On December 3, 2018, the Federal Communications Commission (“FCC”) denied reporters’ Freedom of Information Act (“FOIA”) requests for web server log comments on net neutrality that the reporters believed contained fraudulent comments. The web server logs for the docket include almost 24 million total filings to date since being created on April 26, 2017.

Internet as a Utility Versus Privatized Service

For the past three years, the Internet was regulated as a utility by using the same infrastructure as telephones, power, and water. Since June, that infrastructure was changed to a privatized style of regulation. This could potentially lead to fee-based access, which would favor large Internet sites. Advocates of privatized Internet tout the ease of technological innovation that can arise from such a system, whereas those against privatization argue that utility-style infrastructure would encourage more effective consumer protections, and benefit individuals and smaller Internet service providers (“ISPs”).

Background on the Notice

This change from public utility to privatized regulation is a result of a December 2017 vote in which the FCC repealed a 2015 Title II Order for utility-style net neutrality regulations. Opponents of the repeal criticized the decision, stating that further federal government intervention in the Internet would lead to slower website load times for individual users, and would allow ISPs the ability to block access to certain websites. Proponents of the decision, including large ISPs, praised the ruling, claiming it would encourage greater transparency and calling it an open Internet order. According to the FCC, its Final Rule “advance[s] our critical work to promote broadband deployment in rural America and infrastructure investment throughout the nation, brighten[s] the future of innovation both within networks and at their edge, and move[s] closer to the goal of eliminating the digital divide.”

While the Final Rule was still in the notice and comment stage of rulemaking in 2017, two reporters sought server log comments for docket No. 17-108, titled “Restoring Internet Freedom Notice of Proposed Rulemaking.” This Notice sought public comment on whether the FCC should keep, modify, or eliminate utility-style Title II rules established in 2015 on regulation of broadband Internet access service, and proposed three main actions:

• Reverse the FCC’s 2015 decision to implement Title II government regulation on Internet service providers and return to a “light-touch” Title I framework under the Communications Act.
• Return to the FCC’s original classification of mobile broadband Internet access service as a private mobile service.
• Eliminate the Internet conduct standard established by the Title II Order.

Reporters’ FOIA Requests

BuzzFeed reporter Jeremy Singer-Vine’s request, filed in December 2017, sought server logs and the originating IP addresses corresponding to 20 Electronic Comment Filing System (“ECFS”) filings. New York Times reporter Nicholas Confessore filed a more substantive FOIA request in June 2017, asking for web server logs for comments and the originating IP addresses submitted for the docket between April 26-June 7, 2017.

FCC’s Denials and Reporters’ Appeals

The FCC denied Confessore’s request with initial and supplemental responses, citing FOIA Exemption 6, which suppresses releasing information that would invade another individual’s personal privacy, and Exemption 7(E), which withholds information compiled for law enforcement investigations or prosecutions. Confessore appealed, arguing that the FCC’s use of Exemption 6 to withhold the IP addresses was limited to personnel and medical files, and that it did not apply. He also took issue with the ECFS comment guide and filing system, which provide notices to commenters that all information submitted will be publicly available. The reporter also disputed Exemption 7(E), stating that the server logs should be released because they are not tied to any investigation or prosecution.

Singer-Vine’s request was also denied under the same exemptions. He argued that the IP addresses were not subject to protection because he believed that “the submissions were ‘faked,’ i.e., submitted by a computer program using names, email addresses, and physical addresses stolen from hacked data.” Singer-Vine also argued that the server logs did not qualify for 7(E) Exemption because the FCC had not shown that the comments were compiled for law enforcement.

FCC’s Affirmation of Prior Denials

The decision to deny both requests and withhold the entire record affirmed the FCC’s prior refusals under Exemptions 6 and 7(E), opining that the IP address arguments contained in the docket’s server logs contain “information which applies to a particular individual” and need to balance the public interest with the individual’s privacy interest. The FCC also concluded that the 7(E) Exemption still applied due to the nexus between the record and the agency’s national security duties, and the possibility of a security risk or violation of federal law in connection with that record.

Opposing Sides of the Argument

FCC Chairman Ajit Pai released a formal statement, due to the high-profile nature of the subject, calling the decision a “newfound advocacy of transparency.” FCC Commissioner Jessica Rosenworcel, a vocal opponent of the FCC’s decision to roll back its net neutrality rules, dissented in her own statement, asking what the FCC was hiding.

Chairman Pai perceived Commissioner Rosenworcel as failing to comment on previous situations during the past five years where Chairman Pai said that opportunities arose to “promote openness and transparency at the FCC.” He then went on to state that this FOIA decision relied on judicial precedent and factual analysis. He also commented on the increased transparency of the agency, as compared to past leadership.

Commissioner Rosenworcel’s dissent suggested that the public is prevented from inclusion in decision-making because of fraudulent commenters on server logs. She went on to say that up to 9.5 million people had their identities stolen and used to file fake comments last year, the majority of which were filed under email domains from FakeMailGenerator.com. Commissioner Rosenworcel concluded that the agency was attempting to prevent close monitoring of the “mess it made of net neutrality,” and that the FOIA exemptions utilized frustrated effective investigative journalism.