The FCC admitted in court this week that its Electronic Comment Filing System (ECFS) does not track where comments submitted to the system originate. The filing is part of a lawsuit the FCC is facing from The New York Times.
In 2017, the FCC began collecting public comments on its proposed repeal of the Title II designation for broadband. Doing so would remove the FCC’s ability to enforce net neutrality laws that prevent internet service providers (ISPs) from throttling or otherwise meddling in how data is carried across its networks.
The FCC’s ECFS was flooded with comments during the period, although allegations later arose that many comments were submitted using names and addresses of real U.S. residents without their consent. In late 2018, BuzzFeed reported the Justice Department began investigating the allegations, citing unnamed sources. The New York Attorney General’s office has also opened up an investigation on the matter.
A 2017 study released by advanced data analytics firm Emprata found that 36% of the 23 million comments submitted “appear to have been generated by self-described ‘temporary’ and ‘disposable’ email domains attributed to FakeMailGenerator.com and with nearly identical language,” while a Pew Research study, looking at 21.7 million comments, found that only 6% of the comments were unique, and the remaining 94% of the comments were submitted multiple times. “The seven most-submitted comments comprise 38% of all the submissions over the four-month comment period.”
The New York Times, Washington Post, BuzzFeed and Gizmodo have been investigating these claims since 2017. The NYT used a Freedom of Information Act (FOIA) request to ask for access to FCC internal logs which should contain each comment and the IP address that it was sent from, according to a report from Gizmodo.
The FCC initially refused to comply with the request, arguing that providing NYT with IP addresses would “constitute a clearly unwarranted invasion of personal privacy,” and that handing over the internal logs would compromise the security of the ECFS.
In court documents filed March 14, the FCC clarified its stance. It admitted that complying with the request would be incredibly difficult and possibly impossible.
“The retracing process would allow the FCC to identify several requests made close in time to the second the comment appears in the database, and guess which one is the actual originating request,” it said. “However, the FCC cannot directly and conclusively correlate one ECFS request with one ECFS comment.”