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proportion of communicants in the records collected—the second-hop contacts—would be
people who were neither the objects of “reasonable, articulable suspicion” themselves nor in
direct contact with the object of that suspicion. 224
(U) In weighing these factors, Fourth Amendment reasonableness analysis resists clear
rules or rigid formulas. 225 It is informative, however, that in the past few years, both the Foreign
Intelligence Surveillance Court of Review and the United States Court of Appeals for the Ninth
Circuit have upheld as reasonable under the Fourth Amendment the incidental (but foreseeable)
collection of content in the context of FISA surveillance. 226 (Notably, the Foreign Intelligence
Surveillance Court of Review’s analysis also presumed that collecting a second tranche of
“dialing information,” beyond the first number dialed, raised no constitutional problem. 227 )
While the collection of a second hop here is intentional rather than incidental, the privacy interest
attached to the category of information collected—telephone dialing and routing information—
is, under settled Supreme Court precedent, qualitatively weaker, and the program was
surrounded by comparable (in some respects, stronger) oversight safeguards. 228
(U) Because the Board concludes that the program was constitutional under the Smith
line of precedent described above, we need not resolve whether it separately would be
constitutional under a reasonableness analysis. This accords with the Board’s 2014 report 229 and
reflects the Board’s disinclination to offer constitutional opinions where unnecessary; it is not a
view of the merits. 230
224 (U) Our report also describes various facts about the operation of the program in practice.
225 (U) See In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004,
1012–13 (FISA Ct. of Rev. 2008) (rigid test “would be at odds with the totality of the circumstances test that must
guide an analysis in the precincts patrolled by the Fourth Amendment”).
226 (U) In re Certified Question of Law, 858 F.3d at 610; Mohamud, 843 F.3d at 441. In In re Certified Question of
Law, the “content” at issue consisted of certain “additional digits” dialed after a telephone call is connected, which
“do not constitute dialing information, but instead constitute a form of content information.” 858 F.3d at 594.
These could include “a password, a personal identification number, . . . a bank account number,” “a credit card
number,” “or a Social Security number.” In re Certified Question of Law, 858 F.3d at 594. By contrast, the USA
Freedom Act’s CDR provision authorized the government to receive only limited categories of non-content
information: “session-identifying information . . . , a telephone calling card number, or the time or duration of a
call.” 50 U.S.C. § 1861(k)(3)(A).
227 (U) See In re Certified Question of Law, 858 F.3d at 594 & n.2.
228 (U) For example, under Section 702, targeting decisions are made by agencies themselves, subject to court-
approved procedures. Under the USA Freedom Act CDR provision, the FISA court must approve each specific
selection term used as the basis for collection. See Mohamud, 843 F.3d at 443–44.
229 (U) The Board’s 2014 report on the bulk CDR report limited its constitutional analysis to the Smith-based
rationale. See 2014 Board Report at 126.
230 (U) To the extent our colleagues mean to suggest the program is vulnerable on First Amendment grounds, see
Statement of Ed Felten and Travis LeBlanc at 76-77, we disagree. Assuming an intelligence program consistent
with the Fourth Amendment could violate the First Amendment, cf. Am. Civil Liberties Union v. Clapper, 959
F. Supp. 2d 724, 753 (S.D.N.Y. 2013), aff’d in part, vacated in part, remanded, 785 F.3d 787 (2d Cir. 2015)
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