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c.
(U) As explained elsewhere in this Report, we share our colleagues’ judgment that the
CDR program’s value did not appear to outweigh its “risks and cost.” 231 As for the program’s
constitutionality, we agree with our colleagues “that Smith remains good law” and that “the
government had a reasonable legal argument” that the CDR program “was consistent with the
Fourth Amendment at its inception.” 232 But we part ways with our colleagues’ judgments on the
role that the Board can and should play in providing clear guidance to lawmakers and
policymakers who seek to respect constitutional limits in designing intelligence programs—and
who may be considering whether to reauthorize the two-hop provision of the USA Freedom Act.
We worry that a conclusion that the entirety of Fourth Amendment doctrine is up for grabs may
cast a cloud of legal uncertainty over the now-shuttered CDR program, without providing a clear
theory of constitutional infirmity. Although it would intimate (while not concluding outright)
that the program may have been unconstitutional, it would do so without offering the lawmakers
who passed it and the government employees who implemented it a concrete explanation for
why they may have violated the law, despite their sincere beliefs to the contrary. Our
constitutional analysis has therefore sought to chart a reasonable middle ground of providing
predictability where we see it in the doctrine, while not resolving questions unnecessary to a
bottom-line constitutional analysis. We believe that this approach is the way that the Board may
most effectively serve Congress, the Executive Branch, and the public. It is rare that a novel
program does not diverge from prior cases, such as, here, Smith and its progeny; the question is
how those distinctions affect the legal analysis. That is the question we have sought to address.
And on that point, our colleagues’ statement is largely silent. 233 Their statement posits, for
example, that Carpenter and Riley “carry more significance in assessing the constitutionality of
the CDR program . . . than the majority affords them,” 234 yet does not explain what that
significance might be.

(U) More concretely, our colleagues’ statement does not make clear how to apply Smith
and subsequent cases to an analysis of the CDR program or other metadata-collection authorities.

(finding “well-supported” the government’s argument that “surveillance consistent with Fourth Amendment
protections . . . does not violate First Amendment rights”), the collection of CDRs under the USA Freedom Act is
not such a program. “[A]ny alleged chilling effect here arises from [a person’s] speculative fear that the
Government will review telephony metadata related to [their] telephone calls.” ACLU v. Clapper, 959 F. Supp. 2d
at 754. Such a fear was found insufficient to establish a First Amendment violation in the context of the bulk
telephony program, ACLU v. Clapper, 959 F. Supp. 2d at 754; cf. 2014 Board Report at 136; 2014 Board Report at
210 (statement of Rachel Brand) (“I agree with the Board’s ultimate conclusion that the program is constitutional
under existing Supreme Court caselaw.”), and by extension would be insufficient here as well.
231 (U) Statement of Ed Felten and Travis LeBlanc at 68.
232 (U) Statement of Ed Felten and Travis LeBlanc at 74.
233 (U) Statement of Ed Felten and Travis LeBlanc at 73-75.

234 (U) Statement of Ed Felten and Travis LeBlanc at 75.

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