Turning a blind eye to the corruption of the public comment process—or worse, lumping together genuine mass comments with fraudulent comments—corrupts the rulemaking process.

At the end of April, the Administrative Conference of the United States (ACUS) started a proceeding on how federal agencies should deal with “mass, computer-generated, and fraudulent comments.” Shortly thereafter, the NY Attorney General’s Office (NY AG) released the results of its comprehensive three-year investigation into perhaps the most extensive case of fraudulent comments in US regulatory history—the filing of more than 8.5 million fraudulent comments during President Donald Trump’s Federal Communications Commissions (FCC) proceeding to repeal network neutrality in 2017. But while both the ACUS preliminary report and the NY AG report discuss the same phenomena, the two could not be further apart in terms of perspective. Whereas the NY AG report sees special interests hiring companies to generate fraudulent comments using stolen identities as corrupting the regulatory process and an assault on democracy, the ACUS report regards this as a mere nuisance to the expert agency—no different really from when actual citizens file “mass comments.”

ACUS is an independent federal agency that issues reports “to recommend improvements to administrative process and procedure.” These recommendations carry considerable weight with administrative agencies, Congress, and the courts. If the ACUS proceeding recommends treating fraudulent comments as a mere inconvenience for agencies, rather than a serious issue that requires significant penalties for violators, this will have significant impact on how Congress and the courts approach the issue. If ACUS recommends treating mass comments and computer-generated comments by human beings as imposing significant costs to agencies while providing little value, one of the most important mechanisms of public participation in the modern administrative state will be minimized and trivialized—to the great detriment of our rulemaking institutions and their perceived legitimacy.

Unfortunately, reading the ACUS report and recommendations (as well as this article by one of the Committee members, cited approvingly throughout the ACUS report), the real problem has nothing to do with democracy or anything so fundamental. The real concern is what a terrible waste of agency resources it is to consider “non-technical” and “non-substantive” comments. The ACUS report (and most recent draft recommendation) goes so far as to rename fraudulent comments as “malattributed,” deeming “fraud” as far too dramatic for something that (in the opinion of the authors) matters little in the grand scheme of things. According to the ACUS committee report, expert agencies are not swayed by these tiresome expressions of individual preference—whether properly attributed or not. It is the sort of report and recommendation one could imagine as a parody of technocratic elitism, were the authors not so clearly earnest in their thesis and dismissive of concerns such as legitimacy and the impact on democratic institutions.

“Mass comments provide an important element of real data about how people and small businesses perceive the likely impacts of agency policy choices, and the overall popularity of these choices.”

The NY AG report provides some empirical evidence that directly refute the ACUS assumptions and conclusions. The NY AG report also provides much more useful recommendations. I will briefly run through some of the more significant arguments by ACUS, contrasting these with the evidence from the NY AG report that comments from actual human beings (even when simply submitting a computer-generated statement of support or opposition) have genuine value whereas “malattributed” comments cause real harm and undermine the institutions of self-governance.

ACUS Asks: What’s the Harm in Fraudulent Comments?

ACUS examines the impact of mass comments and fraudulent comments from the perspective of professional staff at expert agencies such as the FCC and the Environmental Protection Administration. As a consequence of this perspective, the ACUS report’s authors conclude that mass comments of any sort—whether submitted by actual people or by a few companies using stolen identities—don’t really influence the outcome of proceedings that much. The ACUS authors reach this conclusion primarily by surveying agency staff and relying on the “expert” qualification of the agency. While the ACUS report does cite literature discussing things such as the legitimacy conferred by popular participation, the expert committee of scholars and representatives from expert agencies express their skepticism of the concept: “If comments contain information that agencies may not or do not consider—including expressions of preference—it is not clear that the process will ultimately enhance perceptions of procedural fairness.” The authors also suggest that producing “high quality, effective government decision making” is another source of legitimacy. Excluding mass and computer-generated comments in addition to “malattributed” comments might therefore increase legitimacy by improving the agency’s decision-making processes.

Concluding that mass comments of any variety have virtually no real impact on the regulatory process makes it simple for ACUS to group comments written by real people that simply express a basic idea (“mass comments”), comments generated by computer when individuals visit a website and click a button (“computer-generated comments”), and comments submitted using stolen identities (“fraudulent comments” or “malattributed comments”) as all belonging together in the same category. The objective of reform, therefore, becomes how to prevent any comments in any of these categories from perturbing the meditations of the expert agencies or otherwise draining agency resources. Why bother to distinguish between genuine comments and fraudulent comments if neither sets of comments play any legitimate role in determining the outcome?

Indeed, the ACUS report expresses such confidence in the conclusion that these comments have no impact that the report questions whether any of the federal statutes criminalizing fraudulent, or even simply false, statements really apply when someone forges someone else’s name and files this document in an agency proceeding. As the ACUS report explains, the false or fraudulent statements must be material to a government proceeding, and since these comments don’t really have any effect on outcomes, the ACUS report concludes they do not qualify as “material” under the relevant federal statutes.

Fraudulent Comments Hurt the Rulemaking Process, Harm Those Whose Identities Are Stolen, and Erode Trust in Institutions of Governance.

The NY AG report provides a much-needed empirical and philosophical rebuttal to the ACUS report. First and foremost, mass comments work in a variety of ways. Experts at agencies no doubt genuinely believe mass comments make no difference, just as doctors genuinely believe that being showered with money and gifts from drug companies has no impact on how they write prescriptions. But even accepting this self-assessment, agency professionals that choose to ignore mass comments rather than genuinely engage with them ignore important raw data that a dedicated expert agency staff would take the time to analyze. Mass comments provide an important element of real data about how people and small businesses perceive the likely impacts of agency policy choices, and the overall popularity of these choices. While this may not be determinative, it is not something that can be casually ignored.

Yes, technology has made it much easier for individuals to generate such comments, but individuals are also bombarded with many more distractions and invitations to comment than they can plausibly address. If millions of individuals decide that this specific policy is worthy of their attention, that is real information. Bad actors deliberately polluting this process are no more harmless than studies relying on falsified data. But either way, the statement of agency expert staff that they simply ignore mass comments is more a confession of dereliction of duty prompted by arrogance than a meritorious commitment to meritocracy.

“Fraudulent comments make an accurate assessment of the reaction to new policies much harder, thus distorting public debate and compromising political accountability and oversight by elected officials.”

More importantly, expert analysis is simply one element of rulemaking. Our system of representative democracy requires democratic accountability at some level—even in rulemaking. This occurs via appointment of political appointees and through Congress, which can disapprove an agency rulemaking through the Congressional Review Act or through legislation. Unlike agency experts, political appointees and members of Congress generally do care about the popularity of specific proposals. Experts and academics may consider this a feature that undermines reasoned, evidence-based decision-making, but it is crucial to the structure of our representative form of government. Mass comments can also bring an issue to the attention of the press, and if genuine comments overwhelmingly support one position over another this will frame the debate.

This is why, according to the NY AG investigation, several of the largest internet service providers (ISPs) were willing to spend over $8 million to flood the record with comments supporting repeal of net neutrality to provide “cover” for the FCC, and why the companies hired to produce these comments went to such pains to make them appear real by stealing the identities of real people. This real passion is also why states such as California have passed their own net neutrality legislation. Even if regulators don’t make decisions by counting comments, they should at least understand the likely consequences of their actions. Fraudulent comments make an accurate assessment of the reaction to new policies much harder, thus distorting public debate and compromising political accountability and oversight by elected officials.

Conversely, turning a blind eye to the corruption of the public comment process—or worse, lumping together genuine mass comments with fraudulent comments—corrupts the rulemaking process. This, in turn, undermines faith in the legitimacy of the rulemaking process, which in turn undermines the legitimacy of the rule of law. Few things can make citizens feel more disconnected from their own government than having the rulemaking institutions of that government treat citizen participation as no better than a fraud. In a time when we are seeing the violent fruits of cultivating alienation, cynicism, and helplessness on the part of the public, the ACUS report is at best tone deaf and at worst a confirmation that “government bureaucrats” are wholly captured by the special interests they are supposed to regulate. As the NY AG report noted: “When the regulatory process is corrupted, citizens may view the system as rigged or broken, which undermines their faith in the proper working of government.”

Finally, the NY AG report documents the feelings of anger and violation from real people when they discover that special interests have stolen their identities to further their corporate agenda. The NY AG report contains a sample of responses from people who found out their names were used for fake comments supporting net neutrality repeal. “I’m sick to my stomach knowing that somebody stole my identity and used it to push a viewpoint that I do not hold.” “I find it extremely sick and disrespectful to be using my deceased dad to try to make an unpopular decision look the opposite.” “This is terrifying. Who knows what else has been said falsely under my name?” “We feel robbed of our rights.” The impact on real people requires lawmakers to take the problem of fraudulent comments seriously rather than simply treat them as a nuisance.

No one can doubt that our complicated world requires complex and nuanced policies. Agencies must routinely balance potential harms against potential benefits. Doing so requires expertise in a wide range of subjects ranging from biological sciences, complex system analysis and economics. But the need for expertise does not make mass comments irrelevant. To the contrary, mass comments provide real data on important and highly relevant matters such as public perception. They can shine a spotlight on potential impacts on specific communities—especially those communities that lack regular representation in the regulatory process. When special interests flood regulatory proceedings with fraudulent comments, it is more than a mere inconvenience and drain on agency resources. Not only does it corrupt the broader policy process, it undermines faith in the institutions of government. As the NY AG report shows, fraudulent comments create real harms. ACUS needs to recognize this.

Disclosure: Harold Feld is the Senior Vice President for Public Knowledge. Public Knowledge opposed repeal of the FCC net neutrality rules. Public Knowledge has also participated in the ACUS proceeding to emphasize the importance of mass comments and signed on to a letter from 84 organizations and individuals.