Thursday, February 10, 2011

Social Media in Rulemaking—Challenges

Excerpt from U.S. Coast Guard Proceedings of the Marine Safety & Security Council magazine. Click here for Part 1.

Using social media tools in the rulemaking process presents several challenges.

First, developing and maintaining social media tools is expensive and time-consuming. With the exception of CGPortal and certain HomePort features, the Coast Guard does not currently maintain its own social media technologies.

The Coast Guard does use commercial “off-the-shelf” products such as Blogger, YouTube, Flickr, and Twitter, generally at no cost to the Coast Guard or the public. However, using these products presents questions, such as whether the Coast Guard may agree to standard terms of service, how it can prevent inappropriate information appearing on sites associated with the Coast Guard, and how to control data that is saved on external web servers.

Moreover, providing new content, responding to public comments, intercepting inappropriate comments, and maintaining the system all require Coast Guard resources.

Second, many types of social media tools require users to submit identifying information such as a name or pseudonym and/or an e-mail address. Although most blogging tools can accept anonymous comments, wikis generally require an identifier to track content changes. Users could view webcasts anonymously, but most likely would require an identifier to participate. Many commercial websites require users to provide a birth date, as well. Even though the Coast Guard would have no direct access to personal information provided by the public, it may need to consider whether privacy protections are appropriate.

Third, the Coast Guard has legal obligations to provide adequate public notice of its regulatory actions via the Federal Register, and to keep records associated with its rulemaking activities. Accepting public comment through other avenues without giving notice in the Federal Register may not satisfy existing law and could open any eventual rule to legal challenge. Collecting and preserving comments from a blog or—even more challenging—a wiki is a daunting task because of the potential volume of comments and because the informal tone used on social media tools makes it difficult to identify which comments are directed at the potential rulemaking.

As the Coast Guard moves forward with social media, it will need to maintain a clear line between idea generation conducted using social media tools and comments on the record that may be taken into account during the rulemaking process.

These and other legal obligations prevent the Coast Guard from conducting any rulemaking entirely through social media tools at this time. The Coast Guard must and will continue to publish its notices in the Federal Register, and accept comment through traditional means (mail, fax, hand delivery, or online at However, the Coast Guard is actively working to address the challenges, and to implement social media tools in a way that promotes public participation and results in better rules.

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