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government on a programmatic level. The Court in Carpenter v. United States, for example,
distinguished cell-site location data from Smith’s pen register by noting that the former is more
revealing: “After all, when Smith was decided in 1979, few could have imagined a society in
which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed
digits, but a detailed and comprehensive record of the person’s movements.” 206 Similarly, Smith
explained that “pen registers do not acquire the contents of communications,” “do not hear
sound,” and “disclose only the telephone numbers that have been dialed.” 207 To be sure,
collection of telephone metadata at this scale raises legitimate policy concerns about its
implications for privacy and civil liberties. But the Supreme Court has not elevated those
concerns to a constitutional dimension by holding that collection of telephone call metadata can
constitute a Fourth Amendment “search” or “seizure.” 208

b.

(U) Even assuming that the collection of CDRs under the CDR program could constitute
a “search” or “seizure” under the Fourth Amendment, the program could find a constitutional
basis under a separate strand of Fourth Amendment jurisprudence arising in the national security
context. The Supreme Court has acknowledged that the Fourth Amendment may require
different “safeguards” in the national security context than in ordinary criminal cases. 209 Indeed,
in Carpenter, the Court explained that its “opinion d[id] not consider other collection techniques
involving foreign affairs or national security.” 210

(U) Based on such language, lower courts, including the Foreign Intelligence
Surveillance Court of Review, have embraced a “foreign intelligence” exception to the Fourth
Amendment’s warrant and probable cause requirement. 211 These courts have held that foreign

206 (U) Carpenter, 138 S. Ct. at 2217 (emphasis added).
207 (U) Smith, 442 U.S. at 741–42.
208 (U) We do not address whether and how the quantity of data collected by the government impacts the Fourth
Amendment analysis with respect to other types of information. Cf. Carpenter, 138 S. Ct. at 2217 n.3.
209 (U) Katz v. United States, 389 U.S. 347, 358 n.23 (1967); United States v. U.S. Dist. Court for E. Dist. of Mich.,
407 U.S. 297, 308–09 & n.8 (1972).
210 (U) Carpenter, 138 S. Ct. at 2220.
211 (U) See In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1010
(FISA Ct. Rev. 2008); United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir. 1980); accord United States
v. Butenko, 494 F.2d 593 (3d Cir. 1974); United States v. Brown, 484 F.2d 418 (5th Cir. 1973). Our colleagues
would not here rely on the foreign intelligence exception to the warrant requirement or, more generally, the special
needs exception. See Statement of Ed Felten and Travis LeBlanc at 71 n.336. Yet they do not make clear whether
any other exception would apply. Their “reluctan[ce]” to rely on the special needs exception is grounded in a
citation of a decades-old dissenting opinion of the Supreme Court. Statement of Ed Felten and Travis LeBlanc at 71
n.336 (citing Skinner v. Railway Lab Execs. Ass’n, 489 U.S. 602 (1989) (Marshall, J., dissenting)), but that
exception has long been treated as settled law by the Supreme Court, see, e.g., Los Angeles v. Patel, 135 S. Ct. 2443,
2452 (2014) (“Search regimes where no warrant is ever required may be reasonable where special needs . . . make
the warrant and probable-cause requirement impracticable, and where the primary purpose of the searches is

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