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considered in Smith. As an example, CDRs could include information about whether a mobile
phone involved in a call was roaming and on which network it was roaming. This might serve as
a proxy for a phone’s location within broad coverage areas. For example, if a CDR records that
a phone whose home provider is Company A was roaming on Company B’s network, this
implies the phone was very likely in a location covered by B’s network but not by A’s. In
addition, a CDR can contain information about which switching equipment handled a call, which
can convey further location information. 347

(U) It is facts like these that take the USA Freedom Act CDR program further from Smith
and into an intermediate area between Smith and Carpenter. 348 In Carpenter, the Court
determined that warrantless collection of cell site location information violated the Fourth
Amendment, and Chief Justice Roberts noted that “[a] majority of this Court has already
recognized that individuals have a reasonable expectation of privacy in the whole of their
physical movements.” 349 The more precise location data becomes, the more such data has the
potential to reveal personal details of one’s life. 350 Although NSA did not collect cell site
information in CDRs, and the statute expressly prohibited such collection, the fact that CDRs
contained information indicative of more coarse-grained location does make Carpenter relevant.
We cannot say how the Court would ultimately rule on the facts of the USA Freedom Act CDR
program, but in viewing the Court’s most recent Fourth Amendment decisions, the picture
becomes less clear than the majority would suggest.

(U) Legal developments since the 2014 report strengthen our argument that Smith may not
be as definitive as the majority suggests. We note, as our colleagues do, that as technology
evolves, so too has the Supreme Court’s Fourth Amendment jurisprudence. While the Court has
not considered facts similar to the USA FREEDOM Act CDR program, and has not overturned
Smith, we believe that Riley and Carpenter carry more significance in assessing the
constitutionality of the CDR program based on the facts as we know them now than the majority
affords them. In Riley v. California, the Supreme Court addressed a longstanding rule in Fourth
Amendment law: that law enforcement need not obtain a search warrant before conducting a
search incident to a suspect’s lawful arrest. The Court held that the search-incident-to-arrest
exception to the Fourth Amendment’s warrant requirement does not apply to cell phones: “Our

347 (U) The implied location that might be inferred from a CDR is generally coarse-grained and does not violate the
statute’s prohibition on CDRs containing “cell site location or global positioning system information.”
348 (U) Carpenter, 138 S. Ct. at 2206.
349 (U) Carpenter, 138 S. Ct. at 2217 (citing United States v. Jones, 565 U.S. 400, 415, 430 (2012) (concurrences of
Alito, J., and Sotomayor, J.)).

350 (U) Carpenter, 138 S. Ct. at 2218.

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