it's the first time that i've been on this bench for a while i see we all have new equipment something i don't know what it is it's got a screen on the show your picture was the first case of this morning is  your honor today the review requires the deployment of three point four million electronic recording devices that have one purpose to monitor and enforce compliance of the hours service regulations by commercial truck drivers this rule should be vacated because there are four separate elements of the statute the statutory mandate which the agency did not follow in promulgating the rule first a low the statute requires otherwise the electronic logging devices sometimes called e l t s do not automatically record a driver's hours of service and duty status second the regulations fail to protect drivers from harassment specifically required by the statu third and quite interestingly there are two provisions of the statute one requires f m c essay to insta tote institute appropriate measures to guard against confidentiality and to make sure that the data produced by e l these is used only for hours of service compliance purposes well over ninety percent of the enforcement activities that take place with respect to service are undertaken at the state level by state and force mn officers who receive federal grants for their help and assistance nowhere does the regulation address the responsibility state forstmann officers with respect to confidentiality and the use of the data there are also substantial issues arising under the fourth amendment turning to the question of automatically forty nine u s code thirty one one thirty seven provides in two sections all combine them a one an f one aide says the secretary shall prescribe regulations requiring that a commercial motor vehicle be equipped with an electronic logging device capable of recording a driver's hours of service and duty status accurately and automatically the regulation which was promulgated and part of the final rule provide it section three ninety five point two that the electronic logging device that it sponsors means a device or technology that automatically records a driver's driving time and facilitates the reporting of other thing that does not follow the statutory mandate in the statutory mandate with the hours of service thirty one one thirty seven eight fifty three says that the purpose is to determine compliance there is no way if you are not reporting automatically changes in duty status mr cowen your argument as i understand it seems to be that any device that fails to record the difference between being on duty but not driving off duty or sleeping without additional input from the driver fails is that right the the device that was proposed as not to either this is the regulated correct do i understand yes that that is correct ok the the problem that i have with that is that your theory seems to be that congress ordered the agency to invent a square circle that is to comply with your automatic argument a device would seem to have to be unbelievably intrusive that would be able to detect whether the driver was asleep or not right that's it that's your record whether he is asleep or not and it must do so automatically all without harassment and without intruding on duly on his privacy wrath that's correct so your argument seems to be that congress has given  the department of transportation an impossible job so they were wrong the agency itself admits that page thirty two of the short appendix that technology exists that was is capable of accomplishing these goals without undue intrusion on privacy or potential for harassment there is worth amendment violations there is there is nothing in the record that develops the nature of the device that can accomplish these things or th proposes any activities actions safeguards which would prevent undue intrusion those issues are not before the court they're not the record  the question though is whether if whether you were legal arguments would make it impossible for the agency to comply with congress's mandate and the record says that that technology exists that make it possible to do that the second with heart of what with what consequences though well there is nothing in the record to support hyperbole by opposing counsel that the sky is falling and that this will operate to the to the detriment of drivers and anyone else if you monitor and he's only reading your own arguments right he's reading your arguments about how intrusive this insufficient device would be right we have all i do we have an i q directly that we get some fourth amendment issues that don't feel specifically with the intrusiveness of determining changes in duty status what congress did say is that the device must improve compliance with the out of service this device does nothing more than paper logbooks with respect to compliance we went to some trouble showing you what a the fact of the matter is that that the electronic logging device creates the illusion of compliance it masks noncompliance because they tend to manually incorrect changes in duty status and you have no way of knowing reading the output of an e l t whether the first of the eleven hours that a driver may operate during any given day whether the first minute is compliant with the out of service regulations is there any room for improvement with the electronic device in terms of just knowing whether the engine is running well you can tell whether the engines running is in that he does that not offer some potential for improvement to what you have here is an eleven hour margin of error this statute says tell us whether this is compliance with the out of service the device does not tell you that just a boy stuff was the device shows eleven and a half hours of running time aren't that true that the truck was running in excess of the eleven hours permitted and that is the very small incremental improvement you don't know whether the first minute was compliant you don't know whether the fifth hour was compliant and and you don't know that there is nothing in the record to show how many accidents or our problems are avoided by that last half hour of driving as a matter of fact the agency is well aware that most accidents occur in the first hour or two of driving that last half hour is so in consequential that it fails to satisfy the statutory mandate so should we were the limitation of the harassment the agency says we're only going to look at harassment that is connected somehow with our as a service violation there is some leeway that the agency may have to identify conduct that constitutes harassing paying the driver at night to wake them up and make them drive off that's the kind of that ought to be given to that it is they they may have some leeway to decide on a case by case basis conduct but but the actual subject matters of harassment are a laid out in there's no qualification there's no adjective in front of the word harassment in the joseph black case which we cite in our our very the agency was required to determine reasonable and a reasonable collection costs and so they had said there was a gap they had to decide what was reasonable and chevron deference with which made available to them there's no adjective in front of them were harassed it doesn't say undue harassment excessive harassment harmful harassment it says harassment and what they've done is they've stripped back to include and exclude vast areas where  for that reason the rule should be vacated you do not write upon a clean slate this is agency doesn't like the harassment allegations it hands in a wider one they fail to pay any attention to it all in this case their interpretation is so narrow and mine is only that either on to step one you don't find ambiguity on the step true you just come to the conclusion they fail to persuade that these limitations are reasonable the third point we're going to make is about the requirement that the agency this is thirty one one thirty seven e to add three it says very specifically the secretary shall institute appropriate measures dealing with appropriate measures to ensure that the e l t is used by enforcement personnel only for the purposes of determining compliance to the statute require that restriction be in the regulations it that would seem to be a very appropriate measure to take does the statute say that  not whether it's a good idea that the the other statute which enable a secretary to proceed by regulation certainly authorize it and  question the statute does not say you must proceed by regulation thank you all right but you have to remember as we point out on page forty five and forty six of our opening brief most of the enforcement actions here take place at the state level all right by state and foresman offices operating under federal grants the agency has done it's not that they've done a bad job it's done they have done nothing to ensure that the state in forstmann officers are ensuring that the e l t data is used only for hours of service compliance regulation of some other way you raise an interesting point you're on but however they do what they have done nothing right now at the state level and all of the enforcement actions take place at the state level  could you address your fourth amendment arguments certainly in in in particular i'm just i'm wondering is the device a problem because of the information it records device is a problem because it monitors their activity and intrude on their privacy right and ok does it require reporting of any information the drivers are not already required to report truthfully in paper logs it does not so why is this more intrusive because they are installing a device in the in the truck to monitor the driver's behavior and in the leading case of birth the consequences of this criminal prosecution we point that out in our in our brief at the state level at the federal level it's i think it's five forty eight forty nine us code five twenty one and five zero six on the fourth amendment issue trains and airplanes have cockpit voice and data recorders now because the required placement of those devices violate the fourth amendment rights of pilots train engineers and the confidential it's for a variety of purposes but but why is this different well and under burger he the purpose of this is for of administrative searches one person one principle emerges with unusual clarity and unanimous acceptance the government may not use an administrative inspection scheme to search for criminal violations that's exactly recorders there's no indication i'm not aware that they're using that for criminal unfortunate purposes against pilots i would be happy to answer any questions but i'd like to reserve a little time for a bottle of that would be yes thank you counsel thank you please the court my name is joshua lawman here from the united states department of justice representing the respondent united states department of transportation this court should uphold the agency's carefully considered rule which complies with every one of congress's statutory margins and does not violate the fourth amendment i'd like to begin if i could with the question of harassment because that was the issue addressed by this court in the last case last time around this court and told the agency it had not sufficiently considered the question of harassment since that time and in accordance with this court's instructions the agency issued a notice asking drivers specifically for questions about what kind of harassment they were concerned about how frequently it might occur and what the agency could do about it the agency conducted edition the listening sessions and the driver survey and its final rule making is largely reflective of the comments that we heard from drivers drivers expressed concern about pinging or noises or interruptions in their sleeping berth while they were sleeping so the agency required a mute button or a volume control or drivers could turn off the noise some drivers including the petitioners themselves said we need to have a specific regulation that prohibits harassment and the agency did that and noted in its rule making was responding to these petitioners comments they ask for civil penalties for violations of the harassment rule we added that to the driver said they were concerned about unilateral changing of the records by motor carriers so we made the devices tamper proof we kept records of the original records need to be maintained all communications between the motor carrier and the drivers need to be recorded and any edits to them need to be attributed to who was added them to protect the drivers so everything we did was in specific response to the complaints that we heard from drivers and what they were a piece earned about well what if you are pull over because of bad weather or you're tired but you haven't hit the eleventh hour as we explained in our brief there's a catch all provision i think it's three ninety two point zero point three it says if there's any reason why you're not you it's going to affect the driver fatigue illness or any other reason which would include the weather then that would be a regulatory violation so the very things that they're complaining about are already within the harassment regulations as judge hamilton pointed out with respect to the statutory provision about automatically recording these devices of devices of this nature ha existed for years involuntary used by motor carriers and it's far more likely that when congress said all motor carrier should adopt these regulations that they were imagining the very technology that existed at the time and not some technology that would represent a sea change a highly intrusive sea change into the regular into the industry and instead were imagine the very types of devices that had been in existence and indeed congress hirsch's the same language but could you address mr cohen's point concerning new technologies that would be able to for example distinguish between sleep and off duty and on duty but not driving well he said that according to the agency such knowledge exists i have no idea what what he's referring to as far as i know that technology does not exist today i don't understand even i'm not a technology person but i don't even understand how it would exist even if you had cameras during every driver's every moment twenty four hours a day i'm not sure how you would distinguish between a driver who was off duty versus the driver who was on duty but not drive i don't understand how having a camera on someone would even do that so i don't know that this technology even exists but it's hard to imagine that if congress imagined a technology vastly different from what had been addressed in previous rulemaking why would they have adopted language from that previous in the making they would have said something i think completely different and as judge hamilton also pointed out you have to construe the statute as a whole as we always do and given the privacy concerns and personal data concerns and anti harassment provision it's hard to imagine that congress included all of those things to protect drivers yet wanted a nonexistent technology that would have intruded in every single moment of their life and kept  under constant surveillance it's not something that is consistent with the statute or the congress the any indication he was considering the last thing that i'd like to address  could well there's there's two things one is the question of do you do electronic devices help in any meaningful way and the statute doesn't say you have to eliminate all regulatory violations it says these are to improve  compliance not to achieve perfect compliance and it's very simple to see how this could happen the rule says for example you can't drive more than eleven hours in a particular period in the old rule if you could drive twelve hours and just write down eleven hours and it would appear that you are compliance today you drive past that eleventh hour it's in a tamper proof electronic record and there's no way around that in itself is an improvement in compliance right there by virtue of the fact that you can't fabricate certain portions of it it makes all the other things that much more difficult to get around well and in addition the agency said you still need to have paper supporting documents not the paper records or driving status but things like bills of lading and shipping instructions and communications with the motor carrier told recedes all these things that help bolster the case that if if you still try to hide a regulatory  violation we will try to catch the agency also studied the existing devices that were involuntary use and it found and this is in the record a dramatic improvement that's the language and the agency a dramatic improvement in regulatory compliance violations decreased by eighty six to ninety percent for those who use these similar monitoring devices and  just so you have it handy this is at the point to the appendix a page for thirty eight if you wanted to to look up the specific data later on but that shows not only that it's intuitive that these devices of compliance but that actually looking at the devices that were involuntary use proved through a real world experience that that was the case in short appendix at page sixty two the agency also explained how the roadside inspections that the use of electronic devices made regulatory violations either easier to attack or detectable that would not have been detectable otherwise but for the devices the final thing i'd like to address judge hamilton is you asked whether the agency had to have these quote appropriate measures in the rulemaking i don't the congress used the word rulemaking in section at us that you when they met in the making and they used appropriate are records going to be read by the agency and are they going to be used for other things in the agency said no we're not going to retain these these records on a blanket basis and i think that's an important point  sometimes gets lost it's not as if these devices are constantly recording information and sending it up to the cloud somewhere where there's a vast government database that collects all these things now they're just kept on the device if there's a roadside stop or a stop in a way station and enforcement officer can ask for the information then but unless there's a violation or perhaps there's a crash or some specific reason for keeping the information it's checked and if there's no violation it's not kept by the agency these things are used to enforce the hours of service regulations and that's what the agency said it was going to do then you can only be used for for example for enforcing general traffic was like speeding a private civil lawsuit what normally would happen is there it is to chile regulations that all agencies have about disclosing information in the context of civil suits and those provisions would apply inactive but in terms of the secretary's use the secretary's going to use it for hours of service or the statute refers to law enforcement officials isn't limited to federal officials well it's not clear but the agency's policy applies to both it's the agency itself and state enforcement office right so what's to prevent state police officers for example from using this data to enforce speeding regulations who are other criminal violations and driving well first of all the devices physically don't record speed and that was something or braking function still driving functions these are all specifically addressed in the rulemaking for exactly these reasons but more specifically these state partners who enforce the federal regulations are subject to the guidance the policy guidance directed by the agency and the agency as it and it said in the rule making and this is on page thirty two there's a there's a footnote that said will be adopting and implementing protocols and policies as we go forward with the rule as we approach the implementation day and check given the history though you can understand some skepticism on the part of the driver that we would issue it yes well i happen to have it right here with me your honor i think i understand why would be skeptical and this is a memorandum from the associated minister of enforcement for  limits the use of the l d records as defined in forty nine c f r thirty nine three ninety five point two four enforcement of the h m o s that's hours of service requirements in forty nine c f r park three ninety five and then they go on to say you know the there's going to be records in there that they're going to use as evidence to prove that regulatory violations for example do the e o d will have the identity of the driver which is obviously a piece of evidence needed to show a regulatory violation but they all go towards the violation themselves so we issued the appropriate measures i think to limit the use of this information two hours of service and the related safety have could you turn to the fourth amendment issues and i guess one of the things i was curious about was why there is not argument in essence about special needs given the safety concerns that come into play well i think that to me in my mind at least the administrative adopt pervasively regulated industry exception is similar to the special on in any of those doctrines but we don't think that we necessarily even need to get into that question because we don't view it as either a search or seizure under the fourth amendment well suppose suppose congress told the national highway traffic safety administration to issue rules to you pose similar to have to include similar monitoring devices on every passenger car in  to monitor let's say a few other things including speed and the like with that proposed fourth amendment concerns trespass type of situation and we're not in a pervasive regulated age but you can't buy a car without one that you can't buy a car without which i think one of the questions that you would might want to ask on your jones and i think i need to know more about this hypothetical is exactly are people tracked how much is it like the real time tracking a precise location that kind of thing or does it only track us heat from a driver and i think that you i don't think we have that question in this case i'd be hesitant to sort of come down definitively on whether it's a fortnight i'm just trying to figure out the we've got a number of different fourth amendment doctrines in the way here x and some would seem to apply in that situation and some not so different from the paper rods that were acquired before and so if that was not a fourth and then file ations i don't think anyone argues that it was it's hard to see why this would be a fourth amendment violation and i think that's a sufficient basis on which to work here it just took one other question i'd like to raise and that has to do with the cost benefit analysis sure you've argued that there is no requirement for this rule because congress just told the agency to issue that's correct  you are correct about that petitioners have told us that that would seem to undermine the other statutory requirements as they've laid out in their reply brief i was wondering if you could address them well i don't read the statute quite the same way that they do first of all i would say we're not afraid of our cost benefit analysis at all so i think if you thought that we needed to do one i think it was more than adequate but the provisions that they're talking about are in section three one one three six and congress there said when you're issuing a rule under this section consider all of these following things but congress didn't put the e l t requirement in three one one three six it put it in three one one three seven so the provision for what congress said considers you still stand with respect to those regulations that are pursuing just three one one three six but they are limited to that particular section and  three one one three seven where congress said not think about the l d s but do it require after years of saying think about it consider rulemaking congress finally said do it and they said very specific things about what to consider that they don't harass drivers consider confidentiality of data and privacy and they had a whole host of specific technological things that the that the devices need to have what they didn't say is cost benefit analysis which they had said in the other statute with respect to other rules and the reason they didn't is because after decades of saying think about it congress finally said this improves compliance and where we know didn't do it go ahead and do these devices you don't have to figure out whether it's worth it we know that it's work that these things help catch violations people have been using them for years they've been dramatically improving compliance for the people who voluntarily use it we don't need to wait any what we need you to do is require drug border carriers to install them and but if that doesn't affect all of the other things that congress said you need to consider for other rulemaking in three had bar requests you get to an end you get to counsel says that congress has made a determination that the regular that e l t will improve compliance we don't read it that way but even if you do read it that way it is contingent upon automatic recording of changes in duty status and hours of service without that automatically is going to be no improvement in anything because you cannot tell whether a person to violated the hours of service rule unless you have accurate information on changes in duty status the question was asked about the special needs be on the ordinary forty nine us code section five twenty one b six and forty nine us code five twenty six provide criminal sanctions for violating these regulations and at the state level we cited on page fifty five of our brief in the footnote own oil indiana and wisconsin all impose all within the circuit all impose criminal sanctions or violation so the ordinary needs doesn't apply the  statute does require the agency to initiate appropriate measures whether they do that by regulation or some other nonstandard way they must initiate appropriate measures to ensure compliance and to preserve confidentiality they have not done it badly they have not done it at all at the state level and they're required to for that reason alone it's this mirrors their default in a w when they did absolutely nothing about harassment county or times by i have so many interesting things to say thank you very much for your thank you