The FCC is blocking a law enforcement investigation into fraudulent comments designed to provide bogus support for the agency’s looming net neutrality repeal. New York Attorney General Eric Schneiderman recently announced his office has been conducting an investigation into who submitted millions of fraudulent comments (some using the identities of dead people) during the public comment period.
The FCC is already facing a lawsuit alleging the agency ignored FOIA requests pertaining to these fake comments. The agency similarly told me there was nothing it could do after someone hijacked my identity to claim I falsely supported killing net neutrality protections.
Detailed analysis of the record 22 million comments filed with the agency indicate the majority of the public overwhelmingly supports keeping the rules intact. But several analysts also found that some group or individual tried to counter this genuine opposition with fake support for the plan. Schneiderman's office believes these comments were filed by a bot that pulled identities from a compromised database of some kind.
"We all have a powerful reason to hold accountable those who would steal Americans’ identities and assault the public’s right to be heard in government rulemaking"
According to Schneiderman, his office made nine attempts over a period of five months to obtain server logs, API key details, or other information that could aid his office’s investigation into the identity theft. But in a public letter to FCC boss Ajit Pai, Schneiderman noted that the agency simply refused to aid the investigation in any capacity whatsoever.
“We all have a powerful reason to hold accountable those who would steal Americans’ identities and assault the public’s right to be heard in government rulemaking,” argued Schneiderman. “If law enforcement can’t investigate and (where appropriate) prosecute when it happens on this scale, the door is open for it to happen again and again.” Last week, the FCC doubled down on its refusal to cooperate in a more formal response to the AG.
In a letter to the AG’s office by FCC General Counsel Thomas Johnson, the agency lawyer again makes it clear the FCC has no interest in helping law enforcement get to the bottom of whoever is behind the farmed support for its repeal. Throughout the letter, Johnson repeatedly tries to imply that the wholesale fraud that occurred is inconsequential.
Johnson told the AG’s office that "while your letter suggests that the public comment process was somehow 'corrupted' by the alleged submission of comments under false names, you offer no evidence that this activity affected the Commission’s ability to review and respond to comments in the record."
Under the Administrative Procedures Act, the FCC is required to solicit and seriously consider relevant comments from the public whenever issuing what’s called a Notice of Proposed Rulemaking (NPRM). Consumer groups charge the current FCC is not only ignoring the massive public backlash to the rules’ repeal, but is turning a blind eye to comment fraud in order to raise doubts about the validity of the entire process—and therefore the value of legitimate public opposition.
In the letter, Johnson tries to argue that manipulation of the FCC comment process is routine, while subsequently downplaying the importance of the comment process itself.
“As in many important rulemakings, this proceeding carries the potential for advocates on either side to abuse the process to create an appearance of numerical advantage," Johnson said. "But the Commission does not make policy decisions merely by tallying the comments on either side of a proposal to determine what position has greater support, nor does it attribute greater weight to comments based on the submitter's identity."
Johnson also tried to imply that actually helping the AG’s inquiry into the bogus comments would be “too burdensome” for the FCC.
“Your staff has previously asked us to provide logs of Internet Protocol ("IP") addresses for certain comments,” said Johnson. “Even assuming that these logs would indicate that some comments originated from cloud-based automatic ‘bots,’ many others would reflect the IP addresses of authentic human users. It would be unduly burdensome, if not impossible, for the Commission to separate legitimate from illegitimate entries in the logs. Revealing the IP addresses of public commenters would also raise significant personal privacy concerns."
"This letter shows the FCC’s sheer contempt for public input and unreasonable failure to support integrity in its process"
Given many of these folks either don’t exist or are mysteriously deceased, this sudden professed dedication to consumer privacy rings hollow (especially given the agency’s recent support of killing consumer broadband privacy protections). Similarly, FCC staffers have told me it would be relatively trivial for the FCC to provide data indicating which group used FCC APIs to submit fraudulent comments en masse.
Needless to say, Schneiderman’s office wasn’t particularly impressed by the FCC’s apathy to the problem.
"Today the FCC make[s] clear that it will continue to obstruct a law enforcement investigation," said Amy Spitalnick, a spokeswoman for Schneiderman’s office. "It’s easy for the FCC to claim that there’s no problem with the process, when they’re hiding the very information that would allow us to determine if there was a problem." FCC Commissioner Jessica Rosenworcel also blasted the FCC's refusal to cooperate. "This letter shows the FCC’s sheer contempt for public input and unreasonable failure to support integrity in its process," said Rosenworcel. "To put it simply, there is evidence in the FCC’s files that fraud has occurred and the FCC is telling law enforcement and victims of identity theft that it is not going to help. Moreover, the FCC refuses to look into how nearly half a million comments came from Russian sources. Failure to investigate this corrupted record undermines our process for seeking public input in the digital age."
As it stands, consumer advocacy firms indicate that undermining the process appears to have been the entire point. If you downplay the importance and integrity of the public’s one opportunity to weigh in on the FCC’s plan, it’s easier to pretend said plan is in the public interest.
Unfortunately for the FCC, this problem won’t be going away anytime soon. Despite requests to delay the vote by Schneiderman’s office and others, the FCC is scheduled to repeal the rules on Thursday. Once the repeal hits the federal register in January, the FCC will be bombarded with lawsuits accusing the agency of ignoring the public interest. Expect the agency’s failure to police comment fraud to play a starring role in these legal arguments to come.