The chairman of the Federal Communications Commission has been strongly urged by a Democratic lawmaker to make corrections to statements he made during a contentious oversight hearing on Wednesday while raising the possibility that he intentionally lied.
Warning FCC Chairman Ajit Pai that “lying to Congress is a federal crime,” Congresswoman Anna Eshoo wrote there existed a “chasm” between what Pai told the committee and what Eshoo herself heard from other FCC officials following the meeting.
Eshoo has pressed Pai for details about a purportedly ongoing investigation at the commission into the apparently unlawful sale of phone-location data to individuals and organizations with no legitimate reason to have it; a black market comprised of public and private businesses known only thanks to reporting at Motherboard and the New York Times that triggered alarms up and down Capitol Hill.
How the intimate data exchanging hands in these back-alley deals compares in size and scale to, say, what Cambridge Analytica acquired on Facebook users in 2016, is ultimately made irrelevant by the fact that it’s a thousand times more sensitive. This is data meant for hunting people down. In the most outrageous case documented in the press so far, a Motherboard reporter managed to pay a bounty hunter $300 to put a trace on a cellphone in New York. The coordinates he received proved accurate up to around a quarter mile. As one Democrat on the FCC put it, this trade in Americans’ location data is “a personal and national security issue that affects every American with a cell phone.”
There’s little evidence that it’s being treated as such. Lawmakers on Wednesday openly scolded Pai over his handling of the investigation, which is thought to be nearing the end of its first year. (It remains unclear when the investigation was actually started.) During questioning, he refused outright to say whether he’d share basic information about the investigation with the FCC’s two Democratic commissioners, Jessica Rosenworcel and Geoffrey Starks.
“Can you tell us today that you’re going to share information with two full-fledged members of the commission?” Eshoo asked at one point. “You’re saying you can’t tell us, but will you tell them?”
“Congresswoman, this is not a ‘yes or no’ question,” he said.
Throughout, Pai was insistent that he’d never withheld information at any time from his two Democratic colleagues. At one point, he simply said he was “not aware” of any of the requests for information made by Starks. “Is there any information that Mr. Starks would like to have that he is not able to get? If he wanted it, he could have it, is that what I heard you saying?” Rep. Morgan Griffith, a Virginia Republican, asked him.
“I’m not aware,” Pai answered. “But I’d be happy to talk with him about it.”
But Rosenworcel and Starks have both, on separate occasions, requested access to the “letters of inquiry” sent out by the FCC’s Enforcement Bureau at the investigation’s outset. Both were repeatedly stonewalled. Sources with knowledge of the requests told Gizmodo that they were baffled by the chairman’s response, for one reason in particular: At an FCC Open Commission Meeting on January 30, Rosenworcel told a group of reporters while live-streaming on the agency’s website: “I’ve been told there’s an investigation, but I’ve asked the enforcement bureau for the letters of inquiry that start investigations, and they have not yet been provided to me. I’d like to see them.”
“After the hearing, I confirmed with Commissioners Rosenworcel and Starks that they have explicitly asked for and have not received specific information and documents related to the FCC’s investigation, including but not limited to Letters of Inquiry,” Eshoo wrote Thursday. “Given the chasm between this information and your statement yesterday, 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.”
Having declared himself oblivious, Pai then tried to shield himself at the expense of his colleague, Starks, whom he claimed was responsible for keeping himself in the dark. Pai said that in February, just days after Starks was sworn in, he invited the newly-confirmed commissioner to take control of the investigation. It fell on Starks to explain Wednesday the reason that he had turned down the offer. While considering it, he had requested a briefing to gauge the investigation’s progress. “What I heard at that briefing did not give me confidence that that case was moving along quickly enough,” he said.
The briefing itself set off multiple red flags, according to sources with knowledge of events surrounding the investigation. By the end of it, more questions had been raised than answered. For one, the investigation wasn’t as far along as he believed it should have been, given all the time that had gone by, sources said. (As Pai noted while trying to explain why he’d chosen him in the first place, Starks, a former Justice Department attorney and assistant chief in the FCC’s Enforcement Bureau, is an expert in how investigations such as this should unfold.) He left the briefing with the opinion that the proceedings had progressed too slowly.
Pai’s attempt to unload the case on Starks, then a newly appointed Democrat, whose office was still devoid of furniture, raised yet another red flag. There is no mechanism giving Pai the power to delegate his authority to another commissioner. Some staffers viewed the offer as bizarre, or just deeply inappropriate, said a senior Democratic aide.
That an enforcement investigation is being conducted under a shroud of secrecy is not itself surprising, but even the most basic details of this one remain a total mystery to not only the public, but every commissioner not a member of the chairman’s party, at a minimum. Neither Starks nor Rosenworcel can even say, for instance, when the investigation was formally launched.
Statutorily, the FCC has one year in most cases from the date of a violation to issue a notice of apparent liability. Neither commissioner can say whether the statute of limitation has expired on any particular infraction. But notably, more than a year has passed since Senator Ron Wyden first wrote to the FCC demanding this investigation take place. A New York Times expose about a business that sold phone-tracking services to state law enforcement officials without a warrant turned a year old last week. (Pai, incidentally, represented that business—Securus Technologies—seven years ago while working in private practice.)
If the target of an investigation is amenable, the statute of limitations can be waived, or at least extended. A tolling agreement, as it’s called, would permit the commission to further consider evidence or conduct negotiations. But no one can say whether there’s one of those in place.
“It’s not clear when the statute of limitations runs out,” said Joshua Stager, senior policy counsel at Open Technology Institute. “The conduct may have continued beyond May 2018. Moreover, the FCC may have found a way to toll the statute of limitations.”
Added Stager: “None of this diminishes the urgency of resolving the investigation. The government’s laissez-faire attitude toward geolocation data is putting lives at risk. This issue has grown from shady stalking apps five years ago to a full-blown ‘pay-to-track’ industry today. Domestic violence shelters have been raising alarms about this for years. The FCC needs to act, and Pai needs to step up and lead.”
On Wednesday, Gizmodo asked the FCC to clarify whether Pai was in fact aware that Starks and Rosenworcel had requested copies of the enforcement bureau’s letters. It was also asked if any limitations had expired and, if so, had it secured agreements that would allow the investigation to proceed. It didn’t acknowledge or respond to either question.
“It’s been more than a year since I first alerted the FCC to wireless carriers’ outrageous practice of selling Americans’ location data to shady middlemen,” Senator Wyden said. “Chairman Pai’s failure to take swift action against his wireless carriers friends is not a surprise, but it is yet another sign that he simply does not care about protecting Americans’ privacy.”
You can read a full copy of Congresswoman Eshoo’s letter here.