Bringing the Public Back In

Senators Jeff Merkley (D-OR) and Pat Toomey (R-PA) have called attention to a relatively new issue in the net neutrality discourse: fraud. More specifically, on Monday, they urged the Federal Communications Commission (FCC) to investigate the identity theft and fraud that have permeated public comments in the rulemaking process.

The senators are just two of the some 2 million people who had their identities stolen and used to file comments in the FCC proceeding to repeal the 2015 net neutrality rules. These fake comments—plus half a million others filed using Russian email addresses and 8 million more submitted from emails associated with fakemailgenerator.com—have created a warped, inaccurate view of public opinion on the issue.

And yet, despite the obvious scale of the problem, the FCC has done little to address it beyond shifting the burden to affected individuals, advising people who were victims of identity fraud to file another statement indicating that their identities have been stolen and misused. Equally alarming has been the agency’s reluctance to work with state authorities that have found that their residents have had their identities stolen. On top of that, the National Hispanic Media Coalition has criticized the agency for omitting from the repeal proceeding some 50,000 consumer complaints about internet service providers’ net neutrality violations—despite the fact that the Commission is supposed to take relevant evidence into consideration.

These were some of the issues panelists grappled with at “Bringing the Public Back In,” a recent New America event hosted by the think tank’s Open Technology Institute and Political Reform program. The conversation featured leaders from government and the nonprofit sector who explored the stakes of a key question: Can the comment process be fixed?

Crucially, distorting the public comment process isn’t just happening at the FCC. James V. Grimaldi, one of the panelists and a senior writer for the Wall Street Journal, and his colleague Paul Overberg have documented the prevalence of fake comments at many other agencies, including the Department of Labor, Consumer Financial Protection Bureau, Federal Energy Regulatory Commission, and Securities and Exchange Commission. For instance, Grimaldi and Overberg found that as much as 40 percent of comments criticizing a Department of Labor fiduciary rule—which requires investment advisers handling retirement accounts to act in clients’ best interests—appeared to be fake, using stolen or obsolete email accounts.

But fraudulent comments not only engender identity-theft problems. They also misrepresent public opinion in agency proceedings, creating the illusion that people widely embrace or reject the final rules and policies adopted by agencies. In this light, it’s not a stretch to argue that this manipulation, as well as the failure to protect the integrity of the process, erodes both the legitimacy of and public trust in government.

So, what can be done to restore the public voice in the federal rulemaking process?

In January, the Government Accountability Office announced that it’d investigate fraud and the misuse of identities in the federal rulemaking process later this year. In addition, FCC Commissioner Jessica Rosenworcel called for the Department of Justice and the Federal Bureau of Investigation to get involved, and for affected agencies to do more by performing internal investigations and holding public hearings on the issue.

Accountability shouldn’t stop there, though. What’s also needed  is an infrastructure shift. The current civic infrastructure isn’t equipped to keep up with today’s evolving digital landscape. Indeed, the impact of technology on the public input process has been significant: It’s easier than ever before to submit a public comment online, but neither the system nor the internet can handle identity theft and fraud.

As a result, Rosenworcel suggested that agencies consider implementing simple security measures, such as CAPTCHA and two-factor authentication, that can enhance security without decreasing public participation. Alex Howard, the former deputy director of the Sunlight Foundation and a freedom-of-information advocate at E-PluribusUnum.org, echoed Rosenworcel, adding that the system needs some form of identity verification, and that comments could also be connected to social media accounts.

Importantly, this isn’t to suggest that these approaches would be a straightforward silver bullet. Amit Narang, a regulatory policy advocate for Public Citizen, expressed concern about the burdens carried by individuals to participate in the process—burdens that may actually lead to a decrease in overall public participation if more steps are added to the process. There may also be value in preserving commenters’ anonymity. Employees, for instance, may wish to file anonymous comments about an employer. Grimaldi spoke of one example in the CFPB payday lending proceeding in which the public comment process had been corrupted by employer pressure via a survey that generated comments based on a respondent’s answers.

Ultimately, it’s essential that solutions maintain the individuality of commenters, and bolster the integrity of the democratic processes underlying government policymaking. After all, these channels for public participation ensure that all Americans have the opportunity to play a role in decision-making. And because the system can only work if its agencies are held accountable, these agencies, at the very least, ought to investigate the issues that have emerged in the public comment process. Only then can we, as a society, be sure that public opinion is reflective of what the public truly wants.