Academic journal article Federal Communications Law Journal

Crowdsourcing, Kind Of

Academic journal article Federal Communications Law Journal

Crowdsourcing, Kind Of

Article excerpt

Table of Contents  I. Introduction                                               64 II. Background                                                66     A. Definitions                                            66     B. Public Comments and Net Neutrality                     67     C. The FCC and Net Neutrality Public Comments             68        1. Net Neutrality Comment Data Studies                 69        2. Action (and Inaction) In Response to Fake Comments  71        3. Chairman Pai's Proposal to Change the Comment           System                                              73 III. The Administrative Procedure Act and Public Comment      74      A. The APA                                               74      B. Public Comment                                        75      C. Judicial Review                                       77 IV. Problems with Finding and Removing Fake and Fraudulent     Comments                                                  78 V. Suggested Remedies for Addressing Fake and Fraudulent    Comments                                                   80    A. CAPTCHAs                                                80    B. Authentication                                          81    C. Administrative Fee                                      82 VI. Conclusion                                                82 

I. INTRODUCTION

As public comment on rulemaking procedures increasingly occurs online (1) and more advanced technology becomes available to interested parties, (2) fake comments submitted during rulemaking procedures present a noteworthy problem for the FCC and other government agencies. Fake comments do not accurately reflect public sentiment and skew the facts on the record. Consideration of or even non-action around these comments is anti-democratic because leaving fake comments in the record drowns out the voices of real commenters.

Democracy is "[g]overnment by the people; that form of government in which the sovereign power resides in the people as a whole." (3) Comments submitted by bots and other parties under fake names take the power of the opportunity to comment on agency rulemakings from the people. At a time when public trust in the government and government institutions is near an all-time low, (4) the FCC and other agencies should act to remove fake comments from the record. If these comments remain in the record, the public's trust in these institutions will falter even more.

For public comments to remain relevant and for agencies to remain credible through rulemaking processes, agencies must revise the way they consider comments in the digital age, most significantly by discounting comments that are demonstrably fake and fraudulent. As prescribed by the Administrative Procedure Act ("APA"), (5) in notice-and-comment rulemaking (6) agencies must provide interested parties with opportunity to comment on proposed rules (7) and then consider "relevant matter presented." (8) The statute specifies that agencies must provide "interested persons" (9) with the opportunity to comment and then "consider and respond to significant comments received." (10) Agencies do not have to consider and respond to every comment, (11) but an accurate record is important for judicial review of agency action. (12) As public comments on agency proceedings increasingly move online, (13) opportunities for fraudulent, fake, and mass-solicited comments are increasing. Fake and fraudulent comments submitted by people, bots, or other entities under fake names that look like real names; under words (or numbers) that do not look like real names; or under misused real names and information should not be included in the record. If the public believes an agency is considering fake comments in rulemaking processes or not acting to investigate, address, and remove these comments from the record, they may become wary of that agency and its actions, furthering distrust of the government that plagues our society today. …

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