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Groups Concerned

Panel Delays Recommending Agencies Limit Some Comments

The Administrative Conference of the U.S. Assembly Rulemaking Committee agreed Tuesday to delay until May 24 a vote on a draft proposal recommending the FCC and other federal agencies limit some types of comment, amid outcry from Free Press and others, an FP spokesperson told us. FP, Incompas, the National Hispanic Media Coalition, Open Technology Institute and Public Knowledge are among more than 80 groups that raised concerns Tuesday about the latest plan. The committee plans to vote after members circulate further revisions, the FP spokesperson said. New York Attorney General Letitia James’ (D) office last week found nearly 18 million of the more than 22 million comments submitted to the FCC on repealing net neutrality rules in 2017 were fake (see our report here).

The types of submissions ACUS wants to address are “mass” comments “submitted by members of the public organizing the submission of a large number of identical or nearly identical comments,” computer-generated filings and “comments falsely attributed to people who did not submit them.” ACUS proposes the General Services Administration “provide a common de-duplication platform” for agencies that use its eRulemaking “to identify the unique content in submitted comments and to extract meaningful information from comments.” The organization wants to recommend agencies consider “inviting people and entities organizing mass comments to submit a single comment with multiple signatures rather than separate but identical comments.”

Agencies “may wish to consider approaches to managing the display of comments online, such as by posting only a single representative example of identical comments in the agency docket,” ACUS said. “When agencies decide not to display all identical comments online, they should provide clear notice” and “ensure that any reported total number of comments … accounts for the number of identical or nearly identical comments and that the agency provides an opportunity for interested members of the public to obtain or access all the comments received.”

Federal entities “should not discard the computer-generated comments they receive unless those comments contain no informational value,” ACUS said. “Agencies that operate their own commenting platforms should consider using technology that verifies that a commenter is a human being.” When an agency decides to retain computer-generated comments, “include that comment on its rulemaking docket and note that it was computer-generated,” ACUS said.

Agencies should provide opportunities” for individuals whose names are attached to malattributed comments to have their name removed,” ACUS said. If an agency decides to retain a malattributed comment, “it should be certain to include that comment on its rulemaking docket and note that it was malattributed.”

We are troubled that your recommendations would be interpreted by agencies to treat or disregard bona fide mass comments as an undue burden and to display such comments in a way that could easily obscure the number of individuals who have made their voices heard by expressing similar sentiments in comments,” FP and others wrote to Rulemaking Committee Chair Cary Coglianese and Attorney Adviser Danielle Schulkin. “Making value judgments that categorize public comments as a problem or somehow disruptive to the rulemaking process runs counter to our democratic process and can only result in disempowering the communities most impacted by these rule changes.”

A trio of nonvoting ACUS Assembly members suggested changes to the draft. “The draft responds very helpfully to the issues raised in the last committee meeting and usefully distinguishes among mass comments, malattributed, and computer-generated comments,” said Senior Fellow Nina Mendelson. Liaison Representative Rebecca Orban suggested the draft be changed to recommend agencies “consider how to indicate a [computer-generated] comment has been removed” and consider how to contact an individual filing comments that contain “spam” characteristics since “someone who is already sending spam may violate agency IT policies or invite further abuse of agency systems.” Senior Fellow Richard Pierce backed Orban’s suggestions.