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A. (U) Fourth Amendment Analysis

1. (U) Summary

(U) The CDR collection program authorized by the USA Freedom Act was
constitutional. Governing Supreme Court case law makes clear that collection of telephone
dialing and routing information is not a “search” or “seizure” under the Fourth Amendment. The
Supreme Court’s recent decision in Carpenter v. United States expressly reaffirmed that the key
precedent establishing this principle, Smith v. Maryland, remains the law of the land. 176
Meanwhile, the USA Freedom Act barred the government from collecting the content of calls or
cell-site location information, two types of data that typically require a warrant under Supreme
Court precedent.
(U) Our conclusion accords with the Board’s unanimous conclusion in 2014 that the
previous bulk CDR collection program was constitutional. 177 That program was more expansive
and had fewer safeguards than this one: it involved bulk collection, rather than targeted
collection based on individualized suspicion, and did not require judicial approval of individual
selection terms. If that program was constitutional, it is difficult to see how this much narrower
program would not be. The Board’s conclusion in its 2014 Report on the bulk CDR program
remains valid: “Until the Supreme Court rules otherwise, Smith v. Maryland and the third-party
doctrine remain in force today. Government lawyers are entitled to rely on them when
appraising the constitutionality of a given action.” 178

(U) Finally, we note that our conclusion accords with Congress’s view when it enacted
the USA Freedom Act. Sixty-seven Senators and 338 Members of the House voted for the Act.
Senators who supported the Act believed that it would “protect[] the privacy of individuals” 179
while defending national security in a manner that is “respectful of the . . . letter and the spirit of
the Fourth Amendment.” 180 Senate and House Members, including long-serving members of the
Judiciary Committee, argued that “the USA FREEDOM Act represents a return to the basic
principle of the Fourth Amendment” 181 and effected “historic and sweeping reforms to the

176 (U) 138 S. Ct. 2206, 2220 (2018).
177 (U) See 2014 Board Report at 126; 2014 Board Report at 210 (statement of Rachel Brand) (“I agree with the
Board’s ultimate conclusion that the program is constitutional under existing Supreme Court caselaw.”); 2014 Board
Report at 215 (statement of Elisebeth Cook) (“Our conclusion that the program does not violate the Fourth
Amendment is unanimous, as it should be.”).

178 (U) 2014 Board Report at 126.
179 (U) Statement of Sen. Leahy, Cong. Reg. S. 3422 (June 2, 2015); see also Cong. Reg. S. 3431 (June 2, 2015)
(statement of Sen. Wyden) (“[W]e are going to protect their liberty and we are going to strengthen their security[.]”).
180 (U) Statement of Sen. Lee, Cong. Reg. S. 3423 (June 2, 2015).

181 (U) Statement of Rep. Nadler, Cong. Rec. H. 2916 (May 13, 2015).

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