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conducting a “search.” 195 Collecting CDRs under the USA Freedom Act does not involve any
antecedent search by the government; under the Act, the government serves companies with
court orders comparable to those they receive every day in criminal investigations.

(U) Riley is different from the CDR program for a second reason. In Riley, the
government argued that even if other information on a phone was constitutionally protected, it
“should always be able to search a phone’s call log.” 196 The Court rejected that argument, noting
that smartphone call logs “typically contain more than just phone numbers; they include any
identifying information that an individual might add, such as the label ‘my house.’” 197 The CDR
provision, by contrast, explicitly prohibits the government from obtaining the contents of any
communication, “the name, address, or financial information of a subscriber or customer,” or
location information. 198 Telephony metadata, unlike smartphone call logs, does not include “any
information that an individual might add”; rather, it comprises dialing and routing information
recorded by the company. 199 The type of information that the government may collect under the
USA Freedom Act CDR provision resembles the information collected by the pen register in
Smith rather than the call logs in Riley. 200 In short, there is no evidence that Riley intended to

195 (U) A simple analogy might make this holding clearer. Assume that a suspect were to leave a paper with a list of
phone numbers inside his house on his kitchen table. Assume that the government were to break into the house and
obtain the list of phone numbers, without probable cause and a warrant, contrary to the Fourth Amendment. The
government could not then argue that obtaining the list of phone numbers was not a “search” under the Fourth
Amendment. The government’s immediately preceding actions—namely, breaking into the house without the
requisite cause and warrant—would constitute a “search” under the Fourth Amendment, thereby triggering the
Constitution’s protections. See United States v. Turner, 839 F.3d 429, 434 n.2 (5th Cir. 2016) (“There was no
dispute in Riley that reviewing the contents of a cell phone involved a search. At issue was only whether such a
search was permissible without a warrant when conducted during an arrest.”); United States v. Guerrero, 768 F.3d
351, 360 n.7 (5th Cir. 2014) (“The [Riley] Court’s concerns were thus cabined to the unique circumstances of the
search-incident-to-arrest doctrine, and did not overrule the separate line of cases, including Smith, dealing with
information already in the possession of an identifiable third party.”).
196 (U) Riley, 573 U.S. at 400.
197 (U) Riley, 573 U.S. at 400.
198 (U) 50 U.S.C. § 1861(k)(3).

199 (U) See FISC Order No. 0007-10, at 2 (May 2, 2007) (“Telephony meta data includes comprehensive
communications routing information, including but not limited to session identifying information (e.g., originating
and terminating telephone number, communications device identifier, etc.), trunk identifier, telephone calling card
numbers and time and duration of call”) [declassified, redacted opinion].
200 (U) Compare 18 U.S.C. § 3127(3) (pen register records “dialing, routing, addressing, or signaling information”
but not “the contents of any communication”), with 50 U.S.C. § 1861(k)(3) (CDRs may include “session-identifying
information (including an originating or terminating telephone number, an International Mobile Subscriber Identity
number, or an International Mobile Station Equipment Identity number), a telephone calling card number, or the
time or duration of a call,” but not “the contents . . . of any communication,” “the name, address, or financial
information of a subscriber or customer,” or “cell site location or global positioning system information”); see also
Riley, 573 U.S. at 400 (distinguishing digital call log from “pen register” at issue in Smith); NSA USA Freedom Act
Transparency Report at 10 (“CDRs, per the statute, contain only telephone metadata and not, for example, the
contents of any personal communication or the caller’s name or location of any phone call.”).

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