Draft Report for the Administrative Conference of the United States
This report explores three forms of commenting in federal rulemaking that have been enabled by technological advances: mass, fraudulent, and computer-generated comments. Mass comments arise when an agency receives a much larger number of comments in a rulemaking than it typically would (e.g., thousands when the agency typically receives a few dozen). The report focuses on a particular type of mass comment response, which it terms a “mass comment campaign,” in which organizations orchestrate the submission of large numbers of identical or nearly identical comments. Fraudulent comments, which we refer to as “malattributed comments” as discussed below, refer to comments falsely attributed to persons by whom they were not, in fact, submitted. Computer-generated comments are generated not by humans, but rather by software algorithms. Although software is the product of human actions, algorithms obviate the need for humans to generate the content of comments and submit comments to agencies.
This report examines the legal, practical, and technical issues associated with processing and responding to mass, fraudulent, and computer-generated comments. There are cross-cutting issues that apply to each of these three types of comments. First the nature of such comments may make it difficult for agencies to extract useful information. Second, there are a suite of risks related to harming public perceptions about the legitimacy of particular rules and the rulemaking process overall. Third technology-enabled comments present agencies with resource challenges.
The report also considers issues that are unique to each type of comment. With respect to mass comments, it addresses the challenges associated with receiving large numbers of comments and, in particular, batches of comments that are identical or nearly identical. It looks at how agencies can use technologies to help process comments received and at how agencies can most effectively communicate with public commenters to ensure that they understand the purpose of the notice-and-comment process and the particular considerations unique to processing mass comment responses. Fraudulent, or malattributed, comments raise legal issues both in criminal and Administrative Procedure Act (APA) domains. They also have the potential to mislead an agency and pose harms to individuals. Computer-generated comments may raise legal issues in light of the APA’s stipulation that “interested persons” are granted the opportunity to comment on proposed rules. Practically, it can be difficult for agencies to distinguish computer-generated comments from traditional comments (i.e., those submitted by humans without the use of software algorithms).
While technology creates challenges, it also offers opportunities to help regulatory officials gather public input and draw greater insights from that input. The report summarizes several innovative forms of public participation that leverage technology to supplement the notice and comment rulemaking process.
The report closes with a set of recommendations for agencies to address the challenges and opportunities associated with new technologies that bear on the rulemaking process. These recommendations cover steps that agencies can take with respect to technology, coordination, and docket management.