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is our view that those differences are more significant than the majority believes them to be and
that nothing in the intervening five years has undercut them. 343 If anything, recent research has
put the Board’s concerns from 2014 on an even more solid factual foundation: there is a
significant privacy impact associated with large-scale telephone record collection. 344

(U) We do not dispute that Smith remains good law. Nor do we dispute that the
government has a reasonable legal argument, grounded in Smith, for why the shuttered USA
FREEDOM Act CDR program was consistent with the Fourth Amendment at its inception. But,
just like the Board in 2014, we are not prepared to endorse that argument given what we believe
to be the serious factual differences from Smith. In short, we question whether a court
considering the specific facts of the USA FREEDOM Act CDR program would find them
similar enough to the underlying facts of the primitive “pen register” in Smith to extend that
forty-year-old precedent to cover the USA FREEDOM Act CDR program. We believe that the
majority places much greater weight on Smith than is warranted. 345

(U) There are additional facts about the USA FREEDOM Act CDR program that remain
classified, and that bolster our view that Smith may not be as dispositive as suggested by the
majority.

(U) In Smith, the police collected a list of called numbers. In the CDR program, a record
can be returned if a selection term matches the record’s originating number, dialed number,
terminating number, billing number, IMSI (unique identifier for a phone subscriber), IMEI
(unique identifier for a phone handset), equipment serial number, or calling card number. In
addition, the CDR program collected about 50 data fields for each call, including information
about the caller, callee, their phone carriers, and various routing and status information. 346 The
information collected appears consistent with the statute, but it goes well beyond what the court

343 (U) Moreover, a recognition that the Supreme Court’s opinion in Carpenter and Riley should be fairly considered
alongside Smith is a reasonable assessment of the state of constitutional precedent. The majority appears to have
embraced the dissenting view in Carpenter of the third-party doctrine that such a recognition would “destabilize
criminal and national-security [sic] investigations across the United States.” See Part IV(A)(2); see also Carpenter
v. United States, 138 S. Ct. 2206, 2223, 2233–35 (2018) (Kennedy, J., dissenting). However, in Carpenter, the
majority of the Supreme Court embraced the same caution we urge today: As Justice Frankfurter noted when
considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we
do not ‘embarrass the future.’” Carpenter, 138 S. Ct. at 2220 (quoting Northwest Airlines, Inc. v. Minnesota, 322
U.S. 292, 300 (1944)).
344 (U) Jonathan Mayer, Patrick Mutchler, & John C. Mitchell, Evaluating the privacy properties of telephone
metadata, 113 PNAS 5536, 5538 (May 17, 2016) (finding “that telephone metadata is densely interconnected, can
trivially be reidentified, enable automated location and relationship inferences, and can be used to determine highly
sensitive traits”), https://www.pnas.org/content/pnas/113/20/5536.full.pdf.
345 (U) Riley v. California, 573 U.S. 373, 400 (2014) (citing Smith v. Maryland, 442 U.S. 735 (1979)).

346 (U) See Appendix B.

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