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>> the circuit and the supreme court. this is no way conclusive. it is a warning. the reason is because it seems to reverse what has been the constitutional norm since 1979. there was a case in '79. smith versus maryland. the supreme court said there is no expectation of privacy about the data and records of a phone call. in other words you have an expectation of privacy as to the content of the call. since there is a third party that knows about the call, the length of the call, the phone and the company. there is no expectation that anybody will know about it. that's been the constitutional ...

With other programs, helps keep this nation safe. i'm not saying it's indispensable. i'm saying that it is important. and it is a major tool infer letting out a potential terrorist attack. >> senior democrat saying we still need this. >> well, but that is not indispensable, which i think was an amazing concession on her part. judge leon said, you know, i'm here. you could have given me a classified briefing to show why this was necessary. nobody has done that. he really challenged the idea that it was necessary to keep us safe. and also he really did call the government on its reliance on smit...

>> the circuit and the supreme court. this is no way conclusive. it is a warning. the reason is because it seems to reverse what has been the constitutional norm since 1979. there was a case in '79. smith versus maryland. the supreme court said there is no expectation of privacy about the data and records of a phone call. in other words you have an expectation of privacy as to the content of the call. since there is a third party that knows about the call, the length of the call, the phone and the company. there is no expectation that anybody will know about it. that's been the constitutional ...

Who is sitting there who said no to a 9-11 terrorist. you give up. >> gregg: yeah. you wrote a column about this. it's called "privacy matters." people should read it. it's a terrific column. you write about correctly the expectation of privacy under the famous katz versus u.s. case. that was about the content of conversations and people eavesdropping on that. this, however, is on its face, it's data collection, meta data, and under smith versus maryland, 1979, the court said there is no 4th amendment privacy right for phone records held by a third party. in fact, let me quote. we'll put it up...

Judge is not hearing from the other side. he's only hearing for the government. >> it is ex parte and that's true. but that's the big bargain we set up when congress passed the foreign intelligence surveillance act back in the '70s. which is if the government wanted to listen to the conversations that people suspected of being foreign agents, suspected of being spies, suspected of being terrorists, then we had to have some oversight. we couldn't just let nsa run and do the interception. so we did, we struck the compromise and we let judges in and we put congress in and those two pillars really...