An Open Letter to the FCC:
Dear FCC Chairman Ajit Pai:
As you recently announced, the Federal Communications Commission (FCC), under your leadership, soon will release rules to dismantle your agency’s existing “net neutrality” protections under Title II of the Communications Act, which shield the public from anti-consumer behaviors of the giant cable companies that provide high-speed internet to most people. In today’s digital age, the rules that govern the operation and delivery of internet service to hundreds of millions of Americans are critical to the economic and social well-being of the nation. Yet the process the FCC has employed to consider potentially sweeping alterations to current net neutrality rules has been corrupted by the fraudulent use of Americans’ identities — and the FCC has been unwilling to assist my office in our efforts to investigate this unlawful activity.
Specifically, for six months my office has been investigating who perpetrated a massive scheme to corrupt the FCC’s notice and comment process through the misuse of enormous numbers of real New Yorkers’ and other Americans’ identities. Such conduct likely violates state law — yet the FCC has refused multiple requests for crucial evidence in its sole possession that is vital to permit that law enforcement investigation to proceed.
In April 2017, the FCC announced that it would issue a Notice of Proposed Rulemaking concerning repeal of its existing net neutrality rules. Federal law requires the FCC and all federal agencies to take public comments on proposed rules into account — so it is important that the public comment process actually enable the voices of the millions of individuals and businesses who will be affected to be heard. That’s important no matter one’s position on net neutrality, environmental rules, and so many other areas in which federal agencies regulate.
In May 2017, researchers and reporters discovered that the FCC’s public comment process was being corrupted by the submission of enormous numbers of fake comments concerning the possible repeal of net neutrality rules. In doing so, the perpetrator or perpetrators attacked what is supposed to be an open public process by attempting to drown out and negate the views of the real people, businesses, and others who honestly commented on this important issue. Worse, while some of these fake comments used made up
names and addresses, many misused the real names and addresses of actual people as part of the effort to undermine the integrity of the comment process. That’s akin to identity theft, and it happened on a massive scale.
My office analyzed the fake comments and found that tens of thousands of New Yorkers may have had their identities misused in this way. (Indeed, analysis showed that, in all, hundreds of thousands of Americans likely were victimized in the same way, including tens of thousands per state in California, Georgia, Missouri, Ohio, Pennsylvania, Texas, and possibly others.) Impersonation and other misuse of a person’s identity violates New York law, so my office launched an investigation.
Successfully investigating this sort of illegal conduct requires the participation of the agency whose system was attacked. So in June 2017, we contacted the FCC to request certain records related to its public comment system that were necessary to investigate which bad actor or actors were behind the misconduct. We made our request for logs and other records at least 9 times over 5 months: in June, July, August, September, October (three times), and November.
We reached out for assistance to multiple top FCC officials, including you, three successive acting FCC General Counsels, and the FCC’s Inspector General. We offered to keep the requested records confidential, as we had done when my office and the FCC shared information and documents as part of past investigative work.
Yet we have received no substantive response to our investigative requests. None.
This investigation isn’t about the substantive issues concerning net neutrality. For my part, I have long publicly advocated for strong net neutrality rules under the Title II of the Communications Act, and studies show that the overwhelming majority of Americans who took the time to write public comments to the FCC about the issue feel the same way while a very small minority favor repeal.
But this isn’t about that. It’s about the right to control one’s own identity and prevent the corruption of a process designed to solicit the opinion of real people and institutions. Misuse of identity online by the hundreds of thousands should concern everyone — for and against net neutrality, New Yorker or Texan, Democrat or Republican.
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. 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.
I encourage the FCC to reconsider its refusal to assist in my office’s law enforcement investigation to identify and hold accountable those who illegally misused so many New Yorkers’ identities to corrupt the public comment process. In an era where foreign governments have indisputably tried to use the internet and social media to influence our elections, federal and state governments should be working together to ensure that malevolent actors cannot subvert our administrative agencies’ decision-making processes.
Eric T. Schneiderman
Mignon Clyburn, Commissioner
Michael O’Rielly, Commissioner
Brendan Carr, Commissioner
Jessica Rosenworcel, Commissioner
Thomas M. Johnson, Jr., General Counsel
David L. Hunt, Inspector General