Today is the opening day for “Star Wars: The Force Awakens.” The film elicits excitement for the young and a mix of nostalgia and nervous anticipation (“please don’t be a repeat of Episodes I – III”) for the older. Driven by nostalgia myself, I could not help but think of the scene in “Star Wars: A New Hope,” when Obi-Wan Kenobi first gives us an inkling of Jedi power. With a simple wave of his hand and a soft spoken “These aren’t the droids you’re looking for,” Obi-Wan facilitates his little band’s escape by convincing a Stormtrooper to distrust the facts in front of his own face. This “Jedi mind trick” is an awesome, somewhat terrifying power – perfect for a movie warrior but a disaster when emulated by a government agency.
As I have written before, federal agencies work on a delegated authority (0) from Congress – the only body with the constitutional authority to write laws. Because Congress is closest to the citizens who elect its members, the Constitution’s authors believed Congress was best situated to write laws that are responsive to needs yet safeguard protected freedoms. But government agencies write a tremendous amount of law in the form of regulations – how is this allowed? In large part, the political philosophy behind the growth of agency authority is the belief that a specialized “expert” agency is best suited to delve into the technical facts required to effectuate Congress’s intent. It is thought that these expert agencies will carefully build factual records with agency research as well as elicit thoughtful public comments to better understand the issues (i.e. not as de facto “votes”). Based on the record, and largely isolated from political pressures, the agency (it is believed) will then determine the right course of action based on the articulated will of Congress.
An agency’s factual determinations are given tremendous deference by the courts – after all, the agency is the designated expert in the field, so why shouldn’t the court defer to the agency’s judgment? But what if an agency is not really basing a decision on facts? What if instead it is merely bending to political pressure? What if, in essence, an agency knows what it wants to do and builds the factual record to fit its desired outcome. In that case, the record is a simple wave of the hand – a Jedi mind trick.
In my forthcoming essay for I/S: A Journal of Law and Policy for the Information Society (1), I write about the problem of outcome-determinative fact finding by government agencies. Specifically, I point to the scant factual record presented for the FCC’s exercise of Section 706 jurisdiction and, in turn, for the recent Open Internet order. One example is this:
[w]hen the commission lays out its No Paid Prioritization rule, it asserts that “[t]he record reflects the view that paid arrangements for priority . . . likely damage the open Internet, harming competition and consumer choice.” An examination of the comments cited as support for this principle is troubling. There is evidence that [public] comments have actually been mischaracterized – cited for a principle they do not support – and contrary [public] comments that contain rigorous economic study are completely disregarded in the record.
For example, the commission cites to a comment by Sandvine for the principle that paid prioritization will harm consumers, but Sandvine’s comment actually argues for the exact opposite conclusion. The comment states that the commission’s theory against paid prioritization – that it would lead to “fast” and “slow” lanes – is likely “technically unsound.” Moreover, Sandvine characterizes paid prioritization as an “innovative service plan” that will likely “increase adoption of the Internet around the world, enhance competition, and give consumers more (and more affordable) choice.”
As commenters have noted, more disturbing still is that the great deal of economic literature on the issue of paid prioritization (and other net neutrality proposals) was largely ignored. That literature consistently concludes that paid prioritization may have positive or negative effects on consumers and that is extremely difficult to determine those effects ex ante. This literature is not noted or engaged by the commission.
The FCC’s (and any expert agency’s (2)) outcome-determinative fact-finding is problematic because it bases important policy on shaky foundation and undermines the rationale for delegating law-making authority to the agency in the first place. If you want to escape a Stormtrooper, sleight of hand may be necessary. If you want to escape your delegated duties in a representative democracy, that’s another thing entirely. Remember, the Force has a dark side.