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Roaming, then, would not appear to provide more specific location information than was
understood and accepted at the time of Smith—or, for that matter, more specific location
information than is collected under any other authority that allows the government to receive
telephony metadata. Perhaps for that reason, the Board is unaware of any information to support
the suggestion that NSA actually used the CDRs in the manner suggested by our colleagues.
Now, perhaps technology will change and available location information will become more
exact. But the program was suspended. The information available to the government at the time
of its operation simply is not the “near perfect surveillance” created by the type of location
information discussed in Carpenter. 241

(U) Reasonable people can, of course, disagree in good faith about the legality of a
national security program. Yet we worry when Members of the Board cast doubt about the
constitutionality of a program (one that operated for years and collected data relating to millions
of Americans) without explaining where lawmakers and policymakers may have erred in their
efforts to follow the law—or what they can do differently in the future to place programs on
surer legal footing. 242

B. (U) Statutory Analysis

(U) In reviewing the operation of the USA Freedom Act CDR program, from its
incarnation until its suspension in 2019, the Board considered whether the implementation of the
program comported with the text of the statute. The Board concluded that the program was
statutorily authorized. Moreover, the Board found no abuse of the program; nor did it find any
instance in which government officials intentionally sought records they knew were statutorily
prohibited. As noted in Part II(B) of this report, the program did not always function as
intended: during its lifetime, a series of compliance incidents and data-integrity concerns arose.
These compliance incidents raise technical questions about how to interpret the USA Freedom
Act’s authorities in light of complicated and continually evolving telephony infrastructure.
Importantly, in response to each compliance incident that raised questions about the scope of
permitted collection under the statute, NSA chose not to retain or collect data, even where a
reading of the statutory text might have justified it.

241 (U) Carpenter, 138 S. Ct. at 2210.
242 (U) Although our Board’s legal advice is not binding, see supra note 173, our views may have persuasive effect.
See, e.g., Statement of Sen. Leahy, Cong. Rec. S. 3426; Statement of Sen. Leahy, Cong. Rec. S. 3339; Statement of
Sen. Paul, Cong. Rec. S. 3335 (all citing the Board’s Section 215 report); Remarks by the President on Review of
Signals Intelligence (Jan. 17, 2014) (citing consultations with the Board in the President’s evaluation of potential
intelligence reforms). We should move cautiously and provide clear explanations of constitutional infirmity when
we intimate or conclude outright that intelligence programs may have run afoul of the law.

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