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answer to the question of what police must do before searching a cell phone seized incident to an
arrest is accordingly simple— get a warrant.” 351
(U) More recently, and even more relevant to the USA FREEDOM Act CDR program,
the Court held in Carpenter v. United States that law enforcement access to a week or more of
cell-site location records constitutes a Fourth Amendment “search” and ordinarily requires a
search warrant based on probable cause. In Carpenter, the government argued that Smith and the
third-party doctrine should lead to the conclusion that because cell-site location records are held
by telephone companies, or third-parties, government access to them is not subject to the Fourth
Amendment. But the Court didn’t go that way. The Court expressly distinguished Smith and
explained that the volume of data, the sensitivity of the data, and the unavoidability of the data
collection by the third-party all weighed in favor of Fourth Amendment protection.

(U) The majority makes much of the Supreme Court’s insistence in Carpenter that Smith
remains good law. This we likewise do not contest. But the Carpenter discussion does not
address how Smith applies to the USA FREEDOM Act CDR program. Carpenter—like Riley
and United States v. Jones 352 —instructs that that is not an easy question.

(U) While Riley and Carpenter do not overturn Smith, each contains commentary that
presents a window into the Court’s view of the intersection of new technology and the Fourth
Amendment. It is against this backdrop that we would have preferred the Board’s constitutional
analysis to have been set.

(U) In addition to presenting an incomplete picture of how the Fourth Amendment may
intersect with the USA FREEDOM Act CDR program as we now know it to be, the majority
does not assess the program’s First Amendment implications. This large-scale CDR program
surely sweeps in the CDRs of protestors, journalists, political activists, whistleblowers, and
ordinary people. The First Amendment protects fundamental rights including the freedoms of
speech and association. The Board’s 2014 analysis of the First Amendment challenges to the
previous bulk CDR program largely extends to the USA FREEDOM Act CDR program,
especially with respect to the potential chilling effect created by a program that collects the
phone records of millions of people, without individualized suspicion. 353 One would expect a
court’s review of the reasonableness of the constitutionality of the USA FREEDOM Act’s CDR

351 (U) Riley, 573 U.S. at 403.
352 (U) “In United States v. Jones, the Supreme Court ruled that placing a GPS device on a Jeep driven by a criminal
suspect, and then using the device to track the Jeep’s movements continuously for four weeks, was a “search” under
the Constitution.” 2014 Board Report at 122 (discussing United States v. Jones, 565 U.S. 400 (2012)). For a more
complete discussion of Jones, see the 2014 Board Report at 122–24.
353 (U) We do not repeat the Board’s full analysis here. For a full analysis, see the 2014 Board Report at 128–36.
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