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looking analysis that factored in the now-known minimal national security value of the program
balanced against its privacy impacts. 336
A. (U) Whether the Board should conduct a constitutional analysis of

the CDR program.

(U) The Board has a statutory responsibility to provide independent oversight of
government activities that involve more personnel than the Board employs and greater resources
than the Board possesses. It is essential that the Board exercise careful discretion in both its
selection of matters to review and in how it conducts its reviews. In much the same way that
courts practice judicial economy, we recommend that the Board responsibly adhere to a similar
principle of oversight economy. We should prioritize providing constitutional and legal analysis
where the Board has an institutional comparative advantage that will inform the Executive
Branch, Congress, courts, and the American people. In contrast to the circumstances
surrounding the Board’s constitutional analysis of the 215 bulk records program, for the reasons
noted above, we would have focused the Board’s time and resources elsewhere.

B. (U) The majority’s constitutional analysis of the CDR program
does not go far enough.

(U) A conclusion that a now defunct program was constitutional at its inception is not as
helpful as a discussion about whether the current landscape of facts and jurisprudence would find
it so. Accordingly, we would ask not whether Congress acted appropriately when it passed the
USA FREEDOM Act CDR provision, but rather whether an extension of that authority would be
constitutional in light of the facts and circumstances known today. 337 This, we believe, would be

336 (U) We also do not support the majority’s reliance on a “foreign intelligence” exception to the Fourth
Amendment warrant requirement in its analysis. It is our understanding that the Supreme Court has left open the
question of whether there is a “foreign intelligence exception” to the Fourth Amendment. We are mindful to
exercise caution in expanding any special needs exception to the Fourth Amendment. Such a malleable exception is
at risk of not only expanding the Fourth Amendment beyond the expectations of the Founding Fathers, but also of
expanding it beyond the literal text of the Amendment. Such an expansion risks sweeping into its ambit numerous
activities solely because they are un-favored today. Thus, we tread cautiously and inspired by the wisdom of Justice
Marshall, who wrote in Skinner v. Railway Labor Executives' Association, “There is no drug exception to the
Constitution, any more than there is a communism exception or an exception for other real or imagined sources of
domestic unrest. [A]bandoning the explicit protections of the Fourth Amendment seriously imperils ‘the right to be
let alone—the most comprehensive of rights and the right most valued by civilized men.’” Skinner v. Railway
Labor Executives’ Ass’n., 489 U.S. 604, 641 (1989) (Marshall, J., dissenting) (citation omitted) (quoting Olmstead v.
United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)). Accordingly, we are also reluctant here to assert
that the “special needs” exception to the Fourth Amendment may apply.
337 (U) We are taking the ex ante position that Congress must now contend with a different landscape of known facts
and circumstances than those which advised its decision in 2015. That altered landscape includes new facts about
the value of the program and difficulties operating it, new Supreme Court jurisprudence, and a new understanding of
both the privacy intrusions fostered by this program as well as the government interest furthered by the program.

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