Americans For Prosperity Sue Commerce Department To Find Out Who Was Influencing NTIA's Attack On Section 230

from the interesting-list dept

This is kind of fascinating. The group Americans for Prosperity have announced they've filed FOIA litigation against the Commerce Department after it has refused to respond to a FOIA request seeking communications between two former top NTIA officials that we've discussed here recently, regarding Section 230.

As background, you'll recall that after Twitter added two fact checks on Donald Trump's misleading tweets about mail-in ballots, Trump issued a bizarre executive order, demanding that (among other things) NTIA ask the FCC to reinterpret Section 230. Trump needed to order NTIA to do this because the FCC is supposed to be an independent agency and the President isn't supposed to order it to do anything. Indeed, as you'll recall, when Barrack Obama merely made a public statement about net neutrality, without directing the FCC to do anything, basically every Republican, including Donald Trump, whined that he was illegally trying to "bully' the FCC to do his bidding.

It quickly came out that two NTIA staffers were responsible for crafting the Executive Order: Adam Candeub, a long term critic of Section 230 who had just been hired to NTIA, and Nathan Simington. Candeub was later promoted to run NTIA and just this week was given a top job in the Justice Department. Simington, despite little qualifying experience, has been made an FCC Commissioner.

This was despite a separate FOIA request that revealed that Candeub and Simington, together, had emailed with a Fox News producer, asking to get Fox News host Laura Ingraham to attack Section 230 to help move the NTIA petition forward, and noting that it was important to do so to help re-elect Trump and help with down-ballot Republicans. This, of course, should be disqualifying for either of them to hold government jobs. When you get a job in the government you represent everyone and not just your own political party. You are not supposed to be using your government job to bully the media to do things for purely political reasons.

Given that, there should be tremendous interest in just who Candeub and Simington were talking to about Section 230. And Americans for Prosperity sent a FOIA request seeking exactly that information, asking for any emails between the two of them about Section 230 with a short list of known anti-Section 230 folks, including former Fox lobbyist (and the person responsible for getting FOSTA passed), Rick Lane, anti-230 FCC Commissioner Brendan Carr, AT&T (a company protected by 230, but which has decided to attack the law because it hates Google), DCI Group (a famously sketchy lobbying organization) and a bunch of others.

The full complaint details what happened:

On October 26, 2020, NTIA transmitted its first interim production, which contained 128 records in 35 electronic files. Ex. 5. Thirty-five records were withheld “in part or in their entirety,” under Exemption 5, but without identifying any relevant privilege. Id. An additional eight records were “withheld in part under Exemption 6.”

In this production, one record revealed that Mr. Candeub sent an email from a government email address to his private, gmail.com email address.

On November 10, 2020, AFPF asked NTIA whether it could email the next production and when another interim or final production could be expected.

On November 11, 2020, AFPF raised concerns that the first interim production did not include any text messages or instant messages. Id. (“These should be included in ‘all communications’ as well as e-mail, hand-written notes, etc.”).

On November 16, 2020, NTIA responded that the second interim response was prepared, but the agency required an address clarification. Ex. 8. NTIA also claimed that AFPF’s “request only specified email, it did not specify text and IM. If [AFPF] would like to request text messages and IM, [it] will need to file another FOIA request for those records.”

AFPF immediately confirmed its mailing address and noted that its initial FOIA request contained “no reference to seeking only e-mail records,” as it instead mentioned “all communications.” Id. AFPF further noted that this “matches the same language in [NTIA’s] . . . clarification confirmation e-mail from September 18 . . . . Therefore, the request covers text messages and IMs.” Id. AFPF also asked how many records were left after the second batch and when AFPF could expect to receive them.

NTIA responded that it does “not have a final count or an estimate of how many records will be responsive to [AFPF’s] request. Nor d[id it] have an estimate of when this will be completed.” Id. Additionally, NTIA attempted to justify its refusal to include records beyond e-mails in a search for “all communications” by pointing to a footnote in AFPF’s request that defines the term “record.”

On November 18, 2020, NTIA transmitted its second interim production, which contained 153 records in 39 electronic files. Ex. 9. Fifty-nine records were withheld “in part or in their entirety,” under Exemption 5, but without identifying any relevant privilege. Id. An additional twenty-five records were “withheld in part under Exemption 6.” Id. Additionally, fourteen records were referred to the Department of Justice and three to the Department of Commerce “for a direct response[.]”

On December 14, 2020, AFPF emailed NTIA noting that both Mr. Candeub and Mr. Simington will reportedly be leaving the agency. Ex. 10. Given these reports, AFPF requested “that NTIA take affirmative steps to preserve all potentially responsive records, including text message records and any private email account that may contain government records.”

To date, NTIA has not provided a final determination on AFPF’s request, nor has it released another interim or final production of responsive records.

And thus, the lawsuit for failing to comply with FOIA's requirements. As with most FOIA lawsuits, the main remedy sought is having NTIA actually cough up the records requested, as required by the law. It sure would be interesting to see what's there, and why NTIA seems unwilling to obey the law and hand over those records.

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Filed Under: adam candeub, brendan carr, commerce department, donald trump, executive order, fcc, foia, nathan simington, ntia, rick lane, section 230, transparency
Companies: afp, at&t, dci