Tuesday, October 10, 2017

CQ Roll Call Helped Mystery 'Customer' Send FCC Comments -

So far, the FCC has refused to release any data that would identify the bulk public comment submitters (legitimate or not) to their recent Net Neutrality proceeding. However, based on emails obtained from the agency in response to a FOIA request, I can now confirm the name of one previously unknown bulk submitter -- CQ Roll Call.

Problem is, the Economist Group-owned, influential Beltway organization -- who actually had one of their reporters pinned to a wall by FCC guards in May after a press conference -- won't tell me anything about the "client" they were submitting comments to the FCC for.

According to the records, CQ Roll Call's SVP of Technology and Chief Digital Officer, Dan Germain, sent an email to ECFSHelp@fcc.gov, the FCC's help account for their Electronic Comment Filing System (ECFS), on April 18.

Titled "ECFS - API and limits", Germain quoted a portion of the FCC's API Terms of Service explaining how use of the agency's Application Programming Interface is "subject to certain limitations on access, calls, or use as set forth within this Agreement or otherwise provided by the FCC."

He asked where the API and "web form" limitations could be found, noting that CQ Roll Call was "working on a campaign for one of our customers that might have us submitting millions of individual comments to a forthcoming proceeding" and that they didn't "want to create any technical problems in your environment."

Germain then asked if they would "prefer to receive a csv file that you can upload directly in to your system?" I should note here that these emails were given to me last Friday in response to the final part of my FOIA request, asking for "All e-mail inquiries to ECFSHelp@fcc.gov regarding .CSV comment submissions in response to Proceeding 17-108, 'Restoring Internet Freedom'" between April 26 and they date they received my request, June 5. They are also the only records the FCC has given me in response to my request to date.

Fourteen minutes later, records show that an FCC representative replied to Germain, asking which docket the comments would be submitted to, and on what day. Within twenty minutes, Germain replied that the "docket will be on internet privacy, it is not yet published," adding that "[w]e believe it will be published later this month (do you know?)."

Stuffing the Ballot Box?

The FCC allows for public comments on all of their individually-numbered docket proceedings. For example, "Restoring Internet Freedom" was Docket 17-108. However, the timing of Germain's response is strange, because the FCC didn't formally announce the "Restoring Internet Freedom" proceeding until April 26th, eight days before this exchange began. This proposal (which has yet to be voted on by the FCC Board of Commissioners) would undo the current classification of Broadband internet under Title II of the Communications Act and effectively end Net Neutrality, which would also likely further undermine internet privacy protections.

So it's rather curious that this proceeding was previously-rumored to revolve around internet privacy concerns, and that these rumors were strong enough for a mystery customer to hire CQ Roll Call ahead of time to prepare a commenting campaign on proposal details that didn't exist yet.

Germain further explained in the email that CQ Roll Call's preexisting internal comment submission system was "designed to submit comments through the web forms on regulations.gov." But having found out that the FCC has a specific API for ECFS submissions, "we are evaluating if we can change our system quickly." He added, "I don't know the specific day we would plan to submit, but I know it will be a lot of submissions over several or many days."

In a follow-up email on April 24, Germain asked again where he could find limitations on API and web form submissions, but again asked if the FCC would "prefer to receive a csv file that you can upload directly in to your system?"

The FCC replied the next day, noting a limit of 1500 API requests/hour, but also mentioning that they will "look into CSV data load to facilitate high volume comment filings." The FCC did end up offering a "Restoring Internet Freedom"-only .CSV bulk comment submission option, hosted by an app called Box.

The FCC claims these intra-agency discussion records fall under FOIA Exemption 5, which allows an agency to withhold deliberative, "predecisional" records, whose release would (purportedly) "expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.
Later that day, Germain thanked the FCC for the information, asking "I assume that is per IP address?" He also asked for further clarification on the CSV option, noting "I am looking to deliver about 250,000 comments per day." He then wanted the FCC to confirm that they could "ensure each comment is recorded individually (not in bulk)."

Though this issue would later be resolved by the start of the proceeding, the FCC claimed in response that "[i]f you give us a CSV filing it will be bulk together and not individual." The FCC then advised CQ Roll Call to use the API method to ensure that their submissions appeared as "individual" comments.

Germain replied back that day, noting that the .CSV commenting method wouldn't work for CQ Roll Call, and emphasizing that they "need the comments recorded individually."

He then advised that CQ Roll Call "will need to set up multiple servers to feed the API simultaneously to meet the delivery needs of our clients," and asked to make sure that method wouldn't create any technical problems with the FCC.

The final section in the email thread is between the FCC representative who communicated with Germain and (former) FCC CIO David Bray, with several other FCC employees cc:ed. Unfortunately, this exchange has been entirely redacted.

The FCC claims these intra-agency discussion records fall under FOIA Exemption 5, which allows an agency to withhold deliberative, "predecisional" records, whose release would (purportedly) "expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." In this case, "[t]he redacted material consists of internal deliberations of staff regarding how to respond to outside inquiries."

The FCC even redacted the name of the individual whose email account printed out this thread under Exemption 6, because "we have determined that release of this information would constitute a clearly unwarranted invasion of personal privacy" (nevermind that this is a public employee).

Naturally, I had a number of questions after reviewing all of this. After reaching out to Dan Germain by the email listed in the thread, he got back to me Thursday afternoon with answers. Sort of.

When asked for the name of the client(s) that CQ Roll Call carried out its self-described "campaign" for, Germain first insisted that "CQ does not engage in campaigns." Rather, CQ Roll Call simply provides "advocacy tools," all of which can be found on their website as "Grassroots and Grasstops Advocacy Management Software."

Despite this not-a-campaign involving the submission of public comments to a government agency, "CQ does not reveal the names of customers without explicit permission." With that said, Germain went on to claim the "comments were submitted on behalf of the individuals who chose to take action and have their voice heard."

However, when asked about the full scope of this client campaign, and exactly how many comments from their clients (or rather, "individuals who chose to take action") that CQ Roll Call helped post to the "Restoring Internet Freedom" proceeding, Germain maintained that "CQ does not comment on the specifics of how our customers use our tools."

Germain wouldn't even confirm whether they used the API or .CSV bulk submission methods, simply stating, "Our advocacy tool can submit comments via webform or API."

I also asked him to confirm some facts that -- like the previous questions -- would presumably have straightforward answers. Specifically, I asked where the comments they submitted came from, how they authenticated the identities of the submitters, and if he could provide any comment ID numbers (that every submitted FCC comment has) or other identifying information behind the comments submitted as an example.

"CQ has a vast network that allows us to help our customers find individuals who support their cause and gives them the opportunity to have their voice heard," he vaguely replied. "Our goal as a company is always to enable participation in government processes."

He did clarify that CQ Roll Call verified the comments they handled by removing "bad or questionable submissions" and other steps such as "running the email address through an email validator, eliminate duplicate records with the same email address, and remove multiple submissions from the same IP address. " He did not, however, direct me to any examples of comments that they had submitted.

Finally, I asked him if CQ Roll Call had any internal policies or guidelines in situations (like this one) where its client campaigns are directly involved in a news story it covers.

After explaining how CQ Roll Call doesn't take positions on issues as a "non-partisan organization" and how they "generally have customers on both sides of an issue, he then insisted that "CQ's advocacy business is separate from our news products." Citing the editorial independence of the CQ Roll Call news teams, he claimed that they "certainly would not know what our advocacy customers were doing with our tools."

It's not surprising that Germain has stuck to the CQ Roll Call brand talking points instead of answering simple questions.

But if they can't name their client -- or even convince their client to divulge themselves -- what else is CQ Roll Call and their mystery client hiding? Wouldn't any organization with a stake in the future of internet regulation want to be as widely-known as possible, if not to generate more publicity for their own stance and talking points?

They might…unless they have a reason they want to stay unknown.

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