Democratic commissioners at the FCC are still in the dark when it comes the agency’s ongoing investigation into the unauthorized sale of Americans’ geolocation data, Gizmodo has learned.
At an oversight hearing last month, House lawmakers pressed Chairman Ajit Pai to respond to charges that his office had refused to provide the Democratic commissioners with access to requested documentation, including any letters of inquiry the FCC might’ve sent to companies under suspicion of illegally selling location data derived from consumers’ cellphones.
Legal experts say major wireless providers such as AT&T, Sprint, and T-Mobile may have repeatedly violated their customers’ privacy expectations by disclosing cellphone location data to third-parties, which in turn sold the data to unauthorized entities, including bail bond agents; apparent violations of Section 222 and 201(b) of the Communications Act.
“This is not a Democrat or Republican issue,” Congresswoman Anna Eshoo said to Pai. “It’s a serious issue where people are frightened by what’s happened. They are full commissioners; they aren’t half; they aren’t quarter; they aren’t one third. Just because they’re Democrats, you shouldn’t withhold the information from them.”
Pai repeatedly told members of Congress that he had no knowledge of such requests. However, Democratic Commissioner Geoffrey Starks confirmed that he had requested access to the letters of inquiry. (Gizmodo later unearthed footage of FCC Commissioner Jessica Rosenworcel discussing her request to see the documents on television months prior as well.)
“Chairman Pai, is there any information that Mr. Starks would like to have that he’s not able to get?” Congressman Morgan Griffith, a Republican, asked Pai as the hearing last month wrapped up. “If he wanted it, he could have it, is that what I heard you saying?”
“I’d be happy to talk with him about that,” Pai said.
Rep. Eshoo later asked Pai to clarify his remarks in a letter, saying FCC officials had informed her that they had “explicitly asked for and have not received” specific information and documents. “I would like to give you the opportunity to correct the comments you made at the hearing, recognizing that lying to Congress is a federal crime,” she wrote.
Democratic FCC officials, who requested anonymity to discuss internal matters, likewise confirmed that Pai’s office has continued to withhold the documents.
“[L]ocation information has in some circumstances found its way into the hands of bounty hunters and stalkers,” a complaint filed with the FCC by the Georgetown Law Center on Privacy & Technology and other organizations says. “In most cases, Carriers have not attempted to notify their customers of this information sharing, let alone to obtain consent.”
“The Carriers’ actions have threatened public safety, contrary to Congress’ directive that the Commission ensure communications networks promote safety of life and property. The Carriers’ improper disclosure of location information enabled stalkers, people posing as police officers, debt collectors, and others to take advantage and find unwitting individuals,” the complaint says.
The FCC did not respond to a request for comment.
In matters of enforcement, the FCC has, in most cases, only one year to act on apparent violations of the Communications Act. It does so by issuing what’s called a Notice of Apparent Liability (NAL), a letter that advises the recipient of a violation and the proposed penalty. The one-year enforcement deadline may be waived, however, if the target of an investigation agrees to “toll” the statute-of-limitations.
Targets of investigations agree to waive the statute-of-limitations in many cases to allow the agency more time to consider evidence in their favor. More often, when the statute-of-limitations is approaching, companies fear the FCC may rush to issue a notice; a toll agreement gives the company more time to negotiate over the penalties.
More than a year has passed since Senator Ron Wyden wrote to the agency demanding an investigation into potential violations by mobile carriers. The New York Times story that first drew national attention to the matter—an investigation into a business that sold phone-tracking services to state law enforcement officials without a warrant—was printed in May of last year.
At the time of writing, it remains unclear whether the FCC has secured any agreements that would allow it to actually penalize any of the companies involved in the scandal. If it hasn’t, the statute of limitations on those violations has surely expired.
In 2015, when the commission was overseen by a Democrat, Pai raised concerns about the lack of transparency in enforcement matters, complaining that he was unable to even obtain a list of ongoing FCC investigations. “The Enforcement Bureau is no longer accountable to FCC Commissioners,” he told a crowd in Washington.
“We have reached the point at which Commissioners themselves can’t oversee the enforcement process,” he said.