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alter Smith—a point reaffirmed when, as noted above, the Court subsequently made clear in
Carpenter that it had not “disturb[ed] the application of Smith.” 201

(U) One-hop collection of CDRs under FISA’s business-records provision, 202 also known
as Section 215 (after the section of the USA Patriot Act that brought this authority close to its
current form), is comparable to the type of CDR production common in criminal investigations.
Much as grand-jury subpoenas can be used to obtain business records relevant to criminal
inquiries, Section 215 authorizes the FISA court to issue orders compelling the production of
“tangible things,” including business records, in national-security investigations. 203 Ordinary
application of Section 215 to collect one “hop” of CDRs seeks to place the government in the
same position when it compels production of information in national-security cases as when it
compels production in criminal cases.

(U) While the use of Section 215 to obtain “one hop” of CDRs would operate much like
the use of the pen register in Smith v. Maryland, this program raises the additional question of
whether collecting a “second hop” of dialing information, as authorized by the USA Freedom
Act, affects the constitutional analysis.
(U) The inclusion of “second hop” information results in the collection of a large number
of records. 204 The Court’s decision in Smith does not suggest, however, that the number of
phone records determines whether collection constitutes a Fourth Amendment “search” for
purposes of the warrant requirement. 205 To the contrary: Smith and more recent cases focus on
the nature of call metadata records, rather than the number of data points gathered by the

201 (U) 138 S. Ct. at 2220.

202 (U) 50 U.S.C. § 1861.
203 (U) Specifically, the statute permits the government to “make an application for an order requiring the production
of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain
foreign intelligence information not concerning a United States person or to protect against international terrorism or
clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment to the Constitution.” 50 U.S.C. § 1861(a)(1).

204 (U) This is disclosed by the intelligence community’s Annual Statistical Transparency Reports. See, e.g., 2018
Statistical Transparency Report.
205 (U) The District Court opinion in Klayman v. Obama, a challenge to the bulk CDR program, would have taken
the alternative view. See 957 F. Supp. 2d 1, 35–36 (D.D.C. 2013) (“Admittedly, what metadata is has not changed
over time. As in Smith, the types of information at issue in this case are relatively limited: phone numbers dialed,
date, time, and the like. But the ubiquity of phones has dramatically altered the quantity of information that is now
available, and, more importantly, what that information can tell the government about people’s lives.”), vacated and
remanded by Obama v. Klayman, 800 F.3d 559 (D.C. Cir. 2015). That opinion was vacated by the D.C. Circuit,
however, and its reasoning as to telephone metadata has not been adopted by other courts. Moreover, its holding
arose in the context of the government’s program collecting CDRs in bulk. The court did not have occasion to
consider whether the same analysis would apply if the government collected solely the second “hop” of metadata.
See, e.g., Klayman v. Obama, 957 F. Supp. 2d at 35–36 (relying on the “all-encompassing, indiscriminate” nature of
the collection under the previous bulk telephony program).

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