Malattributed Comments in Agency Rulemaking

66 Pages Posted: 3 Sep 2020 Last revised: 2 Jul 2021

See all articles by Michael Herz

Michael Herz

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: August 28, 2020


A specter is haunting notice-and-comment rulemaking – the specter of “fraudulent comments.” The stand-out example was the FCC’s net neutrality rulemaking in 2017. A record 22 million comments were submitted, but millions of those were submitted by computers (bots) using fictitious names or the names of real people, living and dead, who had no connection to the comment. The reaction was ferocious; many argued that the rulemaking should have been abandoned because it was irretrievably contaminated by fraud, identity theft, and other criminal activity.

This article calls for calm. The reaction was over-wrought and rests on a fundamental misconception of the nature of notice-and-comment rulemaking. There is nothing good about comments submitted under someone else’s name; we should not celebrate them; there is no silver lining; agencies should take steps to prevent or weed out such submissions to the extent they can do so without discouraging legitimate comments. But neither are they actually all that harmful, either to the agency or to the individuals whose names have been used. Moreover, despite the frequent and casual assertions of illegality, except in rare circumstances they just are not illegal. Among other things they are not, they are not “fraudulent.” That is a legal conclusion that does not fit. Hence the neologism “malattributed.”

The Article begins by describing the phenomenon and arguing that the horrified reaction of many observers results from a category mistake. Horror would be appropriate if rulemaking were a vote, but it is not. The article then systematically reviews the various harms caused by malattributed comments, which are real but modest. It then considers a range of possible statutes that may prohibit this activity. Were a federal prosecutor actually interested in pursuing malattributors, the most promising hook would be the false statements statute, 18 U.S.C . § 1001. But even that is an uphill battle. Nor does the Administrative Procedure Act require agencies to cleanse the docket of such submissions or abandon a rulemaking because it is “tainted” by them. A brief conclusion suggests modest measures agencies can and should take to discourage malattributed comments.

Keywords: fraudulent comments, rulemaking, notice-and-comment, net neutrality, false statements, mass comments

Suggested Citation

Herz, Michael Eric, Malattributed Comments in Agency Rulemaking (August 28, 2020). Cardozo Law Review, Vol. 42, 2020, Cardozo Legal Studies Research Paper No. 619, Available at SSRN:

Michael Eric Herz (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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