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government’s surveillance program and powers.” 182 These Members believed themselves to be
protecting the Constitution, not violating it. We agree that the law they enacted was
constitutional.

2. (U) The CDR Program Complied with the Fourth
Amendment

(U) The Fourth Amendment provides that the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized.” 183

(U) We first consider whether the collection of telephony metadata under the CDR
program constituted a “search” or “seizure” under the Amendment’s text as interpreted by
relevant Supreme Court cases. We believe it did not, and that the program was constitutional for
this reason alone. We then consider whether, even assuming it effected a “search” or “seizure,”
the program was nevertheless “reasonable” and, thus, constitutional. Consistent with the Board’s
analysis in its 2014 report, and its disinclination to offer constitutional opinions where
unnecessary, we do not arrive at a conclusion on reasonableness; rather, we preview the analysis
that a court would likely undertake. We conclude with our thoughts on the separate statement
authored by our colleagues.

a.

(U) To begin, the collection of CDRs under the CDR program does not constitute a
“search” or “seizure” under controlling Fourth Amendment precedent. The Supreme Court held
in Smith v. Maryland that the government’s acquisition of telephone dialing information using a
pen register does not constitute a “search” under the Fourth Amendment, and therefore does not
trigger the Amendment’s protections. 184 In Smith, the Court rejected the argument that a caller
has a “‘legitimate expectation of privacy’ regarding the numbers he dialed on his phone,” finding
it “too much to believe that telephone subscribers. . . harbor any general expectation that the
numbers they dial will remain secret.” 185 It further held that even if a caller had a subjective
expectation of privacy in the numbers dialed, it would not be “one that society is prepared to
recognize as ‘reasonable.’” 186 “This Court,” it explained, “consistently has held that a person

182 (U) Statement of Rep. Conyers, Cong. Rec. H. 2915 (May 13, 2015).
183 (U) U.S. Const. amend. IV.
184 (U) See Smith, 442 U.S. 745–46.
185 (U) Smith, 442 U.S. at 742–43.

186 (U) Smith, 442 U.S. at 743 (quoting Katz v. United States, 389 U.S. 347, 361 (1967)).

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