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constitutionally sound.” 339 As the majority points out, the Board also noted in its 2014 report the
following: “Until the Supreme Court rules otherwise, Smith v. Maryland and the third-party
doctrine remain in force today. Government lawyers are entitled to rely on them when
appraising the constitutionality of a given action.” 340 Were we serving on the Board in 2014, we
would have entirely agreed, as we do now. To us, however, both can be true: the Board’s
analysis of the constitutionality of the 215 bulk program raised questions about the
constitutionality of the program under both the First and Fourth Amendments, but
notwithstanding those concerns, the government was entitled to rely on the law as it stood at the
time to govern the contours of its intelligence program. We would reach the same conclusion
about the USA FREEDOM Act CDR program now.

(U) Because Smith and the third-party doctrine are so central to Fourth Amendment
analysis of the USA FREEDOM Act CDR program, we briefly outline some of the Board’s 2014
concerns and discuss how subsequent legal and technical developments reinforce those concerns
in the context of the CDR program as we know it now. We do not endeavor to rehash the
Board’s 2014 report, and we encourage the public to read this report in tandem with the 2014
report.

(U) In the 2014 report, the Board outlined key factual differences between the bulk
telephony CDR program under Section 215 of the USA PATRIOT Act and the Smith case. 341
For example, the Board noted that the bulk telephony CDR program gathered significantly more
information about each telephone call and about far more people than did the pen register in
Smith. In Smith, the police collected the numbers the defendant dialed after the pen register was
installed, but did not collect information about the duration of the defendant’s calls or whether
the calls were completed, nor about calls made previously by the defendant. Nor did the police
in Smith collect information about incoming calls to the defendant’s telephone line. Further,
Smith involved a short duration of use of a pen register (no more than 2 days) and the dialing
information of just one person. Finally, in 1979, there was no ability to aggregate dialing
records with those of other individuals and gain additional insight from that analysis. 342

(U) We will have to agree to disagree with our colleagues on the significance of the ways
in which the USA FREEDOM Act CDR program differs from the underlying facts in Smith. It

339 (U) Recommendations to Reform Foreign Intelligence Programs: Hearing Before the H. Comm. On the Judiciary,
113th Cong. 9 (2014) (statement of David Medine, Chairman, Privacy and Civil Liberties Oversight Board),
https://www.pclob.gov/library/Medine-Testimony-20140204-House_Judiciary_Comm.pdf.
340 (U) 2014 Board Report at 126.
341 (U) We do not repeat the Board’s full analysis here. For a full analysis, see the 2014 Board Report at 111–12.
For a more detailed discussion of the underlying facts in Smith v. Maryland, see the 2014 Board Report at 111–14.

342 (U) See 2014 Board Report at 126.

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