because argument as well that makes sense all right this case is at the intersection of two dynamic areas of law one is the fourth amendment implications of searches of computers and other digital devices the other is the foreign intelligence surveillance act which does away with traditional notions of probable cause and functions almost entirely in secret and what happened here the foreign intelligen surveillance act produced a search a two day secret search of mr garton logs home and computers followed by the imaging of his computers of quit call the sneak  they don't tell you that they're searching and they don't take the computers they simply image and the images of the computers were then taken back to the f b i lab somewhere reviewed for months of course there was no evidence of  foreign intelligence on the what was found instead was child pornography and ultimately the information that was derived from this sneak and peek search in january two thousand and fourteen was used to obtain a ordinary warrant and that seized again what the government had already seized and searched and of course ultimately mr garton love was prosecuted not for any sort of foreign intelligence crime or activity because he was not engaged in any  but for the possession of child pornography on the fourth amendment issues we've raised three issues here all of them addressing principally the january two thousand and fourteen search now derivative lee they also affect the august two thousand and fourteen church because it was the fruits of the january search that produced the august warrant but it's the january two thousand and fourteen sneak and peak face of search that really is the focus of our of our argument there that the first two are just one of them is probable cause and the other is we are disabled from being able to argue those points affectively because we've never had access to the underlying  application in order when the government went before the foreign intelligence surveillance court it was required to make a showing of various things one of those things was probable cause to believe that mr garton lab was the agent of a foreign power and that foreign power here could only have been china there's no other foreign power that ever been mentioned and of course to be an agent of a foreign power under the statute you have to in terms of the terms that the legislative history uses you have to be in a principal agent relationship with the foreign power so in other words the government somehow convinced the foreign intelligence surveillance court that mr garton law was in a principle agent relationship with the government of china now he wasn't and we don't know of course because we haven't had disclosed to us what the government told the foreign intelligence surveillance court to convince it of that or to commit to that there was probable cause of that but again disabled from being able to focus specifically on what the government told the foreign intelligence surveillance court we dispute that there was probable cause for that we also contend again without being able to see the actual application that there are there are likely to be conducting clandestine intelligence activities on behalf of china which is the again the theory that the government must have gone to the foreign intelligence surveillance court on i'll talk about disclosure at the end but this case highlights in the most excruciating way the tension between the foreign intelligence surveillance act the way it's been interpreted and the mandate of francs in the fourth amendment judge concurrence in the case which we've cited extensively captures i think in quite some detail and quite accurately the problem the problem with raising it frank's argument in the absence of disclosure is that the court it whether it's the district judge or your honour's can read the application all day long and you're not going to know whether the things that it says are true similarly you're even less likely to be able to tell if there are material omissions in the application to the foreign intelligence surveillance court you understandably because of your role in the process you don't have access to the information that an advocate for mr gar and there's spanx the argument that we've been able to make in full because it doesn't require access to the underlying application in order is the scope argument and that gets to the comprehensive drug testing case and  the two opinions in that case the the majority opinion and the in the concurring opinion and what i will say is this what happened in that in this case is exactly the scenario that both the majority and the concurrence in the c d t case warned against in other words you have a search that is authorized for a particular purpose and here the only thing the foreign intelligence surveillance court can authorize a search for is foreign intelligence information which is defined in the statute and although sometimes the definition can seem broad it certainly doesn't encompass child pornography so there's there is a  search authorized for foreign intelligence surveillance information now the government's theory in this search and in all other computer searches is foreign intelligence information could be hidden anywhere it could be energy  with a child pornography like name and therefore we have to search every single file on the computer to see if they contain foreign intelligence yes but how do the searching i mean they don't go frame by frame when they've got a huge law and they use different programs to search well  course again because of the secrecy cloaking this entire process we don't know exactly what they did search or whether there was a protocol laid out in the in the underlying phase application in order but what it really doesn't matter for argument whether the search means that they go literally file by file with a human you know clicking them open on the screen with possible or whether it's done through some sort of a hash type search for a keyword search the bottom line is the government feels that it is authorized in searching a computer to search by whatever means every single file on the computer because of the possibility that what it is authorized to search will be lurking in some file with  a misleading or well what did you have minimisation procedures minimisation addresses something completely different and i'm glad you raised that because it's an argument that the government always makes minimisation is what you do with something you've wofully seized that is not within the scope of the original the original ones and that that can happen it happens primarily with electronic surveillance of the ice a case is a good example of that this case out of missouri where they were listening under faces to somebody you know in real time to somebody is discussions in their home and they hear a murder being committed and so that is not foreign intelligence information the commission of the murder but it is evidence of another crime it was a lawful equired and under the minimisation procedures having lawfully acquired that information you then look to the minimisation procedures to see what can be done of that and it can be used to prosecute that ordinary crime argument here you never get them in the station because our argument here is that the the seizure in search of the child pornography files was illegal honor is that it was based on overwhelmingly on evidence obtained in the unlawful january search and that that so that implicates a whole other theory that it on a database i understand the question and in the c d t case the court seems to have accepted the premise that a computer search main problem we had was that in cd t the government was authorized to look at the files pertaining to certain individuals i believe barry bonds and instead they went it's the same principle because in the c d t case they were authorized to search i think for identified players but to to find out of information about those players was was in the in the database or whatever they were certain they information they have to search they maintain and the c d t court accepted this argument they have to search all the files on the computer because it could be hidden anywhere and it was the same way in c d t those eight players information could have been anywhere so they were permitted to search everything here's where the problem comes in it's the same problem here as it was in c d t what do you do when you're searching all the files for the for what you're authorized to search for whether it's the eight players in c d t or the intelligence information here what do you do when you come across something that is not encompassed in the war and the government's answer in c d t which the court rejected was we can rely on plain view because we're permitted to look at it because we have to look at everything and once we find something if it's evidence of a crime it's in plain view and we can see it and the problem with that which siddiqi identified both the morning majority and the concurrence as it inverts any search of a computer for a limited category of information again whether it's a player's or foreign intelligence information into a general search well but we are talking about plain view and you look at the long case from the ninth circuit there they were going through graphic images and they saw images of sexual acts by three year olds and up so it was clear to the agent was going through looking at graphic images that you had child porn now just hypothetically in this case if it wasn't so clear maybe depending upon how the search was being conducted and they had to refer to another source whatever metadata they have and i don't know what it was but if they had referred to another source then then it wouldn't fall into the plain view exception right well that's that's  true but i understand the government to the extent they're sharing their arguments with us rather than just with you i understand them to be saying that they are relying on plain view would be they are but that doesn't mean we have to accept t can distinguish the plain view when you look at different factual situations one now would clearly a plain view cd key apparently was the situation where they could tell it was different players so you had more likely application plainview in this case you may not depending upon what the trial court reviewed in camera and of course you don't know about that we don't know about it and that's a problem all i will say is i do believe the government is relying on playing justify the no doubt about that counsel judge gould if i could ask you a question just to clarify please so if the government in one of these fice a cases is reviewing computers under the sneak and peek procedure and they get a bunch of files and they have to look at them closely to make sure there's not the skies to intelligence  and they see evidence of another crime like for example let's say evidence of a serial killer and surveillance we're focused about the killer planned next victim since gone so what are you saying the government and that case should do the camera lad plainview can they they can't do anything to stop the killer think there are other exceptions to the warrant requirement that might kick in for example and you know it existed circumstances or something like that but but absent you know a story or some serial killer on the prowl type scenario at a minimum what the government should do is what the government did in the nesson case which is as soon as you see something that's not within the scope of the warrant you stop and you go get a warrant that authorizes you to search for that thing that you now think is there but they didn't do that here and instead they spent three months rummaging through these files sending them off to the national center for missing and exploited children collecting other kinds of information to prove the mr garton love used and the computers and i could buy them before they ever turned around and got that august two thousand and fourteen warrant and that that's got to be beyond the pale ok good morning and may it please the court actually corsi for making the american call liberties union and the electronic frontier foundation as the court just heard this case involves the convergence of two factors that are critical to the fourth amendment analysis first the government obtained its evidence by creating complete copies of personal hard drives searching through them and then relying on the plain view doctrine but as the on bank court recognized in c d t application of the plainview doctrine in this context presents serious fourth amendment problems those problems are even more pronounced in this case because of the second factor the searches were conducted pursuant to a secret fison order based on relaxed standards of probable cause and particular result of these two factors the fai's order functioned as a general warrant and led to a prosecution wholly unrelated to foreign intelligence to ensure compliance with the fourth amendment this court should prohibit the government from using non foreign intelligence information can do nothing it is our position that if in the hypothetical you presented the information indicated that the serial killer was planning and murder that was imminent and there was an imminent threat to the life of another individual that the fourth amendment didn't circumstances exception would apply to those circumstances so even though the government would not be permitted to rely on the plain view doctrine it could rely on the existent circumstances exception to use in camera review had the information available to it so we could decide whether or not you know the plainview doctor was a political on the keys by case basis including this case is not one way to address your concern i mean other searches of personal electronic devices yes i know and i'm saying here is one way you could address that and within the current procedures through individual eyes review by the district court recognizing that in certain circumstances the pla doctrine may be appropriate your honor in this context clear rules are important the supreme court has made clear that in the fourth amendment context clear rules are favored and given that fact and given the fact that the court has recognized the risks associated with playing the play new doctrine in this context we would urge the court to adopt a more general use restriction and the reason for that use restriction is that the government's justification for its over se its comprehensive searching on the front end is that it needs to locate particular information and has no other means of doing so and if that is in fact the case then there must be back and restrictions and protections in order to ensure that the fourth amendment is not a dead think counsels in favor of the application of this kind of use restriction when you have the intersection of the two factors identified here comprehensive searches of personal the trunk devices application of the plane the doctrine in with respect to those devices the supreme court made clear in riley searches of devices like phones and computers are more intrusive than searches of other forms of property and the rules that applied for the fourth amendment that developed in the context of physical searches can be unreasonable when applied to digital ones as we all know computers hold extraordinary volumes of information they function as banks as personal diaries as libraries and more and the data is also qualitatively different from the kind of information that would typically be found in a home as a result in this context the government should be even more sensitive to the fourth amendment particularly requirement however in practice the contrary is true overseas or is commonplace as are sweeping electronic searches that probe through the millions of constitutional standards and results in sweeping and intrusive searches separately although the government hasn't explained precisely how it found the child pornography on the image hard drives it seems likely that investigators employed techniques or software that were specifically designed to search for those images for example using hashes if the government in fact affirmatively search for evidence of child pornography in the search violated the fourth amendment regardless of whether the plainview doctrine applies and finally i would just note that the government asserts that imposing a use restriction here would result in recreation of the wall that is not the case as the fists court of review explained in re sealed case the wall involved limiting the ability of f intelligence analysts to communicate with d o j criminal division about any foreign intelligence investigation even those that related to foreign intelligence crimes we're not proposing rebuilding the wall i use restriction on non foreign intelligence information in this context in no way affects the government's ability to communicate about foreign intelligence crimes i see that my time has expired thank you very much thank you very much  a court anthony lewis for the united states during a search of defendant's residence obvious evidence of a crime was found all manner of child pornography organized with his personal files and correspondence defendant argues on appeal that no rational juror could have found that he knowingly possessed them raises a new issue want to appeal and challenges a number of the district court's rulings as defies issues but defendant can't show any error by the district court let alone error that was plain clear an abuse of its discretion i want to start with a moment on the probable cause standard which uses the same standard in rule forty one context in five that a fair probability but as to different facts so on the rule forty one context probable cause must be shown that there is likely to be specific types of evidence of specific crimes at a particular location in the pfizer context what must be shown up front is that the target or targets of the pfizer are an agent of a foreign power or foreign power and that the places to be searched or put under surveillance were used by them on the back and are minimisation requirements some of which are in the statute itself and some of which are imposed by the court that apply to acquisition retention and when appropriate dissemination those minimisation procedures are not like anything that exists in the forty one to that probable cause finding a fair probability the same standard that using the rule forty one contacts this court should review that finding by the district judges that sit on the foreign intelligence surveillance court with the same standard for fo clear error and with great deference that's what the second fifth and now the eleventh circuit have held i'd like to discuss the issue that counsel and empty have spent some of their time addressing which is what we might call the scope issue that is raised for the first time on appeal that accounts for why some of the record is not developed as to this and i also want to address why there was no error let alone error that was clear or obvious in dealing with it at the outset i think it's important to note that some of the child pornography videos contain names like one thirty seven or fifteen they were just numbers there was no way to tell what what was in those files without examining them moreover many of the folders in which they were kept did not announce what the contents would be somewhere paul vi or y g which only on inspection one could determine that y g stood for young girl and in one instance named a folder administrator with a sub folder system that wasn't there like a whole database called or data that had all these names on it but it was all in one section yes that was one folder of which there were seven copies ok so why can't the government when seeing this i mean a lot of it strongly suggests not obviously suggests child porn go get another warrant to go into that database yes your honor a few reasons for that in general in the phase the context which is designed to try to seek foreign intelligence information that often relates to terrorism acts or weapons of mass destruction or clandestine intelligence activities or requirement that agents stop their search in order to go get a warrant and get materials declassified in approval to do so would frustrate the purpose of getting that search in the first instance and there is authority for that i point to the truong case in the four circuits cited by the defendant and in that case defendant argued that there shouldn't be what was then a primary purpose test there should be a sole purpose test in pfizer and the court rejected that saying often times there are coincidental criminal investigation best occasions that go alongside foreign intelligence investigations and some of them may result in prosecution and to require the government to get a warrant in every foreign intelligence investigation doesn't adequately account for the government's compelling interest to collect and analyze for intelligence information counsel fight you ask a question to you on that issue so assuming that under fire government agents have to go full steam ahead for practical reasons they can't pause to get another warrant would use address the contention appellate makes about why there should be a use restriction on what's found yes your honor there are a few answers to that the first is in the statute itself that says minimisation a process that applies through acquisition retention and dissemination does not require the minimisation of evidence of a crime the second answer to that is that in a number of cases they have explicitly authorized the use of files of information obtained or derive from pfizer in criminal prosecutions that don't on their face appear to bear any relationship to collection of foreign intelligence information isa a circuit is one of them is one of them the tragic circumstances involved over here of husband and wife murdering their daughter and the aftermath of that but it's not the only one dahmer and the dia each involved manufacture of firearms one involved false statements in citizenship applications and so the bright line rule that that appellant arguing this court should adopt is not supported in any of those preceden bright line straight through them and contravene them and it would contravene the statute itself and on plain error of you that is not the time to announce this new rule that the district court did not have time to address and that is unsupported by of if you're going through and looking for foreign intelligence information you find a tremendous number of financial transactions which looks like it could well be money laundering what do you do without nothing i mean you just go ahead and prosecute and you don't have to worry about the fact that you weren't looking for the if it is evidence of a crime then the minimisation procedures do not call for the then the statute does not call for it to be minimised there are other procedures in place some of which i can't discuss in this open proceeding but there are procedures in place that limit the use of that some of them are in the statute itself that attorney general provable is required in order to use information obtained or derive from from pfizer and the giordan would agree with your honor that the district court should have the ability to determine whatever it needs to about how the search occurred particularly if that issue were raised in the district court i do want to address the notion of plain view that has been brought up supply the answer in the pfizer context and while plainview is a doctrine that has been developed through a number of cases including through c d t it simply operates differently in the pfizer context in which there is a robust set of procedures that exists on the back end of the search through acquisition retention and dissemination that is simply unlike what happens in a rule forty one context so to the extent that defendant was arguing the agent shouldn't have encountered the child pornography in this case in the first place hill supplied answers here's my point we don't know how the agent encountered if i'm sitting there is a district judge which i normally am and it gives encountered i want to know ok how in camera i want to know how to get encountered what we're using for procedures and if i don't know enough about the technology involved them i'm going to go in i'm going to have a security cleared top secret clearance expert for myself for the court all for my in camera review if that issue gets presented and i just record may well want to know that particularly if a challenge is raised as to how particular materials were discovered that well but here's a different story though you're in an unusual position as a district court when you're sitting in one of these cases because the judge posner pointed out in the seventh circuit case the district court because there's no advocate for the defense has to be something of an advocate which we're not used to although he pointed out about five different instances were just records get charged with that and this is one of those situations where normally just sit there and listen what comes in here  i would have to say well i want to know how they discovered the information because for instance as i said in wong it was clear they're going through graphic images here they are i don't know what the situation was here but depending upon what it was if i unclassified brief a classified brief a sealed appendix noted the possibility of supplemental pleadings the district court heard oral argument the district court said that it took great care in reviewing the materials and at the end of all that it understood your honor there is persuasive authority that indicates the district court's decision after conducting its in camera view with input from both parties that that decision as to its its ability to reach a conclusion as to the legality of the particularly as your disclosure by any standard review of review there it is simply an unanswered question in this circuit but he circuit that has reached that issue determined that that was an abuse of discretion standard for the review  as to the franks argument in particular i want to note that defendant had access to a great deal of information about the course of the investigation and for the reasons i stated before as far as why the district court's review and its decision that it could reach a determination as to the legality was supported in the record and a proper exercise of its discretion for those same reasons the district court could take account of arguments made by counsel for the defendant in the district court and with respect to the sufficiency of the evidence i'll touch on that briefly here there is no argument that the that no rational jerk could have found really even argue that very much except in there bruce then perhaps i should i should move on to to another topic as well defending argues that that clear counsel should be able to review the information here but that sort of puts the cart before the horse is a calls for in assessing the determination to be made up front before the district court can evaluate whether or not you disclose any of those materials so the existence of which was passed after pfizer does not offer any relief to avoiding the statutory mandate in i believe with that i've touched on most of the points that i that i want to raise with your honor's unless your honour's have any additional questions for me at this time no question there no you know we're going to ask  the hearing understood your own for us  me make two quick points in two minutes the first point is that the government's position is it it cannot pause a foreign intelligence investigation long enough to get a warrant for something outside the scope of what it's been permitted to search for what the government is saying in other words is that it can do exactly what c d t said it can't do which is search everything on a computer sees anything it finds that it considers to be evidence of crime and use it in a subsequent prosecution and it can do that the only way it can do that is under the plain view dr the minimisation is not a fourth amendment exception the fourth amendment applies here despite the national security overtones and there has to be some fourth amendment exception that permit use that information in plain view is the only one that's available the second thing i would say is on disclosure in the thirty nine year history of faces one court only one district court has ever ordered disclosure and it got reversed so there's never been disclosure if i said material i i i implore the court to look at the legislative history look at what congress intended it is clear to me at least that congress never intended that regime to exist congress clearly contemplated that in some significant number of cases there would be disclosure that it that the disclosure would be necessary for an accurate determination of the legality of the search congress never contemplated if you read the senate report never contemplated that this regime would function for thirty nine years without ever having had disclosure and if i will add finally if ever there was a case where disclosure seems to be warranted it would be this case where the evidence o a spy for john well what about the let's say the federal public defender organization fed nationally had somebody who was a lawyer that was a top secret cleared ok in these kinds of cases then that lawyer could be special counsel only for the top secret portion of the proceedings isn't that another way to address your concerns there as counsel noted came into effect two years after pfizer provides a litany of procedures to follow in cases involving classified information and it has worked extraordinarily well for all these years for thirty seven years now  enormously sensitive classified information has been disclosed to clear defense lawyers without any notable incident that i'm aware of ever having been been been raised there's no reason none to faces from the scope of see but to treat it as if it is some sort of especially sensitive pressure stuff it's not it is no different in insensitivity than for example the nuclear secrets that were