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has no legitimate expectation of privacy in information he voluntarily turns over to third
parties,” 187 a principle which has since become known as the “third-party doctrine.” 188

(U) That holding remains good law, even as the Supreme Court has clarified the Fourth
Amendment’s application to new technologies, including cellular networks. Most recently (in
2018), in Carpenter v. United States, the Court held that a demand issued to a third party for cell-
site location information triggered the Fourth Amendment’s warrant requirement. 189 The USA
Freedom Act explicitly excludes cell-site location information from collection under the CDR
provision. 190 And while Carpenter “decline[d] to extend Smith and Miller to the collection of
[cell-site location information],” the Court also reiterated that “the third-party doctrine applies to
telephone numbers” and explicitly confirmed Smith’s continuing viability: “We do not disturb
the application of Smith . . . .” 191

(U) Likewise, four years earlier (in 2014), in Riley v. California, the Court held that the
search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement does not
extend to accessing content stored on the arrestee’s smartphone. 192 In doing so, the Court briefly
addressed the relationship between its holding and Smith. The Court reaffirmed that Smith had
held that “the use of a pen register was not a ‘search’ at all under the Fourth Amendment.” 193 It
went on to find Smith inapplicable because there was “no dispute [in Riley] that the officers
engaged in a search of [the] cell phone.” 194 In other words, Smith does not allow the government
to collect phone numbers when the government first gains access to those numbers by

187 (U) Smith, 442 U.S. at 743–44.
188 (U) See 2014 Board Report at 110.

189 (U) 138 S. Ct. at 2211–12.
190 (U) 50 U.S.C. § 1861(k)(3)(B)(iii); see also NSA USA Freedom Act Transparency Report at 4 (“CDRs do not
include . . . cell site location or global positioning system information[.]”).
191 (U) Carpenter, 138 S. Ct. at 2220 (emphasis added). The Supreme Court’s decision in United States v. Miller,
425 U.S. 435 (1976), upheld the collection of bank records by subpoena and without a warrant, see Miller, 425 U.S.
at 440, and is often grouped with Smith as a case involving the “third-party doctrine.”
(U) Lower courts have since held Carpenter inapplicable “to grand jury subpoenas sent to an internet service
provider (ISP) and an email provider for subscriber information associated with an ISP account and an email
address,” “to fixed video monitoring, location-revealing bank records, and online-shopping histories.” Alan Z.
Rozenshtein, Fourth Amendment Reasonableness After Carpenter, Yale L.J. Forum 943, 950–51 (2019) (footnotes
omitted). While we do not necessarily endorse the reasoning or holdings of these lower court cases (a result
unnecessary to our opinion in this report), they demonstrate that Smith remains a live part of the jurisprudence after
Carpenter.
192 (U) 573 U.S. 373, 386 (2014).
193 (U) Riley, 573 U.S. at 400.

194 (U) Riley, 573 U.S. at 400.

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