Democratizing and technocratizing the notice-and-comment process

Essay by Reeve T. Bull: “…When enacting the Administrative Procedure Act, Congress was not entirely clear on the extent to which it intended the agency to take into account public opinion as reflected in comments or merely to sift the comments for relevant information. This tension has simmered for years, but it never posed a major problem since the vast majority of rules garnered virtually no public interest.

Even now, most rules still generate a very anemic response. Internet submission has vastly simplified the process of filing a comment, however, and a handful of rules generate “mass comment” responses of hundreds of thousands or even millions of submissions. In these cases, as the net neutrality incident showed, individual commenters and even private firms have begun to manipulate the process by using computer algorithms to generate comments and, in some instances, affix false identities. As a result, agencies can no longer ignore the problem.

Nevertheless, technological progress is not necessarily a net negative for agencies. It also presents extraordinary opportunities to refine the notice-and-comment process and generate more valuable feedback. Moreover, if properly channeled, technological improvements can actually provide the remedies to many of the new problems that agencies have encountered. And other, non-technological reforms can address most, if not all of, the other newly emerging challenges. Indeed, if agencies are open-minded and astute, they can both “democratize” the public participation process, creating new and better tools for ascertaining public opinion (to the extent it is relevant in any given rule), and “technocratize” it at the same time, expanding and perfecting avenues for obtaining expert feedback….

As with many aspects of modern life, technological change that once was greeted with naive enthusiasm has now created enormous challenges. As a recent study for the Administrative Conference of the United States (for which I served as a co-consultant) has found, agencies can deploy technological tools to address at least some of these problems. For instance, so-called “deduplication software” can identify and group comments that come from different sources but that contain large blocks of identical text and therefore were likely copied from a common source. Bundling these comments can greatly reduce processing time. Agencies can also undertake various steps to combat unwanted computer-generated or falsely attributed comments, including quarantining such comments and issuing commenting policies discouraging their submission. A recently adopted set of ACUS recommendations partly based on the report offer helpful guidance to agencies on this front.

Unfortunately, as technology evolves, new challenges will emerge. As noted in the ACUS report, agencies are relatively unconcerned with duplicate comments since they possess the technological tools to process them. Yet artificial intelligence has evolved to the point that computer algorithms can produce comments that are both indistinguishable from human comments and at least facially appear to contain unique and relevant information. In one recent study, an algorithm generated and submitted…(More)”