AT&T Weighs in on FirstNet Privacy Lawsuit Appeal
Wednesday, June 12, 2019 | Comments

AT&T filed an amicus curiae brief in a privacy lawsuit against the First Responder Network Authority (FirstNet), arguing that the FirstNet national public-safety broadband network (NPSBN) is not subject to a government privacy law because it is operated and maintained by a private entity.

In 2017, Vermont residents Stephen Whitaker and David Gram filed a lawsuit against the Department of Commerce, which houses the FirstNet Authority, and the National Telecommunications and Information Administration (NTIA) over what they described as violations of the Freedom of Information Act (FOIA), as well as privacy concerns over the FirstNet network.

In December 2017, Vermont District Court Judge Geoffrey Crawford ruled that the FirstNet Authority is exempt from FOIA under language in the Middle Class Job Creation and Tax Relief Act, which created the authority. In July 2018, Crawford then dismissed the privacy claim involved in the case, ruling that Gram and Whitaker did not have standing to bring such a claim.

Gram and Whitaker have since appealed those two decisions in the U.S. Court of Appeals for the Second Circuit, which covers six districts within Connecticut, New York and Vermont.

The privacy portion of the lawsuit revolves around whether or not the FirstNet Authority must perform a privacy impact assessment (PIA) on the FirstNet network and associated systems under the E-Government Act of 2002. Section 208 of that act 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 transmitted over the FirstNet network and potentially stored, the authority is required to perform a PIA on the network.

Crawford ruled in July 2018 that the network itself was not ripe for review because it was not yet operational. Gram and Whitaker provided news articles that they said showed the FirstNet network was operational at the time, but the FirstNet Authority provided a declaration from then-FirstNet Acting Counsel Paul Madison that said AT&T was marketing public-safety services under the FirstNet brand, but the network was not yet fully operational. Crawford found the declaration persuasive in ruling that the network was not yet operational and therefore, not ripe for review.

In their appeal brief, Gram and Whitaker argued that whether the network was fully operational is irrelevant.

“In other words, DOC is required to issue a PIA before the network becomes operational,” the brief said. “By DOC’s admission, the NPSBN is already at least partially operational.”

In its own appeal brief, the government argued that even if the network is considered operational, Gram and Whitaker do not have standing to bring the lawsuit because they cannot prove that they will be injured by it in a way that the E-Government Act is intended to prevent.

Gram and Whitaker argued that even if the network does not collect their particular personal information, they still have suffered an “informational injury” because they were refused access to oversight information that statutes require the government to provide.

The government responded in its own brief that Gram and Whitaker were misinterpreting the purpose of Section 208 of the E-Government Act. The main purpose of that section is not to allow access to information on government practices but to protect PII collected by government agencies, the government’s appeal brief said.

The privacy aspect of the lawsuit also covered the portal that AT&T created and used to provide state plans to each state, but Crawford ruled that Gram and Whitaker did not have standing to bring suit on that issue because the portal did not collect their personal information.

While AT&T is building the FirstNet network, it is not a party to the lawsuit because FOIA and the E-Government Act of 2002 only apply to government entities. An amicus curiae brief is a court document filed by an entity that is not a party to the case and is intended to provide insight on one or more issues to the judge.

AT&T argued that even if Gram and Whitaker had standing to bring the lawsuit, the case should not be sent back to district court because the FirstNet network is owned, maintained and operated by AT&T and not the government.

The FirstNet Authority’s legislatively mandated purpose is not to build and operate the network but to ensure the building, deployment and operation of the network by “partnering with a private entity that will actually build, operate and maintain the network.”

Therefore, because the FirstNet network is owned by a private entity, the court has no authority to require a PIA be performed on it.

“And even if the lower court decided the Section 208 claim in plaintiffs’ favor and order the government to comply with that provision, neither DOC, nor NTIA, nor the FirstNet Authority could conduct a meaningful PIA relating to network data,” AT&T’s brief said. “Because those agencies do not operate the network, they have no access to the information (personal and otherwise) that AT&T and its subscribers collect, store or share on the network.”

The government also put forth the same argument in its appeal brief.

In their appeal, Gram and Whitaker argued that Crawford had erred in ruling that the FirstNet Authority is exempt from FOIA. As they did in their original suit, the two men argued that the legislation creating the FirstNet Authority exempts it from parts of the Administrative Procedures Act, which contains FOIA, but does not exempt it from FOIA. Because of congressional action over the years, FOIA has come to stand alone and the legislation needed to refer specifically to FOIA to exempt FirstNet, Gram and Whitaker argued.

The government argued that the legislation specifically exempts FirstNet from chapter 5 of title 5 of the APA, which contains FOIA, meaning that FirstNet is exempt from everything contained in that section.

“When a statute’s plain language is clear, ‘courts must presume that a legislature says in a statute what it means and means in a statute what it says there,’ ” the government’s appeal brief said, referring to the Connecticut National Bank v. Germain case.

The final portion of the case revolves around whether NTIA and DOC followed FOIA requirements in dealing with several FOIA requests related to FirstNet submitted by Whitaker and Gram.

The two men argued that the two agencies did not do a reasonable search of their files before referring the requests to FirstNet to determine if they had documents responsive to the requests. NTIA and DOC argued that they followed the process prescribed by FOIA and determined that they were unlikely to have the documents requested because FirstNet is an independent entity.

The government filed a motion asking that oral arguments in the case be scheduled before Sept. 13. Gram and Whitaker agreed as long as the argument is scheduled between Aug. 12 and Sept. 13.

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