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(U) Viewing the CDR program from the “ex ante” perspective of those who initiated it,
many factors weigh in favor of finding the program reasonable for constitutional purposes. To
obtain FISA court approval for each “specific selection term” that was the basis for CDR
collection, the government was required to demonstrate a “reasonable, articulable suspicion” that
the specific selection term was associated with international terrorism. 218 The program was
implemented under FISA court oversight, minimization procedures mandated by Congress and
approved by the court, and internal oversight by NSA. 219 Moreover, the USA Freedom Act’s
CDR provision expressly limits collection to information comparable to a pen register—dialing
and routing information, a category of information about which, the Supreme Court held in
Smith, callers have “no legitimate expectation of privacy.” 220 And the program was inarguably
run in furtherance of “the paramount interest in investigating possible threats to national
security.” 221 That interest, the Supreme Court has held, “is an urgent objective of the highest
order.” 222

(U) On the other hand, the CDR program reached out to the second hop, capturing
metadata about calls in which neither of the participants was the object of the “reasonable,
articulable suspicion” reviewed by the court. And given the inherent math of multi-hop
collection, the number of records collected at each succeeding hop would foreseeably be
exponentially larger than those at the preceding hop. 223 The result would be that the largest

omitted). Where a Fourth Amendment challenge to a statute necessarily rises or falls on the basis of facts yet
unknown (such as a program’s costs and efficacy), such a challenge cannot be brought “facially.”
218 (U) 50 U.S.C. § 1861(b)(2); cf. In re Certified Question of Law, 858 F.3d at 607–08 (referring, in Fourth
Amendment reasonableness analysis, to “the investigative importance of having access to the dialing information
provided by post-cut-through digits”). By contrast, in the Section 702 program held reasonable in Mohamud,
targeting decisions were made pursuant to court-approved procedures but not individually reviewed by the FISA
court. 843 F.3d at 443–44. (The court in Mohamud also held, in the alternative, that the 702 collection in that case
did not require a warrant because it “was targeted at a non-U.S. person with no Fourth Amendment right.”
Mohamud, 843 F.3d at 439 (citing United States v. Verdugo-Urquidez, 494 U.S. 259 (1990))).
219 (U) See NSA USA Freedom Act Transparency Report at 13 (“Analysts will require appropriate and adequate
training, and must have both an international terrorism mission purpose and a need to know in order to be provided
access to the CDRs obtained through the USA Freedom Act. Analyst queries of records acquired under the USA
Freedom Act will be intended to determine or identify persons of foreign intelligence interest who may be engaged
in international terrorism. All queries will be subject to post-query auditing. The USA Freedom Act data will be
used to produce intelligence reports, following reporting and minimization procedures.”). Cf. In re Certified
Question of Law, 858 F.3d at 608 (relying, to assess Fourth Amendment reasonableness, on “the fact that FISA pen
register interceptions are conducted only with the approval and under the supervision of a neutral magistrate, in this
case a FISC judge” and that “minimization procedures are available, and are regularly employed”).
220 (U) Smith, 442 U.S. at 742; see 50 U.S.C. § 1861(k)(3).
221 (U) In re Certified Question of Law, 858 F.3d at 607.
222 (U) Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010); see also Haig v. Agee, 453 U.S. 280, 307 (1981)
(“no governmental interest is more compelling” than national security).
223 (U) See Remarks of Michael Bahar at Privacy and Civil Liberties Oversight Board Public Forum on the USA
Freedom Act (May 31, 2019) (“But of course, the more hops, the greater the exponential sweep of records.”).

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