Judge Dismisses Privacy Claim Against DOC, FirstNet
Tuesday, July 31, 2018 | Comments

A U.S. district judge dismissed the remaining charge in a lawsuit against the Department of Commerce and the First Responder Network Authority (FirstNet).

Judge Geoffrey Crawford ruled that Vermont residents Stephen Whitaker and Dave Gram lacked standing to bring a privacy claim that argued FirstNet needed to perform a privacy impact assessment (PIA) on the nationwide public-safety broadband network (NPSBN) and related systems.

Section 208 of the E-Government Act of 2002 requires agencies to perform a PIA on all new systems that collect, maintain or distribute personally identifiable information (PII). Gram and Whitaker argued that because PII would be traveling over the network, a PIA was necessary for the network.

Gram and Whitaker filed their lawsuit in October. The original complaint contained the privacy claim, as well as several complaints related to alleged Freedom of Information Act (FOIA) violations. Crawford dismissed the FOIA claims in December but asked for the parties to provide more information related to the privacy charge.

At that time, the privacy issue focused on the online portal FirstNet used to deliver state plans because Crawford ruled that the NPSBN itself was not operational and therefore not ripe for review.

In subsequent filings, Dave and Gram used news articles to argue that the network was indeed operational. Attorneys for the government responded that while components of the network were operational, the entire network itself was not operational.

Integral to the government’s argument was a declaration from Acting FirstNet Counsel Paul Madison that said the network was not operational and that industry partner AT&T was so far only offering services under the FirstNet brand that were not over the NPSBN.

“The court has examined the Madison declaration submitted by the DOC, and the court concludes that the Madison declaration establishes beyond genuine dispute that the NPSBN remains nonoperational,” Crawford wrote. “To the extent that the Section 208 claim relates to the NPSBN, it remains unripe for review.”

Therefore, Crawford said the state plans portal was the only system eligible for review. However, he declined to address the arguments over that system as he determined Gram and Whitaker lacked standing to bring the suit.

Crawford wrote that Gram’s and Whitaker’s interests in the case did not match the underlying interest Congress had in mind when it enacted Section 208 of the E-Government Act, which was to protect the privacy of individuals who had their PII collected by the government.

“The plaintiffs do not allege that their own personal privacy is in jeopardy or that their personal information is at risk of unwarranted disclosure; they allege only that they should be able to access privacy impact assessments that they cannot access,” Crawford wrote. “The nature of the harm the plaintiffs claim to have suffered and the nature of the harm Congress identified in its express statement of the purpose of the statute are totally different.”

Crawford acknowledged Gram’s and Whitaker’s interest in openness and transparency in government but ruled that this was not the purpose of Section 208.

“This is by no means a clear or easy question, and the court appreciates the plaintiffs’ position,” Crawford wrote. “Openness and transparency in government operations and vigorous public oversight of the administrative state are crucial to the functioning of a healthy democracy.

“But the question before the court is not whether, in the abstract, such a policy of openness and transparency would be beneficial; it is whether Section 208 in particular was enacted with the purpose of furthering such a policy. Having carefully examined the text and structure of the statute, the court is not convinced that Section 208 was enacted with this broad purpose,” Crawford concluded.

A spokesperson for FirstNet said the organization was pleased with the court’s decision.

Whitaker said that he and Gram would pursue an appeal of both the FOIA and privacy claims in the lawsuit.

“We feel it is necessary to pursue an appeal of not only the FOIA compliance but the privacy impact assessment requirement and the need for transparency and accountability that will require public disclosure of the contract between AT&T and the First Responder Network Authority and amendments to the enabling law granting states the needed contractual recourse and jurisdiction to assure that adequate coverage is built and public safety grade tower and network hardening requirements are met,” Whitaker said.

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