Thanks to the FCC chairman, internet providers can now sell Americans’ browsing histories for targeted advertising. ZDNet thought it was only fair to see his — so, we filed a Freedom of Information request.
he Federal Communications Commission has refused to turn over the internet browsing history of its chairman Ajit Pai, weeks after he rolled back rules that prevented internet providers from selling the browsing histories of millions of Americans.
In a response to a request filed by ZDNet under the Freedom of Information Act, the agency said Friday that it had “no responsive documents” to our request. The agency cited a similar decision filed with Homeland Security that found that the law doesn’t require a government agency to create a record in response to a request.
Specifically, we asked for the “web browsing history of all web and mobile browsers used by Ajit Pai on any government network or account,” from the date that the rules were formally revoked by Congress in late March.
The response from the FCC said: “Here, the agency does not have a record that reflects the Chairman’s web browsing history.”
In other words, Pai voted to allow internet providers to turn over your browsing history, but won’t let anyone see his.
Earlier this year, Pai launched his effort to roll back the Obama-era rules that toughened up privacy protections for every American with an internet connection.
But the rule rollback was met with considerable controversy and anger from privacy and rights groups, for fear that internet providers like AT&T, Comcast, and Verizon would be able to gather and sell data about your browsing history to marketers and other companies, including information on customer location, as well as as financial or health status information, and what people shop and search for.
AT&T, Comcast, and Verizon have all said they don’t collect personal information unless customers allow it or share it with third-parties. Critics noted that the named three don’t need the FCC rules to share customer data because they already operate their own advertising networks.
Though the telecoms and internet provider lobby was largely behind the effort to roll back the rules, it remains unclear how ordinary consumers benefit, if at all, from the changes.
When pressed by reporters, Marsha Blackburn (R-TN, 7th), the sponsor for the House bill, couldn’t say how her bill helps anyone other than the telecoms lobby. According to online publication Vocativ, Blackburn also received over $693,000 in campaign contributions from the telecoms lobby over her 14-year congressional career.
As a member of Congress, Blackburn is exempt from Freedom of Information requests.
You can read the full letter from the FCC below.
Federal Communications Commission Washington, D.C. 20554 May 12, 2017 Mr. Zack Whittaker CBS 28 B. 28th Street 10th Floor New York, New York 10016 firstname.lastname@example.org
Re: FOIA Control No. 2017-000501
Dear Mr. Whittaker:
This is in response to your Freedom of Information Act (FOIA) request filed on March 31, 2017, seeking "[t]he web browsing history of all web and mobile browsers used by Ajit Pai, chairman of the Federal Communications Commission, on any government network or account for the week beginning Tuesday, March 29[, 2017].(1) The due date for FOIA 2017-501 is May 12, 2017(2) We are responding to you by this deadline. As we explain in more detail below, we have no responsive documents to your request.
As court precedents make clear, the FOIA does not require an agency to create a record to respond to a FOIA request.(3) Here, the agency does not have a record that reflects the Chairman's web browsing history. As the Department of Homeland Security (DHS) found in response to a similar request, "internet browser history. . . files are presumably constantly changing, machine-readable files (not likely discrete 'documents' separate from the given web browsing program used) that were automatically generated based on the particular user's activity."(4) We agree with DHS that an agency is not required to generate a discrete document that would reflect the internet browser history of a certain time period or extract the residual data files automatically maintained by the program.(5) (1) See FOIAonline (FOIA Request 2017-000501 (submitted and perfected Mar. 31, 2017)).
(2) See email from Joanne Wall to Zack Whittaker (Apr. 27, 2017) (because of the need to consult with multiple offices within the Commission, the Office of General Counsel extended the date for responding to the FOIA request to May 12, 2017, pursuant to 47 C.F.R. § 0.461(g)(1)(i)).
(3)See Pollv. US. Office of Special Counsel, No. 99-402 1, 2000 WL 14422, at *5 n.2 (10th Cir. Jan. 10, 2000) (recognizing that FOIA does not require an agency "to create documents or opinions in response to an individual's request for information") (quoting Hudgins v. IRS, 620 F.Supp. 19, 21 (D.D.C. 1985), affd, 808 F.2d 137 (D.C. Cir. 1987)).
(4)Letter from Curtis E. Renoe, Attorney Advisor, Office of the Administrative Law Judge, United States Coast Guard, U.S. Dep't of Homeland Security (DHS), to Jason Smathers, MuckRock News, DHS Appeal Number 2014-HQAP-00068 at 3-4 (July 18, 2014).
Pursuant to section 0.466(a)(5)-(7) of the Commission's rules, you have been classified for fee purposes as category (2), "educational requesters, non-commercial scientific organizations, or representatives of the news media."(6) As an "educational requester, non-commercial scientific organization, or representative of the news media, the Commission assesses charges to recover the cost of reproducing the records requested, excluding the cost of reproducing the first 100 pages. We did not reproduce any records and you will therefore not be charged any fees.
If you consider this to be a denial of your FOIA request, you may seek review by filing an application for review with the Office of General Counsel. An application for review must be received by the Commission within 90 calendar days of the date of this letter.(7) You may file an application for review by mailing the application to the Federal Communications Commission, Office of General Counsel, 445 12t1 St. SW, Washington, DC 20554, or you may file your application for review electronically by e-mailing it to FOIA-Appealfcc.gov. Please caption the envelope (or subject line, if via e-mail) and the application itself as "Review of Freedom of Information Action."
If you would like to discuss this response before filing an application for review to attempt to resolve your dispute without going through the appeals process, you may contact the Commission's FOIA Public Liaison for assistance at:
FOIA Public Liaison Federal Communications Commission, Office of the Managing Director, Performance Evaluation and Records Management 44 l2 St., SW, Washington, DC 20554 FOIA-Public-Liaisonfcc.gov
If you are unable to resolve your FOIA dispute through the Commission's FOJA Public Liaison, the Office of Government Information Services (OGIS), the Federal
(6) 47 C.F.R. § 0.466(a)(5)-(7).
(7) See 47 C.F.R. § 0.461(j), 1.115; 47 C.F.R. § 1.7 (documents are considered filed with the Commission upon their receipt at the location designated by the Commission).
FOJA Ombudsman's office, offers mediation services to help resolve disputes between FOIA requesters and Federal agencies. The contact information for OGIS is:
Office of Government Information Services National Archives and Records Administration 8601 Adeiphi Road-OGIS College Park, MD 20740-600 1 202-741-5770 877-684-6448 ogisnara.gov ogis.archives.gov
cc: FOIA Officer