Court Orders FCC To Hand Over Data On Bogus Net Neutrality Comments

from the sunlight-makes-the-best-disinfectant dept

You might recall that when the Trump FCC killed net neutrality, the public comment period (the only chance consumers had to actually offer their opinion) was plagued with all manner of identity theft and bogus comments. Oddly, the FCC didn't seem too concerned that dead people were filing comments to the FCC website supporting their extremely unpopular decision, and even actively blocked law enforcement investigations into what happened. It's worth noting that similar campaigns to generate bogus support for unpopular policies have plagued other government agencies in the post-truth era.

Annoyed by the FCC's lack of transparency and its refusal to respond to FOIA requests for additional data, journalist Jason Prechtel sued the FCC in late 2017. This week, a ruling (pdf) by Christopher Cooper of US District Court for the District of Columbia ordered the FCC to hand over at least some of the data. The ruling requires that the FCC hand over email addresses that were used to submit .CSV files, which in turn contained the bulk comments. The order did not, however, grant Prechtel's request for server logs, which could help detail who used specific APIs.

In his ruling, Cooper stated that understanding what went wrong would help prevent fraud in other proceedings moving forward (something, again, the FCC has shown it's really not too concerned about):

"In addition to enabling scrutiny of how the Commission handled dubious comments during the rulemaking, disclosure would illuminate the Commission's forward-looking efforts to prevent fraud in future processes...It is surely in the public interest to further the oversight of agency action to protect the very means by which Americans make their voices heard in regulatory processes."

Yes, go figure.

The FCC argued it couldn't disclose this e-mail data because it would violate consumer privacy, but consumers were told by the FCC when they made these comments that their e-mail addresses would likely be made public, "mitigating any expectation of privacy," the Judge declared. Again, the FCC's disinterest in getting to the bottom of this issue can't be over-stated, the agency ignored nine inquiries over a period of five months by New York State investigators looking for more data on the problem, and (like that DDOS the agency was caught fabricating) refused to seriously respond to journalists' inquiries.

In a blog post, Prechtel stated that he's not sure when he'll actually get access to the data, but was pleased that the court saw the importance for transparency surrounding the FCC's historically-unpopular policy:

"Regardless of how the rest of the case plays out, this is already a huge victory for transparency over an issue that has gone unanswered by the FCC and its current leadership for too long. Of course, it may be a matter of months before we actually get to see the records I won (or may still win), and learn who else was submitting bulk comments to the FCC that we don’t already know about. Even then, the full scope of the records I asked for only goes through early June 2017, and doesn’t encompass several more months of millions of comments the FCC went ahead and let flood into their system in spite of all the high-profile controversy."

A big source of the bogus comments appear to have originated with GQ Roll Call, on behalf of an "anonymous client" (which most assume is either a major broadband provider like AT&T or Comcast, or some other proxy partisan organization they covertly fund). Hopefully the data, whenever it arrives, helps shine a little more light on precisely what it is the FCC pretty clearly doesn't want exposed to the light of day.

Filed Under: ajit pai, comment system, data, fcc, fraud, jason prechtel, open records

Ajit Pai Pretends To Care About Identity Fraud That Plagued Net Neutrality Repeal

from the disinformation-nation dept

You'll of course recall that during the net neutrality repeal the FCC's public comment process was flooded with bogus comments in support of (and in a few instances in opposition to) the FCC's plan. Many of these comments came from a bot that filled the proceedings with fake comments in perfect alphabetical order, something that should have been pretty easy to prevent (had the FCC actually wanted to). Many of the comments came from people that had their identities lifted to support the repeal (like myself), while other commenters were, well, deceased.

Nobody's been able to yet confirm who was behind the identity fraud and bot attack, in part because the FCC actively blocked a law enforcement investigation attempting to find out. The general consensus is that "somebody" (either ISP-linked outfits or some group of partisans) was hoping to erode trust in the comment process to try and downplay the massive public backlash to the repeal. But it should also be noted that this is a problem that extends beyond the FCC, and has impacted other major policy decisions at major agencies government wide.

Back in May, Senators Senators Jeff Merkley and Pat Toomey fired off a letter to the FCC, noting that they too had their identities stolen during the repeal, while urging the FCC to you know, actually do something about it:

"Late last year, the identities of as many as two million Americans were stolen and used to file fake comments during the Federal Communications Commission’s (FCC’s) comment period for the net neutrality rule,” the Senators wrote in a letter to Pai. “We were among those whose identities were misused to express viewpoints we do not hold. We are writing to express our concerns about these fake comments and the need to identify and address fraudulent behavior in the rulemaking process."

Pai appears to have finally gotten around to responding to the Senators. In a response letter (pdf) Pai acknowledges that he too had his identity lifted during the scandal-ridden proceeding:

"It is troubling that some bad actors submitted comments using false names,” Mr. Pai said. “Indeed, like you, comments were submitted in my name and my wife’s name that reflect viewpoints we do not hold."

Pai, whose agency almost gleefully ignored the vast majority of Americans in opposition to the repeal, proceeds to note that the FCC certainly does need to update its systems (despite the fact it just spent nearly $3 million doing so). Pai agreed that the very least it could do was implement some kind of CAPTCHA system to at least thwart automated bots like the one used last fall. He acknowledged that he'd press Congress for additional funding (something he knows isn't likely in an era where gutting regulatory agencies is the fashion trend), but there's certainly no guarantee that anything will actually come of this promise.

In his letter, Pai once again tries to downplay the importance of public comments, despite the fact this was the only real opportunity the public had to express its thoughts on the repeal. He also, amusingly, pretends that the repeal had something to do with the agency's consideration of the facts:

"I can assure you, however, that the Commission does not make policy decisions merely by tallying the comments on either side of a proposal to determine what position appears to have greater support, nor does it attribute greater weight to comments based solely on the submitter's identity. And the Commission is grateful to all commenters who engaged substantively with the legal and public policy questions presented in this important rulemaking. Indeed, a review of the Restoring Internet Freedom Order clearly demonstrates that the Commission's decision was based on a careful review of the relevant law and facts."

It shows no such thing. The FCC based the lion's share of the net neutrality repeal on completely debunked lobbyist data points, then ignored millions of Americans clearly annoyed at the agency's decision. It then thought the best response to the identity fraud problems plaguing the public comment system would be to ignore a law enforcement inquiry entirely. That is, when it wasn't busy apparently making up a DDOS attack in a bizarre effort to downplay the impact of angry John Oliver viewers (something FOIA e-mails recently confirmed).

Pai also uses the letter to again try and conflate automated form letters commonly used by both sides of the debate (which I affectionately refer to as "outrage-o-matic" letters) with the wholesale bot-driven fraud that occurred. It's here you'll notice the FCC oddly has no data on bots or the half a million comments that were found to have originated in Russia, but has ample data on pro-net-neutrality folks that happened to have used an automated letter system but included an incorrect address:

"With respect to your other inquiries, the FCC does not have any information regarding whether any fake comments were submitted by foreign governments, nor can we verify the total number of comments that may have originated from bots. Similarly, we do not have a specific total number of fake comments that were filed. We do believe, however, that at least eight million pro-Title II comments were not filed with accurate names and/ or addresses. For example, 7,568,949 identical comments consisted of a single, pro-Title II sentence: "I am in favor of strong net neutrality under Title II of the Telecommunications Act."

If it's not clear, Pai's still trying to downplay the massive, undeniable and bipartisan opposition to his policies via whataboutism.

Online form letters -- even if their users don't put in accurate addresses or names -- are not the same thing as the bot-driven fraud that occurred using dead people; fraud Pai ignored because undermining trust in the public comment system benefited him. And while evidence does suggest some gamesmanship certainly did occur on the pro-net neutrality side as well, that doesn't change the fact that the vast majority of legitimate comments filed with the FCC opposed his repeal (which reflects numerous different surveys on the subject).

It's very difficult to overstate what a shitshow this FCC's attack on net neutrality was. It's something historians are going to spend years dissecting, and blowback from the ham-fisted tactics will reverberate in tech policy circles for decades. And while Pai's still busy making all of the same bogus claims about his "fact-based" policies choices during the repeal, anybody expecting him to actually address the system vulnerabilities that helped bots degrade trust in the public comment process to his direct benefit--hasn't been paying attention.

Filed Under: ajit pai, comment system, fcc, identity fraud, jeff merkley, net neutrality, pat toomey