we collected in a list unlike any individual traveling on the public streets who might not expect that aggregation i think  that goes to the question we were talking about earlier doesn't it so i thought i would think that it's important again to focus on this program and the nature of it your collection alone is not sufficient just willing as you were asking earlier if the government collects let's just pick a number a million whatevers and then only looks at two of them or twenty five of them it's a very different case then we're in a criminal investigation and the government looks at everything in an effort to to prosecute seem to be intended to remove the collection as it were government collection aspect of the program so the various alternatives that have been proposed including the one the president has urged congress to and that in fact one one house of congress has actually passed a bill on those lines all of these alternatives are predicated on an important fact which is under current law we could not do we could not meet this need we couldn't fill the gap that president nieto community have identified without doing it pursuant to the section two fifteen program that we have in place we would need a different legal structure we would need new legislation in order to use to adopt any of those alternatives that's the point that the president made the point that we think is relevant here it's also important to recognise under and i'm just not sure how that fits in well your honor that's my next point on reasonableness under the special needs doctrine a reasonable doctrine that the program you don't need be a reasonably effective means of accomplishing those goals and hear the evidence in the record including the shader question the holly declaration do make clear that it is it is clearly a reasonably effective means of identifying terrorist contacts both within and outside the united states in order to help prevent terrorist attacks against the united states that's a compelling government interest indisputable i think when his own brief acknowledges that you think national security is itself an exception to the war requirement or do you need special needs to would judge brown we haven't made that argument i don't think there's any basis for there's any need for discourse even address an argument that would be that broad in scope there are a number of exceptions that the supreme court has recognized as reasonable under the fourth amendment short of a warrant requirement the special needs doctrine is one we think this case fits neatly within it all of them of course require is maryland versus king is another example all of them require a balancing of government interests against the degree of an intrusion of privacy and in that context especially it's important to recognize on the use of this information and the fact that for the vast majority all but the tiniest fraction none of this meditative what ever be seen by any government analyst and that any use of it is carefully limited and overseen by the court so turning briefly to the point about the statutory arguments raised by one of the unique he would like to emphasize i think there are some toast question highlighted that what's at issue here is a preliminary injunction that the district court has entered against the operation of a government program there is no way to support a claim and remember under the plenary injunction standard plaintiffs must show a likelihood of success on the there is no way to support that determination with respect to a statutory argument the plaintiffs have not only that and in but have expressly withdrawn in the district court itself by filing amended complaints that no longer rely on that basis so if there were any not supported by the kind of argument that amicus now thinks is the only appropriate one to invoke the the fact is however that the plaintiffs have raised a constitutional claim and that's what's before this court that's the basis for the lot to finish answering your question if the court were to agree with amicus that the statutory claim must be raised in a case like this before the case can be decided the answer to that question is that there's no support for the preliminary injunction that the district court entered and it must be they catered and withdrawn i would also emphasize though that if there is any reason for the court to believe this information of this argument  play we would like to address it in a supplemental brief but don't think that's necessary but it's uncertain why would that follow i mean it sounds to me as if the concern you're voicing could be met by our emphasized in this point is very limited only that if and i think it just highlights really the strange nature of the argument raised by mika's which is that an argument that plaintiffs as masters of their own complaint have not invoked not relied on withdrawn that was decided against them in district court that they've abandoned on appeal as well those are two separate reasons that the court should not address that that if there were any reason to doubt nevertheless that that argument should still be in play the proper would point to and it's one that we didn't cite but would be happy to provide to the court if if necessary is a supreme court case from one thousand nine hundred three called zobrist against catalina hill's talking very specifically again about the constitutional avoidance rule making the point that the mere fact that there may lurk in a case and non constitutional ground for decision is not a sufficient basis to invoke the rule of constitutional avoidance that cases that five hundred us page won again one thousand nine hundred three by the supreme discussed and that is the the article by or encouraged else a third party doctrine in which he makes the point that because the exclusionary rule is is the ordinary remedy for violations of the fourth  amendment that it's very important to have a bright line standard in place for law enforcement to follow smith provides that miller provides that the arguments that point us in there and he have invoked would not permit that and would raise the very kinds of concerns i think you're question last forty nine this has a chilling effect on free speech the fact that everyone's records are being attained by the national security agency and other intelligence agencies you speak because of a strong case i'm a plaintiff i'm a public advocate i'm the head of a public interest group and as a result it does have a chilling effect on people coming to see me talking freely being able to defend themselves against actions by the government and others that harm them if you are targeted the way that he and  telephone companies with a particular was showing a probable cause or reasonable suspicion and hope to god everybody's records but if there's a reason to believe a reasonable reason that in fact someone is in contact with a terrorist organization or terrorists they want that specific need not to grab everybody and that's the stakes of the constitutional violation here is huge it's it's beyond any imagination in american law as far as me and pointed out and for this government to come in front of us and to say we don't look at identifying information we don't violate the privacy of individuals because we don't know who they are flies in the face of  constitution themselves are not candid with this court the government the fact is they systematically volume because right even to the extent that they're getting into the communications of people that they're worried about are cheating on them in their private sex this cannot be permitted in a civilized society the american people don't need to be under the sword of damocles every moment they pick up their phone to make a call and myself in particular when i talk to a client in a public interest capacity i thank you for your comment the american people look to you to protect them from the attorney of this current government thank you thank you