NY Attorney General Investigating Why Dead People Supported The FCC's Attack On Net Neutrality

from the something-doesn't-smell-right dept

So as we've been noting for a while, the FCC's policy order taking aim at net neutrality has been rife with all kinds of bizarre and fraudulent behavior, from the agency's made up DDOS attack (apparently a ham-fisted PR attempt to downplay the "John Oliver effect") to the numerous fake or otherwise dead people that have oddly supported the agency's unpopular plan in the FCC's comment proceeding. It's clear the FCC's plan is extremely unpopular, and it's also clear the agency, ISPs and some policy groups have engaged in some extremely dodgy behavior to try and downplay that fact.

The GAO is already investigating the FCC's bogus DDOS claims, and the FCC is already being sued for turning a blind eye to the problem and ignoring FOIA requests. The fraudulent comments by fake or otherwise non-breathing individuals will surely play a starring role in the inevitable lawsuits against the agency. If evidence is found that the FCC violated procedural norms (or hey, the law), it could help to reverse the agency's myopic and unpopular hand out to the nation's telecom duopolies.

The latest is that the New York Attorney General also acknowledged that his office has been looking into the fake comments submitted to the FCC's net neutrality proceeding. Early analysis had found that a massive portion of the 22 million public comments on the agency's plan came from a group or individual using a bot to stuff the ballot box with phony support for the plan. Many of these names were pulled from a hacked database of some kind, with many of the individuals in question stating they had never even visited the FCC website and have no idea what net neutrality even is.

Throughout all of this, the FCC has turned a blind eye to the fraud occurring on its website, likely because it helps the agency downplay the massive public backlash against the plan. And according to New York Attorney General Eric Schneiderman, the FCC rather unsurprisingly refused to aid his office in investigating what group or individual was behind the phony support, despite nine requests for data between June and November of this year:

"Specifically, for six months my office has been investigating who perpetrated a massive scheme to corrupt the FCC’s notice and comment process through the misuse of enormous numbers of real New Yorkers’ and other Americans’ identities. Such conduct likely violates state law — yet the FCC has refused multiple requests for crucial evidence in its sole possession that is vital to permit that law enforcement investigation to proceed.

We reached out for assistance to multiple top FCC officials, including you, three successive acting FCC General Counsels, and the FCC’s Inspector General. We offered to keep the requested records confidential, as we had done when my office and the FCC shared information and documents as part of past investigative work.

Yet we have received no substantive response to our investigative requests. None."

It's unlikely that the FCC is dumb enough to have engaged in this fraud itself. But the telecom sector is filled with ISP-funded proxy groups that have engaged in this kind of nonsense in the past. The FCC could easily put this issue to bed by providing a closer look at who used the necessary APIs to file these comments en masse. Of course that might expose not only the group responsible but the folks funding the effort, and we certainly wouldn't want that.

As I found out personally, it's clear the FCC approves of the fraud occurring on its website, because raising questions about the integrity of the public comment system allows it to downplay the groundswell of opposition to the plan. But if the truth comes out in AG investigations or the inevitable lawsuits expected later this year, the FCC's victorious dismantling of popular consumer protections could prove to be short lived.

Filed Under: ajit pai, comments, dead people, eric schneiderman, fcc, net neutrality

Dear Senators Portman & Blumenthal: What Should Blogs Do If SESTA Passes?

from the how-do-we-stay-on-the-right-side-of-the-law dept

So we've spent some time talking about why SESTA is such a bad bill even in its updated form (which fixes just a tiny sliver of the overall problems). And we may have some more soon about other problems with the language in the bill, but for now I want to make this even more real and ask Congress -- and SESTA authors Senators Rob Portman and Richard Blumenthal, specifically, what they think bloggers, independent journalists, citizen journalists and anyone who hosts comments on their site should do if SESTA passes. Because all these sites are platforms protected by Section 230 of the CEA and, as SESTA is written, parts of it are so unclear that it could introduce significant legal liability, or at least uncertainty over whether or not they're liable for the comments readers post on their sites and articles.

One thing we've heard over and over again from SESTA supporters is that the bill won't have any impact on most sites because (they claim) "no one accidentally facilitates sex trafficking." We wonder how they can be so certain. Ignoring, for the moment, that all sorts of important speech can be branded as speech related to trafficking, even for speech we all agree is problematic, it is not clear what the Congressional authors of the bill, and SESTA's staunchest advocates, think smaller sites, like ours, should do to ensure that none of that content ever sneaks through and ends up in our comment sections. To use us as an example: we're a small site, with a small team and limited resources. But we do allow comments on our posts, because we think community is an important aspect of a modern media site -- and we get a lot of comments, to the point that it is literally impossible for us to review every single comment on the site. We also, obviously, get a fair number of spam comments, and have put in place spam filters. The spam filters are pretty good, but they will make a few Type I and Type II errors at times (i.e., accidentally holding a legit comment and accidentally letting through a spam comment).

The number of comments (spam and not spam) vary day by day, but it's not uncommon to deal with on the order of 2000 comments or so (both spam and not spam) on a daily basis. We cannot read through all of them. And at least some of the spam may be advertising questionable and illegal behavior -- potentially sex trafficking. Here's an example that I found in our spam filter. The title of the spam reads "hot chinese women" but the text of the comment links to a site advertising "columbian girls" and while we've redacted part of the URL (we don't want to promote them at all), as you can see, part of the domain involves "love." Most of the text is nonsense garbage which is just designed to get through a spam filter (thankfully, in this case, it did not work):

Is this comment "facilitating sex trafficking" under federal law? I certainly hope not. But it's possible that the links in that spam go to a site that facilitates sex trafficking. And, while this comment was caught in our spam filter, what if it had gotten through? Do we now have "knowledge" that Techdirt, via its open comments, "assisted, supported, or facilitated" a violation of sex trafficking law? I would still argue that we don't, because we had no knowledge of that particular comment, and if we had seen it sneak through the spam filters, we clearly would have flagged it as spam and taken it off the site. But... the standard in the bill is not at all clear. Even worse: could this very post -- in which I'm explaining to Congress the uncertainty created by its own bill -- be used as evidence of me showing "knowledge" that sometimes spammers try to post these kinds of comments on our site? Is that enough to pass the hurdle in the bill to suggest I now have the requisite "knowledge" to potentially be both civilly and criminally liable? That would be a patently ridiculous outcome, but that, alone, represents some of the key problems of the bill as written.

Indeed, my concerns about merely asking Congress what sites like ours should do, demonstrate the automatic chilling effect in the bill. The chilling effect is happening now, before the bill is even passed.

I would hope that most rational people would say that we should not be liable just because some spammer is possibly clever enough to get a comment like this around our spam filters. But... as the bill is worded now, I am left wondering how do I avoid such liability? There are no clear safe harbors that tell me what steps to take to avoid such liability. Are we required to use a spam filter? What if none are perfect enough? Is the only way I can protect Techdirt be to kill the comment section and all the benefits a comment section enables? Can Senators Rob Portman and Richard Blumenthal tell me what to do? After all, during the hearing on this bill, when Blumenthal was told about its effect on smaller, independent sites, he insisted that such sites were "outliers" who "should be prosecuted." Is that what Blumenthal really thinks? A blog with a spam filter that is not 100% accurate should be prosecuted? If that's not what he thinks, then shouldn't the law he helped write make it clear for bloggers like me that merely allowing comments should not expose us to liability? Do small sites like Techdirt need to get pre-approval by the Internet Association who endorsed the bill to know if we'd be ok? Or, more likely, should sites like ours now need to go spend hundreds or thousands of dollars on lawyers to get an opinion that won't actually stop any potential lawsuit?

I am sure that many supporters of SESTA will argue that this is an extreme scenario. They will say, "Oh, come on, no one is going to go after you for a spam comment." I hope that's true! But, under the language of the bill, it's unclear. And that's the problem. We've certainly seen (repeatedly) that when someone wants to attack a site, they will use whatever laws they can find on the books. To make matters worse, SESTA also allows state Attorneys General to bring both civil and criminal suits. We've certainly upset some state Attorneys General in the past. Would a vindictive one use this opportunity to stifle Techdirt and shut it down? I, again, hope not, but we're living in an age where apparently it's considered okay for politicians to use their bully pulpits to threaten legal action against opponents, including the press.

There may be ways to improve SESTA -- but many of the ideas on the table also have potential serious negative consequences. We should be engaged in a careful discussion about those consequences and the costs and benefits of various approaches. There needs to be a clear explanation for how sites like ours can avoid these risks. But that's not what's happening. Small sites don't have the resources of a Facebook or a Google. They can't just spend thousands of dollars on lawyers to figure out how to navigate this new vague language, which wouldn't even guarantee that they won't get in trouble just because, say, a spam filter isn't good enough.

SESTA isn't just a bad bill because it won't do anything to stop trafficking (the trafficking will continue). It leaves smaller sites, such as ours, completely in the lurch over what our own level of risk is. So, a plea to Congress -- and Senators Portman and Blumenthal specifically: if you are going to move forward on this bill at least fix it so that sites like ours know what to do to stay on the right side of the law.

Filed Under: cda 230, comments, intermediary liability, richard blumenthal, rob portman, sesta, spam, techdirt

Al Jazeera Gives A 'Voice To The Voiceless' By Killing News Comments

from the enjoy-your-new-muzzle dept

We've noted time and time again how numerous websites have been killing news comments because they're too lazy and too cheap to cultivate an on-site community, and/or don't like having story errors pointed out in quite such a transparent, conspicuous location. Of course editors and publishers can never admit this is their real motivation, instead offering a rotating crop of disingenuous prattle about how they're muzzling their readers and shoving them over to Facebook because they're just so very into building relationships and are breathlessly-dedicated to improving conversation.

This week Al Jazeera joined the hottest trend in media, penning a missive over at Medium about how they're banning public news comments as part of their quest to... wait for it... give a voice to the voiceless:

The mission of Al Jazeera is to give a voice to the voiceless, and healthy discussion is an active part of this. When we first opened up comments on our website, we hoped that it would serve as a forum for thoughtful and intelligent debate that would allow our global audience to engage with each other. However, the comments section was hijacked by users hiding behind pseudonyms spewing vitriol, bigotry, racism and sectarianism. The possibility of having any form of debate was virtually non-existent.

Except that's simply not true. Numerous websites, including this one, have shown repeatedly it's possible to discuss complicated, divisive subjects without the metaphorical house burning down. Yes, it's true that when you don't moderate, show up, or give much of a damn about your comment system, it's quick to devolve into a cesspool of trolls and nincompoops. But the reality is that websites can't monetize quality discourse during budget meetings, so it's easier to just outsource all conversation to the homogeneous blather zone of Facebook, where listening to what your own customers are saying becomes somebody else's problem:

`Over time, we found social media to be the preferred platform for our audience to debate the issues that matter the most to them. We encourage our audience to continue to interact with us this way. We realise that this move will come as a disappointment to the members of our audience who did try and engage in thoughtful debate on our site. However, we will be working hard over the coming months to figure out how best to bring back debate to aljazeera.com. To continue the debate on social media, please share your thoughts with us on our Facebook page and get in touch via Twitter.

Again, does anything really give a "voice to the voiceless," foster quality conversation, or cultivate relationships quite like muzzling your customers, then shoving them toward a massive social media site where their thoughts, insights and contributions will get lost in a tsunami of prattle? It's clear that countless publishers really love the idea of reverting back to the era of "letters to the editor," when public feedback to your reporting could be carefully censored and repackaged as a genuine dialogue with your readership. But this line of thinking is a disservice to the quickly-evolving conversation the news has become.

I keep waiting for a news website to ban comments then candidly admit it was because they just didn't give much of a damn. Until then, the best we'll get are missives about how the best way to bring a voice to the voiceless is apparently with a good, swift kick in the ass.

Filed Under: comments, community, voice
Companies: al jazeera

NPR Gives Up On News Comments; After All, Who Cares What Your Customers Have To Say?

from the this-muzzle-represents-my-love-for-you dept

We've noted time after time how the trend du jour in online media is to kill your news comment section, muzzle your valuable on-site community, then couch the decision under all manner of disingenuous prattle. Reuters and Recode, for example, killed visitor news comments several years ago because, they claimed, the companies really value conversation. The Verge also tinkered with killing comments, purportedly because it just really valued relationships. As we all know, nothing quite "builds relationships" and gets the conversation going like a muzzle, a wave, and a swift digital kick in the ass.

Other websites couch their decision to mute their users under the pretense that it's just an "experiment," and the website will return with something more interactive and wonderful down the line. More often than not, this never happens. Case in point is NPR, which announced last summer that it too would be banning all public community feedback out of a deep rooted love for building community and audience engagement:

"After much experimentation and discussion, we've concluded that the comment sections on NPR.org stories are not providing a useful experience for the vast majority of our users. In order to prioritize and strengthen other ways of building community and engagement with our audience, we will discontinue story-page comments on NPR.org on August 23."

Ironically, public comments on NPR's post at the time were hugely negative, with numerous loyal readers saying the act of pushing them over to Facebook was, in effect, a giant middle finger to the readership. But because interesting discourse and community can't always be directly monetized by bean counters, this blowback was largely ignored. While NPR hinted that it might bring back comments eventually after some experimentation, a new blog post points out that won't be happening. Why? NPR traffic went up anyway despite the decision:

"At the time commenting was ended, there was speculation that the number of users coming to NPR.org would drop. In fact, the number of users for the May-to-July period grew 18 percent in 2017 compared with the year-earlier period, according to Google Analytics numbers Goo provided. (Year-over-year monthly growth has been as high as 37 percent.)"

Except the spike in NPR traffic many have had nothing to do with comments one way or the other, and could be easily attributable to the fact that the current U.S. political environment has obtained historical levels of batshit. It's also myopic to weigh the benefits of news comments by just traffic. Comments, when managed to minimize idiocy, provide an easy, public way to hold writers and publishers accountable for misleading claims or story errors in a highly visible location. Though few publishers can admit it, eliminating this public forum and returning to era of non-transparent letters to the editor is a major incentive for this shift.

At the end of the day, this fashionable assault on ye olde comment section has little to do with valuing community and conversation, and everything to do with illusory control and trying to save money. NPR admitted as much to the latter last year when asked about the decision on Twitter:

Except this narrative that giving a damn about your online community has to be time consuming and expensive is also not really supported by the facts. Studies have shown it's not really that hard to cultivate a healthier on-site comment section by simply having site employees and writers show up and treat the readership like human beings. Again, though, because the act of actually caring about quality discourse can't be directly monitored and displayed on a pie chart, it's being ignored. And that's a mistake in an era where news as a community conversation is more important than ever.

Will the world end with the loss of online news comments? No. But they do provide users with an easy and transparent way to debate, discuss and treat news as exactly what it is in the modern era: a conversation. Removing this public forum is a disservice to the news industry at large, and pretending it's being done out of some noble regard for higher human interaction only adds insult to injury.

Filed Under: comments, community, npr
Companies: npr

FCC Won't Release Data To Support Its Claim A DDOS Attack, Not John Oliver, Brought Down The Agency's Website

from the not-so-transparent-after-all dept

You might recall that when HBO comedian John Oliver originally addressed net neutrality on his show in 2014, the FCC website crashed under the load of concerned consumers eager to support the creation of real net neutrality rules. When Oliver revisited the topic last May to discuss FCC boss Ajit Pai's myopic plan to kill those same rules, the FCC website crashed under the load a second time. Both instances did a fantastic job highlighting how satire often tops traditional journalism in driving interest toward what can often be rather wonky tech policy issues.

But then something weird happened. In the midst of all the attention Oliver was receiving for his segment, the FCC issued a statement (pdf) by FCC Chief Information Officer David Bray, claiming that comprehensive FCC "analysis" indicated that it was a malicious DDoS attack, not angry net neutrality supporters, that brought the agency's website to its knees:

"Beginning on Sunday night at midnight, our analysis reveals that the FCC was subject to multiple distributed denial-of-service attacks (DDos). These were deliberate attempts by external actors to bombard the FCC’s comment system with a high amount of traffic to our commercial cloud host. These actors were not attempting to file comments themselves; rather they made it difficult for legitimate commenters to access and file with the FCC."

But this claim that a DDoS disabled the FCC website at coincidentally the exact same time Oliver's segment was airing raised a few eyebrows among security experts, who noted they saw none of the usual online indicators pointing to a DDoS attack, nor any evidence of an attack via publicly-available logs. Security analysts noted the FCC provided no evidence to support their claim of an attack, and the agency has consistently and repeatedly refused to offer any additional hard detail, despite being prodded by several Senators on the subject.

Hoping to glean a little more information, Gizmodo recently filed a FOIA request asking for server logs or documents offering more insight into this supposed attack. What they found is that the FCC never conducted said "analysis" of the attack in the first place:

"The FCC now tells Gizmodo, however, that it holds no records of such an analysis ever being performed on its public comment system; the agency claims that while its IT staff observed a cyberattack taking place, those observations “did not result in written documentation."

Gizmodo's FOIA request asked for "all communications between employees in the offices of Chairman Ajit Pai and Commissioner Michael O’Rielly" concerning the alleged cyberattack, as well as copies of "any records related to the FCC 'analysis' (cited in Dr. Bray’s statement) that concluded a DDoS attack had taken place." What they got instead was 17 pages of heavy redactions and nonsense (including several user complaints about what Pai's been up to) and a rotating crop of excuses for why the FCC couldn't be more transparent about the alleged attack:

"The agency cited a variety of reasons for why it was refusing to release 209 documents related to the purported DDoS attack. Some of the records, it says, contain “trade secrets and commercial or financial information” which it deems “privileged or confidential,” citing the Trade Secrets Act. Other documents were withheld in an effort to “prevent injury to the quality of agency decisions,” citing a FOIA exemption that typically protects attorney-client communications but also extends to documents that reflect “advisory opinions, recommendations and deliberations” as part of the government’s decision-making processes."

It didn't take long for news outlets to highlight the FCC's refusal to be clear about what happened, prompting the agency to e-mail this press release to reporters, deriding said reports as "completely irresponsible":

"Media reports claiming that the FCC lacks written documentation of its analysis of the May 7-8 non-traditional DDoS attack that took place against our electronic comment filing system are categorically false. In its FOIA request, Gizmodo requested records related to the FCC analysis cited in Dr. David Bray’s May 8 public statement about this attack. Given that the Commission’s IT professionals were in the midst of addressing the attack on May 8, that analysis was not reduced to writing. However, subsequent analysis, once the incident had concluded, was put in writing. Indeed, analysis was made public in response to a request from Capitol Hill.

“Moreover, the FCC has never stated that it lacks any documentation of this DDoS attack itself. And news reports claiming that the Commission has said this are without any basis and completely irresponsible. In fact, we have voluminous documentation of this attack in the form of logs collected by our commercial cloud partners."

But while the FCC's statement proclaims the agency has oodles of documentation detailing the supposed DDoS (it just doesn't want to reveal it), that's the precise opposite of what the agency is telling reporters that have filed FOIA requests to get a hold of it:

So it seems like there's two options here. One is that there really was some kind of non-traditional DDoS attack, but the agency failed to conduct a detailed written analysis of what caused it, and despite boss Ajit Pai's breathless dedication to transparency, has zero interest in being up front about it.

The other possibility is the entire attack narrative was poorly-constructed bullshit, feebly designed to try and deflate the "John Oliver effect" in the media and downplay the volume of consumers pissed off about what Ajit Pai is up to. And now that Senators and reporters are pushing harder for actual evidence, the FCC is having to engage in some comical tap dancing to obfuscate the fact it made up a DDOS attack as a lame (and ineffective) PR ploy.

The former's certainly possible, but the latter's also in character. Either way, expect this and the agency's willful disregard of comment proceeding fraud to pop up in the inevitable lawsuits awaiting Ajit Pai when he rams through the final net neutrality killing vote later this year.

Filed Under: ajit pai, comments, ddos, fcc, john oliver, net neutrality