Plaintiffs in FirstNet Privacy Lawsuit Appeal Oppose AT&T Brief
Tuesday, June 18, 2019 | Comments

The plaintiffs in a privacy lawsuit against the First Responder Network Authority (FirstNet) asked that the court not allow AT&T to file an amicus curiae brief in the case.

AT&T asked for leave to file the brief at the end of May. 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 court.

The lawsuit, originally filed by Vermont residents Stephen Whitaker and David Gram, argues that under Section 208 of the E-Government Act of 2002, the FirstNet Authority must perform a privacy impact assessment (PIA) on the FirstNet network because the nationwide public-safety broadband network (NPSBN) will collect, store and distribute personally identifiable information (PII). The case also covers several issues related to Freedom of Information Act (FOIA) requests submitted to the Department of Commerce (DOC) and the National Telecommunications and Information Administration (NTIA). FirstNet is an independent authority of DOC.

The U.S. District Court for Vermont ruled in December 2017 that FirstNet is exempt from FOIA under the legislation that created it, and the same court ruled in July 2018 that the FirstNet network was not ripe for judicial review because it was not yet operational. The two Vermont men are appealing both of those decisions.

In its amicus brief, AT&T argued that the case lacks standing because it, as a private company, owns, operates and maintains the FirstNet network. Section 208 of the E Government Act requires that any agency that procures or develops information technology that would collect, distribute, store or maintain PII must perform a PIA. However, because the FirstNet Authority does not own, operate or maintain the network, and therefore, does not receive any of the information transmitted over the network, it cannot perform a PIA, AT&T argued. The FirstNet Authority selected AT&T as its industry partner to build the network in 2017.

Gram and Whitaker laid out four reasons why they said that AT&T’s brief should not be allowed in the case.

Generally, an amicus brief is allowed when the party submitting it has an interest in another case that could be affected by the decision in a case or if that party has unique information or perspective useful to the court that the involved parties cannot provide, Gram and Whitaker said.

“Not only does AT&T add nothing new to this discussion, it never explains why it — a private corporation — would have any special insight into the legal question of who has standing to bring a claim against a government agency pursuant to the E-Government Act,” Gram and Whitaker argued.

Additionally, large portions of AT&T’s amicus brief rely on what Gram and Whitaker believe is inadmissible evidence in the case, their brief said. During the district court phase of the case, FirstNet submitted a declaration from then-Acting FirstNet Counsel Paul Madison. In the declaration, Madison said that the FirstNet Authority had licensed the FirstNet brand to AT&T, and AT&T was branding products not on the FirstNet network under that name before the network became operational. Additionally, the declaration pointed out that under the contract between AT&T and the FirstNet Authority, AT&T, and not the FirstNet Authority, owns, operates and maintains the network.

Gram and Whitaker argued unsuccessfully during the district court phase that Madison’s declaration should have been struck from the record because it violates federal evidence rules. The two men argued that the FirstNet Authority couldn’t just have a declaration talking about the contents of the contract between the FirstNet Authority and AT&T, but instead had to provide a copy of the original contract to prove its content. The contract between AT&T and the FirstNet Authority has not been publicly released.

At that time, the government argued that Gram and Whitaker were misinterpreting the evidence rules and that it had provided the declaration not to prove the contents of the contract but to illustrate knowledge Madison possessed from his role with FirstNet.

U.S. District Judge Geoffrey Crawford found the declaration was admissible and denied the motion to strike the declaration. Madison’s declaration was a key factor in Crawford’s determination that the network was not yet ripe for review.

As part of their appeal, Whitaker and Gram alleged that the district court “abused its discretion” in denying their motion to strike the declaration and that the district court’s ruling that the FirstNet network was not operational was based on inadmissible evidence.

“Had Mr. Madison simply wanted to state that a contract between FirstNet and AT&T exists, that would be allowed,” Whitaker and Gram’s appeal brief said. “However, once he started to describe what the contract said, he transformed the declaration into inadmissible secondary evidence.”

In their motion to deny AT&T’s amicus brief, the two men argued that AT&T should not be allowed to introduce that possibly inadmissible evidence into the case through its amicus brief. Whitaker and Gram also argued that AT&T used the amicus brief to raise new issues in the case, which they said is not appropriate under federal appeal rules. “AT&T spills a great deal of ink arguing that this court should rule in FirstNet’s favor because FirstNet allegedly does not control the network or the information within it and therefore, the court allegedly cannot force it or AT&T to conduct a privacy impact assessment,” their motion said. “It openly acknowledges that the ‘trial court did not reach the merits of this argument or the viability of plaintiffs’ requested remedy’ then states that it is ‘writing separately to demonstrate that plaintiffs’ Section 208 argument also fails on the merits.

“…It is simply not the role of an amicus curiae to make an argument — supported by the record or not — that the parties have not made,” the brief continued. “A party cannot simply mention an argument in passing as FirstNet did and then leave it to an amicus to write a fully fleshed out brief about it, especially if the argument was not ruled on by a lower court.”

Finally, the two men argued that AT&T, as the FirstNet Authority’s industry partner, is too close to the case to serve the proper role of an amicus curiae. They argued that under federal rules, an amicus curiae should be a party that has an interest in another case that may be affected by the decision in the current case. That is not the case for AT&T in this lawsuit because it will be directly affected by the outcome of the case, Whitaker and Gram argued.

“Simply put, if AT&T seeks to involve itself in this case, it should file a motion to intervene pursuant to Federal Rule of Appellate Procedure 24; it should not be allowed to make its argument but not be bound by the judgment,” Gram and Whitaker’s motion said.

The government filed a motion requesting that oral arguments in the case be scheduled before Sept. 13, and Gram and Whitaker have said they are not opposed to that as long as argument is scheduled between Aug. 12 and Sept. 13. It is unclear when the court will rule on the motion to strike AT&T’s amicus brief.

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