Court Filing Argues That FirstNet is Not Yet Operational
Thursday, March 01, 2018 | Comments

The parties involved in a privacy lawsuit over the First Responder Network Authority (FirstNet) have disagreed over a potential filing in the case. In the filing, the federal government argued that while AT&T is offering services under the FirstNet brand, the network is not yet operational, so it is not yet ripe for review.

Government attorneys, on behalf of the Department of Commerce (DOC), filed a motion asking for permission to file a response to a brief filed by plaintiffs Stephen Whitaker and Dave Gram, which they argued introduced new information to the case. Gram and Whitaker argued in an opposition to the motion that the government had already received an adequate number of responses and allowing more would harm the efficiency of the proceedings.

FirstNet is an independent authority of DOC. The government filed its additional reply brief, but Judge Geoffrey Crawford has not yet ruled on the motion for permission to file the additional reply.

Whitaker and Gram sued the DOC last year over what they alleged were violations of the Freedom of Information Act (FOIA) in regards to FirstNet and the government’s failure to perform a privacy impact assessment (PIA) on the FirstNet network and related systems.

The disputed brief argues that the FirstNet network is owned and operated by contract partner AT&T, meaning that it does not fall under the requirements of the E-Government Act of 2002. Section 208 of that act requires a federal government agency that “develops or procures information technology that collects, maintains or disseminates” personally identifiable information (PII) or agencies “that are initiating a new collection of information that will be collected, maintained or disseminated using information technology” must perform a privacy impact assessment (PIA).

In January, Crawford dismissed the FOIA claims but requested that both parties provide briefs on the privacy issue, specifically the state plans portal used to provide information to states. At that time, Crawford said that the network itself was not yet ripe for review because it was not yet operational.

The government responded with a motion and brief asking the judge to dismiss the privacy claim, arguing that Gram and Whitaker did not have standing for the privacy claim because the state plans portal does not affect them personally.

In their own brief on the issue, Whitaker and Gram pivoted away from the state plans portal and focused on the network itself, arguing the network is already operational because AT&T has begun offering priority and pre-emption services over its commercial network under the FirstNet name.

Additionally, the two men argued that because AT&T is building and operating the nationwide network as part of a government contract and that information transmitted over the network will be stored in an AT&T database, the government must perform a PIA on the FirstNet network and related systems.

In response to Whitaker and Gram’s brief, the government filed its motion asking for one more response before Crawford rules on the motion to dismiss. The motion argued that Whitaker and Gram introduced new information in their brief and called some of the information in Whitaker’s and Gram’s brief erroneous. The additional reply brief would allow the government to clarify and correct that information, the motion said.

In an opposition to the government’s motion for another reply, Gram and Whitaker accused the government of gamesmanship, arguing that Crawford did not limit the briefs to just information on the state plans portal or allow additional replies in his order.

“The court was well aware of the fact that it had explicitly authorized both parties to file new evidence, and it was presumably aware of the fact that courts normally allow parties to respond to the introduction of new evidence, and yet it did not authorize the filing of yet another brief from defendant,” the opposition said.

Allowing the government to file another brief would create a cycle in which Gram and Whitaker would need another response to respond to new information contained in the government’s response, the opposition argued.

“Plaintiffs do not want that option,” the opposition said. “Plaintiffs do not think that this endless briefing serves any sort of judicial economy.”

In the disputed response, the government argued that the network is not yet operational. Instead, the currently offered services are not NPSBN services but services for public-safety agencies sold under the FirstNet brand.

“Accordingly, the examples referred to in the cited articles are cases in which AT&T is offering public-safety services under the FirstNet brand on its existing nationwide multifrequency band network,” the government’s filing said. “They are not services provided by the FirstNet Authority, nor are they being provided on the NPSBN.”

Additionally, even if the network were operational, a PIA would not be required because AT&T owns, maintains and operates the NPSBN network and not FirstNet, the government’s filing argued.

“AT&T will own, or lease from third parties, all of the equipment and infrastructure that comprise the NPSBN, as well as operate and provide services to the public-safety users and, to the extent the NPSBN has excess capacity, to other users,” the filing said. “… Once the NPSBN is operational, AT&T, not the FirstNet Authority, will be the service provider to all NPSBN users. As plaintiffs rightly point out, the users will enter into service contracts with AT&T and will be customers of AT&T.”

FirstNet will ensure that AT&T is complying with the requirements of the NPSBN contract, but AT&T will not provide FirstNet with any PII, the filing said.

“Likewise, when the NPSBN is operational, neither AT&T, nor the public-safety subscribers, will share the subscriber’s data sent over the NPSBN with the FirstNet Authority,” the filing said. “Therefore, the FirstNet Authority will not be collecting, storing or using any data sent over the NPSBN.”

The E-Government Act only applies to federal government agencies, the filing noted.

“In making this argument, DOC is not suggesting, as plaintiffs imply, that a federal agency can seek to avoid its obligation under Section 208 simply by contracting out tasks that are part of the agency’s duties or functions,” the filing said. “In this case … the statute does not task FirstNet Authority with building or operating the NPSBN. Instead, FirstNet’s role, as clearly set forth by statute, is to ensure that the NPSBN will be built and become operational through contracts and agreements with non-federal entities, but not build and operate the NPSBN.”

The government argued again that Whitaker and Gram do not have standing to bring the privacy claim, saying that the two have failed to prove that their information and data will be collected by the network.

There has been no indication when Crawford will make a decision on the government’s motion for a response or its motion to dismiss.

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