So. I turn 62 soon. I live on SSI and the SS has deemed me totally and permanently disabled. But SSI rules require me to apply for all forms of income that for which I am eligible.
So I move over to SS which more than doubles my income because, like, I used to earn lots of money. And my husband loses his SSI because of the increase in income. Do the math and we receive an extra $50 per month. Check the rules and that makes our income too high for Medicaid. So we lose Medicaid health insurance.
We both have heart problems.
President Obama was accused of having Death Panels.
We don’t qualify for Medicare for 3 years.
So tell me again, which party promotes death panels?
I’ve been walking our dog and thinking. I’ve been tempting southern baptists to think, but that’s only my mean side showing. Paige Patterson, President of the Southern Baptist convention has been fired so there goes his retirement plan.
I’ve always argued the opposition. I know that I’m not very good at learned debate so I’m pretty sure I can’t do any meaningful harm. Sometimes I switch sides in the middle of debate when I think the opposition has a point that needs to be made.
What I’ve come to realize on my daily walks, with Duke, the Dog, is that the members of the GOP have lost sight of governance. The members of the GOP believe that their world view is the only world view that is correct. Out adversarial systems may not be the best way of getting things done, but until something better is proven our system is the one that works the best.
What has happened is the opposition party, this time the members of the GOP, have taken their belief system as a matter of faith and it has become their reality. As such the members of the GOP will say or do anything to govern us by their beliefs.
So where has this gotten us? We have a President who is patently unfit to govern. We have a congress whose only intent is to pack our judiciary, as fast and with as many like minded individuals as humanly possible.
Under the leadership of Mr. Trump our congress has done its best to erase the ink of the previous President, to wipe all record of the previous president’s accomplishments from the face of the earth and all because President Barack Obama’s skin was dark brown.
Russian bots and their American allies gamed social media to put a flawed intelligence document atop the political agenda. That should alarm us.
Molly K. McKew is an expert on information warfare and the narrative architect at New Media Frontier. She advised Georgian President Mikheil Saakashvili’s government from 2009-13, and former Moldovan Prime Minister Vlad Filat in 2014-15.
On Tuesday morning—the day after the House Intelligence Committee voted along partisan lines to send Rep. Devin Nunes’ memo, alleging abuses of the Foreign Intelligence Surveillance Act, to President Donald Trump for declassification—presidential adviser Kellyanne Conway was confronted with the idea that Russian trolls were promoting the #releasethememo hashtag online. She was offended. Russian trolls, she told a television interviewer, “have nothing to do with releasing the memo—that was a vote of the intelligence committee.” But her assertion is incorrect. The vote marked the culmination of a targeted, 11-day information operation that was amplified by computational propaganda techniques and aimed to change both public perceptions and the behavior of American lawmakers.
This bears repeating: Computational propaganda—defined as “the use of information and communication technologies to manipulate perceptions, affect cognition, and influence behavior”—has been used, successfully, to manipulate the perceptions of the American public and the actions of elected officials.
The analysis below, conducted by our team from the social media intelligence group New Media Frontier, shows that the #releasethememo campaign was fueled by, and likely originated from, computational propaganda. It is critical that we understand how this was done and what it means for the future of American democracy.
In the space of a few hours on January 18, #releasethememo exploded on Twitter, evolving over the next few days from being a marker for discussion on Nunes’ memo through multiple iterations of an expanding conspiracy theory about missing FBI text messages and imaginary secret societies plotting internal coups against the president. #releasethememo provided an organizational framework for this comprehensive conspiracy theory, which, in its underpinnings, is meant to minimize and muddle concerns about Russian interference in American politics.
The rapid appearance and amplification of this messaging campaign, flagged by the German Marshall Fund’s Hamilton68 dashboard as being promoted by accounts previously linked to Russian disinformation efforts, sparked the leading Democrats on the House and Senate Intelligence Committees to write a letter to Twitter and Facebook asking for information on whether or not this campaign was driven by Russian accounts. Another report, sourced to analysis said to be from Twitter itself, identified the hashtag as an “organic” “American” campaign linked to “Republican” accounts. Promoters of #releasethememo rapidly began mocking the idea that they are Russian bots. (There are even entirely new accounts set up to tweet that they are not Russian bots promoting #releasethememo, even though their only content is about releasing the supposed memo.)
But this back and forth masks the real point. Whether it is Republican or Russian or “Macedonian teenagers”—it doesn’t really matter. It is computational propaganda—meaning artificially amplified and targeted for a specific purpose—and it dominated political discussions in the United States for days. The #releasethememo campaign came out of nowhere. Its movement from social media to fringe/far-right media to mainstream media so swift that both the speed and the story itself became impossible to ignore. The frenzy of activity spurred lawmakers and the White House to release the Nunes memo, which critics say is a purposeful misrepresentation of classified intelligence meant to discredit the Russia probe and protect the president.
And this, ultimately, is what everyone has been missing in the past 14 months about the use of social media to spread disinformation. Information and psychological operations being conducted on social media—often mischaracterized by the dismissive label “fake news”—are not just about information, but about changing behavior. And they can be surprisingly effective.
The anatomy of the campaign
On the afternoon of January 18, a group of congressmen started tweeting about the Nunes FISA abuse memo. At 3:47 p.m., Rep. Matt Gaetz (R-Fla.) went on FoxBusiness and gave an interview about the supposed memo. None of them, to this point, were talking about #releasethememo—the hashtag, that is.
The hashtag originated with Twitter user @underthemoraine at 3:52 p.m. on January 18. The tweet tags the president, @realDonaldTrump. The account for @underthemoraine, most recently named “Lois Lerner Testimony” and whose bio references the Lerner testimony and #MAGA, is currently marked as restricted by Twitter for “unusual activity.”
Judging from weather reports that are occasionally posted, pictures of the woods, and tweets to friends, @underthemoraine appears to be a real guy in Michigan, a battleground state (we believe we have confirmed his real name/identity, but will not use it since he does not). He has a history of tweeting about trending conservative media topics—Antifa, #BlueLivesMatter, boycotting the NFL, social media filtering out conservative views, the climate change “hoax,” special counsel Robert Mueller. He engages with far-right media—Breitbart, InfoWars, Alex Jones, Drudge—and occasionally posts on astronomy and UFOs. Moraine has few followers (74 at last count) and is not particularly influential. However, his account is followed by several accounts that are probable bots as well as by the verified account of the Michigan Republican Party (@MIGOP, which first used #releasethememo at 5:41 a.m. on January 19), an account that likely auto-follows other accounts that engage with it.
At 4 p.m., one of Moraine’s followers, @KARYN19138585—an account that has the 8-digit fingerprint associated with some Russian bot accounts—responds to @underthemoraine’s tweet, saying Moraine is the first one tweeting about this breaking news topic.
The KARYN account is an interesting example of how bots lay a groundwork of information architecture within social media. It was registered in 2012, tweeting only a handful of times between July 2012 and November 2013 (mostly against President Barack Obama and in favor of the GOP). Then the account goes dormant until June 2016—the period that was identified by former FBI Director James Comey as the beginning of the most intense phase of Russian operations to interfere in the U.S. elections. The frequency of tweets builds from a few a week to a few a day. By October 11, there are dozens of posts a day, including YouTube videos, tweets to political officials and influencers and media personalities, and lots of replies to posts by the Trump team and related journalists. The content is almost entirely political, occasionally mentioning Florida, another battleground state, and sometimes posting what appear to be personal photos (which, if checked, come from many different phones and sources and appear “borrowed”). In October 2016, KARYN is tweeting a lot about Muslims/radical Islam attacking democracy and America; how Bill Clinton had lots of affairs; alleged financial wrongdoing on Clinton’s part; and, of course, WikiLeaks.
All of these topics were promoted by Russian disinformation campaigns. There is little content promoting Trump; it is almost entirely attacking Clinton. On November 1, for example, KARYN posted a YouTube video showing “the video Hillary Clinton doesn’t want you to see”—“documenting” alleged health concerns (it got almost half a million views on YouTube). After November 9, the day after the election, KARYN’s tweet volume drops back to a couple a day. Since the revival of the account, there are more than 32,000 tweets and replies—about 66 tweets per day, plus a similar amount of likes. Based on this pattern and and the digital forensics, it’s clear KARYN is a bot—a bot that follows a random Republican guy in Michigan with 70-some followers. Why?
Bots both gather and disseminate information—the “gathering” part is important, and rarely discussed. So, let’s say KARYN was created, abandoned (as many fake accounts often are), and then reactivated and “slaved” to an effort to smear Clinton online. Why would a bot account follow some nobody in Michigan? It would be fair to say that if you were setting up accounts to track views representative of a Trump-supporter, @underthemoraine would be a pulse to keep a finger on—the virtual Michigan “man in the diner” or “taxi driver” that journalists are forever citing as proof of conversations with real, nonpolitical humans in swing states. KARYN follows hundreds of such accounts, plus conservative media, and a lot of other bots.
Back to the afternoon of January 18: KARYN retweets Moraine’s post, becoming the third account to use the hashtag; around this time, automation networks—groups of accounts that automatically retweet, reply to or repost identical content, sometimes using software platforms and sometimes using lists—start weighing in on the hashtag.
The second account to tweet #releasethememo is @well_in_usa—an account opened in July 2014, now largely deleted. The account, which in 2016 was tweeting a steady stream of anti-Clinton, pro-Trump content, weighing in on topics like “Clinton enabling sexual predators” and #ArrestSoros, has been deleting its tweets since people started watching #releasethememo (as of January 25, everything after December 19, 2017, was deleted; as of January 29, only a handful of replies from 2017 remained; on February 2, retweeted content from 2016 is visible again)—but we have some of them from an archived version.
In addition to tweeting #releasethememo to @realdonaldtrump, Well tags @RepMattGaetz and @LizClaman of Fox News, quote-tweeting a post on the Nunes memo from the fanatically pro-Trump media personality Bill Mitchell. This was, primarily, what the Well account did—retweet and reply to accounts with hashtags included, marking them into messaging campaigns. Well is engaging and directing traffic to a specific group of accounts on specific discussions. These accounts often have short shelf lives, appearing as needed and disappearing when their usefulness has passed (or once flagged by Twitter).
The fourth account to enter this mix is “Queen Covfefe” @clasimpmv, which tweeted #releasethememo at 4 p.m. and also retweeted the original Moraine tweet around 6:18 p.m. Though we have confirmed her identity, we will not use it here, as she does not. The twitter ID is the same as an email listed on a linked-in account for a woman in South Carolina, an early primary state, who is a nutritionist and hemp-oil promoter. The profile photo was changed from an anonymous meme to a picture of the woman with Trump at a political rally after she was accused of being a bot for promoting the hashtag. A woman with the same name was recently interviewed by a German newspaper for a profile on Trump supporters. So, this seems to be the account of a real person voluntarily and quite deliberately participating in the effort to amplify the reach of #releasethememo.
In the 24 months since the account was established, Queen has tweeted 47,000 times—about 65 times per day, so about the same rate as the active bot. She has tweeted #releasethememo hundreds of times in a few days. She often retweets lists of other twitter handles (sometimes hundreds of names per list)—“people” that you are supposed to follow and retweet to build your own following and influence. They are often labeled with “Follow/retweet/comment for a follow back!” Two such lists, for example, were retweeted by Queen on January 19 and February 2. Each list includes at least a few bots. Some bots are amplifiers—in the simplest form, they automatically follow accounts that follow them, and retweet tweets from those accounts (sometimes, other parameters such as keywords are factored in). It is an element of automation. The rest is about network, echo chamber, fake influence and amplification.
Popping up a little further down the line, around 6 p.m., is “Stonewall Jackson” @1776Stonewall, an anonymous account of a supposed “American history buff” who has around 50,000 followers, far more than early accounts that had been engaging in #releasethememo. It was launched in November 2016 (tweeting around 57 times/day), and some personal-seeming tweets reference New York. It is a “follow-back” account, so partially automated and positioned within an amplification network; it is followed by and follows many likely Russian bots, plus accounts with hundreds of thousands of followers that automatically retweet Stonewall’s content. It tweets once or twice a day about history—baseball, the Cold War, the Civil War, astronauts, The Dukes of Hazzard, etc.—but primarily, it is far-right U.S. political content.
For the first few hours, only fringe accounts promote #releasethememo. But accounts like Queen (who had just under 5,000 followers) and Stonewall begin to retweet each other and push the hashtag to their followers with explicit instructions to “make it trend.”
These accounts are organizers and amplifiers. Technically, they both probably qualify as “cyborgs”—accounts with “human conductors” that are partly automated and linked to networks that automatically amplify content.
But in Queen’s case, she is something interesting: essentially, a willing human bot. The organization of conservative accounts like these using “Twitter rooms” to coordinate their efforts was previously reported on by Politico. Her account automatically reposts hashtags and memes and contributes to campaigns that she and the other promoters understand are purposeful attempts to game the algorithms and “make things trend.” She and others simultaneously understand who needs to be targeted with this information—in this case, the president, right-influencers and specific members of Congress. She may be a real person with real beliefs in Trump and what he represents, but when she tweets hundreds of times over the course of a week using #releasethememo, while artificially enhancing her followers (using the “follow-back” lists, etc.) and exhorting others to amplify the hashtag, she is just as much an element of computational propaganda against the American public as a Russian bot.
Use any basic analytical software to scroll through the early promoters of #releasethememo, and you’ll see most of the accounts meet basic criteria for bot/troll/cyborg suspicion—what the Atlantic Council’s open-source intelligence research group DFRLab describes as “activity, amplification, and anonymity.” There is also a consistent theme in the list of identities—the repetition of certain words (deplorable, Texas, mom, veteran) and certain first names; use of an American flag emoji at the end of the name; specific numbers or patterns of numerical sequences associated with bots; names changed to hashtags, or frequently shifted between trending right-media topics (Benghazi, NFL boycott, the memo, the emails); photos that aren’t faces, or not unobscured faces, or certainly not of them if they are.
There is little chance an organic or incidental community, even of friends or acquaintances, would look this way online so holistically, tweeting together in such tight intervals. Several of the accounts involved in the initial promotion of this hashtag have subsequently been restricted or suspended by Twitter. Online data analysts said many accounts used to promote the hashtag were recently created, with more being created and disappearing after the hashtag appeared. Thousands still had the default profile photos. CNN’s analysis found that hundreds of accounts created after the hashtag first appeared were fueling the viral trend.
Cross-reference this analysis and inputs from things like the Hamilton68 dashboard, and you can see #releasethememo is carried forward by automated accounts overnight after it begins to trend. It continued to do so from its appearance until the memo was released. The volume and noise matter—and so does the targeting.
A key function of the accounts discussed above is that they tweet at key influencers with these messaging campaigns—media personalities, far-right brand names, and elected officials who might pick up the info or hashtag and legitimize it by repeating it. The accounts tweeting #releasethememo immediately began to target the president (not an unusual occurrence), but also the Trumpiest of congressmen—Republicans Steve King of Iowa, Gaetz, Lee Zeldin of New York, Trey Gowdy of South Carolina, Mark Meadows of North Carolina, Jim Jordan of Ohio, etc.—as well as alt- and far-right influencers and media personalities. A few active verified accounts, including @KamVTV—an account that often appears as the first verified amplifier of bot and far-right content—and @scottpresler, picked up the hashtag, and others retweeted tweets sent to them from sketchy accounts. (@saracarterDC of Fox News, for example, RTed an account that is a month old and has already tweeted 1,200 times, including posting content from (other) bots and fake profiles.)
This is a basic social media information operation: Any one of these targets could see the hashtag in their mentions, replies and quoted-tweets. That’s the goal of the coordination and amplification, at least some of which is automated—and the purpose of which is to game the algorithms and “trend” a topic.
The hashtag #releasethememo wasn’t the only attempt to dominate online discussion. Before being targeted by amplification campaigns, there were other hashtags being put around by conservative social media mobilizers that either didn’t take off—#FISAgate, #FISAmemo, #releasethedocument, #releasethefile—and others that were previously used as catch-alls for conspiracies—#DeepState, #Transparency, etc. For example, Zeldin tweeted at 4:27 p.m. on January 18 that he had just read the FISA memo and called for its public release.
He used the hashtag #transparency. In the 4 hours after that tweet, there were more than 500 tweets targeting him with the hashtag #releasethememo. At 8:28 p.m., Zeldin tweeted #releasethememo from his verified congressional account.
Verified alt- or far-right personalities—@gatewaypundit, @jacobawohl, @scottpresler, among others—began using the hashtag, in particular tagging Gaetz. At 9:53 p.m., WikiLeaks tweeted #releasethememo. Before midnight, King, Meadows and Gaetz had all tweeted #releasethememo; so had Laura Ingraham, a massively influential conservative media personality with 2 million followers. Each time an influential verified account used the hashtag, it was rapidly promoted by a vast network of accounts. From its appearance until midnight, #releasethememo was used more than 670,000 times.
By midnight, the hashtag was being used 250,000 times per hour. At 2:53 a.m. on January 19, the pro-Trump conservative personality Bill Mitchell was posting an article from Breitbart about how #releasethememo was trending online. The hashtag had become the organizing framework for multiple stories and lanes of activity, focusing them into one column, which got a big boost from right-stream media and twitter personalities.
Some, like Breitbart, would argue this volume is representative of the outpouring of grass-roots support for the topic. But compare this time period to other recent significant events. During a similar duration of time covering the Women’s March on January 20—when more than a million marchers were estimated to be involved in demonstrations across the country—there was a total volume of about 606,000 tweets using the #womensmarch2018 hashtag during its peak (being used at a pace of 87,000 times per hour). During the NFL playoff game the next day (#jaxvsNE), there was a volume of 253,000 tweets, with a top speed of about 75,000 tweets/hour.
The pace and scale of the appearance and amplification of #releasethememo is barely even comparable. This is because the hashtag benefited from computational promotion already built into the system. It was used to target lawmakers who would play a role in releasing the memo—lawmakers who argued that there was public pressure to release the memo. Up until the time of the vote, Republican members of the House Intelligence Committee were collectively targeted with #releasethememo messages over 217,000 times. Raúl Labrador, Zeldin, King, Meadows, Jordan and Gaetz—all of whom promoted #releasethememo to the public and their colleagues—were targeted more than 550,000 times in 11 days. By the time Speaker of the House Paul Ryan spoke in favor of releasing the memo, he had been targeted with more than 225,000 messages about it.
Trump, whom the Washington Post reported was swayed by the opinions of some of the congressmen listed above, was targeted more than a million times. Fox News personality Sean Hannity, said to speak daily with Trump, was targeted 245,000 times and became a significant promoter of the hashtag. Hannity, of course, knows exactly what he is doing, and was recently showered with praise for his propaganda skills by colleague Geraldo Rivera, who argued “Nixon never would have been forced to resign if [Hannity] existed” back in the ’70s.
What does it all mean?
A year after it should have become an indisputable fact that Russia launched a sophisticated, lucky, daring, aggressive campaign against the American public, we’re as exposed and vulnerable as we ever were—if not more so, because now so many tools we might have sharpened to aid us in this fight seem blunted and discarded by the very people who should be honing their edge. There is no leadership. No one is building awareness of how these automated influence campaigns are being used against us. Maybe everyone still thinks if they are the one to control it, then they win, and they’ll do it better, more ethically. For example, by using it to achieve a political goal like releasing the Nunes memo.
Social media platforms have worked diligently to make us believe they had no idea this was happening, or that they are working to expose and correct the problem. But the algorithms work exactly as they are supposed to—in one aspect, by reinforcing your own beliefs without challenging them, and in another, by creating perceptions of popularity that are intentionally false and coercive. If the Twitter analysis referred to by the Daily Beast has been accurately conveyed by the source, there should be many questions. How are they determining influence? Did Twitter know the origins of the #releasethememo campaign when it suspended some (apparently many) of the accounts involved? In which case, did they do so to hide some of the aspects of computational propaganda at play, choosing to say it was an issue of free speech—an “organic” “Republican” campaign flourishing on a healthy platform—rather than one of national security—the infestation of their platform with the deep machinery of manipulation, a portion of which is foreign?
A recent analysis from DFRLab mapped out how modern Russian propaganda is highly effective because so many diverse messaging elements are so highly integrated. Far-right elements in the United States have learned to emulate this strategy, and have used it effectively with their own computational propaganda tactics—as demonstrated by the “Twitter rooms” and documented alt-right bot-nets pushing a pro-Trump narrative.
This gets at a deeper issue: The problem with the term “fake news” is that it is completely wrong, denoting a passive intention. What is happening on social media is very real; it is not passive; and it is information warfare. There is very little argument among analytical academics about the overall impact of “political bots” that seek to influence how we think, evaluate and make decisions about the direction of our countries and who can best lead us—even if there is still difficulty in distinguishing whose disinformation is whose. Samantha Bradshaw, a researcher with Oxford University’s Computational Propaganda Research Project who has helped to document the impact of “polbot” activity, told me: “Often, it’s hard to tell where a particular story comes from. Alt-right groups and Russian disinformation campaigns are often indistinguishable since their goals often overlap. But what really matters is the tools that these groups use to achieve their goals: Computational propaganda serves to distort the political process and amplify fringe views in ways that no previous communication technology could.”
This machinery of information warfare remains within social media’s architecture. The challenge we still have in unraveling what happened in 2016 is how hard it is to pry the Russian components apart from those built by the far- and alt-right—they flex and fight together, and that alone should tell us something. As should the fact that there is a lesser far-left architecture that is coming into its own as part of this machine. And they all play into the same destructive narrative against the American mind.
So what are the lessons of #releasethememo? Regardless of how much of the campaign was American and how much was Russian, it’s clear there was a massive effort to game social media and put the Nunes memo squarely on the national agenda—and it worked to an astonishing degree. The bottom line is that the goals of the two overlapped, so the origin—human, machine or otherwise—doesn’t actually matter. What matters is that someone is trying to manipulate us, tech companies are proving hopelessly unable or unwilling to police the bad actors manipulating their platforms, and politicians are either clueless about what to do about computational propaganda or—in the case of #releasethememo—are using it to achieve their goals. Americans are on their own.
And, yes, that also reinforces the narrative the Russians have been pushing since 2015: You’re on your own; be angry, and burn things down. Would that a leader would step into this breech, and challenge the advancing victory of the bots and the cynical people behind them.
Politico analyzes the bot campaign behind the Nunes memo.
Sunday Feb 04, 2018 · 11:40 AM EST
Politico has just published a detailed and frightening account of the bot-enhanced social media campaign that led to the release of the misleading Devin Nunes memo alleging FISA abuses in the Russia investigation. Politico describes the media push as an “11-day information operation that was amplified by computational propaganda techniques and aimed to change both public perceptions and the behavior of American lawmakers”:
The analysis below, conducted by our team from the social media intelligence group New Media Frontier, shows that the #releasethememo campaign was fueled by, and likely originated from, computational propaganda.
Politico describes a confluence of far-right human Tweeters and Russian bots, working together to target influential people (Donald Trump, congressmen such as Mark Meadows), and create an illusion of popularity. A human far-right Tweeter in Michigan picked up on tweets from some far-right congressmen about a Nunes memo (and a Fox appearance by Congressman Gaetz on the same subject). This volunteer far-righter’s initial tweet to #releasethememo was then amplified by “Karyn,” who is a bot:
The KARYN account is an interesting example of how bots lay a groundwork of information architecture within social media. It was registered in 2012, tweeting only a handful of times between July 2012 and November 2013 (mostly against President Barack Obama and in favor of the GOP). Then the account goes dormant until June 2016 — the period that was identified by former FBI Director Jim Comey as the beginning of the most intense phase of Russian operations to interfere in the U.S. elections. The frequency of tweets builds from a few a week to a few a day. By October 11, there are dozens of posts a day, including YouTube videos, tweets to political officials and influencers and media personalities, and lots of replies to posts by the Trump team and related journalists.
The Karyn-bots of the world seem to follow the human far-rightists, so are on the spot when it’s time to identify and re-tweet and amplify whatever fringe conspiracy theory the right or Russia needs to advance at the moment. (The article describes how, for these purposes, the “far right” and “Russia” tend to be the same thing.) There are also humans, like a user called Queen Covfefe, who can tweet at the same rate as bots; in the #releasethememo campaign, she “has tweeted #releasethememo hundreds of times in a few days”:
But in Queen’s case, she is something interesting: essentially, a willing human bot. […] Her account automatically reposts hashtags and memes and contributes to campaigns that she and the other promoters understand are purposeful attempts to game the algorithms and “make things trend.” […] She may be a real person with real beliefs in Trump and what he represents, but when she tweets hundreds of times over the course of a week using #releasethememo […] she is just as much an element of computational propaganda against the American public as a Russian bot.
Politico, after noting that these forces are operating without any real counter from the social media platforms or the U.S. government, notes with irony that the “we’re on our own” cynicism that this state of affairs engenders is itself one of Russia’s goals:
And yes, that also reinforces the narrative the Russians have been pushing since 2015: You’re on your own; be angry, and burn things down. Would that a leader would step into this breech, and challenge the advancing victory of the bots and the cynical people behind them.
By cbastian for The Washington Post
Friday Feb 02, 2018 · 4:17 PM EST
GettyImages-Mr. Himes, Mr. Schiff, Mr. Nunes
House Intelligence Committee Minority Response to Release of Chairman Nunes’ Misleading Memo
Washington, DC – Today, the Minority of the House Permanent Select Committee on Intelligence responded to the release of HPSCI Chairman Nunes’ memo:
“Chairman Nunes’ decision, supported by House Speaker Ryan and Republican Members of the House Permanent Select Committee on Intelligence, to publicly release misleading allegations against the Department of Justice and Federal Bureau of Investigation is a shameful effort to discredit these institutions, undermine the Special Counsel’s ongoing investigation, and undercut congressional probes. Furthermore, their refusal to allow release of a comprehensive response memorandum prepared by Committee Democrats is a transparent effort to suppress the full truth.
“As the DOJ emphasized to Chairman Nunes, the decision to employ an obscure and never before used House rule to release classified information without DOJ and FBI vetting was ‘extraordinarily reckless.’ The selective release and politicization of classified information sets a terrible precedent and will do long-term damage to the Intelligence Community and our law enforcement agencies. If potential intelligence sources know that their identities might be compromised when political winds arise, those sources of vital information will simply dry up, at great cost to our national security.
“The Republican document mischaracterizes highly sensitive classified information that few Members of Congress have seen, and which Chairman Nunes himself chose not to review. It fails to provide vital context and information contained in DOJ’s FISA application and renewals, and ignores why and how the FBI initiated, and the Special Counsel has continued, its counterintelligence investigation into Russia’s election interference and links to the Trump campaign. The sole purpose of the Republican document is to circle the wagons around the White House and insulate the President. Tellingly, when asked whether the Republican staff who wrote the memo had coordinated its drafting with the White House, the Chairman refused to answer.
“The premise of the Nunes memo is that the FBI and DOJ corruptly sought a FISA warrant on a former Trump campaign foreign policy adviser, Carter Page, and deliberately misled the court as part of a systematic abuse of the FISA process. As the Minority memo makes clear, none of this is true. The FBI had good reason to be concerned about Carter Page and would have been derelict in its responsibility to protect the country had it not sought a FISA warrant.
“In order to understand the context in which the FBI sought a FISA warrant for Carter Page, it is necessary to understand how the investigation began, what other information the FBI had about Russia’s efforts to interfere with our election, and what the FBI knew about Carter Page prior to making application to the court – including Carter Page’s previous interactions with Russian intelligence operatives. This is set out in the Democratic response which the GOP so far refuses to make public.
“The authors of the GOP memo would like the country to believe that the investigation began with Christopher Steele and the dossier, and if they can just discredit Mr. Steele, they can make the whole investigation go away regardless of the Russians’ interference in our election or the role of the Trump campaign in that interference. This ignores the inconvenient fact that the investigation did not begin with, or arise from Christopher Steele or the dossier, and that the investigation would persist on the basis of wholly independent evidence had Christopher Steele never entered the picture.
“The DOJ appropriately provided the court with a comprehensive explanation of Russia’s election interference, including evidence that Russian agents courted another Trump campaign foreign policy adviser, George Papadopoulos. As we know from Papadopoulos’ guilty plea, Russian agents disclosed to Papadopoulos their possession of stolen Clinton emails and interest in a relationship with the campaign. In claiming that there is ‘no evidence of any cooperation or conspiracy between Page and Papadopoulos,’ the Majority deliberately misstates the reason why DOJ specifically explained Russia’s role in courting Papadopoulos and the context in which to evaluate Russian approaches to Page.
“The Majority suggests that the FBI failed to alert the court as to Mr. Steele’s potential political motivations or the political motivations of those who hired him, but this is not accurate. The GOP memo also claims that a Yahoo News article was used to corroborate Steele, but this is not at all why the article was referenced. These are but a few of the serious mischaracterizations of the FISA application. There are many more set out in the Democratic response, which we will again be seeking a vote to release publicly on Monday, February 5th. Unlike Committee Republicans, however, we will ask the relevant agencies to propose any necessary redactions to protect any sources and methods not already disclosed by Chairman Nunes’ document.
“It is telling that Chairman Nunes put out this memo without bothering to read the underlying materials, and that he ordered changes to the document without informing his own committee members. It is a terrible lapse in leadership that Speaker Ryan failed to intervene and prevent the abuse of classified materials in this way. It is tragic, if all too predictable, that this President would allow the release of the memo despite FBI and DOJ’s expressions of ‘grave concerns about material omissions of fact that fundamentally impact the [Republicans’] memo’s accuracy’. But most destructive of all may be the announcement by Chairman Nunes that he has placed the FBI and DOJ under investigation, impugning and impairing the work of the dedicated professionals trying to keep our country safe.” The memo and letter from the White House can be found here.
A copy I made of the Democratic members response to Devin Nunes.
After plenty of consternation — including a public rebuke from the FBI and cries of foul from Democrats — the GOP memo on the Russia investigation has been released.
The full memo was crafted by Republican staffers to House Intelligence Committee Chairman Devin Nunes (R-Calif.) and alleges surveillance abuses by law enforcement against former Trump campaign aide Carter Page. GOP members of the committee voted to release it on a party-line vote, and the White House signed off on that decision.
Law enforcement argued that its release jeopardizes classified information, on which the memo is based, and sets a dangerous precedent. They also contend it omits key information. Other opponents allege the memo is a thinly veiled political attempt to undermine the Russia investigation, special counsel Robert S. Mueller III and Deputy Attorney General Rod J. Rosenstein, who is overseeing Mueller’s probe.
Below is the memo in full, along with our annotations. To see an annotation, click on the yellow highlighted text.By Aaron BlakeFebruary 2 The Washington Post
THE WHITE HOUSE
February 2, 2018
The Honorable Devin Nunes
Chairman, House Permanent Select Committee on Intelligence
United States Capitol
Washington, DC 20515
This is the letter the White House sent approving the release of the Nunes memo and explaining its reasoning.
Dear Mr. Chairman:
On January 29, 2018, the House Permanent Select Committee on Intelligence (hereinafter “the Committee”) voted to disclose publicly a memorandum containing classified information provided to the Committee in connection with its oversight activities (the “Memorandum,” which is attached to this letter). As provided by clause 11(g) of Rule of the House of Representatives, the Committee has forwarded this Memorandum to the President based on its determination that the release of the Memorandum would serve the public interest.
The Constitution vests the President with the authority to protect national security secrets from it disclosure. As the Supreme Court has recognized, it is the President’s responsibility to classify, declassify, and control access to information bearing on our intelligence sources and methods and national defense. See, Dep of Navy v. Egan, 484 US. 518, 527 (1988). In order to facilitate appropriate congressional oversight, the Executive Branch may entrust classified information to the appropriate committees of Congress, as it has done in connection with the Committee’s oversight activities here. The Executive Branch does so on the assumption that the Committee will responsibly protect such classified information, consistent with the laws of the United States.
In both this case and that, though, the question people are asking is whether disclosing the classified information is in the national interest. In the case of the Russia meeting, some worried Trump may have jeopardized a valuable source of intelligence by tipping off the Russians. In this case, the complaint is that the information is being used for partisan politics and to undermine the Russia investigation headed by Robert S. Mueller III.
The Committee has now determined that the release of the Memorandum would be appropriate. The Executive Branch, across Administrations of both parties, has worked to accommodate congressional requests to declassify specific materials in the public interest. However, public release of classified information by unilateral action of the Legislative Branch is extremely rare and raises significant separation of powers concerns. Accordingly, the Committee’s request to release the Memorandum is interpreted as a request for declassification pursuant to the President’s authority.
The President understands that the protection of our national security represents his highest obligation. Accordingly, he has directed lawyers and national security staff to assess the declassification request, consistent with established standards governing the handling of classified information, including those under Section 3.1(d) of Executive Order 13526. Those standards permit declassification when the public interest in disclosure outweighs any need to protect the information. The White House review process also included input from the Office of the Director of National Intelligence and the Department of Justice. Consistent with this review and these standards, the President has determined that declassification of the Memorandum is appropriate.
Based on this assessment and in light of the significant public interest in the memorandum, the President has authorized the declassification of the Memorandum. To be clear, the Memorandum reflects the judgments of its congressional authors. The President understands that oversight concerning matters related to the Memorandum may be continuing. Though the circumstances leading to the declassification through this process are extraordinary, the Executive Branch stands ready to work with Congress to accommodate oversight requests consistent with applicable standards and processes, including the need to protect intelligence sources and methods.
Donald F. McGahn II
Counsel to the President
cc: The Honorable Paul Ryan
Speaker of the House of Representatives
The Honorable Adam Schiff
Ranking Member, House Permanent Select Committee on Intelligence
Declassified by order of the President
February 2, 2018
January 18, 2018
To: HPSCI Majority Members
From: HPSCI Majority Staff
Subject: Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation
This memorandum provides Members an update on significant facts relating to the Committee’s ongoing investigation into the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) and their use of the Foreign Intelligence Surveillance Act (FISA) during the 2016 presidential election cycle. Our findings, which are detailed below, 1) raise concerns with the legitimacy and legality of certain DOJ and FBI interactions with the Foreign Intelligence Surveillance Court (FISC), and 2) represent a troubling breakdown of legal processes established to protect the American people from abuses related to the FISA process.
On October 21, 2016, DOJ and FBI sought and received a FISA probable cause order (not under Title VII) authorizing electronic surveillance on Carter Page from the FISC. Page is a US citizen who served as a volunteer advisor to the Trump presidential campaign. Consistent with requirements under FISA, the application had to be first certified by the Director or Deputy Director of the FBI. It then required the approval of the Attorney General, Deputy Attorney General (DAG), or the Senate-confirmed Assistant Attorney General for the National Security Division.
The FBI and DOJ obtained one initial FISA warrant targeting Carter Page and three FISA renewals from the FISC. As required by statute (50 U.S.C. 1805(d)(1)), a FISA order on an American citizen must be renewed by the ISC every 90 days and each renewal requires a separate finding of probable cause. Then-Director James Comey signed three FISA applications in question on behalf of the FBI, and Deputy Director Andrew McCabe signed one. Sally Yates, then-Acting DAG Dana Boente, and DAG Rod Rosenstein each signed one or more FISA applications on behalf of DOJ.
Due to the sensitive nature of foreign intelligence activity, FISA submissions (including renewals) before the ISC are classified. As such, the public’s confidence in the integrity of the FISA process depends on the court’s ability to hold the government to the highest standard — particularly as it relates to surveillance of American citizens. However, the rigor in protecting the rights of Americans, which is reinforced by 90-day renewals of surveillance orders, is necessarily dependent on the government’s production to the court of all material and relevant facts. This should include information potentially favorable to the target of the FISA application that is known by the government. In the case of Carter Page, the government had at least four independent opportunities before the FISC to accurately provide an accounting of the relevant facts. However, our findings indicate that, as described below, material and relevant information was omitted.
1) The “dossier” compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application. Steele was a longtime FBI source who was paid over $160,000 by the DNC and Clinton campaign, via the law firm Perkins Coie and research firm Fusion GPS, to obtain derogatory information on Donald Trump’s ties to Russia.
a) Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior and FBI officials.
b) The initial FISA application notes Steele was working for a named U.S. person, but does not name Fusion GPS and principal Glenn Simpson, who was paid by a U.S. Law firm (Perkins Coie) representing the DNC (even though it was known by DOJ at the time that political actors were involved with the Steele dossier). The application does not mention Steele was ultimately working on behalf of — and paid by — the DNC and Clinton campaign, or that the FBI had separately authorized payment to Steele for the same information.
2) The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article by Michael Isikoff, which focuses on Page’s July 2016 trip to Moscow. This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself to Yahoo News. The Page FISA application incorrectly assesses that Steele did not directly provide information to Yahoo News. Steele has admitted in British court filings that he met with Yahoo News — and several other outlets – in September 2016 at the direction of Fusion GPS. Perkins Coie was aware of Steele’s initial media contacts because they hosted at least one meeting in Washington DC. in 2016 with Steele and Fusion GPS where this matter was discussed.”
a) Steele was suspended and then terminated as an FBI source for what the FBI defines as the most serious of violations — an unauthorized disclosure to the media of his relationship with the FBI in an October 30, 2016, Mother Jones article by David Corn. Steele should have been terminated for his previous undisclosed contacts with Yahoo and other outlets in September — before the Page application was submitted to the FISC in October — but Steele improperly concealed from and lied to the FBI about those contacts.
b) Steele’s numerous encounters with the media violated the cardinal rule of source handling — maintaining confidentiality — and demonstrated that Steele had become a less than reliable source for the FBI.
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3) Before and after Steele was terminated as a source, he maintained contact with DOJ via then-Associate Deputy Attorney General Bruce Ohr, a senior DOJ official who worked closely with Deputy Attorneys General Yates and later Rosenstein. Shortly after the election, the FBI began interviewing Ohr, documenting his communications with Steele. For example, in September 2016, Steele admitted to Ohr his feelings against then-candidate Trump when Steele said he “was desperate that Donald Trump not get elected and was passionate about him not being president.” This clear evidence of Steele’s bias was recorded by Ohr at the time and subsequently in official FBI files – but not reflected in any of the Page FISA applications.
a) During this same time period, Ohr’s wife was employed by Fusion GPS to assist in the cultivation of opposition research on Trump. Ohr later provided the FBI with all of his wife’s opposition research, paid for by the DNC and Clinton campaign via Fusion GPS. The Ohrs’ relationship with Steele and Fusion GPS was inexplicably concealed from the FISC.
4) According to the head of the counterintelligence division, Assistant Director Bill Priestap, corroboration of the Steele dossier was in its “infancy” at the time of the initial Page FISA application. After Steele was terminated, a source validation report conducted by an independent unit within FBI assessed Steele’s reporting as only minimally corroborated. Yet, in early January 2017, Director Comey briefed President-elect Trump on a summary of the Steele dossier, even though it was — according to his June 2017 testimony – “salacious and unverified.” While the FISA application relied on Steele’s past record of credible reporting on other unrelated matters, it ignored or concealed his anti-Trump financial and ideological motivations. Furthermore, Deputy Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.
5) The Page FISA application also mentions information regarding fellow Trump campaign advisor George Papadopoulos, but there is no evidence of any cooperation or conspiracy between Page and Papadopoulos. The Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok. Strzok was reassigned by the Special Counsel’s Office to FBI Human Resources for improper text messages with his mistress, FBI Attorney Lisa Page (no known relation to Carter Page), where they both demonstrated a clear bias against Trump and in favor of Clinton, whom Strzok had also investigated. The Strzok/Lisa Page texts also reflect extensive discussions about the investigation, orchestrating leaks to the media, and include a meeting with Deputy Director McCabe to discuss an “insurance” policy against President Trump’s election.
“Page had been on the radar of the FBI at least as far back as 2013, when a bureau wiretap caught suspected Russian spies discussing their attempts to recruit him. Even after being interviewed by the investigators in that case, Page continued to have extensive contacts with Russians, including trips to Moscow in July and December 2016.” By Rosalind S. Helderman February 2 The Washington Post.
Memo points to FBI’s sustained interest in Carter Page, ex-adviser to Trump
Carter Page, a former foreign policy adviser for presidential candidate Donald Trump’s campaign, speaks at a news conference in Moscow in December 2016. (Pavel Golovkin/AP)
Carter Page has said he was “interested in business” and “possible research opportunities” when he traveled to Moscow and London in December 2016 to meet with Russian contacts.
At the time, he was under FBI surveillance. And federal law enforcement officials were apparently concerned enough about the former Trump campaign adviser’s activities that they repeatedly sought to extend their monitoring of Page, according to a Republican House memo released Friday.
The controversial GOP memo alleges that the warrant the FBI obtained in October 2016 to track Page relied on unvetted information provided by a former British spy working for the Democrats.
While Republicans presented the memo as evidence that the investigation was tainted, the document indicates that law enforcement officials had sufficient worries about the energy consultant that they felt it was necessary to continue to monitor him.
Page had been on the radar of the FBI at least as far back as 2013, when a bureau wiretap caught suspected Russian spies discussing their attempts to recruit him. Even after being interviewed by the investigators in that case, Page continued to have extensive contacts with Russians, including trips to Moscow in July and December 2016.
It is not clear what the FBI learned about Page’s late-2016 travel abroad, which occurred just weeks after Trump’s election. But five senior Justice Department and FBI officials signed off on three requests for extensions of the foreign intelligence surveillance warrant for Page; all the requests were approved by a federal judge, according to the Republican memo.
Page released a statement Friday praising GOP lawmakers for revealing an “unprecedented abuse of process” in their document.
To obtain a warrant to monitor a U.S. citizen under the Foreign Intelligence Surveillance Act, the Justice Department must convince a judge that there is probable cause to suspect that the person is an agent of a foreign power and is engaged in criminal conduct. Such warrants expire after 90 days.
To receive an extension, the department’s attorneys generally produce new evidence showing the judge that the monitoring has been producing information that advances the investigation.
Late last year, Page provided vague and at times contradictory answers about the December 2016 trip to Russia under intense questioning from the House Intelligence Committee.
Page also challenged allegations that during his trip to Moscow in July 2016, he had met with Igor Sechin, an ally of Russian President Vladimir Putin’s and chief of the energy company Rosneft, and also met with a top Russian government official.
The alleged encounters were detailed in reports that former British spy Christopher Steele compiled for a firm working for Democratic candidate Hillary Clinton’s campaign.
Page has long denied that he met the men, labeling Steele’s work a “dodgy dossier” that he says has resulted in his persecution by the Department of Justice and the U.S. media.
Trump first named the energy consultant as a foreign policy adviser in March 2016 amid a hasty effort by his campaign to beef up its national security credentials.
[‘Anyone .?.?. with a pulse’: How a Russia-friendly adviser found his way into the Trump campaign]
FBI and congressional investigators have scrutinized Page’s role with the campaign and his contacts with Russians during that period as part of the probes into Russia’s meddling in the 2016 election.
But law enforcement interest in Page dates to at least 2013, when the FBI caught two accused Russian spies on a wiretap discussing their attempts to recruit Page and use him to learn inside information about the U.S. energy industry.
Page has acknowledged communicating with one of the men — who the FBI later said was a Russian intelligence officer posing as a diplomat — including providing him documents about the energy business.
In a transcript submitted in court documents in 2015 after three New York-based Russians were charged with working as foreign agents, the two men discussed Page’s frequent travel to Moscow and his apparent eagerness to help them. They suggested that they were duping the American.
“It’s obvious he wants to earn a lot of money,” Victor Podobnyy — who, acting as an attache in Russia’s mission to the United Nations — told his colleague, according to the transcript.
“I think he is an idiot,” added Podobnyy, who was charged but not prosecuted because he was no longer living in the United States.
Page has said he was interviewed voluntarily by the FBI in the case in June 2013 and that he gave Podobnyy only nonsensitive information — similar to course materials from a class he was teaching at the time at New York University. He was not charged with a crime.
In late 2015, less than a year after the Russian spy case was filed in court, Page approached Ed Cox, the chairman of the Republican Party for New York state and asked to be connected with Trump’s campaign, according to Page’s testimony to the House Intelligence Committee.
He knew Cox through New York social circles and said he had long admired Trump and wanted to work with his campaign, in part because he was impressed with Trump’s “new approaches” to the U.S.-Russia relationship, Page told the committee.
Cox introduced Page to Corey Lewandowski, at the time Trump’s campaign manager, who in turn introduced him to the campaign’s national chairman, Sam Clovis.
It was Clovis who included Page on a list of campaign advisers read aloud by Trump during a meeting with The Washington Post editorial board in March 2016, as The Post previously reported.
The list was produced at a time when Trump was rising in the polls and was under pressure to show he had experienced foreign policy hands advising his effort, which was opposed by many establishment national security experts.
People familiar with the campaign’s vetting of Page have told The Post that it consisted of a quick Google search, which revealed only that he offered a good résumé: He was a graduate of the Naval Academy, head of his own energy investment firm and held graduate degrees from NYU and the University of London.
Page quickly drew scrutiny from foreign policy experts concerned about Trump’s friendly stance toward Putin, a position that was out of step with the rest of the Republican Party.
Days after he was named to the campaign, Page gave an interview to Bloomberg News in which he predicted that a Trump victory would be financially useful for Russian associates who had been hurt by U.S. sanctions. “There’s a lot of excitement in terms of the possibilities for creating a better situation,” he said.
Then, in July, he traveled to Russia, where he delivered a speech at Moscow’s New Economic School, where he publicly criticized U.S. foreign policy.
It was on this trip, Steele alleged, that Page met with top Russian officials, indicating that Sechin had offered Page and other Trump associates a hefty brokerage fee from the impending sale of Rosneft if they could ensure U.S. sanctions were lifted by a Trump administration.
Page told the House committee that he did not meet with Rosneft chief Sechin on that trip.
However, he said, he did briefly greet Russian Deputy Prime Minister Arkady Dvorkovich after the speech and also said he visited a Moscow bar and watched a soccer match with Andrey Baranov, a top Rosneft executive.
Asked whether the two men had discussed the sale of Rosneft while watching soccer, Page responded “he may have briefly mentioned it to me. I had no discussions.”
When pressed about whether they discussed U.S.sanctions, Page said, “Sanctions may have come up,” but he added, “There was no definitive discussions about sanctions.”
When asked about his December 2016 trip to Moscow, Page was hesitant to name some of the people with whom he met. He acknowledged that he again saw Dvorkovich and Baranov. He said he was “interested in business” on the trip. Asked what business he was seeking, he answered, “I can’t recall anything specific.”
Asked whether he had received any documents during one Moscow lunch, Page responded, “I’m almost positive I did not.”
Page also told the committee that he was in London for an energy conference either before or after his December 2016 trip to Moscow, staying for something between one and five nights at a hotel that he could not remember.
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In London, Page said, he had held meetings with a Russian member of his firm’s advisory board named Sergey Yatsenko, who arranged for him also to meet to discuss business with the Kazakh ambassador to Britain.
When the Intelligence Committee pressed him about whether he had met with other Russians in London, Page responded, “There’s a lot of Russians in London.”
He then explained that he felt confident there were other Russians at the energy conference he had attended and, finally, when asked whether his testimony was that he did not meet with any other Russians in London, he responded: “To the best of my recollection, that’s the case.”
If you’re wondering why the FCC is preempting state consumer protection laws in this item without notice, let me help you with a simple jingle that you can easily commit to memory: If it benefits industry, preemption is good; if it benefits consumers, preemption is bad.
How else can we explain the now-majority’s loud dissent when the last Administration attempted to open markets through preemption of laws that unduly restricted municipal broadband? How is it that the now-majority was shocked that state’s rights were being countermanded when it came to creating the Lifeline Broadband Provider certification process? But when it comes to ensuring that states cannot enact broadband privacy protections, net neutrality protections, or other consumer protections, it somehow becomes urgent for the FCC majority to step in and preempt states from doing so.
Just how much notice was given for this state preemption position from a then minority that cried process fouls every other meeting? None. This is contrary to the Administrative Procedure Act, and a Reagan-era Executive Order that requires “notice and an opportunity for appropriate participation in the proceedings” whenever federalism issues are presented. It is unfortunate that the FCC majority was vocal and vociferous about their request for adequate notice, but those concerns seem to have now fallen by the wayside.
But industry rightly should have been concerned because when the FCC has refused to act in the past, states and localities often move on their own. Just look at issues like broadband privacy or contribution reform, where states are soldiering ahead where the federal government is unwilling to act. I expect that the FCC’s preemption actions here will be challenged, and doubt that they will be defensible.
Reclassification will do more than wreak havoc on our rules. It will also undermine our universal service construct for years to come, something which the Order implicitly acknowledges.
Right now, we have a universal service framework which allows us to support voice service, and requires these voice service providers to deploy broadband-capable facilities. The 10th Circuit has upheld this as reasonable. But as legacy voice goes the way of the dodo, we no longer have a supported telecommunications service, something that sections 214 and 254 of the Act require. And heaven forbid a disgruntled auction loser in our Connect America Fund or Mobility Fund auctions challenges the results because the auction winner is not deploying a telecommunications service. Mark my words, as our communications networks continue to transition away from legacy voice service and towards services which the Commission refuses to recognize as common carrier services, our universal service construct will become weaker. As legacy voice continues to shrink, so does the foundation of our universal service mechanism. Eventually, it will all come toppling down.
This impending implosion cannot be made clearer than in the Lifeline context. In 2016, the Commission boldly moved into the 21st century with a certification construct that would have allowed broadband-only Lifeline service. Unfortunately, in 2017, we have a FCC majority that refuses to use that construct to allow providers into the program, and has in fact proposed to use its legal authority to limit participation to facilities-based providers. This Order reaffirms that path, and suggests that the majority is not moving from its conclusion that over 70% of the market for Lifeline will be decimated under this Commission’s watch. The majority continues to remain silent as to how we can enable a broadband-only Lifeline offering. I suspect there will be none which puts this agency out of compliance with its primary directive “to make available, so far as possible, to all the people of the United States, without discrimination… adequate facilities at reasonable charges.”
As I close my eulogy of our 2015 net neutrality rules, carefully crafted rules that struck an appropriate balance in providing consumer protections and enabling opportunities and investment, I take ironic comfort in the words of then Commissioner Pai from 2015, because I believe this will ring true about this Destroying Internet Freedom Order:
I am optimistic, that we will look back on today’s vote as an aberration, a temporary deviation from the bipartisan path, that has served us so well. I don’t know whether this plan will be vacated by a court, reversed by Congress, or overturned by a future Commission. But I do believe that its days are numbered.
Section II of The DISSENTING STATEMENT OF COMMISSIONER MIGNON L. CLYBURN
Re: Restoring Internet Freedom, WC Docket No. 17-108..
Misreading Regulatory History
This item’s justification for rolling back our light-touch Title II approach is grounded primarily in assertions that this is simply returning to the regulatory status quo ante. The item even cites precedent going as far back as 1998 for the proposition that the FCC has always considered internet service an information service. Well, take a walk back with me down the halls of FCC Past.
It is the 1960’s and 70’s when packet-switched precursors to internet access were uniformly considered Title II services. The FCC was thoughtfully considering packet-switched networks as early as 1966 when it launched the first Notice of Inquiry into the interdependence of computers and common carrier telecommunications services. Now, all telecom geeks know that the ARPANET was the precursor to the commercial internet, but what you may not know is how close we came to having it owned by AT&T. In the early 1970s, AT&T was approached with a proposition: buy ARPANET and operate it as a public, common carrier service. AT&T declined, because it did not fit with their business objectives. It was over a decade later before AT&T developed its own packet-switching solution.
So, the logical thing to do was commercialize the offering itself. Some key ARPANET players thus founded Telenet Corporation and, in 1973, applied for a FCC license to operate the nascent service on a common carrier basis, offering functionality like database access and electronic mail. In 1974, the FCC approved Telenet’s application and began offering the service, filing its first tariff on August 15, 1975.
What does this show? That the FCC majority is being disingenuous in its retelling of regulatory history, particularly as it relates to internet and packet-switched services. This majority is not “returning” to a time where packet-switched networking, and the internet access variant, in particular, were regulated as Title I services. Indeed, the item is internally inconsistent since it admits that Digital Subscriber Line (DSL) services were regulated as Title II services until 2005. Even after 2005, and to this day, hundreds of wireline carriers continue to offer broadband as a Title II service.
It was not until the early 2000s that the FCC began deregulating internet transmission. Up until that point, broadband providers were required to line share and unbundle their networks, which allowed vibrant retail competition for internet access over the incumbent networks. It was only when as a policy matter the FCC decided to collapse the protocol stack and rely wholly on intermodal competition for fixed services, that it had to decide what to do with the transmission component that was clearly a telecommunications service.
These are issues with which the FCC has struggled mightily, and I am sure will continue to struggle with in the future. But painting the FCC’s past approach to internet access as a deregulatory nirvana fails to grapple with the truth of our regulatory past.
As I have said before, it makes no sense to take regulatory protections away from a transmission medium that consumers use to connect to the world and go about their business. It makes even less sense when you realize that voice service, which contains many of the same transmission properties, is treated as a Title II service.
While much of the item is focused on whether broadband has this “capability” or not, whether that capability is “offered” to consumers or not, I believe it is instructive just to bring it up a level and compare the FCC’s historic classification of voice service with broadband service. Again, it makes absolutely no sense that broadband is about to be a Title I service, while voice service is a Title II service. And, as I noted in my dissent to the NPRM, there is not a single modern service that the majority would characterize as a telecommunications service, effectively reading that definition out of the statute. Hundreds of computer scientists who filed in the record agree that this reclassification is nonsensical and does not match up with the underlying internet technology. This can easily be lost in the regulatory- gobbledygook that I will let the lawyers deal with, but I think it is illuminating to make a few points about this.
From a consumer perspective, both voice and broadband serve to connect people and information. For a voice service, you type in the person’s name on your smartphone, hit the dial button, and in a matter of milliseconds, the phone network does a series of database dips and passing of signaling information to figure out the best network routing for your phone call. The network connects the two phones, and now you can speak back and forth. Now, let’s compare what happens in the broadband context. To visit a website, you type in the name of the website on your smartphone, hit the enter key, and in a matter of milliseconds, the broadband network does a series of database dips and passing of signaling information to figure out what is the best network routing for your web session. The network connects your computer with the server, and now you can send data back and forth.
Consumers use both of these services to connect to people and information. It is akin to counting angels dancing on a head of a pin to single out a database that transforms identifiers into addresses (DNS or Domain Name System) and an efficient routing mechanism (caching) in the broadband context to say that this somehow transforms the transmission of information into something else. Why not single out the Local Exchange Routing Guide, a database for voice service that transforms identifiers into addresses, as a reason to reclassify voice as an information service? Or why not use virtual connection caching, a mechanism for more efficient routing on Time Division-Multiplexing (TDM) networks, as a reason to reclassify voice as an information service? On the consumer side, does a call to a voice-menu that allows you to pay your credit-card bill somehow turn your telephone service into an information service? Does a call to dial-a-forecast number? No. I believe this exposes this as an outcome-oriented decision, devoid of any reasonable mooring in technology or consumer expectations.
And this becomes even more clear as the FCC majority clears the decks of all the authority it could use to address these problems. It neuters section 706 of the Act, a provision which the D.C. Circuit has said can reasonably be interpreted as a substantive grant of authority. It refuses to exercise ancillary authority, or the Commission’s Title III authority. All of this has far-reaching consequences for the future of the internet, and particularly for mobile broadband.
Since the prior Administration’s first open internet proceeding in 2010, I have called upon my colleagues to protect consumers’ access to mobile broadband services with the same rules that we imposed on fixed broadband services. A substantial percentage of consumers, especially those in vulnerable communities, rely solely on mobile services for their communications needs and the lack of competition in the commercial mobile wireless industry too often leaves them vulnerable.
Seven years later, those circumstances have not changed even though every year, the percentage of mobile only households increases. In 2010, it was 30%; at the end of 2016 it was 50.5%.3 According to the Pew Research Center, the share of Americans that own smartphones is now 77%, up from just 35% in the first survey of smartphone ownership conducted in 2011.4 And the commercial wireless market has become even more consolidated, leaving consumers with fewer competitive options than they had in 2010. The U.S. Department of Justice, or DOJ, uses the well-known Herfindahl-Hirschman index (HHI) to measure market concentration, and classifies markets with an HHI of less than 1500 as unconcentrated and markets with an HHI of over 2500 as highly concentrated. In 2010, the HHI index for the commercial wireless market was 2868.5 Now it is over 3100.6 Since the percentage of consumers who rely solely on mobile for their communications needs is increasing every year, and the commercial wireless industry is becoming increasingly consolidated, the need to protect mobile broadband consumers is even greater now than it was in 2010. Health Resources and Services Administration (HRSA), Rural Health Information Hub, Health Care Workforce Distribution and Shortage Issues in Rural America, https://www.ruralhealthinfo.org (last visited Dec. 15, 2016).
The majority’s decision to now reclassify mobile broadband is based upon a misguided analysis of the law and the relevant record evidence. Congress did not lock in the meaning of the phrase “public switched network,” as referring to the public switched telephone network more than 22 years ago. If it had, it would not have included the words immediately following that phrase “as such terms are defined by regulation by the Commission.” That language is an express delegation of authority from Congress to the Commission and it allows the agency to adopt a different definition for the public switched network when the facts warrant such a change. In 2015, the Commission determined that mobile broadband is interconnected to the “public switched network” because, through the use of VoIP, messaging, and similar applications, it effectively gives subscribers the capability to communicate with all North
American Numbering Plan (NANP) endpoints as well as with all users of the Internet.”7 The D.C. Circuit upheld this determination as reasonable and went on to explain that the record had additional evidence of applications “that would allow a mobile broadband (or other computer) user to employ a service enabling her to receive telephone calls to her IP address.”8 The majority’s order does not point to any changed circumstance that could reasonably refute the FCC’s decision that mobile broadband is interconnected to the public switched network or the D.C. Circuit’s rationale for upholding the Open Internet Order on this issue. The majority simply refuses to address them.9 The majority’s finding that mobile broadband service does not interconnect with the public switched telephone network also ignores record evidence to the contrary. A number of engineers and other parties filed comments explaining why the PSTN and IP networks should not be viewed as two completely separate networks.10 In fact, the Electronic Frontier Foundation (EFF) explained that technical developments, such as the E.164 Uniform Resource Identified and the 5G Evolved Packet Core enable mobile broadband services to directly connect with the PSTN.11 Although the majority discusses this EFF filing, 12 it refuses to acknowledge this evidence means mobile broadband internet access services “provide interconnection to the public switched network using the NANP” and that invalidates its determination that mobile broadband does not interconnect with the PSTN.
The majority also errs by expressly deciding not to exercise its Title III authority. Although the majority concedes that the Commission has authority to impose open internet conduct rules on mobile broadband service licensees, it declines to do so because of its view that this would lead to imposing regulatory burdens on mobile licensees that are not placed on fixed broadband services. I do not see how the majority can properly reach that conclusion until it has reviewed the more than 47,000 complaints that the National Hispanic Media Coalition’s (NHMC) FOIA request revealed. This is another reason why the Commission should have delayed its vote on this item. Before expressly declining to exert Title III authority, the Commission should have reviewed those complaints to determine if commercial wireless licensees are blocking, throttling or engaging in other unreasonable conduct regarding mobile broadband services.
A Destructive Future
And when the current rules are laid to waste, we may be left with no one to protect consumers. This Order loudly crows about handing over authority of broadband to the FTC, an agency with no technical expertise in telecommunications and one that may not have authority over broadband providers in the first instance. But don’t just take my word for it: even one of the FTC’s own Commissioners has articulated these very concerns.
On the latter point we are still playing a waiting game, which is why I asked my colleagues to delay the vote until we knew for sure whether the FTC could even exercise its limited role in the net neutrality space. Unfortunately, my request was denied, and we have plowed ahead with a wildly unpopular decision that will ensure that regulatory authority is entrusted to an agency that is unable to enact the strong prophylactic protections that are necessary to protect consumers and competition in an online world.
Even if the court were to come back and say that the FTC actually has authority to address the non-common carrier activities of these providers, the FTC could still be vulnerable. Courts may deny the FTC’s efforts to impose antitrust remedies on broadband providers because the industry is ostensibly regulated by the FCC. Indeed, Verizon v. Trinko contains language that suggests that where there is an ostensible remedy for harm under the Communications Act, the courts will not go out of their way to find an antitrust violation. So, the very fact that the FCC disclaims authority might also undermine the FTC’s authority as well.
And if the FTC were to apply its substantive authority, the result may not that friendly to consumers or competition. Recall that the FTC must act after harm has already occurred, and must do so through litigation. This means no clear rules of the road for broadband, and that a startup or sole proprietor will likely be long gone before its complaint is adjudicated. This also means that most consumer harms are unlikely to reach the attention of the FTC, since their standard is that consumer injury must be “substantial” in order to state a claim under the FTC Act.
In short, we are trading in clear protections for uncertain ones, rock-solid legal authority for a shaky one, and robust enforcement authority for a weaker one. And I will note that some of the people who have criticized the FCC’s authority in this context have also criticized the FTC for their “overreach.” My fear is that this is yet another ploy to roll out the red carpet for broadband providers, while putting consumers in the long queue for the side door. Welcome to a regulatory-free zone.
DISSENTING STATEMENT OF COMMISSIONER MIGNON L. CLYBURN
Re: Restoring Internet Freedom, WC Docket No. 17-108.
Why I Must Dissent
I dissent. I dissent from this fiercely-spun, legally-lightweight, consumer-harming, corporate- enabling Destroying Internet Freedom Order.
I dissent, because I am among the millions outraged. Outraged, because the FCC pulls its own teeth, abdicating responsibility to protect the nation’s broadband consumers. Some may ask why are we witnessing such an unprecedented groundswell of public support, for keeping the 2015 net neutrality protections in place? Because the public can plainly see, that a soon-to-be-toothless FCC, is handing the keys to the internet – the internet, one of the most remarkable, empowering, enabling inventions of our lifetime – over to a handful of multi-billion dollar corporations. And if past is prologue, those very same broadband internet service providers, that the majority says you should trust to do right by you, will put profits and shareholder returns above, what is best for you.
Each of us raised our hands when we were sworn in as FCC Commissioners, took an oath and promised to uphold our duties and responsibilities ‘to make available, so far as possible, to all the people of the United States, without discrimination… a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges.’ Today the FCC majority officially abandons that pledge and millions have taken note.
I do not believe that there are any FCC or Congressional offices immune to the deluge of consumer outcry. We are even hearing about state and local offices fielding calls and what is newsworthy is that at last count, five Republican Members of Congress went on the record in calling for a halt of today’s vote. Why such a bipartisan outcry? Because the large majority of Americans are in favor of keeping strong net neutrality rules in place. The sad thing about this commentary, it pains me to say, is what I can only describe as the new norm at the FCC: A majority that is ignoring the will of the people. A majority that will stand idly by while the people they are committed to serve lose.
We have heard story after story of what net neutrality means to consumers and small businesses from places as diverse as Los Angeles’ Skid Row and Marietta, Ohio. I hold in my hand letters that plead with the FCC to keep our net neutrality rules in place but what is striking and in keeping with the new norm, despite the millions of comments, letters, and calls received, this Order cites, not even one consumer comment. That speaks volumes about the direction the FCC is heading. That speaks volumes about just who is being heard at the FCC.
Sole proprietors, whose entire business model, depends on an open internet, are worried that the absence of clear and enforceable net neutrality protections will result in higher costs and fewer benefits because you see: they are not able to pay tolls for premium access. Even large online businesses have weighed in, expressing concern about being subject to added charges as they simply try to reach their own customers. Engineers have submitted comments including many of the internet’s pioneers, sharing with the FCC majority, the fundamentals of how the internet works because from where they sit, there is no way that an item like this would ever see the light of day, if the majority understood the platform some of them helped to create.
I have heard from innovators, worried that we are standing up a mother-may-I regime, where the broadband provider becomes arbiter of acceptable online business models. And yes, I have heard from consumers, who are worried given that their broadband provider has already shown that they will charge inscrutable below-the-line fees, raise prices unexpectedly, and put consumers on hold for hours at a time. Who will have their best interests at heart in a world without clear and enforceable rules overseen by an agency with clear enforcement authority? A toothless FCC?
There has been a darker side to all of this over the past few weeks. Threats and intimidation. Personal attacks. Nazis cheering. Russian influence. Fake comments. Those are unacceptable. Some are illegal. They all are to be rejected. But what is also not acceptable, is the FCC’s refusal to cooperate with state attorney general investigations, or allow evidence in the record that would undercut a preordained outcome.
Many have asked, what happens next? How will all of this – net neutrality, my internet experience, look after today? My answer is simple. When the current protections are abandoned, and the rules that have been officially in place since 2015 are repealed, we will have a Cheshire cat version of net neutrality. We will be in a world where regulatory substance fades to black, and all that is left is a broadband provider’s toothy grin and those oh so comforting words: we have every incentive to do the right thing. What they will soon have, is every incentive to do their own thing.
Now the results of throwing out your net neutrality protections, may not be felt right away. Most of us will get up tomorrow morning and over the next week, wade through hundreds of headlines, turn away from those endless prognosticators, and submerge ourselves in a sea of holiday bliss. But what we have wrought will one day be apparent and by then, when you really see what has changed, I fear, it may be too late to do anything about it, because there will be no agency empowered to address your concerns. This item insidiously ensures the FCC will never be able to fully grasp the harm it may have unleashed on the internet ecosystem. And that inability might lead decisionmakers to conclude, that the next internet startup that failed to flourish and attempted to seek relief, simply had a bad business plan, when in fact what was missing was a level playing field online.
Particularly damning is what today’s repeal will mean for marginalized groups, like communities of color, that rely on platforms like the internet to communicate, because traditional outlets do not consider their issues or concerns, worthy of coverage. It was through social media that the world first heard about the police shooting in Ferguson, Missouri, because legacy news outlets did not consider it important until the hashtag started trending. It has been through online video services, that a targeted entertainment ecosystem has thrived, where stories are finally being told because those same programs were repeatedly rejected by mainstream distribution and media outlets. And it has been through secure messaging platforms, where activists have communicated and organized for justice without gatekeepers with differing opinions blocking them.
Where will the next significant attack on internet freedom come from? Maybe from a broadband provider allowing its network to congest, making a high-traffic video provider ask what more can it pay to make the pain stop. That will never happen you say? Well it already has. The difference now, is the open question of what is stopping them? The difference after today’s vote, is that no one will be able to stop them.
Maybe several providers will quietly roll out paid prioritization packages that enable deep- pocketed players to cut the queue. Maybe a vertically-integrated broadband provider decides that it will favor its own apps and services. Or some high-value internet-of-things traffic will be subject to an additional fee. Maybe some of these actions will be cloaked under nondisclosure agreements and wrapped up in mandatory arbitration clauses so that it will be a breach of contract to disclose these publicly or take the provider to court over any wrongdoing. Some may say “of course this will never happen.” But after today’s vote, what will be in place to stop them?
What we do know, is that broadband providers did not even wait for the ink to dry on this Order before making their moves. One broadband provider, who had in the past promised to not engage in paid prioritization, has now quietly dropped that promise from its list of commitments on its website. What’s next? Blocking or throttling? That will never happen? After today’s vote, exactly who is the cop on the beat that can or will stop them?
And just who will be impacted the most? Consumers and small businesses, that’s who. The internet continues to evolve and has become ever more critical for every participant in our 21st century ecosystem: government services have migrated online, as have educational opportunities and job notices and applications, but at the same time, broadband providers have continued to consolidate, becoming bigger. They own their own content, they own media companies, and they own or have an interest in other types of services.
Why are millions so alarmed? Because they understand the risks this all poses and even those who may not know exactly what Title II authority is, know that they will be at risk without it.
I have been asking myself repeatedly, why the majority is so singularly-focused on overturning these wildly-popular rules? Is it simply because they felt that the 2015 net neutrality order, which threw out over 700 rules and dispensed with more than 25 provisions, was too heavy-handed? Is this a ploy to create a “need” for legislation where there was none before? Or is it to establish uncertainty where little previously existed?
Is it a tactic to undermine the net neutrality protections adopted in 2015 that are currently parked at the Supreme Court? You know, the same rules that were resoundingly upheld by the D.C. Circuit last year? No doubt, we will see a rush to the courthouse, asking the Supreme Court to vacate and remand the substantive rules we fought so hard for over the past few years, because today, the FCC uses legally- suspect means to clear the decks of substantive protections for consumers and competition.
It is abundantly clear why we see so much bad process with this item: because the fix was already in. There is no real mention of the thousands of net neutrality complaints filed by consumers. Why? The majority has refused to put them in the record while maintaining the rhetoric that there have been no real violations. Record evidence of the massive incentives and abilities of broadband providers to act in anti- competitive ways are missing from the docket? Why? Because those in charge have refused to use the data and knowledge the agency does have, and has relied upon in the past to inform our merger reviews. As the majority has shown again and again, the views of individuals do not matter, including the views of those who care deeply about the substance, but are not Washington insiders.
There is a basic fallacy underlying the majority’s actions and rhetoric today: the assumption of what is best for broadband providers, is best for America. Breathless claims about unshackling broadband services from unnecessary regulation, are only about ensuring that broadband providers, have the keys to the internet. Assertions that this is merely a return to some imaginary status quo ante, cannot hide the fact, that this is the very first time, that the FCC, has disavowed substantive protections for consumers online.
I have made it clear that I am no lawyer, so while I make some policy points below, I will attach a more legally-oriented appendix to my statement.
Chicken Little Rises Again
Two years ago, the FCC minority predicted that the sky was going to fall. Not literally, but that all manner of harms would befall the internet ecosystem as a result of the FCC’s reclassification of broadband. Just like the minority in 2010 predicted that the much more modest net neutrality rules would hamstring the internet as we know it, no concrete harms were ever shown.
It is telling that the draft cites deep regulatory uncertainty as justification for repealing the 2015 Open Internet Order, and includes sparse citations to the record. To be fair, we have seen self-serving statements from broadband providers that our net neutrality rules have somehow hamstrung them from bringing “innovative” new offerings to market before. But they never did tell us what those offerings would have been at any real level of detail. My view is that if there indeed were innovative offerings that would have garnered any real consumer interest, the better course would have been to make those ideas public, and let consumers badger the contrarian FCC into submission. Indeed, providers actually did bring to market sponsored data and zero-rating plans that the FCC closely reviewed. But, since no detailed plans of these other phantom offerings that were allegedly foreclosed by our rules were made public, my sense is that those offerings were as real as rainbow-maned unicorns.
As I mentioned in my dissent to the Notice of Proposed Rulemaking (NPRM), the majority’s reliance on broadband providers assertions of reductions in investment is highly-flawed. Nothing in this item convinces me that investment has dropped as a result of our net neutrality policies. I’d suggest taking a look at my dissent from the NPRM on this point, and incorporate that dissent by reference here generally, since the majority has failed to take my concerns into account.
For one, even a Statistics 101 student knows that correlation does not equal causation. Simply identifying an effect lends no insight into what caused it. So too with capital expenditures. To suggest that net neutrality rules shifted billions of dollars in capital beggars the imagination, and the record offers no proof that investment trends match the regulatory landscape. The purported “natural experiment” research approach in the draft also fails because it does not seek to isolate differences between the past and present. For as dynamic a market as the majority suggests the broadband market is, and as interested in economic rigor as they claim to be, it would be good policy making to attempt to isolate the relevant variables.
And to make it even more ridiculous, the broadband capital expenditures trend articulated by those believing investment has dropped, follows the capital expenditures trend in the nation more broadly. The Federal Reserve Bank of St. Louis tracks Gross Private Domestic Investment, a component of the gross domestic product that tracks capital expenditures across all industries in the United States. If you believe the information submitted by broadband providers in the record, that information tracks the Fed’s assessment of investment in the broader economy. This suggests that any alleged decrease in investment by broadband providers could be due to macroeconomic factors that influenced the overall economy, rather than the 2015 Open Internet rules.