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counterterrorism targets increasingly rely upon non-phone communications modalities, 335 the
utility of phone metadata analysis in counterterrorism will continue to decrease.
II. (U) We cannot join the Board’s constitutional analysis.

(U) The majority devotes over a dozen pages of the report to a constitutional analysis of
the USA FREEDOM Act CDR program. We respectfully part ways with our colleagues in two
ways.

(U) First, we question whether a constitutional analysis of the CDR program was prudent.
While we can contemplate a circumstance where assessment of the constitutionality of a program
would be helpful and informative, given our Board’s limited time and resources, we question the
utility of a constitutional analysis of this particular program. The USA FREEDOM Act CDR
program has been suspended. Its existence and primary contours were publicly known and
debated, and it was subject to oversight by the Foreign Intelligence Surveillance Court.
However, in light of the constitutional analysis provided by our colleagues we address our
thoughts below.

(U) Second, the majority does not go as far as we would have gone in discussing a full
picture of complex and evolving constitutional law. As the courts are continuing to grapple with
how to apply the Fourth Amendment to new technologies, and especially to records held by
communications providers, we would have preferred a discussion of this challenging area of law,
rather than a conclusion of constitutionality resting on a formalistic application of case law that
the Board declined to endorse in its 2014 report. Further, the majority’s constitutional
assessment is silent on the First Amendment implications of the USA FREEDOM Act program.
Assuming arguendo that “reasonableness” is the appropriate Fourth Amendment standard for
evaluating any resumption of the USA FREEDOM Act CDR program, we would have instead
assessed not the reasonableness of the program at its inception, but whether a resumption of the
program as we know it now would be constitutional. Because the point of a Fourth Amendment
reasonableness analysis is to weigh privacy intrusions on individuals against government national
security and law enforcement interests, we would have preferred a forward-

335 (U) Privacy and Civil Liberties Oversight Board, Transcript of Public Forum to Examine the USA Freedom Act,
Telephone Records Program (May 31, 2019) (statement of Professor Susan Landau) (“[C]ommunication is not
happening over the telephone network. . . . When I look at the question of records, what I see is a change in
communication modality.”), https://www.pclob.gov/reports/report-public-forum; Privacy and Civil Liberties
Oversight Board, Transcript of Public Forum to Examine the USA Freedom Act, Telephone Records Program (May
31, 2019) (statement of Mr. Michael Bahar) (“[I]t’s fair to say the terrorists know as much as you can to stay off
your phones. Or if you stay on your phone . . . start transitioning to encrypted communication[.]”)
https://www.pclob.gov/reports/report-public-forum.

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