Can Agencies Legally Use Social Media for Rulemaking?

The emergence of social media has made a huge impact on modern culture, as Facebook and Twitter have become part of our everyday lives.  Despite their ubiquity, social media tools raise important questions for regulatory agencies.  For example, can agencies legally use social media to conduct notice-and-comment rulemaking?

In a draft report for the Administrative Conference of the United States (ACUS), Michael Herz, Professor of Law at the Cardozo School of Law, evaluates a variety of legal obstacles to the use of social media in agency rulemaking.

To begin, Herz examines the Administrative Procedure Act (APA), which requires agencies to “give all interested persons an opportunity to participate in the rulemaking.”  In today’s digital age, does the obligation to provide meaningful public participation require—or at least allow—agencies to use social media to invite public comment on proposed rules?  According to Herz, the answer is yes, but agencies receiving comments via social media still must sort, read, and reply to these remarks.

When it comes to implementing social media in notice-and-comment rulemaking, Herz states that agencies have three options.  First, they can add to the official docket all comments received from social media sites.  This will require agencies to go through all submitted comments, decide which are relevant, and provide reasoned responses to the pertinent issues.  Herz argues that this presents a great burden on agencies.  Additionally, he states that agencies are wary of this option because a court may find that a stray comment is relevant when the agency did not.

Second, agencies can host discussions via social media sites, making it clear that nothing said will be considered an official comment.  Herz asserts that there must be some limit on what an agency can define as a comment, but that this definition is appropriate based on historical practice.  As an example, Herz describes how the U.S. Forest Service used this method when developing its planning rule.

The third option is for agencies to use social media sites prior to issuing any notice of proposed rulemaking, when no APA limitations apply.  Herz explains that the Department of Energy opted for this option by soliciting comments on its blog prior to the publication of a notice of proposed rulemaking, and then disabling the comment function after the notice was issued  and instructing the public to comment officially via Regulations.gov.

Another potential restriction on using social media might arise when individual agencies promulgate guidance restricting ex parte communications—the transmission of relevant information from interested parties which takes place outside of the rulemaking proceedingsHerz argues that under the terms of some agencies’ guidance documents, information from social media sites might be considered ex parte communications.

Herz also examines the possible legal implications of the Paperwork Reduction Act (PRA).  The PRA requires certain procedures when an agency obtains or solicits information from the public or discloses information to the public, regardless of form.  Herz argues that these procedures are burdensome and time-consuming, requiring permission from the Office of Information and Regulatory Affairs (OIRA).

Despite the obstacles created by the PRA, a report by former OIRA Administrator, Cass Sunstein, suggests that the PRA does not pertain to many social media activities.  Even with this guidance, though, Herz argues that agencies may be discouraged from soliciting feedback on both current and potential regulations.  To remedy this, Herz suggests that OIRA amend its regulations to exclude social media from PRA application altogether.

Another statute Herz  considers is the Federal Advisory Committee Act (FACA).  FACA attempts to limit the reliance on advisory committees, avoid their special interest influences, and ensure that these groups are transparent and balanced.  To meet these goals, FACA requires certain procedures when developing and operating advisory committees.

Herz argues that social media “consultees” do not constitute advisory committees.  He points out that traditional notice-and-comment procedures never create these committees and contends that the change in form—from written to electronic submissions—does not change the nature of the process.  Also, because FACA kicks in only if an agency selects the members of a committee or if the group is amenable to “strict management” by agency officials, Herz explains that agency use of social media forums does not meet these requirements.  Finally, Herz clarifies that applying FACA to social media platforms does not further the law’s purpose because the platforms provide an open and transparent discourse.

Herz also analyzes the potential First Amendment repercussions of agency use of social media.  Agencies generally prohibit the submission of posts that are obscene or threatening, constitute hate speech, reveal personal information, contain information in violation of the law, or promote other services or products.

Yet the First Amendment protects Internet speech.  Herz nevertheless finds these limitations to be constitutional.  He states that because these expressions take place in what is likely a limited public forum, the government is able to restrict the topic of speech on these sites, require levels of decorum, decency, and respect, and even close down the social media sites.  Obviously, agencies are not able to deny a speaker access based on the viewpoint that the person expresses.

After analyzing these potential legal challenges, Herz proposes topics for ACUS to consider when making its recommendations.  Herz suggests endorsing experimentation with di
fferent forms of social media, where each form is subject to distinctive regulations.  In addition, Herz advocates for ACUS to avoid the issue of ranking rules, to provide a clear stance against this use, or to identify where it is appropriate.  He also encourages the internal use of social media by agencies.

Herz maintains that the use of social media is a valuable tool for soliciting comments, providing comment-writing training, and gathering retrospective analyses.  At their most-recent meeting, the ACUS committee voiced concerns over whether using social media to conduct rulemaking will contribute anything substantial, whether it will be productive, and whether it will add more work to already over-burdened agencies.

Finally, Herz endorses Regulation Room, which is part of the Cornell E-Rulemaking Initiative and led by Professor Cynthia Farina of the Cornell Law School.  He explains that Regulation Room – a specialized chat forum oriented around new regulatory proposals —  helps overcome public ignorance, unawareness, and information overload by providing translations and summaries of agency preambles, issue-based posts with threaded comments, opportunities to comment on draft summaries, and submission to the official docket.

Herz’s draft report is part of ACUS’s research project on Social Media in Rulemaking which is studying agencies’ use of social media for rulemaking activities and looking to identify and define legal and policy constraints, resolve legal issues, and encourage the original and proper use of social media to produce significant public contribution in rulemaking.

Interested members of the public can receive notifications and updates on ACUS’s social media project by signing up for the agency’s newsfeed.