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most helpful to Congress and the public as they consider what to do with the program in the
future. To be clear, we do not reach a conclusion here. We do, however, raise points that we
believe should be considered by Congress. We conclude that there are considerable distinctions
between precedent on which our colleagues rely and the reasonable expectations of privacy in a
modern world.

(U) The crux of the majority’s position is this: In Smith v. Maryland, the Supreme Court
held that law enforcement collection of certain types of call records is not a “search” under the
Fourth Amendment. The USA FREEDOM Act CDR program involved the collection of call
records. Ipso facto, the CDR program is not a search or seizure under the Fourth Amendment.

(U) In 2014, however, the Board expressed doubts about whether that legal argument was
right as applied to bulk collection of call detail records. In its prior report, the Board explained
that basic argument, and then discussed factual, policy, and legal reasons why Smith and the
“third-party doctrine” may not have been a sufficient constitutional basis for the bulk CDR
program. Importantly, the 2014 report did not reach a conclusion on the constitutionality of the
bulk program. Instead, the Board provided an accurate and evenhanded perspective: it indicated
that the government’s reliance on Smith was a reasonable legal position, that courts had reached
differing conclusions about that position, and that the law in this area is challenging, rapidly
changing, and difficult to predict. 338 We believe the Board’s assessment from 2014 remains
spot-on, and subsequent legal developments like Riley v. California and Carpenter v. United
States lend further support to that perspective.

(U) We take issue with the majority’s characterization that the 2014 Board was
"unanimous" in finding the pre-2015 bulk telephony program constitutional—notwithstanding
the factual differences between that program and Smith. As the Board wrote in 2014: “it is
possible that the contemporary Supreme Court—if called upon to evaluate [the bulk collection
telephony CDR program] under the Fourth Amendment—would not consider Smith v. Maryland
to have resolved the question.” And in congressional testimony just weeks after the 2014 report
was released, our then-Chairman David Medine explained: “The Board also believes that the
NSA’s bulk telephone records program raises concerns under both the First and Fourth
Amendments to the United States Constitution. Our report explores those concerns, explaining
that while government officials are entitled to rely on existing Supreme Court doctrine in
formulating policy, the existing doctrine does not fully answer whether the Section 215 program
is

Knowing what we know now, we have serious doubts going forward about whether the USA FREEDOM Act CDR
program is reasonable under the Fourth Amendment.

338 (U) 2014 Board Report at 11, 103–27.

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