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program to also consider the program’s implications on the First Amendment rights of
Americans.
(U) We do not know whether a court, presented with the facts available to us, would find
the USA FREEDOM Act CDR program to be constitutional. That is the same basic conclusion
that the Board reached in 2014 about the bulk telephony CDR program. We do not believe,
however, that the majority’s analysis presents a complete picture of the current First and Fourth
Amendment landscapes to establish that reauthorization and reoperation of the program,
knowing what we know today, would be constitutional.

III. (U) The same program with data from different media is not

the answer.

(U) Finally, in assessing the USA FREEDOM Act CDR program’s national security
value, it has been suggested, including by some of our fellow Board Members, that a multi-hop
metadata collection program governing other types of communication media may prove more
valuable than the CDR program. While this has not been a part of the Board’s oversight review
of the CDR program and is not something the Board investigated, we think it is important to note
our disagreement with these suggestions.
(U) On this point, we are in general agreement with Chairman Klein. Congress knew
what it was doing when it chose to limit this authority to telephony. The prior bulk 215 program
had been focused on telephony, and the USA FREEDOM Act framework was designed to
authorize a version of that program. The limitation of the bulk program to two hops had already
been adopted as a matter of policy—so Congress was authorizing the program more or less as it
was operating at the time.

(U) Even with the limitation to telephony—a technology with a 100-year history—there
was substantial debate about legislating clear boundaries for its use in the CDR program. Had
Congress instead tried to legislate over a broader and more rapidly evolving set of technologies,
the definitional and boundary-drawing problems would have been vastly more difficult.

(U) And there is no reason to think the compliance or data quality issues encountered in
the CDR program would have been less severe for other types of communications media.
Working with a sector where developing new capabilities without fully examining downstream
impacts is a common business practice would not have been conducive to stability and data

accuracy—let alone compliance. Congress chose to scope the program to cover a more
established technology operated by stable, long-lived, and historically regulated American
companies.

(U) All of that said, there is and will continue to be significant intelligence value in first-
hop communications metadata, and in additional hops where there is specific analytical
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