Social Media in Rulemaking

Background: Social media, including Facebook, Twitter, blogs, and other similar technologies, present new opportunities for agencies to engage the public in rulemaking activities. Such social media tools are uniquely valuable because they facilitate two-way communication. Rather than just pushing information out, social media allows agencies to provide the public with a way to communicate views and information to the agency.

In the context of rulemaking, however, agency use of social media raises difficult policy and legal issues. Agencies must determine whether and how to use social media to support rulemaking initiatives, including during the preliminary stages of a rule’s development, while the rule is out for comment, and once the rule has been promulgated. Determining how the Administrative Procedure Act (APA) and other legal requirements apply to social media requires sound judgment and expertise. With little judicial precedent to guide the way, agencies face substantial uncertainty in navigating these issues. This uncertainty discourages agency innovation.

Project Details: The Conference is studying the various policy and legal issues agencies face when using social media in rulemaking.  The study will consider whether and when agencies should use social media to support rulemaking activities.  It will also seek to identify relevant issues, define applicable legal and policy constraints on agency action, resolve legal uncertainty to the greatest extent possible, and encourage agencies to find appropriate and innovative ways to use social media to facilitate broader, more meaningful public participation in rulemaking activities.  The Conference’s consultant on the project is Michael Eric Herz, Arthur Kaplan Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University.