Government Attorneys Defend Use of FirstNet Declaration in Lawsuit
Friday, June 01, 2018 | Comments

Attorneys for the federal government defended the use of a declaration from a First Responder Network Authority (FirstNet) employee in a lawsuit against FirstNet, arguing that the declaration was intended to show knowledge the employee had and not the contents of FirstNet’s contract with AT&T.

Stephen Whitaker and David Gram, the two men who filed a privacy lawsuit against FirstNet, asked Judge Geoffrey Crawford in May to strike a declaration from Acting FirstNet Counsel Paul Madison.

Whitaker and Gram argued that under federal evidence rules, the declaration was invalid because it refers to terms of the contract between AT&T and FirstNet to build the nationwide public-safety broadband network (NPSBN). Those rules say, “An original writing, recording or photograph is required to prove its content unless these rules or a federal statute provides otherwise.”

The government responded that Gram and Whitaker were misinterpreting the purpose of the declaration, as well as the federal evidence rules.

“This rule has no application, however, where the documentation may refer to a document, recording or photograph but does not try to prove the contents of a written document, recording or photograph,” the government’s filing said.

The declaration was not offered as a means to prove the contents of the contract but to show facts that Madison had personal knowledge because of his role with FirstNet, the government argued.

The point of the Madison declaration was to show that the NPSBN was not yet operational and that the government itself would not be collecting any personally identifiable information (PII) over the network, not to establish the terms of the contract, the filing said.

“Accordingly, this court should reject plaintiffs’ gambit to extend this litigation and obtain a copy of the AT&T contract through means other than the Freedom of Information Act (FOIA) and should deny plaintiffs’ motion to strike,” the filing said.

In their lawsuit, Gram and Whitaker argued that under the E-Government Act of 2002, FirstNet must perform a privacy impact assessment (PIA) on the NPSBN because PII will be collected and sent over the network.

The government has argued that a PIA is not necessary because while AT&T and agencies using the network will collect and send PII over the network, none of that information will be shared with the federal government.

Additionally, the government said the NPSBN is not yet ripe for review because it is not operational yet.

AT&T launched its dedicated public-safety band 14 core in March and has been migrating public-safety users to it. The government’s filing did not directly mention that progress on the network.

“AT&T’s construction of the NPSBN is proceeding,” said a footnote in the government filing. “The government will inform the court if the NPSBN becomes operational during the course of this litigation.”

In addition to the motion to strike Madison’s declaration, Crawford is currently considering a motion from the government to dismiss Gram and Whitaker’s lawsuit because of lack of standing. It is uncertain when Crawford will make a decision on either motion.

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Comments
On 6/7/18, NA said:
I think everyone involved in FirstNet is missing a really big part of the picture even beyond the quoted benefits to emergency services. I find the idea that the federal government will not be collecting personally identifiable information (PII) through FirstNet fully and completely unbelievable. In a time where government bureaucracies have been weaponized for political purposes and dissident groups are pursued by agencies like the IRS, FirstNet is a singularly bad idea. The National Security Agency (NSA) and the data fusion centers being built all over the U.S. are uniquely positioned to intercept and use the data that will supposedly be used only by emergency services and add to that the federal government is defending FirstNet. Why would anyone with a functioning mind and an even passing understanding of the corruption in government trust this? The point of the Madison declaration was to show that the nationwide public-safety broadband network (NPSBN) was not yet operational and that the government itself would not be collecting any PII over the network. Really?

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