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Judge orders FCC to share net neutrality repeal comment records

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Judge orders FCC to share net neutrality repeal comment records 2

The FCC may be forced to share information about the fraudulent comments filed during the net neutrality repeal process in 2017.


Alex Edelman/AFP via Getty Images

The Federal Communications Commission may be forced to disclose more information to reporters about the fraudulent comments filed in the agency’s 2017 net neutrality repeal after a federal judge in New York ordered the agency to turn over records about the comments to The New York Times.

FCC Chairman Ajit Pai acknowledged in late 2018 that roughly 500,000 comments submitted during the debate over the controversial repeal of Obama-era net neutrality rules were fraudulent and linked to Russian email addresses.

The Times and BuzzFeed News filed Freedom of Information Act requests in an effort to learn more about the fraudulent comments. The FCC, however, refused the requests, citing privacy and security concerns. Specifically, the agency argued that divulging the IP addresses would represent an “unwarranted invasion of personal privacy.” The agency’s decision prompted the Times to sue.

On Friday, Judge Lorna Schofield sided with the newspaper, stating the FCC hadn’t adequately explained how anyone would be hurt by divulging the information. She argued the benefits clearly outweighed any potential drawbacks, given that the fake comments called into question the agency’s comment system, which plays a key role in the agency’s work. 

Schofield added that “the integrity of the notice-and-comment process is directly tied to the legitimacy of an agency’s rulemaking.”  Further, she said that the “comment process is sufficiently important that a rule may be vacated if the agency does not comply with the notice-and-comment requirements.”

Net neutrality is the principle that all traffic on the internet should be treated equally, regardless of whether you’re checking Facebook, posting pictures to Instagram or streaming movies from Netflix or Amazon. It prohibits companies like AT&T, which bought Time Warner, or Comcast, which owns NBC Universal, from favoring their own content over a competitor’s. The FCC under President Barack Obama passed a strict set of rules protecting net neutrality. As part of those rules, the agency reclassified broadband, giving the FCC similar authority to regulate it as it has to regulate the traditional telephone network. 

Internet service providers argued the reclassification of broadband gave the agency too much authority to do things like regulate rates. Republicans agreed. After the election of President Donald Trump, a Republican-led FCC in 2017 repealed the rules. The repeal of the popular, yet controversial, rules resulted in a record number of public comments submitted to the FCC. 

But reviews of the public record found that 2 million of the 22 million comments submitted to the agency used stolen identities, some for people who were dead, including actress Patty Duke, who died in 2016. Nearly 8 million comments used email domains associated with FakeMailGenerator.com. About half a million were sent from Russian email addresses. And of the emails that came from legitimate email addresses, the vast majority were form letters originating from the same pro- and anti-net neutrality groups.

The emails linked to Russian addresses have been of particular interest, given that US intelligence and law enforcement have accused Russian groups of interfering in the 2016 presidential election by using stolen identities to pose as Americans on Facebook and Instagram, creating Facebook groups, buying divisive ads and posting inflammatory images. It seems groups were employing some of the same techniques to influence the net neutrality debate.  Officials have also warned that Russians are again trying to interfere in the 2020 elections

The FCC declined to comment. 

Jessica Rosenworcel, a Democrat serving on the FCC, tweeted on Friday that it was time for the agency to come clean. 

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Rosenworcel voted against the net neutrality repeal in 2017. She also disagreed with the agency’s decision to withhold the records and slammed the Republican-led agency in a previously released statement for “trying to prevent anyone from looking too closely at the mess it made of net neutrality.”

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