Times Fights for Records on Net Neutrality Pressure by Russia

MANHATTAN (CN) – The New York Times brought a federal complaint Thursday to uncover records that could show whether Russia interfered in the effort to repeal net neutrality.

As is standard with any federal agency considering new regulations, the Federal Communications Commission opened up a public-comment period last year after proposing a repeal of the Obama-era policy that bars internet service providers from interfering in download speeds.

The New York Times, which is represented in its complaint by in-house counsel David McCraw, notes that the FCC electronically received 22 million comments between April and August 2017.

That the FCC botched this process, according to the complaint, is indisputable.

“Most notably, on May 7, 2017, the HBO program ‘Last Week Tonight with John Oliver’ aired an episode that advocated for net neutrality,” the complaint states. “The show urged viewers to submit comments opposing the FCC’s proposed rule. Following the airing of the show, the FCC experienced a 3,000% increase in the number of comments submitted, and commenters began experiencing delays and other issues when submitting their comments.”

Though the agency initially blamed lag times on a series of cyber intrusions known as DDoS attacks, short for distributed denial of service, the FCC’s inspector general later found called this report baseless.

The Times also notes that a study by the Pew Research Foundation found that 57 percent of the net-neutrality comments received by the FCC were planted by robots.

Citing evidence that at least some of those automated public comments came from Russia, the Times brought a request last year under the Freedom of Information Act for the IP addresses, timestamps and comments, among other data, attached to all public comments regarding net neutrality that were submitted between April 26, 2017, and June 7, 2017.

Challenging the FCC’s denial of that request, the Times brought a federal complaint Thursday in Manhattan.

“Release of these records will help broaden the public’s understanding of the scope of Russian interference in the American democratic system,” the complaint states.

A representative for the FCC insisted Thursday meanwhile that the records are privileged.

“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,” the FCC said. “Indeed, just last week the U.S. District Court for the District of Columbia held that the FCC need not turn over these same web server logs under the Freedom of Information Act.”

In denying the Times’ FOIA request, the FCC claimed that its data was exempt because it contained sensitive personal information. It later argued that it did not want made public information about the security measures that protect its public comment systems, and also that the request was “overly burdensome.”

The Times says it is still waiting on a formal response to its appeal.

In the newspaper’s fourth and latest proposal, sent on Aug. 31, the Times asked only for “originating IP addresses and timestamps, and … User-Agent headers and timestamps.”

A user-agent header contains information about the commenter’s browser. McCraw confirmed in an email Thursday that the FCC has not yet responded to this most recent request.

In November 2017, the Pew Research Foundation reported that just 6 percent of the net neutrality comments were unique; the other 94 percent had been submitted multiple times. On nine different occasions the forum saw 75,000 simultaneous comment submissions that occurred during the “very same second,” according to Pew’s report.

The suit by the Times also quotes a July 2018 cyber-intelligence report by a private company called GroupSense, which called it “plausible that email addresses involved in major breaches [including those cited by Special Counsel Robert Mueller’s indictment of Russian individuals and companies] are being harvested and reassigned for myriad uses.”

After it took a year for the FCC to release a report by its inspector general, clearing up the initial allegations of a DDoS attack, FCC Chairman Ajit Pai refused to apologize for the delay. He also blamed an Obama administration official for “providing inaccurate information” about the incident.

Democrats on the House of Representatives’ Committee on Energy and Commerce submitted a letter to the FCC asking why the agency had not admitted to its mistake earlier, and demanding to know when Pai and his colleagues first learned the reports of an attack were false. As chairman, Pai ranks ahead of four fellow FCC commissioners.

“It is troubling that you allowed the public myth created by the FCC to persist and your misrepresentations to remain uncorrected for over a year,” they wrote.

Democratic FCC Commissioner Jessica Rosenworcel noted in an op-ed for the Washington Post that the case requires “a lot more investigating,” after preliminary reports show that half a million of the net-neutrality comments from Russian email addresses.

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