The Model Voter: Voter Data, Psychological Profiling and Privacy in Political Elections

Political elections remain contentious whether just before, ongoing or even when they have concluded. Effort is put into trying to make sure the campaign is reaching out to voters who will reliably vote for the candidate come election day. Claims are made about irregular vote counts, missing ballots, votes counted more than once, discrimination at the ballot box, discriminatory voter registration practices or inflated vote numbers. Yet perhaps a key issue regarding voters that hasn’t gotten sufficient attention in the press concerns falling short of consumer protection Recently, President Donald Trump has claimed that between 3 to 5 million voters committed voter fraud in the 2016 election.[note]Phillip, Abby and DeBonis, Mike “Without Evidence, Trump Tells Lawmakers 3 Million to 5 Million Illegal Ballots Cost Him The Popular Vote,” THE WASHINGTON POST, (Jan. 23, 2017), https://www.washingtonpost.com/news/post-politics/wp/2017/01/23/at-white-house-trump-tells-congressional-leaders-3-5-million-illegal-ballots-cost-him-the-popular-vote/?utm_term=.0fa1ebe5bb17 [/note] To investigate these claims, the Presidential Advisory Commission on Election Integrity sent an information request to all 50 states and the District of Columbia demanding sensitive personal data for all registered voters.[note]Powles, Julia “Trump’s Voter Data Haul Tests the Privacy of Public Records,” SLATE, (July 12, 2017), http://www.slate.com/articles/technology/future_tense/2017/07/trump_s_voter_fraud_commission_tests_the_privacy_of_public_records.html [/note] When confronted by critics over the intrusive nature of this request, the Commission emphasized that this was “publicly available data”; that is, data available on a request from a member of the public under state law and therefore, “up for grabs.”[note]Powles, Julia “Trump’s Voter Data Haul Tests the Privacy of Public Records,” SLATE, (July 12, 2017), http://www.slate.com/articles/technology/future_tense/2017/07/trump_s_voter_fraud_commission_tests_the_privacy_of_public_records.html [/note] This request was met with outrage and pushback, both public and legal, including a request for a restraining order by leading privacy campaign organization EPIC.[note]Powles, Julia “Trump’s Voter Data Haul Tests the Privacy of Public Records,” SLATE, (July 12, 2017), http://www.slate.com/articles/technology/future_tense/2017/07/trump_s_voter_fraud_commission_tests_the_privacy_of_public_records.html [/note] Although the request for data collection was suspended until the District Court for D.C. ruled on the EPIC lawsuit, 17 states did agree to give limited public information (typically names, addresses and voting districts) while a further 5 states agreed to give public information if certain conditions were met. Only one state, Arkansas, has handed over limited data.[note]Powles, Julia “Trump’s Voter Data Haul Tests the Privacy of Public Records,” SLATE, (July 12, 2017), http://www.slate.com/articles/technology/future_tense/2017/07/trump_s_voter_fraud_commission_tests_the_privacy_of_public_records.html [/note] Also, the judge in the EPIC lawsuit ruled that the Trump commission’s request was exempt from the requirement that agencies give privacy impact statements data collection systems on account of the Commission not being an agency.[note]Kravets, David “Trump Voting Commission Wins Right to Collect State Voter Data,” ARS TECHNICA, (Jul. 24, 2017), https://arstechnica.com/tech-policy/2017/07/judge-oks-trump-voter-commission-data-request-privacy-concerns-be-damned/[/note]

What is most interesting about this situation is how labels like “publicly available data” are being invoked to justify government collection of data others may consider to be “private.” It raises the question of whether data’s status as “publicly available’ lessens any expectation of privacy concerning that data. Yet proponents of this argue that culling such data can help set up profiles of voters in order for campaigns to determine how they vote, who to gear campaign towards and who to solicit for campaign contributions.[note]Leetaru, Kalev, “Data Breaches, Psychological Profiling, Voter Modeling: Inside The Big Data World of Campaign 2016,” FORBES, (Jan. 1, 2016), https://webcache.googleusercontent.com/search?q=cache:qGDIXoN8n2AJ:https://www.forbes.com/sites/kalevleetaru/2016/01/01/data-breaches-psychological-profiling-voter-modeling-inside-the-big-data-world-of-campaign-2016/+&cd=2&hl=en&ct=clnk&gl=us&client=safari[/note] For example, 2016 Republican Presidential candidate Ted Cruz used a “psychographic targeting” mechanism by which it tried to come up with personality profiles for American voters.[note]Leetaru, Kalev, “Data Breaches, Psychological Profiling, Voter Modeling: Inside The Big Data World of Campaign 2016,” FORBES, (Jan. 1, 2016), https://webcache.googleusercontent.com/search?q=cache:qGDIXoN8n2AJ:https://www.forbes.com/sites/kalevleetaru/2016/01/01/data-breaches-psychological-profiling-voter-modeling-inside-the-big-data-world-of-campaign-2016/+&cd=2&hl=en&ct=clnk&gl=us&client=safari[/note] While using data from surveys of more than 150,000 US households contributes partially to these profiles, a key contributor to data comes from dataset culled from the Facebook profiles of potential voters and campaign donors.[note]Leetaru, Kalev, “Data Breaches, Psychological Profiling, Voter Modeling: Inside The Big Data World of Campaign 2016,” FORBES, (Jan. 1, 2016), https://webcache.googleusercontent.com/search?q=cache:qGDIXoN8n2AJ:https://www.forbes.com/sites/kalevleetaru/2016/01/01/data-breaches-psychological-profiling-voter-modeling-inside-the-big-data-world-of-campaign-2016/+&cd=2&hl=en&ct=clnk&gl=us&client=safari[/note] Tens of millions of profiles are surveyed for information such as names, locations, birthdays, gender, content of Facebook likes, as well as similar information from the “friends” of those profiles.[note]Leetaru, Kalev, “Data Breaches, Psychological Profiling, Voter Modeling: Inside The Big Data World of Campaign 2016,” FORBES, (Jan. 1, 2016), https://webcache.googleusercontent.com/search?q=cache:qGDIXoN8n2AJ:https://www.forbes.com/sites/kalevleetaru/2016/01/01/data-breaches-psychological-profiling-voter-modeling-inside-the-big-data-world-of-campaign-2016/+&cd=2&hl=en&ct=clnk&gl=us&client=safari[/note] The company that is responsible for gathering this data claims that more than 40 million Americans have been observed as a result of this process.[note]Leetaru, Kalev, “Data Breaches, Psychological Profiling, Voter Modeling: Inside The Big Data World of Campaign 2016,” FORBES, (Jan. 1, 2016), https://webcache.googleusercontent.com/search?q=cache:qGDIXoN8n2AJ:https://www.forbes.com/sites/kalevleetaru/2016/01/01/data-breaches-psychological-profiling-voter-modeling-inside-the-big-data-world-of-campaign-2016/+&cd=2&hl=en&ct=clnk&gl=us&client=safari[/note] Many such data collection brokers are being used by politicians running for office to gauge the interests and voting patterns of potential voters for the purposes of trying to win them over.[note]Halper, Evan “Voter Data Modeling: Does it Threaten Our Privacy?,” GOVERNMENT TECHNOLOGY, (Jan. 29, 2016), http://www.govtech.com/data/Voter-Data-Modeling-Does-it-Threaten-Our-Privacy.html[/note]

Yet the collection of such data leaves questions about how secure such personal data about potential voters is from hacking attempts. The hacking of a major DNC voter database is in part responsible for such concerns.[note]Halper, Evan “Voter Data Modeling: Does it Threaten Our Privacy?,” GOVERNMENT TECHNOLOGY, (Jan. 29, 2016), http://www.govtech.com/data/Voter-Data-Modeling-Does-it-Threaten-Our-Privacy.html[/note] Despite attempts by the Federal Trade Commission to regulate such data collection brokers in the interests of consumer protection, Congress is proving resistant to regulating practices that its members have been “increasingly rely[ing] on to win elections.”[note]Halper, Evan “Voter Data Modeling: Does it Threaten Our Privacy?,” GOVERNMENT TECHNOLOGY, (Jan. 29, 2016), http://www.govtech.com/data/Voter-Data-Modeling-Does-it-Threaten-Our-Privacy.html[/note] The DC District Court ruled for the Commission in the EPIC lawsuit noting that only data that could be provided in accordance with the individual state’s own privacy laws could be turned over by the individual state to the Commission.[note]Kravets, David “Trump Voting Commission Wins Right to Collect State Voter Data,” ARS TECHNICA, (Jul. 24, 2017), https://arstechnica.com/tech-policy/2017/07/judge-oks-trump-voter-commission-data-request-privacy-concerns-be-damned/ [/note] The judge in that case also held that the mere risk of disclosure stemming from this collection and anonymized disclosure of information that is already considered to be “publicly available” was insufficient to justify blocking the Commission.[note]Kravets, David “Trump Voting Commission Wins Right to Collect State Voter Data,” ARS TECHNICA, (Jul. 24, 2017), https://arstechnica.com/tech-policy/2017/07/judge-oks-trump-voter-commission-data-request-privacy-concerns-be-damned/ [/note]

When one considers that the nonprofit Online Trust Alliance’s recent audit of campaign websites gave failing grades to three quarters of campaign websites for issues relating to privacy, security and consumer protection, this type of ruling is very worrisome. NYU Law School research fellow Ira Rubinstein published a paper on voter privacy, finding that “political dossiers may be the largest unregulated assemblage of personal data in contemporary American life.”[note]Halper, Evan “Voter Data Modeling: Does it Threaten Our Privacy?,” GOVERNMENT TECHNOLOGY, (Jan. 29, 2016), http://www.govtech.com/data/Voter-Data-Modeling-Does-it-Threaten-Our-Privacy.html[/note] According to Rubinstein, crucial privacy guidelines used in other industries don’t seem to be obeyed by political candidates; some even lack the essential privacy policies on their websites that would see the sites of private business shut down under both federal and California law.[note]Halper, Evan “Voter Data Modeling: Does it Threaten Our Privacy?,” GOVERNMENT TECHNOLOGY, (Jan. 29, 2016), http://www.govtech.com/data/Voter-Data-Modeling-Does-it-Threaten-Our-Privacy.html[/note]
When integrated into a bigger picture, the increased collection of personal data information labeled as “publicly available” as part of the reliance on voter model profiling poses very serious questions for the future of consumer protection. If voting information deemed necessary by a electoral review commission like Trump’s were to determine that certain personal voting information is needed without any check by the courts, what’s to stop someone’s social security number, address, or other personal information from going to hackers of such databases who might use it for their own ends? This is an issue that needs to be better engaged with by constitutional lawyers, scholars and jurists as reliance on voter model profiling continues among political candidates and the threat of hacking of voter databases continues.