Between 2013 and 2015, the FCC reportedly spent close to $3 million overhauling its comment system. But after being flooded with millions of fake comments during a docket to overturn net neutrality last summer, the agency is now planning another total makeover.
In a letter to two U.S. senators, FCC Chairman Ajit Pai proposed a plan “to rebuild and re-engineer” the commission’s Electronic Comment Filing System, or ECFS, to provide “safeguards against abusive conduct.” That sounds like a great idea—but one has to wonder what the FCC was doing over the past few years if not building a comment system engineered to protect against misuse.
The Wall Street Journal was the first to report Pai’s letter on Wednesday.
After being selected to lead the agency by President Donald Trump, Pai focused on stripping his own agency of its authority to regulate internet service providers. When the agency prepared to announce new rules repealing net neutrality regulations nationwide, the FCC made the conscious decision not to put any effort into weeding out fake comments.
Any kind of comment filtering, it was believed, would lead to accusations of censorship, even if it was only a small number of genuine comments that got deleted. This was more or less an admission, albeit a private one, that the FCC has no reliable mechanism for determining whether comments are real or fake.
Its decision, while perhaps meant to protect the FCC’s reputation and the integrity of the commenting process—which, frankly, only ever grabs the public’s attention broadly when the issue of net neutrality is involved—backfired spectacularly. By last fall, the FCC was being widely accused by state attorneys general of abetting identity theft after it refused to cooperate with federal law enforcement officials who sought to examine the fake comments’ origin.
“It is troubling that some bad actors submitted comments using false names,” Pai said in the letter to the two lawmakers, Senators Pat Toomey and Jeff Merkley. “Indeed, like you, comments were submitted in my name and my wife’s name that reflect viewpoints we do not hold.”
But one suggestion offered by Pai seems less geared toward authenticating commenters’ identities: a Captcha system to distinguish between humans and bots. That wouldn’t stop someone from submitting comments using someone else’s identity and, if enforced across the entire system, would prevent the use of bulk submissions.
While the FCC only reviews a handful of the millions of comments it receives—typically those submitted by experts and academics who submit multi-page legal opinions—in recent years, activists have used submission tallies as a means to demonstrate widespread public interest in a particular rulemaking agenda. Often, comments are collected en masse by groups on both sides of the aisle, from pro-net neutrality Fight for the Future to the conservative FreedomWorks.
The FCC’s IT staff generally works behind the scenes to accommodate such groups, including for-profit ones such as CQ-RollCall, whose confidential clients pay for advocacy-based services.
The system-wide enforcement of a Captcha system would likely put an end to bulk submissions. This may reduce the influx of fake comments, but it would also significantly reduce the number of comments overall.
The FCC has remained largely silent on the issue, repeatedly dodging questions from Democratic lawmakers. The agency has also been called before few oversight hearings over the past two years and is one of the least transparent in recent history. Likely the only reason Pai responded to the letter at all is because one of the authors, Sen. Toomey, happens to be a Republican.