The debate over net neutrality may be shifting away from the Federal Communications Commission and onto Capitol Hill. But in the one year since the FCC first introduced its Restoring Internet Freedom order, the fight over its turbulent public-comment process shows little sign of dissipating.
Democratic FCC Commissioner Jessica Rosenworcel excoriated Chairman Ajit Pai this week for a sluggish response to last year’s breakdown in the commission’s Electronic Comment Filing System, the statutorily required web portal through which the public can comment on the FCC’s latest regulatory motions.
“Our agency internet systems are ill-equipped to handle the mass automation and fraud that already is corrupting channels for public comment,” Rosenworcel said at an event held by the liberal think tank New America on Wednesday. “It’s only going to get worse. The mechanization and weaponization of the comment-filing process has only just begun.”
With nearly 24 million comments now on file, last year’s FCC proposal to roll back its net-neutrality rules attracted the most public scrutiny of any action ever undertaken by the commission. But within days of the proposal’s release last April, the system was hit with a distributed-denial-of-service attack and flooded with thousands of identical bot-driven comments.
As the turmoil extended into the fall, millions of users were also found to have had their identities stolen and deployed to file fake comments on either side of the net-neutrality debate.
Despite the months-long chaos, the FCC has shown few external signs that it’s committed to cleaning up the process. Pai has denied repeated requests for documents from the New York Attorney General’s office, which is spearheading an investigation into the alleged identity theft. And neither Congress nor federal law-enforcement agencies seem interested in forcing the commission to divulge more information on the corruption of its comments process.
“We should be asking, ‘How did this happen? Who orchestrated it? Who paid for it?’” Rosenworcel said. “We should be investigating—and the Department of Justice and Federal Bureau of Investigation should be involved.”
The FCC also appears to have done little in the way of an internal investigation into what went wrong, and how the process could be safeguarded for future proposals.
At a press conference following the FCC’s monthly open meeting Thursday, Pai said the commission has been “actively reviewing our processes for improving the ECFS going forward.” But the chairman couldn’t give a “specific time frame” for the release of a report—or even commit that such a report would be released.
“I can tell you that it is under active consideration and I personally, as well as our staff, have been working on this issue,” Pai said.
Some say the FCC is right to focus its attention elsewhere. “Most of what the FCC does doesn’t get many comments at all,” said Tom Struble, the technology-policy manager at the center-right R Street Institute. “I don’t know if we should do wholesale changes based on what are and should be outliers.”
Struble added that the FCC should work to discourage the tendency of some progressive groups to gin up millions of identical comments expressing outrage at the latest FCC proposal. “The comments process is not a plebiscite,” he said.
Others say all the focus on public comments is misplaced, given how little the FCC relies on the opinion of average citizens as opposed to well-informed lobbyists and policy advocates.
“The bulk comments filed are often low quality, profane, and irrelevant,” said Brent Skorup, a technology-policy researcher at the libertarian Mercatus Center. “I expect the FCC is looking at improving its filing system because the current one forces FCC staff to devote significant agency resources to separating the substantive comments from the irrelevant ones.”
Others, however, still see value in counting the number of voices arrayed against an FCC rulemaking. Amit Narang, a regulatory-policy advocate for liberal policy group Public Citizen, said Wednesday that the millions of comments opposed to actions such as last year’s net-neutrality rollback serve as “an antidote to regulatory capture by concentrated interests.”
Some advocates believe that the FCC is content to stick with a chaotic status quo because it advances the notion that industry voices are the only ones that matter in any rulemaking. Alex Howard, a transparency advocate at E Pluribus Unum and the former deputy director of the Sunlight Foundation, called it “disinformation smog.”
“It’s not that people can’t comment,” Howard said Wednesday. “It’s that the process itself is being corrupted in such a way that it allows people to delegitimize the value of public opinion as expressed in these areas—to say that it is identical, that it’s created by interest groups, and that the only ones that matter are the ones from expensive law firms here in the capital.”
Liberals are split on how to solve the problem. To prevent identity theft and bot-driven comments, Howard and others are proposing new commenter-verification technologies and the deployment of CAPTCHAs—programs that can distinguish between a human and a machine online.
But Narang and others say those measures could hamper the ability of progressive advocacy groups to quickly and efficiently funnel millions of comments through third-party web portals. Narang worried that forcing commenters to jump through additional hoops could cause them to tune out FCC rulemakings altogether.
“I do think that anything that disincentivizes or discourages the public only makes the rulemaking process less accessible to the public,” he said. “And I think that has a corrosive impact in terms of the public to democratically support regulations that will protect them, that will benefit them directly, but where they’re not going to have the kind of access that organized special interests do in D.C.”
Still, nearly everyone believes that Congress should take a more active role in pressing the FCC to consider major fixes, perhaps by holding hearings on the issue before the next major rulemaking catches the public’s attention.
“We cannot allow agencies to claim that they’re fulfilling their civic duties if they refuse to even investigate the prevalence of this, which is what the FCC has done,” Howard said. “And I don’t think we can let Congress off the hook for not taking some simple measures.”