two things are different we believe in terms of splitting the the are arguments anyway right or just as a matter of so as not to sort of over what try not to overlap they do of course overlap somewhat but that's how we decided we'd split up the workload  as the measure judge privately granted the motion aquash of the court should affirm the sole issue before the measure judge by agreement the parties was the weather the recorded calls were intentionally intercepted legislative history where the term intentional here for purposes of determining whether intentional interceptions or violence of of teetery trenchcoat upon proof of conscious objective either of results which is a conscious objective of the result of the taping or conscious objective of the conduct at issue may be satisfied by reference to either of those it's in the destructive we're really here because t three provides a civil process for not only damages what the intervenor sought here that is to suppress the recordings that would have otherwise been produced responsive to the government subpoena on their employer that is that that was the nature of the motion and why now if there's noting that t thre was it was taking the government's arguments taking the government's argument at oral argument that they would that be the company that there was some negligence involved here ok that the but he found if i see my he was persuaded he said as much he was persuaded by the colocation of facts of what the company knew that it was really had been recording it was continually was recording and would continue to record that extension unless the record evaluate appears that the magistrate's judge's decision was not clearly erroneous in that he probably found and articulated evidence of intentional intercepting of my client carer middlebrooks  continue to record because it in the rewiring process the company knew that it had to disable the recording function or would continue to operate a record in perpetuity and they did  and should have known one of rewired her extension but the cost will continue to be recorded i can't think of it any plainer example of not using intentional even though i knew that could happen they knew you need to turn that off they didn't turn it off the question isn't whether they knew the car off question is that they intentionally not turn it off and the underlying facts and conduct has to middlebrooks as extension demonstrate that they did intend to not turn it off and to continue the reporting which moved to the rd floor because of the actions that the affirmative steps that had to be taken when she rewired when she moved to the rd floor so when you look at their conduct your honor you see a sequence of affirmative steps to ensure that her extension would continue to be linked tied up to the recording license and insurance would continue to record when she moved to the rd floor and that's the proper focus rather than the focus of the district judge on some suppose or policy with respect to rd for recording  statements like that well there are readers considerable moving back and forth between discussion of the conduct which demonstrated intentional conduct when her line was mo was not persuasive secondly i think there is somewhat of an artificial distinction just to conclude between intentional deception and absence of  was not sufficient evidence in the record to show that yes i acted intentionally when it recorded in this is not of works cause after she left her job in the call center and moved to a different job or she was working with pharmaceutical companies the st arrow which was discussed already was the magistrate's use of what was effectively a negligent standard in a case where the law clearly requires intent and that's how the st circuit construed it in the farm and the family track case where the court held that in order to show a wiretap violation the moving party must show that the defendant or the the party that did the recording did so with the conscious objective of doing that recording but what the  was that not that but that p s i quote should have known when everywhere middlebrooks was extension that her calls would continue to be recorded that's negligence that's that's in the last substantive paragraph of his opinion and the fireman having reason to know it was not enough the th circuit is decision and sanders versus bosh which we also quoted in our papers or said in our papers and which is cited as well in the from the track decision highlights the distinction between recklessness or negligence and the intent required under title three in that decision the court explained or noted that congress had changed the law in one thousand nine hundred and six from willful to intentional and under the old willfulness standard apparently there were some decisions that said the recklessness was enough and by changing it from willful to intentional congress eliminated the possibility of showing a total three violation based on reckless based on recklessness so yes perhaps the evidence here does show negligence well i think i think we would simulate it does show that they made a mistake there was negligence they should not have required recalls after she left the call center they made a mistake but that doesn't there's no evidence that they went beyond something that could be characterized as negligence which is what the magistrate judge found and on the burden on the burden allocation or what's your response to the other side's reference i believe they referred to a discussion on the record it's not in the opinion but the discussion on the record on the argument indicates the argument but i think it as as you indicated in your in your questions to the other side that's not how the opinion reads he made two statements that clearly show he was effectively putting the burden on the government he doesn't say that explicitly but effectively he did and he's got the statement has the other side explained why and that's why on the next page he says it is not necessary for the quarter factfinder to choose between competing punches when he's talking about other title three cases and so here he feels like yes the choose between competing h because we don't know why but defendants have the burden i'm sorry not the defense the appellants had the burden to show more than just a hunch which is what we have on this record we don't know why and they need to show more than  hundred and they failed to do that but nonetheless the magistrate judge picks one side and we believe that that was that was an error of law and i just know one decision which we did not cite in our paper which one of my colleagues pointed out to me the standard to be applied we did not use clear review and we were respect we submit that there were two errors of law in this case by the magistrate judge one was the use of a negligent standard and the other was his effectively shifting the burden to the government even though yes in the oral argument he recognized that it was the appellant's burden so what we're left with is a record where the appellant's rely on the collective knowledge doctrine to try to impute knowledge to i that someone must have intentionally recorded his mailbox mr works as calls after she left the call center they never identify who that is and there's effectively no knowledge to collect on the collective knowledge doctrine no knowledge to impute there's no direct evidence whatsoever there's no statement from someone that they knew this was happening there's no e mail showing that they knew this was happening there's no direct evidence i don't think there's any dispute about that and then in terms of violation after he was found to have taken his boss's e mails or intercepted her e mails and he in that case the court noted there was no direct evidence but there was motive evidence because the defendant that skate in that case was afraid he was about to get fired and he had a motive to go sifting through his boss's e mails to see if there was something in there so the court found that that was a reason for the jury to find a title three violation there's nothing like that here what do they have they have as mr single pointed out they have evidence that someone we don't know who but someone maybe it was a p s i technician maybe it was a contractor but someone took a series of steps that resulted in mrs middlebrooks this call and there where it says intentional means more than that one voluntarily engage in conduct or cause the result so yes we're not saying that someone did this under duress someone voluntarily took a number of steps t resulted in her being reported but no one believes that there was a that that was intentional i tried to come up with an analogy you came up with the one to falling down the stairs another one is a little more complex is let's say my child gets a model toy car two as a birthday present and he's too young to put together so i put it together for him and there's a book and the car supposed to run and have lights on when it's done and there's a there's an instruction manual of twenty or thirty steps and i sit there one night i think i'm going through all the steps i do that voluntarily and i get to the end i've got a car and i press the on but a minute doesn't go when there's no lights on so it doesn't achieve the result that i intended now did i intend to make a car that didn't go that doesn't have lights no i intend to do that to do the opposite but i did do voluntarily all those different steps and that's what someone at p s i did hear someone voluntarily did a bunch of things but that's not intent under former tracker or under equal would have seen and had knowledge of the middle works extension was still being reported that's the argument they make it on in their brief on page thirty four dollars but that that argument has no basis in mr fries affidavit he doesn't say that he actually noticed it he says he occasionally went into this server and he denies that he ever noticed it and no one else says that they noticed that her line was being recorded so what we're left with is a record as you pointed out that is devoid of any evidence of motive there would have any evidence of direct evidence that anyone knew this was happening or intended it to happen the void of circumstantial evidence that anyone should have known it was happening there's no red flag for it in this case like there was in the  magistrate judge made an error of while and effectively or in applying it was in standard and then and effectively shifting the burden to the government and under those circumstances it was correct for the district judge to reject the situation and find that there was insufficient evidence of intent and that there was no title for a violation as a result and that there is no bar to then p s i then turning over the recordings in response to the government subpoena which is again the let me st deal with the supposedly khujand standard you know the should have known fridge has been taken out of context by the government and what the government has done is to ignore the two is some evidence of an instruction to stop recording or some effort to stop recording where those efforts are simply not implemented properly what there is no evidence of here your is that there is no evidence of any efforts to discontinue the recording all the evidence of record shows the steps that were taken by mr professor and mr shapiro says there's no evidence of who did what the record in rafah she's deaf and david show clearly that it was he alone as the head of the whole telephone system who was authorised to order i rewired of anybody's extension and it was he and sanders who his assistant who were the only employees authorized to do the to do the work of rewiring and so one can certainly draw from that the inference that while there's nothing explicitly directly t one of them into those actions that it could be inferred that one of them had to be the ones who did it and finally one is just sort of concluded as as we in the government get mired in this crossfire of factual legal nuances i think it's easy to lose sight of what this case is really about and bet is the invasion of privacy the title three is intended to prevent my client whose calls are recorded without her knowledge or consent is a very type