In the 1998 and 2000 U.S. elections, the Internet played an important role as a source of information for citizens and as a campaign tool for office seekers. The rise of Internet campaigning has brought about numerous benefits including increased access to political information, increased depth of content, and the ability to engage in online interactive political dialogue. Unfortunately, there is a potential dark side to all of this interaction. Just as the rise of electronic commerce has created tremendous concerns about online privacy, so too has the rise of e-campaigning. Through the use of cookies, online donation forms, and political mailing lists, Internet-based campaigns can now gather tremendous amounts of information about which candidates voters prefer and where they choose to surf. The creation and sale of such detailed voter profiles raises serious questions about the future of political privacy and the democratic electoral process itself. This paper will explore the importance of political privacy, its protection through our rights to associational privacy and anonymous speech, and the many ways that the political preferences of citizens are compromised online by campaign Web sites, database and e-mail marketers, and excessive U.S. Federal Election Commission disclosure rules. The potential negative effects of a monitored electorate on the democratic process are also examined.Contents
Introduction
Political Privacy: Oxymoron or Necessity?
The Right to Associational Privacy
The Right to Anonymous Political Speech
From Profiling Consumers to Profiling the Electorate
FEC Disclosure and the Threat to Political Privacy and Anonymous Speech
Conclusion
Introduction
The public and legal controversy surrounding the 2000 presidential election in Florida has called the entire American voting system into question. Over the coming years national electoral reform will likely mean some combination of new voting machines, new guidelines for voter registration, and clearer procedures for contesting elections and conducting recounts. One thing that will almost certainly not change however, is the sacredness of the secret ballot which allows voters to perform the quintessential act of democracy without the threat of undue influence from other citizens, political party operatives, or the government. As Peterson [ 1] notes, "Voting in the United States is a visible act of public participation, but the actual choice of the voter is private." Indeed, it is hard to imagine voting not being a thoroughly private transaction. Political preferences are deeply held personal views which many people consider intensely private. Therefore, as MacManus comments, the voting booth has become "the most private of places, probably more so than people's homes these days" (cited in Bierman, 2000).
While secret ballot voting has become a sacred right, it was not always so. In the eighteenth and nineteenth centuries voters had generally no right to privacy while casting their ballots (Schudson, 1999). Indeed in some states, citizens voted by voice, and in the 19th century, machine politics allowed the Republican and Democratic parties to identify and intimidate large numbers of voters into casting straight ticket ballots. Machine operatives would often outright purchase citizens votes or promise some form of patronage. Recognizing such problems, late nineteenth century reformers successfully agitated for the secret ballot, and by the early 1890s most states had adopted the reform (Fredman, 1968). It is rather ironic therefore, that at the turn of the twenty-first century, voter and political privacy in general, is once again threatened, this time by the combination electoral politics and the Internet.
The rapid development of e-campaigning has brought about a number of positive developments including decreased barriers to entry for minor party candidates and grassroots campaigns, increased access to political information, increased depth of content, better matching of voters with like minded office seekers, and the ability to engage in online interactive political dialogue with other citizens and occasionally even candidates. Unfortunately, there is a potential dark side to all of this interaction. Just as the rise of electronic commerce has created tremendous concerns about online privacy (Kang, 1998; Reidenberg, 1999; Garfinkel, 2000; Whitaker, 1999), so too has the rise of e-campaigning. Using many of the same tools as e-commerce (cookies, Web bugs, profiling, data mining), e-campaigns have developed systems which have the potential to identify, target, track, and deliver customized messages to potential voters.
The effects of a monitored electorate for the functioning of a vibrant democracy are potentially quite serious. Just as people are still reluctant to use the Internet and purchase goods online for fear of losing their privacy (IBM, 1999), voters may be discouraged from participating in the democratic process as more and more political activity and information migrate to the online environment. Fear of such online monitoring may well increase citizens general distrust of politics and government institutions. Further, the one-to-one marketing paradigm of e-commerce, now being rapidly adopted by e-campaign professionals, would seem to stand in stark contrast to our democratic theory of governance which is predicated on concern for the public, not the individual good. As Gandy comments, "Segmentation and targeting is in direct conflict," with our view of a pluralistic, deliberative democracy because "the effect, if no the primary purpose, of segmentation and targeting is the exclusion of participants who are deemed unlikely to support the preferred view" [ 2].
In this paper we will explore the important role which privacy plays in the U.S. democratic political system. We will begin by discussing the historical tension between public and private and argue for the importance of what I call "political privacy" - a space apart, free from the gaze and influence of other citizens, political parties, the government, and business interests, where individuals can develop and experiment with their political views. Next we will examine how political privacy has become deeply embedded in the U.S. democratic system through the protection of associational privacy and the right to anonymous political speech. We will then look at how e-campaigning threatens political privacy through online voter profiling techniques and U.S. Federal Election Commission ( FEC) forced online disclosure requirements. We will conclude with brief recommendations about how to protect online political privacy, thus ensuring that the political privacy rights, developed in the late nineteenth and twentieth centuries, are just as vibrant in our digital future.
Political Privacy: Oxymoron or Necessity?
One of the grand dichotomies in western political thought is the public-private distinction (Weintraub, 1997). As such, the term "political privacy" would seem to be an oxymoron. After all, politics is supposed to be a fundamentally public activity. In a representational democracy we demand that the political process be open to public scrutiny and generally free from private, particularistic, unseen, and unaccountable actions. We therefore expect that votes by legislatures and courts be public and that private citizens who seek to influence the political process make known their interests (for example through mandatory disclosure of campaign contributions). As Arendt [ 3] notes, "public ... means ... that everything that appears in public can be seen and heard by everybody and has the widest possible publicity." Kreimer similarly notes that "In a democratic system, governmental acts should, by definition, respond to public sentiments. Transparency to public review facilitates that responsiveness" [ 4]. And, in the famous words of justice Lewis Brandeis, "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is ... the best of disinfectants" [5].
Our common understanding of politics as fundamentally public, and therefore divorced from, even antithetical to privacy, has its roots in ancient Athenian and Roman political thought. One need only look at the Greek and Latin etymology of the words public and private to get some sense of the ancients preference for the former term and relative disdain for the latter. Demios, the Greek term for public literally means "having to do with people." On the other hand, idiotes, the Greek word for a private person, one who did not engage in the public life of the polis, is the root of the pejorative English word "idiot." As Hixson [ 6] comments, "In classical Greece, privacy carried negative overtones and implied the absence of full participation in the approved social order." In other words, the "good life" could only be achieved through active participation in the polis [ 7]. Perhaps Pericles best encapsulates the Greeks love of public life and contempt for a purely private existence: "We differ from the other states in regarding man who holds aloof from public life not as quiet, but as useless; we decide or debate, carefully and in person, all matters of policy, holding not that words and deeds go ill together, but that acts are foredoomed to failure when undertaken undiscussed" [8].
The Roman view of public-private closely resembled that of the Greeks. For example, the Latin roots of the English word "privacy," are privatus and privare. The former meaning "withdrawn from public life" and the latter "to bereave or deprive" [ 9]. On the other hand, the root of public, publicus, carries the more positive meaning of "that which belongs to 'the public,' the people, as a whole" [ 10]. As with the Greeks, the Romans elevated life engaged in the res publica, where "citizens ... leave behind their private concerns and personal relations, and meet their peers in the public domain" [11], above private life which could only serve as a temporary respite from the demands of the public.
The sharp normative public (as positive) - private (as suspicious) distinction developed in Greco-Roman times is shared by many other influential political philosophers. For example, in The Social Contract, Rousseau warns that private concerns threaten the functioning of good government:
"The better constituted the state, the more public affairs outweigh private ones in the minds of citizens ... . In a well-conducted city, everyone rushes to assemblies. Under a bad government, no one cares to take even a step to attend them: no one takes an interest in what is done there, since it is predictable that the general will won't prevail, and so finally domestic concerns absorb everything" [ 12].Alexis de Tocqueville, the great chronicler of America's early democratic spirit, shared a similar concern that excessive individualism would threaten the virtues of public life. For Tocqueville, individualism "disposes each citizen to isolate himself from the mass of his fellows and withdraw into the circle of family and friends; with this little society formed to his taste, he gladly leaves the great society to look after itself" [ 13].
Today we term this preference for public political engagement, and suspicion of private action, as civic republicanism. Fraser [ 14] nicely summarizes civic republicanism as stressing:
"... a view of politics as people reasoning together to promote a common good that transcends the mere sum of individual preferences. The idea is that through deliberation the members of the public can come to discover or create such a common good. In the process of their deliberations, participants are transformed from a collection of self-seeking, private individuals into a public-spirited collectivity, capable of acting together in the common interest. On this view, private interests have no proper place in the political public sphere" (emphasis added).Hannah Arendt's The Human Condition presents one of the more powerful arguments for a return to civic republicanism in modern times. Relying heavily on Greek and Roman concepts, Arendt argues that for people to be truly human they need to live a more public life. For Arendt, politics is the vita activa or active life, where "human life in so far as it is actively engaged in doing something, is always rooted in a world of men and of manmade things which it never leaves or altogether transcends" [ 15]. She complains that the modern concept of privacy as sheltering us from social and political life is harmful as it doesn't allow us to become full humans which can only occur through an active life engaged with other men in public. "To live an entirely private life means above all to be deprived of things essential to a truly human life" [ 16]. Arendt comments that even the most intensely private actions cannot be fully understood until they are made public to others:
"Compared with the reality which comes from being seen and heard, even the greatest force of intimate life - the passions of the heart, the thoughts of the mind, the delights of the senses - lead an uncertain, shadowy kind of existence unless and until they are transformed, deprivatized and deindividualized, as it were, into a shape to fit them for public appearance" [ 17].It would seem that Arendt's political philosophy leaves no room for the private, however she makes a key concession about the need for privacy which helps lay the foundation for the value of political privacy. While sociable public life is to be preferred over an exclusively private existence, Arendt speaks of "the danger to human existence from the elimination of the private realm" [ 18]. She further notes that there are "a great many things which cannot withstand the implacable bright light of the constant presence of others on the public scene," such as love for example, and that "A life spent entirely in public, in the presence of others, becomes . . . shallow" [ 19]. Arendt therefore recognizes that without a private space for identity formation and the shielding of intimate details from others, the public could never be constituted. Indeed she concludes that public and private can "exist only in the form of coexistence" [20].
Public sphere theorist Jurgen Habermas carves out a similar yet more powerful role for the private sphere. For Habermas, more than simply coexistent, the private sphere literally constitutes the public. "The bourgeois public sphere may be conceived above all as the sphere of private people who have come together as a public" [ 21].
Within Arendt and Habermas's construction of the public sphere we see that privacy provides a space for individuals to develop their own identity and ideas in order to engage in public life. Echoing this view, Diffie and Landau (1998) note, "Without the opportunity to discuss politics in private, however, the finished positions that appear in public might never be formulated," thus preventing the creation of the public sphere. Reiman (1995) shares this view, commenting that in the absence of privacy, individuals will not feel free to engage in perfectly legal but unpopular activities. Indeed, if individuals know they are being watched they will act quite differently than they might otherwise wish to. Instead of expressing their true feelings, people will be inclined to adopt the conventional wisdom for fear of being punished if their views deviate from the norm. Bloustein [ 22] makes a similar point, noting that:
"The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. Such an individual merges with the mass. His opinions, being public, tend always to be conventionally accepted ones; his feelings, being openly exhibited, tend to lose their quality of unique personal warmth and to become the feelings of every man. Such a being, although sentient, is fungible; he is not an individual."Bloustein is essentially describing a totalitarian state where privacy is simply obliterated and freedom is therefore impossible. Diffie and Landau make the same point, noting that personal privacy was absent in totalitarian states, like the former Soviet Union and East Germany where informants and phone taps were the norm [ 23].
When contrasted with the complete lack of privacy in totalitarian states, we see that privacy is not an enemy of the public sphere and freedom, but a necessary condition for their development. As such, "political privacy" is not the oxymoron it might seem upon first glance. We need such a space, free from the influence of others, so that we can develop our political views and eventually take them into the public sphere where they can be properly debated. Seidman [ 24] nicely summarizes that "the ideal of a 'public' government necessarily entails its opposite: a 'private' sphere, protected from public intervention, within which people are free to form individualized relationships that cannot be justified under the requirements of impersonal beneficence."
If we accept the important role which privacy plays in political identity formation and exploration we should also support a right to anonymity. As with the public-private distinction, on first glance anonymity looks like it might be dangerous for the functioning of a vibrant public sphere. After all, if a speaker believes so strongly in a position why would she not want to be identified as its author? In the U.S., First Amendment jurisprudence operates on the notion of a "marketplace of ideas" where in a "well-functioning market, more information moves the market closer to the truth" [ 25]. If an author seeks to shield his identity than the marketplace is deprived of important information. Surely the author must have something to hide! While such suspicion is understandable, it fails to account for the fact that many ideas would never be espoused at all if all authors were forced to disclose their identity. There are certain unpopular positions which some people might want to explore, but not if they know they will be exposed to ridicule and perhaps even physical harm if they are tied to such views in public. To completely forbid anonymity would therefore result in no unorthodox views ever reaching the public sphere of debate. As Kornfeld (2000) comments, "Anonymity allows individuals to present their opinions without fear of ostracism for unpopular or controversial viewpoints and thereby preserve the scope of political discourse among the population at large." The anonymously written Federalist Papers, one of the core documents of our democracy, provide dramatic evidence of anonymity's importance to public political debate.
For the reasons discussed above, political privacy and anonymity are necessary prerequisites for the functioning of a free and open democratic political system. In the next section we will explore how the U.S. has come to enshrine these values by protecting citizens rights to associational privacy and anonymous political speech.
The Right to Associational Privacy
America, as Tocqueville famously concluded, is a nation of joiners. While there is much debate today about the apparent decline in Americans joining behavior (Putnam, 2000), there is no question that our associations with friends and organizations, be they political, social, or recreational, help constitute who we are as individuals and as citizens. As Tien [ 26] comments, "We constitute our selves in our associations with others, and our group affiliations are a crucial part of our identities." Because our associational activities are so bound up in defining our identities, when peoples private associations are exposed to the glare of unwanted publicity, great psychic, social, and economic harm may occur.
There is no better illustration of this phenomena than the "Red Scare" following the end of World War II, and the government actions used to uncover "Communists and fellow travelers." Beginning in 1947 with the U.S. House Un-American Activities Committee (HUAC) and continuing through the McCarthyism of the early 1950s, Congress held countless hearings aimed at uncovering Communist sympathizers within the government. Witnesses were forced under oath, and under threat of contempt of Congress charges or dismissal from employment, to answer invasive questions about their political beliefs, who they voted for, their past associations, and the activities of friends. Supporters of the such methods argued that they were simply providing the public with "information" about government employees backgrounds. However, the true intent seemed closer to intimidation of unpopular groups espousing unpopular ideas. The message to the general public could not have been clearer: if you support the Communists or other unpopular political party, you will be branded with a scarlet letter and will suffer social ostracism and economic ruin. As Kreimer summarizes the effects of McCarthyism:
"In its full flower, the evils of the "method of exposure" were at least three fold: the arbitrary and uncontrolled imposition of disabilities on citizens subjected to compelled disclosure, the substantive impact of exposure on individual exercise of constitutionally protected rights of speech, thought, and association, and the constraint on public thought and discourse from the fear of public investigation of private long-buried beliefs and associations" [ 27].Recognizing the dangers to freedom of association, autonomy, and political privacy posed by such state sponsored "exposure," the courts through a series of decisions carved out a protected space of associational privacy. Beginning with the 1957 case of Sweezy v. New Hampshire, the U.S. Supreme Court began to define the importance of associational privacy. In the Sweezy case, a New Hampshire state university professor was required to testify in a state investigation of "subversive persons." The professor refused to answer questions about his knowledge of the Progressive Party and its members, and as a result was found guilty of contempt. The Court reversed the conviction on the grounds that such investigations trample citizens right to freedom of association:
"... a fundamental principle of a democratic society is political freedom of the individual. Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association ... . Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents."One year later in NAACP v. Alabama (1958), the Court prohibited the state of Alabama from forcing the NAACP to release a list of its members in the state. The Court argued that mandatory disclosure of members would endanger "the vital relationship between freedom to associate and privacy in one's associations." Further, the threat of physical violence and intimidation brought on by disclosure would likely "induce members to withdraw ... and dissuade others from joining" the NAACP, "because of fear of exposure of their beliefs shown through their associations."
In Shelton v. Tucker (1960) the Court examined the implications of an Arkansas statute requiring public school teachers to annually reveal the groups they belonged and contributed to. The state argued that it had a right to examine the fitness of its teachers by examining their backgrounds. The Court however, found that such a broad statute violated the teachers right to free association and that it would inevitably discourage them from joining controversial organizations:
"To compel a teacher to disclose his every associational tie is to impair that teacher's right of free association ... Even if there were no disclosure to the general public, the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy. Public exposure, bringing with it the possibility of public pressures upon school boards to discharge teachers who belong to unpopular or minority organizations, would simply operate to widen and aggravate the impairment of constitutional liberty" [ 28].One area where state enforced associational disclosure is considered to be generally positive is in campaign finance regulations. Disclosure of campaign donations of $200 or more to federal candidates, and to party committees and political action committees that support federal candidates is required by the Federal Election Campaign Act (FECA) in order to enable public scrutiny of the role money plays in elections (Center for Democracy and Technology, 1999a). These requirements were upheld in the case of Buckley v. Valeo (1976), where the Court found that the state's interest in preventing corruption and informing the public about the role of campaign contributions justified compelled disclosure. However, the Court also noted that "public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute." Recognizing that disclosure requirements could be particularly harmful to supporters of unpopular political causes, the Court crafted an exception for groups which could show a "reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties."
Six years after the Buckley decision the Court found just such a group. The Socialist Workers Party (SWP) was a small political party whose goal was "the abolition of capitalism and the establishment of a workers' government to achieve socialism." The party argued that it should be exempt from an Ohio campaign finance law requiring disclosure of contributors because the party had been the subject of intense harassment including destruction of their property, police harassment of a candidate, shots fired at their party office, and surveillance by the FBI. In Brown v. Socialist Workers Campaign Committee (1982), the Court agreed that forcing the SWP to disclose its contributors would "subject those persons identified to the reasonable probability of threats, harassment, or reprisals."
The Right to Anonymous Political Speech
Closely related to associational privacy rights is the right to anonymous political speech. If we believe that groups (particularly unpopular ones) should be shielded from unrelenting government or public scrutiny, then we should also support the right of these groups to speak out in public in a way that will not expose them to undue social or physical harm. Two important cases directly address this issue and have both found a right to anonymous political speech.
In Talley v. California (1960), the Court took up the issue of a Los Angeles City ordinance requiring that "No person shall distribute any handbill in any place under any circumstances, which does not have printed on the cover" the name and address of the individual or group responsible for the printing and distribution of the handbill. The ordinance was used to fine the creator of a pamphlet attributed only to the "National Consumers Mobilization" group which was calling for a boycott of local area stores for failing to offer equal employment opportunities to minorities. The Court found the ordinance to be unconstitutional, noting that "There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression." The Court helped justify this conclusion by noting the important historical role played by anonymous speech:
"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all ... Even the Federalist Papers, written in favor of our Constitution, were published under fictitious names. It is plain that anonymity, has sometimes been assumed for the most constructive purposes."The Court was presented with a very similar situation in the case of McIntyre v. Ohio (1995). In 1988, Margaret McIntyre, a parent of school age children, decided to protest a proposed local school tax. She printed up a number of leaflets, some identifying her by name and others identifying the speaker only as "CONCERNED PARENTS AND TAX PAYERS," and distributed the material at a number of town meetings. A complaint was filed against Mrs. McIntyre for violating an Ohio statute which prohibited the distribution of anonymous political literature (Constantine, 1996). As in Talley, the Court struck down the ordinance as a violation of the First Amendment. The Court found that "Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation - and their ideas from suppression at the hand of an intolerant society." Recognizing anonymity's role in fostering private political identity formation and experimentation, the Court noted that a written election-related document "is often a personally crafted statement of a political viewpoint ... As such, identification of the author against her will is particularly intrusive; it reveals unmistakably the content of her thoughts on a controversial issue."
In the associational privacy and anonymous political speech cases cited above, the Court has come to recognize the incredible importance of political privacy. Far from distorting public debate, a protected space of privacy for people to develop their identities and political views free from the influences of governmental or social pressure actually helps constitute a vibrant public sphere of interaction and debate. Simply put, without the private there would be no public.
In the next section of this paper, we will see how the development of online political profiling techniques by commercial interests and onerous FEC disclosure requirements when applied to the Internet environment, have the potential to undermine our important rights to associational privacy and anonymous speech.
From Profiling Consumers to Profiling the Electorate
Over the past few years, exposure of the privacy invasive profiling techniques used by e-commerce and online advertising companies have generated a great deal of public concern. Survey after survey confirms that consumers are wary that they will lose their personal privacy online. For example, an August 2000 study by the Pew Internet & American Life Project found that 86 percent of Web surfers feared that their personal information would be compromised online.
The widely used profiling techniques causing such concerns include the gathering of "clickstream" data and the use of server set cookie files. Clickstream information is generated through simply visiting a Web site. In the "hand shake" transaction which occurs between a Web browser requesting a Web page and the Web server delivering that page, a good deal of information can be recorded. Web servers can log a Web surfer's Internet Protocol (IP) address (which may map to a specific individual or household), their remote host from which they can also infer the general geographic location of the host server, the search term used to find a Web site, browser type and version, what type of computer and operating system is used, screen resolution, and the date and time of a Web site visit. Web sites record all of this information in huge log files which are analyzed to identify and target individual Web surfers (Kang, 1998).
A more efficient method for Web sites to identify individual Web surfers and their browsing habits is the use of cookies. Cookies are small bits of text that Web sites may place on a Web surfer's hard drive. Most Web browsers are preconfigured to automatically accept cookies. Web sites may create cookies that contain a unique identifying number which can be used to call up whatever information a site has previously collected from an individual Web user and stored in its databases (such as which pages a user visits within a site, how long a user spends on a particular page, and information supplied via forms such as e-mail addresses, passwords, and credit card numbers).
The primary use of cookies is for Web site "personalization," such as when customers return to Amazon.com and are greeted with a personalized starting page. While site personalization may seem benign, the trouble with cookies is that Web sites can share user profiles, often without users knowledge or permission, by exchanging unique cookie identifying numbers. As Junkbusters (1999) summarizes this problem:
"Any Web site that knows your identity and has a cookie for you could set up a procedure to exchange their data with companies that buy advertising space from them, synchronizing the cookies both have on your computer. This possibility means that once your identity becomes known to a single company listed in your cookies file, any of the others might know who you are every time you visit their sites."Perhaps the largest users of cookie technology are Internet advertising networks like DoubleClick, Engage, the Flycast network, and MatchLogic, which serve customized banner advertisements to the majority of the most heavily trafficked sites on the Web. The average Internet user would be surprised to realize that these little known companies have placed cookies on millions of surfer's hard drives, thus enabling the creation of huge databases recording who looks at what Web pages (Junkbusters, 1999). Even more troubling than this largely invisible collection of browsing behavior, many Internet advertising networks have attempted to "synchronize" their online profiles with off-line direct marketing databases. In June 1999, DoubleClick announced it was merging with Abacus Direct, an off-line direct marketing company which knows individuals credit card numbers, mailing addresses, phone numbers, and household incomes. As Andrew Shen of the Electronic Privacy Information Center ( EPIC) notes, "The merging of these two databases of information creates the ability to not only obtain personally identifiable information, but a way in which to know the online behavior of real individuals" [ 29]. The Abacus deal, which DoubleClick has since backed off on due to public outcry over its privacy implications, exposes the workings of a vast secondary market in personal information, where commercial profilers seek to augment their profiles with data gathered from other sources including the census, motor vehicle registrations, and home loan records. In 1998, the gross annual revenue of companies selling personal information and profiles, was estimated at $1.5 billion (Reidenberg, 1999).
For roughly thirty years, political campaign consultants have used numerous techniques including phone banking, zip code and household cluster analysis, and psychographic profiling to segment and target narrower and narrower groups of potential voters. For example, Political Marketing Services, a campaign consultancy, advertises its ability to target only voters who are likely to agree with a candidate's key issue positions, a technique it refers to as "voter isolation." Traditional data marketers have also recently begun to repackage their profiles for political campaign professionals. SRDS Direct Marketing List Source, one of the prime providers of information to the direct marketing industry, now offers a 44,000 name list called "Anti-Clinton Republican Revolutionaries." Other lists offered include "Beer-Bellied Reactionary Republicans," and "Colorado Model Liberals" (Mintz and O'Harrow, 2000). Such information can then be entered into software which allows campaigns to geographically target likely voters at the neighborhood and even the individual household level. For example, the Vermont-based company, Map Applications, offers software which can link as many as 5,000 categories of information (including age, ethnicity, marital status, salary, and gun ownership) to individual voters (Stepanek, 2000). These existing methods are now being augmented by the online profiling techniques described above to create a new and alarming level of political surveillance and segmentation. As Gandy comments, "While some will argue that politics has always been subject to a variety of techniques governed by the admonition to 'divide and conquer' ... the computer and telecommunications networks that enable them to share vast quantities of information represent a difference in breadth and depth that requires our attention, if not our concern" [ 30].
No company is more famous (or infamous for that matter) for bringing target marketing techniques to the political campaign world than Aristotle International, a political consulting firm founded in 1983. Over the years Aristotle has digitized the publicly available voter registration lists in every state in the country, and combined them into a vast database containing the names of more than 150 million registered voters. The database has been combined with information from other sources to create profiles which include voters names, addresses, telephone numbers, party affiliations, frequency of voting, ethnicity, incomes, employers, what cars they drive, and up to 25 other factors (Wayne, 2000). Aristotle sells access to its database through VoterListsOnline.com which advertises that "you may search as many times as you wish until you have narrowed the list to just the type of voters you want at a price you can live with" (cited in Knight, 2000). One of Aristotle's most popular products is its "Fat Cat" list of wealthy contributors, which promises to turn "your personal computer into a proven fund-raising machine" (cited in Wayne, 2000).
Aristotle's impressive voter list offerings have made it wildly popular among candidates. According to Aristotle's IPO prospectus, 50 U.S. Senators, over 200 House members, 46 Democratic and Republican state parties, and numerous national advocacy organizations are clients. During the 2000 campaign season, Aristotle estimated that some 72 percent of Senate candidates, and 66 percent of House candidates used the company's services [ 31]. Several 2000 Presidential candidates including George W. Bush, John McCain, Elizabeth Dole, and Steve Forbes also used voter information provided by Aristotle (Wayne, 2000).
In addition to its traditional voter list offerings, Aristotle has sought to expand "to become a leading provider of targeted internet marketing solutions" [ 32]. To facilitate its move into online marketing, Aristotle teamed with network advertiser MatchLogic to serve targeted banner advertisements to Web surfing voters. This partnership allowed Aristotle to cross reference Virginia voter registration rolls with Internet users likely to support John McCain, and then serve McCain banner ads encouraging people to help collect signatures to get his name on the Virginia primary ballot (Lessnor, 2000). If this matching of online and off-line information sounds familiar, it is. The very same idea was proposed by DoubleClick when it purchased Abacus Direct. Given the similarity, privacy advocates have been highly critical of Aristotle's practices. As Lauren Weinstein of the Privacy Forum comments:
"You may have already been justifiably concerned about DoubleClick, Inc.'s tracking of your behavior over the Web, but Aristotle takes consolidation of personal data to a whole new level, by actually combining the information that has been provided by Web users (e.g. for various "freebie" Web giveaways), with specific and detailed political data such as voter location and party affiliation information, obtained from voter registration roles ... The power of Web data collection, tracking, ad presentation, and similar technologies, combined with other traditionally public record data sources creates a scenario that might cause Darth Vader to be jealous" (Weinstein, 1999).Such privacy concerns helped scuttle Aristotle's attempt to combine its voter profiles with e-mail addresses collected by America Online and Microsoft (Pressman, 2000). The Al Gore campaign also refused to do business with Aristotle for privacy related reasons (Wayne, 2000).
Both the Democratic and Republican parties recognized that privacy was an important issue in the 2000 elections. Indeed, both parties included statements in their platforms noting how they would address the issue. The Republican platform boldly stated that "Citizens must have the confidence that their personal privacy will be respected in the use of technology by both business and government." The Democratic platform similarly noted that "Al Gore has focused on the challenge of protecting Americans' personal privacy online." Despite such proclamations of concern, both parties, and their candidates were less than vigilant in protecting voter privacy during the 2000 campaign.
In June 2000, the Democratic National Committee (DNC) announced it was offering a free ISP service known as freedem.com. The DNC advertised the service as a way to engage interested voters, and as "a major step toward building more on-ramps to the information superhighway and closing the gap between the 'wired' and 'non-wired' communities" (DNC, 2000). Despite such altruistic language, the service was really geared towards gathering information about potential voters and their online behavior. Freedem.com's registration page required users to "divulge slightly less information than the long Census form," including information such as marital status, type of health insurance, number of children, annual income, online purchases, and ethnicity (Krebs, 2000). This information was shared by the DNC and MillionEyes.com, the creator of the service, which used the information to help advertisers serve targeted banner ads to freedem.com users. It's a rather interesting irony that in the nineteenth century, political parties were in the habit of purchasing votes, whereas today they seem to be in the business of selling voter profiles to advertisers.
Candidate Web sites at both the presidential and congressional levels were equally suspect in their treatment of personal information gathered through online e-mail list, volunteer, and campaign donation forms. During the early stages of the presidential race, the Center for Democracy and Technology ( CDT) surveyed presidential candidate Web sites for the presence and quality of privacy policies. They found that only two (Gore and McCain) of the eleven candidates had links to privacy policies on their home pages, and that less than half had a privacy policy at all. CDT further found that "In almost all cases, the privacy policies that we did find did not clearly and directly answer important questions on several key privacy issues of interest to individuals" (Center for Democracy and Technology, 1999b). A similar study conducted in March 2000 by the privacy consulting firm Enonymous, found that no presidential candidate privacy policy could earn the firm's top, four star privacy rating, which indicates that a site may collect personal information but will not share such information with third parties (Enonymous, 2000).
Following the presidential primaries, an interesting question was raised about what losing candidates should do with the personal information they collected. For example, there was some evidence that Bill Bradley's e-mail list may have been handed over to a Virginia Congressional candidate without the explicit permission of the users who had originally signed up for the list (McCullagh, 2000). As Mortman (2000) comments, "if Bradley turns over his names to Gore, or McCain sells or leases his names to Giuliani, is that a privacy violation?" The answer is clearly yes, especially given the deeply personal nature of peoples political preferences and the fact that supporters were not given the ability to opt-out of having their information shared with another campaign operation.
If candidates at the top of the ticket were not vigilant in protecting their supporters privacy, I wondered what the situation might look like at the congressional candidate level? As a result, in November 2000, I content-analyzed all 731 active congressional candidate Web sites to see if they collected personal information through a volunteer or contribution form, and whether or not they had a posted privacy policy. My analysis found that while 70 percent of campaign sites collected personal information, only 15 percent had any sort of privacy policy describing how this information would be used. Among candidates with privacy policies, there was also a tremendous range in quality. Campaign sites for candidates such as Jean Elliot Brown and John Ashcroft featured extensive privacy policies outlining what information was collected, how it was gathered, and how people could opt-out of receiving e-mail alerts. On the other hand, sites for candidates like Rick Lazio featured vague privacy statements like "We promise to protect your privacy."
Another troubling finding was that 45 percent of candidates used a third party Web site - like Campaignsolutions.com and Campaigncontribution.com - to process campaign donations, but only 28 percent of these third party processors had a privacy policy. The trouble with third party processors is that even if a candidate had a strong privacy policy which applied to his or her site, when they linked to a third party donation form, the third party did not have to follow the candidate's privacy policy. In fact, many candidate policies featured language like, "we are not responsible for the privacy practices of other sites we link to." Making matters worse, many third party donation forms were designed to look just like the candidate's site (see Figure 1 and Figure 2 below), thus potentially confusing donors about where their personal information was going. Among candidates using a third party processor, 90 turned to Campaigncontribution.com, a service with no privacy policy, offered by the good people of Aristotle International.
Figure 1: Hunter for Congress Home Page.
What are the possible consequences of such cavalier treatment of voters personal information? If voters become aware of the practices described above they may well simply disengage from political activity. As Kim Alexander, president of the California Voter Foundation notes, "It's going to result in people not wanting to register at all because their personal information can be abused" (cited in Nuckols, 2000).
Figure 2: Hunter Contribution Page (note the URL).
People may similarly be deterred from visiting controversial candidate, party, or issue Web sites for fear that their surfing behavior will be recorded by the likes of Aristotle and MatchLogic, and turned into a profile which may end up in the wrong hands. This type of profiling would seem to be a clear violation of the spirit of associational privacy.
Such concerns are all the more real in the wake of the September 11 terrorist attack. Already one data marketer, Acxiom, has announced a willingness to sell its consumer purchasing data to the government in order to better profile airline passengers (Acxiom, 2001). This data can now be used by federal agencies to target individuals fitting some profile. The government will not be using this information to sell a certain product, but to target individuals for additional surveillance. Also in response to September 11, Congress passed the USA Patriot Act which gives law enforcement agencies unprecedented new surveillance powers. Among these new powers is the ability to easily obtain wiretaps for Internet activity. As Marc Rotenberg (2001) of the Electronic Privacy Information Center notes, "the police could now use 'Carnivore' to routinely capture clickstream data from Internet users - including the Web sites visited and the pages downloaded - under the same low standards that currently permit government access to telephone numbers dialed." The result may be the profiling and harassment of citizens who simply visit the Web sites of controversial political organizations or espouse radical viewpoints in political chat rooms and newsgroups. As privacy advocate Jerry Berman comments:
"The attorney general is making a full-court press on the Internet. They want to do a lot of data mining and investigations on the Internet, and because they are looking for a needle in a haystack, they are going to conduct investigations that take them to the outer circle ... The trouble with the [Patriot Act] is that it's very sweeping and it can apply not just to suspected terrorists but people and organizations that may be engaged in lawful actions" (cited in Olsen, 2001).Concerns over increased government surveillance already seem to be having a chilling effect on online political discourse. According to a November 2001 survey commissioned by the Democracy Online Project (2001), "12 percent of Americans who use the Internet to discuss or learn about politics and government are less willing to discuss politics and government online" as a result of the Patriot Act. While the U.S. clearly needs new surveillance capabilities to prevent future acts of terrorism, it must make sure that these new powers do not chill political discourse or dissent (be it from a soap box or a chat room), or interfere with Constitutional rights to associational privacy and anonymous speech.
A final danger of political profiling and targeting is a hypersegmented public sphere where citizens are fed highly personalized messages and therefore unable to escape their individualized media bubbles to discuss larger societal issues (Turow, 1997). Fox nicely describes the downside of an overly personalized politics: "Imagine receiving from a candidate personalized messages that are designed for your demographic group and political affiliation. You'd never hear an opposing view. You'd be pampered with predigested politics, a Muzak soundtrack to the movie of your own choosing" [ 33]. Even more troublesome is the flip side of targeting: large numbers of citizens whose profiles indicate that they are unlikely to vote simply wont receive any political information. As Gandy [ 34] notes, "Excluding persons from the flow of information because they have been deemed unlikely to vote means that the people who are most in need of information are least likely to receive it." The potential for political profiling techniques to create a nation of hypersegmented information haves, and an underclass of information have-nots, clearly does not bode well for our notions of an informed, deliberative, and vibrant democracy.
FEC Disclosure and the Threat to Political Privacy and Anonymous Speech
Few people would take issue with the Federal Election Commission's worthy goals of limiting money's role in elections, preventing corruption, ensuring competitive elections, and improving the quality of electoral debate [ 35]. The FEC seeks to achieve these goals primarily through mandatory disclosure of campaign contributions by individuals, parties, and other groups seeking to influence the electoral process. Unfortunately, FEC disclosure rules - crafted in the 1970s, before the rise of fully searchable Web accessible databases and assuming a radically different media environment - now have the potential to violate citizens political privacy and discourage online political speech.
At the core of FEC rules is the requirement that individuals donating more than $200 to a campaign disclose their name, street address, employer, and job title. Such personal details are obviously highly sensitive and many contributors would likely feel uncomfortable if their information was easily accessible to others. Throughout the 1970s and 1980s, while donor information was nominally public and open to inspection by anyone, it was held in difficult to access databases maintained by the FEC. Groups like Common Cause might have the expertise and time needed to examine the information to produce reports on campaign finance, but the average person wouldn't have the ability to poke around the database. The Web has thoroughly changed this situation by allowing the FEC donor information database to be "published" on the Web where anyone can search its contents. During the 2000 election, the FEC, and other sites like opensecrets.org, and fecinfo.com, made the entire FEC donor database, with information on contributions dating back to 1980, Web accessible. With a few clicks of the mouse, a curious neighbor could find out the political affiliations and employment history of everyone on her block, and in turn perhaps pressure or ridicule the one person who voted Democrat in an overwhelmingly Republican neighborhood. Far more seriously, employers might query the FEC database in an attempt to weed out employees with unpopular views. Regnery (2000) outlines just such a situation:
"Searches based on employer are possible, and thus a pro-life boss could find out with a single click all employees who support pro-choice candidates, or vice versa. A non-union employer could determine who among its workers had given even relatively modestly to pro-labor candidates or political action committees."Knowing that their personal information and political views might be exposed for contributing as little as $200, there is a good chance that some people will choose not to show their support for a candidate by donating money. Bernstein (2000) nicely summarizes the harmful effects of FEC disclosure taken too far:
"Now I don't know if I'll contribute again. Because in doing so, I'll be broadcasting my beliefs to anyone who has a modem. I'm probably not alone in feeling this way, which suggests that these lists could have a chilling effect on individuals' contributions, especially donations to unpopular candidates and parties."Bernstein is indeed not alone in his concerns. According to a Democracy Online Project survey (2001), one in eight Internet users (12 percent) say that privacy concerns have stopped them from making an online political contribution.
Another FEC rule which threatens citizens privacy and free speech rights, is the "independent expenditure" requirement that any individual or group spending more than $250 to expressly advocate the election or defeat of a specific candidate, identify themselves and indicate whether or not the advocacy is authorized by a candidate or a candidate's campaign committee (Kornfeld, 2000). This rule assumes that political speech is expensive and will be conducted by a limited number of groups with the financial resources needed to purchase television and newspaper advertisements (Center for Democracy and Technology, 1999a). While these assumptions may have held true in the 1970s and 1980s, the rise of the Internet, with its low production costs and wide reach has radically democratized the ability to create and disseminate political speech. As the Supreme Court noted in Reno v. ACLU (1997), "Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer."
FEC rules thus have the potential to stifle the inexpensive political advocacy of individual Web users who take the time to develop Web sites in support of, or opposing various candidates. For example, in a 1998 ruling the FEC found that an individually developed Web site supporting a political candidate likely cost more than $250, was "something of value" that expressly advocated the election of a candidate for federal office, and was therefore required to include the full name of the site's creator and indicate whether it was authorized by the candidate being advocated for [ 36]. This controversial interpretation of FEC requirements would seem to be in direct violation of the Supreme Court's Talley and McIntyre decisions which found anonymous citizen produced speech to be fully protected by the First Amendment. As Kornfeld (2000) nicely summarizes, "Individuals who express strong viewpoints on the Web either in support of or opposition to a candidate should not be required to disclose their identities. Requiring such infringes the personal right to free expression guaranteed by the Constitution."
In sum, FEC rules, when applied to the Internet, may actually force citizens to disengage from politics for fear of losing their personal political privacy, a situation which ironically runs directly counter to the FEC's goal of helping to equalize citizens political influence in the electoral process.
Conclusion
In this paper we have explored the vital role which political privacy plays in creating a vibrant public sphere needed for a functioning democracy. The value our system places on political privacy has been embedded in our recognition of citizens rights to associational privacy and anonymous political speech. These rights, often taken for granted, are now threatened by the combination of aggressive target marketing techniques augmented by Internet profiling technologies and excessive disclosure requirements imposed by the FEC. Fortunately, there are a number of fairly simple steps which can be taken to help minimize the danger to political privacy posed by the joining of campaigning, elections, and the Internet.
With regards to voter profiling in both the off-line and online worlds, states and the FEC should be far more diligent in enforcing existing regulations prohibiting the commercial use of voter registration records. Some 25 states already have such laws on the books, but they are rarely if ever enforced (Pressman, 2000). Trevor Potter, a former FEC commissioner similarly notes that "Federal election data cannot be used for commercial purposes, but no one has ever challenged it" (cited in Wayne, 2000). It is rather hard to imagine a more commercial use of election related information than Aristotle sharing its voter profiles with an Internet advertising network like MatchLogic. Enforcement actions brought against these types of profiling techniques could greatly curtail the privacy abuses associated with the use of publicly available voter registration and campaign contribution information.
Political parties and candidates using the Internet to gather information from potential supporters should also take privacy far more seriously. Campaign Web sites clearly have an interest in collecting personal information so that they can contact volunteers, process campaign donations, and report required information about contributors to the FEC. However, given the sensitive nature of individuals' deeply held political convictions, such information should be afforded a high level of privacy protection. All campaign Web sites collecting personal information should have a posted privacy policy which states:
- What personal information is collected?
- How and where it is gathered?
- Whether personal information will be sold to third parties or shared with other campaigns, and if so the right to opt-out;
- The ability to access and correct information held by the campaign;
- An assurance that personal information will be stored in a secure fashion; and,
- The ability to opt-out of campaign e-mail lists.
Candidates thinking about using a third party donation processor should also check to see if the service offers a comparable level of privacy protection, and whether it clearly posts a privacy policy.
By following these simple guidelines, Web-based campaigns will better respect voters' online privacy. In doing so, campaigns will increase voter trust, and as a result, increase the likelihood that visitors will feel comfortable using online volunteer and donation forms.
Threats to associational privacy and anonymous political speech posed by the application of FEC regulations to the Internet environment could be greatly lessened by modifying contribution disclosure requirements, and by taking a hands off approach to citizen political advocacy on the Internet. Congress should consider amending campaign finance laws to allow small ($200-$900) donors to only have to disclose their names and zip codes rather than their full home address and place of employment. Alternatively, Congress could simply exempt people contributing less than $1,000 from disclosure requirements altogether. The danger posed by individuals (and marketers) snooping through Internet contribution databases for salacious information about their neighbors or employees outweighs the small benefit gained from knowing who contributed such small donations to a political campaign. As Regnery (2000) comments, "Yes I know it's the law, but a $200 contribution shouldn't put you in the national spotlight. That's clearly not enough to influence a congressman or get you into the Lincoln bedroom. Public disclosure of such small contributions serves only voyeurs and snoops and those building campaign or marketing mailing lists."
Finally, with regards to regulating political speech on the Internet, the FEC should take a decidedly hands off approach. Individual citizen produced political advocacy Web sites and e-mail lists should be exempted from onerous reporting and disclosure requirements which could stifle the diversity of political content on the Internet. Fortunately, the FEC seems to be coming around to this view, as it has recently ruled that citizen produced Web sites are more akin to volunteer activities than independent expenditures (Vaida, 2001).
If the above recommendations are adopted by campaign professionals and regulators, a space for political privacy on the Internet may well be preserved. Such a space will allow citizens to develop and explore their political identities in a new medium and therefore help realize the democratic potential of the Internet to broaden and reinvigorate the public sphere.
About the Author
Christopher D. Hunter is a Ph.D. candidate at the Annenberg School for Communication of the University of Pennsylvania. During the 2000 election he served as an analyst for NetElection.org which studied the role of the Internet in transforming the electoral process. In December 2001 he was a panelist for the Democracy Online Project's Privacy & Online Politics Debate.
Web: http://www.asc.upenn.edu/usr/chunter/
E-mail: chunter@asc.upenn.edu
Acknowledgments
The author would like to thank First Monday's reviewers, Oscar Gandy, David M. Anderson, and Carol Darr for their helpful comments on earlier drafts of this paper.
Notes
8. Cited in Pomper, 1968, p. 3.
13. Tocqueville, 1969, p. 506.
23. Diffie and Landau, 1998, p. 127.
35. Center for Democracy and Technology, 1999b, pp. 10-11.
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Editorial history
Paper received 10 July 2001; revision received 24 January 2002; accepted 29 January 2002.
Copyright ©2002, First Monday
Political Privacy and Online Politics: How E-Campaigning Threatens Voter Privacy by Christopher D. Hunter
First Monday, volume 7, number 2 (February 2002),
URL: http://firstmonday.org/issues/issue7_2/hunter/index.html
