Judge Upholds N.S.A.’s Bulk Collection of Data on Calls

In just 11 days, the two judges and the presidential panel reached the opposite of consensus on every significant question before them, including the intelligence value of the program, the privacy interests at stake and how the Constitution figures in the analysis.

The latest decision, from Judge William H. Pauley III in New York, could not have been more different from one issued on Dec. 16 by Judge Richard J. Leon in Washington, who ruled that the program was “almost Orwellian” and probably unconstitutional.

The decision on Friday “is the exact opposite of Judge Leon’s in every way, substantively and rhetorically,” said Orin S. Kerr, a law professor at George Washington University. “It’s matter and antimatter.”

The case in New York was brought by the American Civil Liberties Union, which said it would appeal.

“We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections,” said Jameel Jaffer, a lawyer with the group.

A spokesman for the Justice Department said, “We are pleased the court found the N.S.A.’s bulk telephony metadata collection program to be lawful.”

The next stops for the parallel cases are the appeals courts in New York and Washington. Should the split endure, the Supreme Court is likely to step in.

In the meantime, the decisions, along with recommendations issued on Dec. 18 by the presidential review group, illustrate the absence of agreement about the effectiveness and legality of the program, which, Judge Pauley said, “vacuums up information about virtually every telephone call to, from or within the United States.” That information is “metadata” — the phone numbers involved, when calls were made and how long they lasted.

The two judges had starkly differing understandings on how valuable that program is.

Judge Pauley, whose courtroom is just blocks from where the World Trade Center towers stood, endorsed arguments made in recent months by senior government officials — including the former F.B.I. director Robert S. Mueller III — that the program might have caught the Sept. 11, 2001, hijackers had it been in place before the attacks.

Judge Pauley began his opinion with an anecdote. In the months before Sept. 11, he said, the N.S.A. intercepted seven calls made to a Qaeda safe house in Yemen from the United States. They were from Khalid al-Mihdhar, who was living in San Diego and would become one of the hijackers.

But the security agency “could not capture al-Mihdhar’s telephone number,” the judge wrote, and “N.S.A. analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States.”

“Telephony metadata would have furnished the missing information and might have permitted the N.S.A. to notify the Federal Bureau of Investigation of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States,” Judge Pauley wrote.

Judge Leon, in Washington, took the opposite view, saying the government had failed to make the case that the program is needed to protect the nation. “The government does not cite a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature,” he wrote.

The presidential review group took a middle ground, though it seemed to lean toward Judge Leon’s position. It said the security agency “believes that on at least a few occasions” the program “has contributed to its efforts to prevent possible terrorist attacks, either in the United States or somewhere else in the world.” But it added that its own review suggested that the program “was not essential to preventing attacks,” and that less intrusive measures would work.

The group recommended that bulk storage of telephone records by the government be halted in favor of “a system in which such metadata is held instead either by private providers or by a private third party.” Access to the data, it said, should require a court order.

The two judges did not limit their disagreements to how well the program worked. They also drew different conclusions about its constitutionality.

Court Upholds F.C.C. Rule on Use of Data Networks

WASHINGTON — Cellphone companies must allow customers of competing wireless carriers to use their networks for the Internet and e-mail when outside their home territory, a federal appeals court said here on Tuesday.

The United States Court of Appeals for the District of Columbia said that just as the Federal Communications Commission required wireless carriers to allow voice-service roaming by customers of other carriers, it also can require the same, at commercially reasonable rates, for data customers — in essence, those who use smartphones, tablets and other wireless devices.

The judges’ 3-to-0 decision is a significant victory for the F.C.C. The agency has lost authority over Internet communications in recent years. And it is a big win for smaller cellphone companies, who now have the leeway to offer customers national calling and data plans, albeit ones that could generate extra charges.

On the losing side is Verizon Wireless, which had challenged the agency’s data roaming order in 2011. The company argued that the agency did not have authority to oversee data communications on wireless broadband networks and that it was imposing “common carrier” regulations on companies — essentially, regulating them like public utilities, as it does with home phone service.

Verizon said that it already had data roaming agreements so there was no need to codify the practice. “As we made clear throughout the case,” Ed McFadden, a company spokesman, said on Tuesday, “Verizon Wireless regularly enters into such data roaming agreements on commercially reasonable terms to meet the needs of consumers, and will continue to do so.”

The decision has broad implications for the agency, analysts said. “This does bode well for the F.C.C.’s ability to assert its authority in regulating wireless services,” said Andrew Jay Schwartzman, senior vice president and policy director for the Media Access Project, a nonprofit law firm that promotes consumer choice. “This is the first time these issues have come up in the context of data, which obviously is our future,” he said.

The F.C.C.’s chairman, Julius Genachowski, went further, saying the court’s opinion “confirms the F.C.C.’s authority to promote broadband competition and protect broadband consumers.”

In 2010, in Comcast v. the F.C.C., the same appeals court rejected the legal theory that the agency was using to validate its regulation of broadband Internet service. While Tuesday’s decision does not reverse that ruling, it does signal that the agency may have found a justification for its broadband rules.

Both Tuesday’s and the 2010 decisions were written by one of the appeals court’s more liberal members, Judge David S. Tatel.

John Bergmayer, senior staff lawyer at Public Knowledge, which filed a brief supporting the agency, noted that many of the legal arguments Verizon made in the case are also part of another challenge in the same court.

There, Verizon is trying to overturn the agency’s Open Internet order, a 2011 regulation that contains elements of net neutrality rules. Those rules require Internet service providers to treat all traffic equally, rather than favoring some transmissions over another.

The Open Internet case is in its early stages and has not yet been argued before the appeals court. But agency officials say they think the appeals court, in Tuesday’s case, rejected at least one of the arguments Verizon makes in the Open Internet case.

Many small wireless companies had supported the agency’s data roaming requirement, saying that it would provide more competition, particularly by allowing them to offer national service to compete with Verizon and AT&T.

The large wireless providers argued that the data roaming order gave them less incentive to invest in their networks, because it would benefit rivals that would not shoulder any of the costs of building infrastructure.