The ongoing saga over the FCC’s handling of public comments to its net neutrality proposal continues after The New York Times sued the organization for withholding of information that it believes could prove there was Russian interference.
The Times has filed multiple Freedom of Information Act requests for data on the comments since July 2017, and now, after reducing the scope of its requests significantly was rejected, it is taking the FCC to court in a bid to get the information.
The FCC’s comment system keeled over in May 2017 over during the public feedback period as more than 22 million comments were posted. Plenty of those were suspected of using repeated phrases, fake email addresses and even the names of deceased New Yorkers. The FCC initially falsely claimed the outage was because it was hacked — it wasn’t and it has only just made that clear — it seems instead that its system was unable to handle the volume of comments, with a John Oliver sketch thought to have accounted for a surge in interest.
The New York Times, meanwhile, has been looking into whether Russia was involved. An op-ed in the Washington Post from FCC member Jessica Rosenworcel published earlier this year suggested that as many as 500,000 comments came from Russian email addresses, with an estimated eight million comments sent by throw-away email accounts created via FakeMailGenerator.com. In addition, a report found links between emails mentioned in the Mueller Report and those used to provide comment on net neutrality.
Since the actual events are unclear — for more than a year the FCC allowed people to incorrectly believe it was hacked — an FOIA request could provide a clearer insight into whether there was overseas interference.
Problem: the FCC itself won’t budge, as the suit (which you can find here) explains:
The request at issue in this litigation involves records that will shed light on the extent to which Russian nationals and agents of the Russian government have interfered with the agency notice-and-comment process about a topic of extensive public interest: the government’s decision to abandon “net neutrality.” Release of these records will help broaden the public’s understanding of the scope of Russian interference in the American democratic system.
Despite the clear public importance of the requested records, the FCC has thrown up a series of roadblocks, preventing The Times from obtaining the documents.
Repeatedly, The Times has narrowed its request in the hopes of expediting release of the records so it could explore whether the FCC and the American public had been the victim of orchestrated campaign by the Russians to corrupt the notice-and-comment process and undermine an important step in the democratic process of rule-making.
The original FOIA request lodged in June 2017 from the Times requested “IP addresses, timestamps, and comments, among other data” which included web server data. The FCC initially bulked and declined on the basis that doing so would compromise its IT systems and security (that sounds familiar!), while it also cited privacy concerns for the commenters.
Over the proceeding months, which included dialogue between both parties, the Times pared back the scope of its request considerably. By 31 August 2018, it was only seeking a list of originating IP addresses and timestamps for comments, and a list of user-agent headers (which show a user’s browser type and other diagnostic details) and timestamps. The requested lists were separated to address security concerns.
However, the FCC declined again, and now the Times believes it has “exhausted all administrative remedies.”
“The FCC has no lawful basis for declining to release the records requested,” it added.
Not so, according to the FCC, which released a statement to Ars Technica.
“We are disappointed that The New York Times has filed suit to collect the Commission’s internal Web server logs, logs whose disclosure would put at jeopardy the Commission’s IT security practices for its Electronic Comment Filing System,” a spokesperson said.
The organization cited a District of Columbia case earlier this month which it claimed found that “the FCC need not turn over these same web server logs under the Freedom of Information Act.”
But that is a simplistic read on the case. While the judge did rule against turning over server logs, he ordered the FCC to provide email addresses for those that had provided comment via its .CSV file template, and the files themselves. That’s a decent precedent for the New York Times, which has a far narrow scope with its request.