AT&T Contract Raised in FirstNet Lawsuit, Summary Judgment Decision Looms
Tuesday, May 22, 2018 | Comments

The two Vermont men suing the First Responder Network Authority (FirstNet) over privacy issues asked a judge to deny a motion for summary judgment from the government, arguing that the case concerns “what appears to be a question of first impression in this or any other court.”

Stephen Whitaker and David Gram also asked Judge Geoffrey Crawford to strike a declaration from Acting FirstNet Counsel Paul Madison because they said the declaration violates federal evidence rules because the government hasn’t made available its contract with AT&T.

Gram and Whitaker filed the lawsuit last October, arguing that because first responders will transmit personally identifiable information (PII) over the FirstNet nationwide public-safety network (NPSBN), the government must perform a privacy impact assessment (PIA) 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” PII or agencies “that are initiating a new collection of information that will be collected, maintained or disseminated using information technology” perform a PIA.

Previous filings in the case have raised two main points of dispute: whether the NPSBN network is operational yet and how the ownership of the network impacts a potential PIA.

The government has argued that the network is itself is owned by AT&T, and not FirstNet, and AT&T will not provide any of the information transmitted over the network to FirstNet so the network is not subject to the requirements of the E-Government Act of 2002.

Gram and Whitaker have argued that while the network is not owned by FirstNet, it is being built as part of a contract with the federal government and should therefore be subject to the requirements of the E-Government Act of 2002.

In a January order dismissing some Freedom of Information Act (FOIA) claims involved in the case, Crawford ruled that PIA claims on the NPSBN were not yet ripe because the network was not yet operational. However, the state plans portal used to distribute plans to the states was ready for review and he asked the parties to submit briefs on that issue.

In a filing, Gram and Whitaker moved the case away from the plan portal, arguing that the network was indeed operational even though 700 MHz band 14 spectrum was not yet operational because AT&T was offering priority and pre-emption services to first responders on all spectrum it owned.

In a reply to that briefing, the government used Madison’s declaration to argue that while AT&T is offering services to public safety under the FirstNet brand, those services were offered on AT&T’s national network and not on the NPSBN.

Since the filing of those documents, AT&T has launched its dedicated public-safety core and has begun moving public-safety users to that physically separate hardware.

The Madison declaration also confirmed that FirstNet will not collect any data over the network and that neither AT&T nor NPSBN subscribers will share data with FirstNet.

Gram and Whitaker argued that the Madison declaration should not be used in the judge’s decision on summary judgment because it violates the rules of evidence. The declaration references the terms of the contract between AT&T and FirstNet but the Federal Rules of Evidence say, “An original writing, recording or photograph is required to prove its content unless these rules or a federal statute provides otherwise.”

Because FirstNet has not provided a copy of the contract as evidence, Madison’s declaration counts as inadmissible secondary evidence under the rules of evidence, Gram and Whitaker argued.

The contract between AT&T and FirstNet is not publicly available and the government has not submitted it as evidence in the case.

The rules do include multiple exceptions, but none of them apply in this particular case, Gram and Whitaker argued.

The government has a pending motion asking the judge to enter summary judgment in its favor because the NPSBN network is not yet operational and because the government itself will not collect any personal information.

In a summary judgment, a judge makes a decision in the case based on one or more factors without moving the case through a full trial.

Gram and Whitaker argued that in summary judgment, it is up to the defendant to prove there are no “genuine issues of material fact” involved in the case, a standard the government has not met, they said.

In terms of whether or not the NPSBN is operational, Whitaker and Gram argued that it shouldn’t matter because the E-Government Act requires that a PIA be performed before any data is collected.

Additionally, Gram and Whitaker argued that the case raises a legal question that the courts have not tackled in relation to the E-Government Act of 2002.

“If a private corporation collects information about U.S. persons as part of a contract with a federal agency but does not provide that information to the agency, does the agency still have to complete a PIA for the corporation’s system?” their filing asked.

Gram’s and Whitaker’s filing noted that the two sides have provided opposite answers to that question, and neither side has judicial precedent to support its answer because the courts have not tackled the question.

“The FirstNet Authority is tasked with managing and overseeing the implementation and execution of contracts to build, operate and maintain the NPSBN,” their filing said. “The FirstNet Authority will not disband once the NPSBN is operational; it will continue to carry out its statutory duties as long as the NPSBN exists or until it is disbanded by an act of law. As a result, AT&T will be operating the NPSBN network as a government contractor until such time comes to pass.”

Because of that, Gram and Whitaker urged the judge to find that there are genuine issues of material fact and deny the summary judgment. It is unclear when Crawford will make a decision on the motion for summary judgment.

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On 8/4/18, the j boy said:
More simply reasoned, the people have a right to oversight of our police departments. This includes all of their activities and communications.

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