Siding with The New York Times, a federal judge has ordered that the Federal Communications Commission must disclose information about users who submitted comments during the 2017 net neutrality proceeding, despite the agency's objections that doing so could compromise people's privacy.
U.S. District Court Judge Lorna Schofield in the Southern District of New York ruled Thursday that disclosure of the data -- including commenters' IP addresses, time stamps and user-agent headers -- is in the public interest, particularly given concerns that many comments were fraudulent.
“If genuine public comment is drowned out by a fraudulent facsimile, then the notice-and-comment process has failed,” Schofield wrote. “Disclosing the requested data in this case informs the public understanding of the operations and activities of government in two ways -- at the micro level with regard to the integrity of the FCC’s repeal of the particular net neutrality rules at issue, and at the macro level with regard to the vulnerability of agency rulemaking in general.”
The court battle dates to 2018, when the newspaper sued the FCC for information about users who commented on the proposed revocation of the Obama-era net neutrality rules. Those rules prohibited broadband providers from blocking or throttling traffic and from charging higher fees for fast-lane service.
FCC Chairman Ajit Pai, who opposed those rules when they were issued, officially opened a proceeding to rescind them in April 2017. His proposed revocation drew a record-breaking 22 million comments -- but many were submitted under fake names, or by Russian bots. The precise number of fake comments is unclear, but around 450,000 came from Russian email addresses.
The New York Times submitted Freedom of Information Act requests for metadata about the comments to the FCC, as part of an effort to investigate potential fraud in the comment process. The agency refused to disclose the data, prompting the newspaper to sue for the information.
Among other arguments, the FCC said that revealing the IP addresses of commenters and user-agent headers could allow online advertisers to link an individual commenter’s name and postal address with his or her IP address.
“Even 'outdated' IP address information can be useful to digital advertisers,” FCC associate chief information officer Erik Scheiberg wrote in a declaration submitted to Schofield last year.
She rejected that argument, writing that the agency hadn't shown exactly how outside companies could link IP addresses to other information about commenters.
“The strongest argument in favor of finding a substantial privacy interest is that digital advertisers and digital platforms could combine this data with other available information to create a detailed and intimate profile that might include information about a person’s race or ethnicity, political affiliation, religious belief, sexual identity and activity, income level, purchasing habits and medical information,” she wrote. “If the record provided further insight into how likely it is that this risk would materialize, then the agency might have sustained its burden of showing that the disclosure of IP addresses and User-Agent headers would compromise a substantial privacy interest.”
FCC Commissioner Jessica Rosenworcel, who has previously criticized the agency for failing to provide more information about the comments, called Friday for the agency to “come clean.”
“Remember when the FCC tried to cover up fraud & fake comments in its #netneutrality proceeding? Journalists wanted to get to the bottom of this mess. The FCC told them go away. But a court just told the FCC to stop hiding from the press,” she tweeted. “So it’s time for the agency to come clean.”