Public Comment Is Broken
BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone.
BOB GARFIELD: And I'm Bob Garfield. Later this month, the Federal Communications Commission will vote on dismantling the Obama-era regulatory framework known as “net neutrality.” Essentially, it would allow internet service providers to charge content providers or consumers higher rates for better, faster service, rather than offering equal access and quality to all. Depending on what news you're reading, the FCC's decision will usher in a new era of innovation or it will precipitate the death of free and open internet. The undoing of net neutrality is the Moby Dick of FCC Chairman Ajit Pai. It was Pai’s predecessor, Tom Wheeler, who in 2015 spearheaded the FCC's Open Internet Order that brought us net neutrality and who joins me today. We’re also joined by Nick Gillespie, the editor-in-chief of Reason.com. Earlier this week, Nick wrote, quote, “The panic over the repeal of net neutrality is misguided for any number of reasons. Tom, Nick, welcome to OTM.
TOM WHEELER: Thanks for having me.
NICK GILLESPIE: Good to be here.
BOB GARFIELD: One of the big arguments against the current regulations is that they do stifle investment and the innovation that comes with it. And the FCC issued a so-called “fact sheet” claiming that such investment has dropped since the net neutrality regime was elected. Nick, is it true?
NICK GILLESPIE: The fact of the matter is, is that during the era of the commercial internet there has been massive investment in infrastructure, primarily done by private companies seeking to recoup their investments by offering better, faster, quicker, more innovative services. I think that will continue. The problem is the way that the rules were implemented. They were implemented at the agency level and it creates, for the same reason that Tom, when he was in charge of the FCC, could turn on a dime and change the policy, because I can do that, and then Ajit Pai, who I tend to agree with in this instance, says, you know what, I’m gonna change it back. And within, you know, something like five or six times in the past decade there have been flips in policies like this. It creates regulatory uncertainty, which is never good in the long run.
And this gets to a larger issue, that is, this type of policy probably should not be decided at the agency level. Congress has abdicated its responsibility to give clear direction, including whether or not the FCC actually has the right to be doing what it's saying it's doing.
BOB GARFIELD: Well, that’s an excellent answer, although not necessarily one to the question I asked. On this issue of investments, the FCC claims that they have diminished the ISPs who are telling their shareholders and Wall Street analysts a different story, that infrastructure investments are in the tens of billions of dollars per company and rising. Are the FCC's smoking gun investment numbers plucked out of context, Tom?
TOM WHEELER: Here’s what I had to learn when I was chairman of the FCC, that there are lobbying statistics and then there are what you have to report to the Securities and Exchange Commission and to your shareholders. And they would come in and say, oh, here's how things are being hurt but then they would go to their shareholders and to Wall Street and say, no, we’re not being hurt. The CEO of AT&T talked about how after the Open Internet Rules they would, quote, “deploy more fiber” in 2016 than they did in 2015. Comcast has increased their investment. Verizon has increased their investment. The reality is that investments are staying steady. Even the numbers that the industry trade association gave to the FCC show essentially flat numbers, and it’s what they’ve been telling the Street, that we’re going to spend, oh, roughly 15% of revenues on investment.
NICK GILLESPIE: One of the things that needs to be said here, and, and I don’t know if Tom can say it because he’s in, he’s in a complicated position, you know, ISPs are not our friends, mobile carriers are not our friends, the government is not our friends. They all have interests that they're going to mask and cloud with, you know, public helper rhetoric. But the fact of the matter is, is that certain basic ideas should be taken seriously, and one is that if regulations can change willy-nilly on a very regular and yet unpredictable basis, that's generally not good for long-term planning.
BOB GARFIELD: Nick, you’re one of the leading voices, I suppose, in libertarianism --
-- which is all about letting free markets take care of business more efficiently than ham-fisted government can do.
NICK GILLESPIE: I believe in a limited government and I believe in maximum individual liberty. Thank you.
BOB GARFIELD: All right, now, as I like to say, and I, I stop people in the street to bother them with this idea --
-- one of the things that free markets are free of is conscience. History shows that without regulatory cops on the beat, business will always put profits and shareholder value above all other considerations, especially monopolies. ISPs are either monopolies or de facto monopolies in almost every market where they do business --
NICK GILLESPIE: Well -- okay.
BOB GARFIELD: -- absent regulations such as net neutrality. Why in the world would we trust them not to sell our private information, not to favor their content over competitors’ content, not to shake down content providers --
NICK GILLESPIE: Sure.
BOB GARFIELD: -- and their own customers for fast-lane service instead of slow-lane service?
NICK GILLESPIE: There is competition already. There should be a lot more. None of this is being addressed by net neutrality. And I think that's a much more important discussion to be having, and I suspect Tom and I probably agree more on that.
Monopolists have the following two things going for them. One, they have an economic incentive to make the decision that favors them over their customers and, more important, they have the technological capability to enforce that decision, and the consumer has no choice if they don't like it. In a noncompetitive environment, what you need to establish are a certain set of ground rules, and that was what we did. So, Bob, I think the question comes down to, who makes the rules. Even monopolies have to often act as if they are in a competitive market, even if they have 100% market share, because if Comcast starts doing the stuff that would violate net neutrality, if Comcast says, you know what, we’re Comcast NBCUniversal, we have so much content we don’t want people looking at Netflix, we want our stuff, we’re gonna degrade or, or even just throttle down and block completely Netflix, what happens then? Do people just sit there and take it?
BOB GARFIELD: Tom Wheeler, on the FCC fact sheet, it's asserted that ISPs did not and presumably will not charge providers or users for faster service and more bandwidth. But haven't the ISPs, themselves, said, that's exactly what we'll do?
TOM WHEELER: Under oath, before the court appealing the last Open Internet Rules, the Verizon lawyer said to the court, I have been instructed by my client that I may say that the reason why we are appealing these rules is because we intend to offer prioritized services and different levels of services. They used to say in all of their printed materials that they would never do it, the guys like Comcast and, and AT&T and others. But it’s pretty clear that we’re headed towards fast lanes and slow lanes.
NICK GILLESPIE: Can I ask, what is the nightmare scenario? What is the Hal Lindsey Late Great Planet Earth, apocalypse, the rapture is coming? What is paid prioritization that it would be absolutely verboten under any circumstances?
TOM WHEELER: Think about your cable system. If you like your relationship with your cable operator today, you’re going to love your relationship with your internet service provider because the cable operator has the ability to pick and choose which services go on, what tiers they go on and to tell you, oh, you know, you want that channel, you're just gonna have to pay me a little more. That's what paid prioritization is about.
NICK GILLESPIE: Will it be a better service, will it be faster? For instance, say, I am a film buff and I want to be able to actually stream very high-quality video, whether it's from Amazon or Netflix or anywhere and, if I'm willing to pay extra money to dedicate part of my pipeline to getting the fastest, best HD, true HD quality, should I not be allowed to do that? I mean, is that a business model? And, again, this goes back to my definition of net neutrality, which is that this is about regulating allowable business models for companies, which I tend to be against.
TOM WHEELER: In 2007, Comcast blocked bit torrent delivering licensed Hollywood product over broadband because it competed with their pay TV service. And I go back to the fact that they stood in the well of the courtroom and said, we intend [LAUGHS] to go out there and differentiate among services because we can and we are the ones who will determine who wins and who loses.
BOB GARFIELD: One of the commissioner’s big arguments is that in matters of consumer commerce the FCC isn't even the right agency to do the regulating. If any bad behavior takes place, he says, the matter should go before the Federal Trade Commission. Nick, as someone who's, you know, not a big fan of regulation of any sort, does that make sense to you?
NICK GILLESPIE: I do think that the Federal Trade Commission can do stuff about anticompetitive behavior which is not always easy to see or to understand. So I don't have a problem with that because the idea that the FCC has been some kind of great champion of the little guy is ridiculous. It’s powerful interests in Washington, whether they’re lobbying groups or whatnot or they’re political entities, that's what dictates stuff. When Comcast starts acting awfully, when Verizon starts acting awfully, when AT&T starts acting awfully, I don't think that you have to worry. The only good power that comes out of stuff is really through consumer choices.
BOB GARFIELD: The FCC vote is scheduled for December 14th and it looks like, online freak-out or no, at this point ending net neutrality is a done deal, unless, Tom, what?
TOM WHEELER: It looks like it’ll be a 3 to 2 vote, and then what happens next is four to six weeks later it gets published in the Federal Register. There will, undoubtedly, be an appeal, and the first test will be, does the court believe that the rule should be stayed, should be stopped from going into effect, while the court determines the total legal ramifications? And that will be a 9- to 12-month kind of timeframe.
NICK GILLESPIE: It is highly unlikely that, given the history of the commercialized internet that we have all come to know and love and admire and rely on, that there are going to be these vast quick U-turns where suddenly you show up and it's like, well, I can't get to that site unless I fork over $50. The long-term trajectory of the internet is towards openness and growth and innovation and new ways of doing things.
If most people look at their personal experience with internet connectivity and mobile phone and internet connectivity being able to go through your phone system, it has been getting better and it was getting better before the Open Internet Order.
TOM WHEELER: So but I think, Nick --
BOB GARFIELD: Tom, I’m going to give Nick the last word there.
TOM WHEELER: Okay, all right.
BOB GARFIELD: Gentlemen --
TOM WHEELER: You’re the boss.
BOB GARFIELD: Tell me about it. [LAUGHS]
[MUSIC UP & UNDER/LAUGHTER]
Gentlemen, I thank you for joining us.
NICK GILLESPIE: Thank you.
TOM WHEELER: Thank you, Bob.
BOB GARFIELD: Tom Wheeler is former chairman of the Federal Communications Commission. Nick Gillespie is editor-in-chief of Reason.com.
BROOKE GLADSTONE: For his part, Chairman Ajit Pai has no doubt that ending net neutrality is what’s best for the American people.
AJIT PAI: If we go back to the market-based regulation, companies will have more incentive to invest and entrepreneurs will have a better chance to reach more Americans and consumers will be much better off. They’re have better, faster and cheaper internet access.
BROOKE GLADSTONE: Still, the law says that the American people
must have the chance to weigh in through a process called public comment. In 2014, nearly 4 million comments poured into the FCC, overwhelmingly in support of an internet that offers equal access to all. And this public outcry reportedly helped convince the agency to set the rules that Pai now wants to overturn. So has public sentiment really shifted so much in the last three years?
Unlikely but, according to Issie Lapowsky, senior writer for Wired, we can’t really know for sure because this year the public comment process was broken by a swarm of bots.
ISSIE LAPOWSKY: The first issue, I think, that most researchers noted was that there were 22 million comments coming [LAUGHS] in to the FCC, millions more than have been received in the entire history of all government agency comment periods over time.
As you said, the last comment period received about 4 million. That, even, is an anomaly. So they started looking into the content of these comments, and a lot of them were duplicates, which is not necessarily a problem. You can imagine any advocacy group wants to supply the words for their community so that people can, with one click, let their voice be heard. So the duplicative comments are not necessarily the issue but, combined with some of the automated techniques that these researchers discovered, it creates this cacophony where you don't know what duplicates are a real human being’s just clicking a button or what comments are automated and generated by bots.
BROOKE GLADSTONE: And these data scientists found that only 6% of the 22 million comments were unique, right?
ISSIE LAPOWSKY: Exactly. It’s become this meme on the internet to promote the Bee Movie, which is an animated film.
Some of the comments included excerpts from the script, references to the film, synopses.
BROOKE GLADSTONE: So a kind of denial-of-service attack on the public comment space.
ISSIE LAPOWSKY: Exactly, that’s an excellent way to put it. Researchers have found about 1 million associated with a very specific pattern. It's called natural language generation. So if you can imagine, if you ever played the game Mad Libs, you have a series of buckets and those buckets are filled with words and phrases that are all synonymous or related. So you choose one word or phrase from each of those buckets, string ‘em together and you create a new comment. They found about 1 million of them that followed this pattern. There were 22 million comments submitted, so, obviously, that's more automated content than you would want to see and it is problematic, but the vast majority still seemed to have been form letters that advocacy groups sent in.
BROOKE GLADSTONE: Okay, so I'd like to, to the extent that we can, figure out who did what. We know that the Electronic Frontier Foundation, a group that strongly advocates for the preservation of net neutrality, had a form letter and lots of people used it to weigh in in favor of net neutrality. And we know that one comment that appeared 2.8 million times, so another form comment came from a site that was supported by HBO's John Oliver. These letters, I assume, did represent real people.
ISSIE LAPOWSKY: In the case of the Electronic Frontier Foundation, the EFF, their letter got picked up by researchers because the EFF was actually prompting its community to write in but it would give every person a slightly different message.
BROOKE GLADSTONE: Mm-hmm.
ISSIE LAPOWSKY: So that caught the researchers’ eye because they were saying, look, this technology isn't just being used by the bad guys who are trying to scheme the system, it's also being used by well-meaning advocacy groups that just want to give everybody a little bit of a unique voice.
BROOKE GLADSTONE: I guess my feeling is that if it's real people, what's the difference between a form letter and natural language generation? The problem is if it isn't a real person. Researchers found that many of the comments sent to the FCC from anti-net neutrality groups came with names and addresses from real people but without their knowledge. They were basically stolen. Is that true?
ISSIE LAPOWSKY: Yes, researchers found that those 1 million comments that they identified that fit this very specific pattern were associated with real names, real email addresses, and that led them to believe that these were taken from some sort of hack of personally identifiable information. Think about all of the hacks that we’ve had recently, from Equifax to name the retailer, and you find even celebrities; John Oliver's name was used thousands of times.
Lots of comments were submitted not even using names. There were thousands submitted under the name “the internet. There were some names that were just strings of numbers.
BROOKE GLADSTONE: So the alarm has been sounded. It's fairly clear that the comment process has run off the rails. How has the FCC responded?
ISSIE LAPOWSKY: They really haven’t, so far. I mean, I think it's important to say that you can't really vet 22 million comments as a human being. [LAUGHS]You’re going to need the assistance of technology to siphon some of those out. Now, as I said, this situation is helped by the fact that only 6% of those comments are unique.
BROOKE GLADSTONE: Still, that’s over a million people.
ISSIE LAPOWSKY: Exactly, and often what you have is the FCC, and this goes back generations, they will pay most attention to the comments that come in from recognized groups. So, in this case, it might be Verizon or AT&T. They'll pay attention to comments that come in from an established academic at Stanford or from a general counsel at a business who’s making a legal argument. So, in a lot of cases, and the public doesn't like to hear this, these individual voices who had something to say get drowned out.
BROOKE GLADSTONE: They don't get drowned out, they get ignored, brushed aside.
ISSIE LAPOWSKY: Right, exactly. The last net neutrality period, there was this groundswell of activism from pro-net neutrality people and when there is a groundswell that's when the FCC starts to pay attention. But it’s unclear whether Chairman Pai really has the motivation to weigh the groundswell that was coming in from the pro-net neutrality group against the, the groundswell of comments coming in from anti-net neutrality groups and to decide which comments among them were real and which were not.
BROOKE GLADSTONE: So if there are enough fakes and bots to muddy the waters and to enable the FCC to simply walk away from the process as hopelessly polluted, even a groundswell can be ignored. Does that worry you?
ISSIE LAPOWSKY: Absolutely, it worries me because when you do have 2.8 million comments coming in from pro-net neutrality groups but you also have millions of comments coming in from anti-net neutrality groups, some of which have been identified as being fake, it creates the perfect storm for this FCC, if they want to, to say, we don't know which among those pro-net neutrality comments were fake and which were real.
BROOKE GLADSTONE: Mm-hmm.
ISSIE LAPOWSKY: And I think we’re seeing this really throughout open platforms on the internet. People you’re following on Twitter, now it’s very unclear whether they’re real people. You know, we found that a number of them were exposed as Russian bots and people were really believing them during the election. And so, I think that this whole new world that we've entered into of what's real and what's fake on the internet has now infiltrated our government rulemaking process, and that's really scary.
BROOKE GLADSTONE: Issie, thank you very much.
ISSIE LAPOWSKY: Thank you.
BROOKE GLADSTONE: Issie Lapowsky is a senior writer for Wired. You can read her article, "How Bots Broke the FCC's Public Comment System" on Wired.com.
[MUSIC/MUSIC UP & UNDER]
BOB GARFIELD: Coming up, a history of hoaxes traces a direct line from Phineas T. Barnum to Donald J. Trump.
BROOKE GLADSTONE: This is On the Media.