A look at Privacy, Election Law, and Computer Data Piling as Anonymity in voting, slowly dissolves.
Part I. The Scenario, a familiar experience examined
Part II. Thesis, Will computer data piling effect the way we think about campaigns and privacy.
Overview
Part IV. Election Law: How pure is the ballot box?
IntroductionBallot system implementedState Scrutiny in Administering Voting
Part V. Voter lists and the law
Part VI. Elections, Voter lists, Campaigns, and Privacy
Application of First Amendment and Associational Privacy to Election LawFirst Amendment and the rights of the campaign
Disenfranchisement
On November 2nd at 6:30 PM, two days before election day, you receive your third phone call of the evening. The call is from a campaign to pass a local bond for schools, the previous call was for a city council candidate, and before that the state Democratic party wanted to make sure you voted. This, of course, was not simply your third call of the year. The calls, and mail began weeks ahead of time, and perhaps a or two candidate has knocked on your door.
This in itself doesn't bother us too much. Until it becomes clear that the volume of contact ones gets is individualized. In other words the campaign did not call every registered voter, nor did the mail go to every house in the area, and the candidate probably did not even knock on your neighbors door. A person receives such contact based on the information gathered by the campaign. In this case the three calls were spurred by a couple of key things. First you had not yet turned in your mail-in ballot, second you had voted in four of the last five elections, and your are a registered Democrat. All this information (except your phone number) is attainable from you local county elections office.
Looking a little deeper into how your name came up, it gets a little more disturbing. The fist thing to note is that a minority of people vote regularly. Second county elections county brakes down how many people voted on a issue by precinct. Precincts contain about 40001 people. In elections where turnout is low you are dealing a pool of about 500 voters. An issue (candidate, bond, or initiative) may receive a higher or lower percentage in a given precinct than in the district as a whole. For example a ballot initiative which passes 51% to 49% state wide, might pass or fail by as much as 80% in any given precinct. The list start to dwindle down, to people who voted regularly, and who voted in a "favorable" precinct in a given election.
All this information is available on disk in Oregon. Your voting records contains your address, party, date of birth, and which elections you voted in. Political campaigns buy these disks and sort through hundreds of thousands of registered voters and pick and choose whom to contact.2 The person who called you knew when the last time was voted, your age, party registration, and they also know the mail they sent you.
Voting has historically been thought to be a private matter, yet with today' technology seemingly harmless information begins to chip away at concepts of privacy and voting choice. The problem is that individual bits of knowledge are in themselves harmless but when compiled by average PC's they begin to tell a story that challenges certain beliefs which we have held dear. This paper will look at the relationship of privacy law as it relates to voting law. Whereas in the past the idea of privacy and voting seemed to go hand in hand, today modern technology is exploiting the subtle differences in these two tenants of our democracy.
The paper begins by looking at the history of privacy law, this will provide a legal and philosophical basis to discuss the modern approach to privacy law. There are three key aspects of privacy law which we will use to discuses the voting law. The first and second of these arise under the First Amendment.3 The First Amendment can both protect our privacy, and infringe upon it, depending on who is accessing your information. The third approach is called informational privacy, which is a right to control information that is identifiable to you.
At this point the paper departs from privacy law and examines election law. The theories and history of election law place a priority on the sanctity of the ballot box. This goal led to the idea of having a secret ballot. There is however, a tension here between campaigns wanting to reach voters, and voters wanting to be protected from coercive tactics.4 Because of this, and because the states are charged with regulating elections, the federal courts have only stepped into electoral politics when avenues to voting have been closed off. An examination of campaign finance regulations also demonstrates how the Supreme Court views campaigns and elections. The paper finishes with a brief break down of how voting records are used, and examines the legal rights that could be implicated as the system progresses.
Privacy as a concept has its roots embedded deep in our political system. Yet these protections focus on government action. For example the right to be secure in one's person, papers, and effects from government intrusion.5 When applied to private citizens the constitutions power is significantly diffused because the constitution limits government action and does not speak to private individual action. The First Amendment protects our privacy in many ways, however it limits out ability to control our privacy when that information has come into the hands of a private entity. The common law also provides some redress for the protection of citizens mainly in the form of tort law. However, it too falls short of providing adequate legal protection. These theories of constitutional and common law have formed a basis of a new theory of privacy. This idea has been termed informational privacy. Informational privacy is the right to control information identifiable to an individual is acquired, disclosed and used.6 This idea will give us a foundation from which to peer into the challenges of a world where information is processed with such deliberate speed.
The constitution demonstrates a conception of a right to privacy which was critical to the founding of the country.7 While acknowledging that a explicit right to privacy was not articulated, the effects of many of the amendments demonstrate a strong sense that privacy was a revered condition. Interpretation of the Fourth Amendment in the courts supports this idea. "The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to th ehome, both physically and psychologically, where privacy expectations are most heightened."8 The Fifth Amendment also works to protect one's privacy of divulging incriminating information.9 These two amendments provide a evidence of a right to privacy being present (perhaps in the sub-conscious) in the minds of the founders, but the founders only sought to protect the people from the government intruding on the people.
Interestingly, The First Amendment, presents a mixed bag. It protects one's right to general assembly, which the supreme court has interpreted as protecting a right to expressive association.10 One's right to be a member of a group is protected by the constitution. NAACP V. Alabama, 357 U.S. 449(1958). In NAACP, the state of Alabama was demanding a list of NAACP members, the court found that revealing the members would cause harm and infringe upon ones right to associate as part of a group and violated the Fourteenth Amendment' s Due Process rights. This has been termed associational privacy.11 One's right to participate in a group or organization must be free from government interference in discouraging the activity of the group through exposition of it's members. The right to associate with a group could only be limited if restriction served a compelling governmental interest unrelated to suppression of ideas, and more narrowly tailored means were unavailable to further this state interest. NAACP, at 463-465. This analysis is common in cases where First Amendment rights are involved. A similar analysis is discussed below in the context of free speech areas around the polling place discussed below. In terms of data collection and use, the First amendment provides an individual the safety of anonymous association with a group.
The other side of the First Amendment debate distances the governments role in intruding on the content, maintenance, and use of private-sector information.12 The Report of The Privacy Protection Study Commission (Privacy Report), notes two goals regarding policy of information collection and the First Amendment. First is the abstract goal that government intrusion into the flow of information should be at a minimum, and second, and more concretely, the First Amendment limits that intrusion.13 The commission was wary of restricting private entities ability to communicate in any form.14
To understand these to concepts it is helpful to keep a frame of reference when discussing these First Amendment issues. For example, from the perspective of Jane Q. Citizen, the First Amendment is thus a sword and a shield. When a private entity seeks to use and manipulate her information, the First Amendment acts as a sword (against her), and restricts the government from interfering with the private entities rights to use her information. It acts as a shield (for her) by limiting the governments ability to use, and manipulate her personal information.
The common law has long recognized a right to privacy. The oft-quoted Justice Brandies eloquently summed up this right as the "right to be left alone."15 This idea has made its way into tort in this country. The First Restatement of torts articulated such an right.16 Additionally common law torts such as nuisance (the right to quiet enjoyment of one's property) and trespass (the right to exclude others from one's property) reflect a right to privacy. The ideas expressed in the common law has provided a base from which to jump. Certainly the longevity of Justice Brandies words, have been a virtual port from where many privacy doctrines have subsequently sailed. However, one of the short comings of tort law is there (generally) needs to be a identifiable injury. In some instances there has been injury. For example, where confidential information is discovered it can cause emotional distress, a tort.17 However in many cases violation of informational privacy does not cause a real perceivable injury. It is in these instances that tort law is not helpful.18
Congress has legislated on the issue of privacy but only in areas which affect government. The Privacy Protection Act of 1974, prohibits agency's from generally distributing membership lists.19 The Electronic Communications Act makes it a offense to acquire electronic messages without authorization.20 Congress has also passed statutes guarding against an agency's release of personal information.21These acts have represented a consciousness effort to address this slippery area of law but they still leave gaps, especially in terms of non-public bodies to use personal information.
Right to Informational Privacy
These recent statutes and the slow growth of the common law have led us to examine privacy in different shades. Professor Kang, in his article Information privacy in Cyberspace Transaction, sets out three different concepts of privacy which provide a useful tool in which to think about privacy issues in the modern age.22 The first area is spatial privacy, which is the notion that an individual in real space is shielded from physical invasions.23 The idea that one is per se liable under trespass simply by entering one's property demonstrates the gravity associated with this area. The second area is the concept of decisional privacy, where one's self determination in making decisions is shielded from public inspection.24 A law prohibiting contraceptives was found a unconstitutional invasion marital privacy.25The third area addresses the ability to control information about oneself.26
This idea has been expressed in a variety of emerging articles and papers. Perhaps most notably (or at least most promisingly) is that expressed in the Presidential Privacy Working Group (The Group).27 In their Principles for Providing and Using Personal Information, The Group recognizes the changing role that government and industry will play in a world where technology facilitates manipulation of information faster and cheaper than before.28 The Group defines information privacy as "an individual's claim to control the terms under which personal information--information identifiable to an individual--is acquired, disclosed, and used."29
An important distinction is made between personal information and confidential information. Informational privacy is necessary because it referees to things that describe the person e.g. name, address, sex, age. Confidentiality is generally used to denote information that speaks to actions or conditions. For example information regarding a past embarrassing action, or a temporary or acquired medical condition. It is often based on some kind of agreement between two people for the specific information. In many cases but for the understanding or agreement the individual would not reveal the information. An example is where there is attorney client privilege on a legal issue, the legal information is confidential. Any information that leaks is counter to that agreement (assuming the client did not constructively or explicitly waive the right). However, generally speaking, the same attorney could divulge their clients name with out breaching their confidence.
This distinction is important in talking about information privacy as the right to control information that is identifiable to an individual. The law recognizes privileges based on confidentiality, for example as indicated above, this type of revelation could be a mal-practice tort, or lead to tortious emotional distress.
This principle of informational privacy is not wholly based in law and can only serve as a guide to law makers.30 However the values with which it is based are rooted in the laws we currently have. For example, one value of privacy is that of avoiding embarrassment.31 To some extent this is found in tort when one suffers emotional distress. Another value is individual vulnerability, the idea that if personal information is accessible it will create a chilling effect, because people will not wish to subject themselves to possible harm.32 This notion of reprisal for exposition of associational affiliation is similar to the NAACP case, where one's right to anonymity in a group was protected from the eyes of the state.33 Because these values represent important aspects of our social contract, Informational privacy is a useful tool in examining our legal privacy future.
Faced with a world that can manipulate personal information in ways that invade our privacy we need to borrow the law we have and examine the possibilities of new laws. In the final analysis of this paper, we will look at voting records in the context of the First Amendment conflicts (the right to associate, and the rights of private entities to control information) and the concept of personal information.
Part IV. How pure is the ballot box?
for the man of another man's choice" - Ambrose Bierce.34
The right to vote is clearly a hallmark of our democracy and the most precious right of a free country.35 However while the right to vote has always stood on hallowed ground the privacy of voting has not always enjoyed the same standing. Originally voting was done publicly, this system however led to widespread corruption. Efforts to cure corruption led to the modern secret ballot. The evil of corruption in elections has made the court vigilant in evaluating state actions concerning voting. The constitution gives the states the authority to regulate elections.36 When the state exercises this regulation it is examined under the scrutiny of protecting the electorate from coercion and bribery. There is a tension here between coercion of voters and candidates desires to reach out to as many voters as possible. The Supreme Court has not addressed the issue of whether compilation of voter records in a computer medium could reach the evils of coercion and bribery. Application of Supreme Court principles and case law suggest that it would be difficult for the states to impose a restriction on public access to voting records.
Voting was not always private a affair37 Originally voting took place viva voce (literally, by our with the living voice38) or out loud in a public forum. In fact the Oregon constitution was itself ratified viva voce. This changed after the formation of the union.39 The system of voting as a public forum was ripe for bribery and coercion.40 Most states subsequently adopted a system using ballots, and the constitution was amended in 1804 with the Twelfth Amendment which provided that electors would vote by ballot for President and Vice-President. The idea of the ballot was to secure privacy in voting choice by providing a private means for making a choice. The system implemented was a paper ballot which voters made themselves in the home and then brought to the polls.41 This system was soon corrupted by political parties who began to produce brightly colored easily identifiable ballots.42 State attempts to standardize ballots were thwarted by "vote buyers" who would simply hand filled out ballots to voters as they approached the ballot box. The "evils associated with the viva voce system re-infected the electoral process."43 Among the most egregious attempts at coercion were employers carrying their employees to the polls to vote.44 Employees voting against employers often found themselves jobless, and homeless.45 This type of corruption continued until the late 19th century.46
Ballot system implemented
In 1888 New York and Massachusetts adopted the Australian Ballot System. This system included a official ballot of all the candidates running. It also developed polling booths and excluded the general public only from the immediate area around the polling booth.47 This way the public could observe corruption but would not be able to directly influence the voters.48
The purity of the ballot box has been a strong state goal since the late 19th century. The key struggle has been to maintain the ballots as the true will and free decision of the people.49 The fact that this system of voting would be secret has been an understanding for the last hundred twenty years.
States scrutiny in administration of voting.
States have long held the duty to administer elections and preserve voting records.50 States must have a compelling state interest to interfere in any way with the right to vote.51 Where the state limits free speech in a given area the first amendment rights of freedom of political speech are juxtaposed with the right to vote. The state must present a compelling state interest to restrict the First Amendment rights. One such reason is the purity of the ballot box. Burson v Freeman, 504 U.S. 191. In Burson, a state law prohibiting the display of campaign materials within 100 feet of a polling place met constitutional muster. The court found a compelling state interest in securing the right to vote freely. It noted that it is rare to find such a right but the ability to cast a vote freely from the taint of intimidation and fraud is such a reason. Id. at 211.
In Oregon the courts came to a slightly more lenient ruling. Picray vs. Secretary of State, 40 Ore. App. 592 (1996). In Picray, petitioner was cited for wearing a campaign button into the polling area. Oregon law prohibited the wearing of emblems in the polling place. The court found that this violated state constitutional protections of free speech. It noted that the state has the ability to control the privilege of free suffrage but only as far as that activity is effects an undue influence on the voters. Id. at 559-600. The court read the statute granting the state the ability to control elections narrowly. Only where the evils demonstrate "coercive conduct calculated to subvert free suffrage." Id. at 600.
In terms of voting records state have taken affirmative action in limiting access to voter files but this has not effected the ability for candidates or campaigns to acquire the lists. California limits who can access voter registration, while Oregon makes a violation to use the list for commercial purposes.52 In 1994 California passed SB 1518 which was designed to limit stalkers ability to access personal information.53 Oregon's statute prohibits using the voter file for any commercial purpose. ORS 247.955(1). But commercial use does not include procuring list for candidates or political parities. ORS. 247.955(2). Both states have shied away from limiting access to voter files for candidates and political parties.
In terms of individuals rights, Oregon, provides that a person may remove their information from the voter file. However there is a somewhat high bar for this. An elector must demonstrate to the county clerk the electors personal safety is in danger. ORS 247.965(2). When this happens the voter becomes an absentee voter.
Analysis of voting records Case
The Supreme Court has not directly addressed the ability of states to limit public access to voting records. Indications are that attempts to do so would have to reach a high bar. A 4th circuit case demonstrates the high burden associated with restricting a states right to control access, and the issues the court focuses on. A Virginia statue which required the citizen's Social Security Number as a condition of his right to vote was deemed constitutionally infirm. Greidinger v. Davis, 988 F.2d 1345 (4th Cir. 1993). In Greidinger, citizens were compelled to submit their Social Security Number on their voter registration. This information was fully accessible to the public. The court recognized that one's Social Security Number held a strong privacy interest. Id. at 1352. The plaintiff did not contest the ability of the state to require the information for their own purposes but only the dissemination to the general public54 and to candidates55 who were allowed to acquire these lists. The court found that this presented a unnecessary burden on ones right to vote.
The court first analyzed the burden on the voter. If the voter was substantially burdened than it would determine if there was a compelling state interest. In Greidinger, the court determined that there was a specific privacy interest in one social security number and this presented a serious enough burden to examine the state interest. The state argued a need to prevent voter fraud and to increase efficiency in registering people to vote. Greidinger, at 34. However the court could not find that making available one's social security number was a necessary means to this end.
These cases suggest that the courts are generally unwilling to look into a states methods and regulations regarding voting unless it is apparent that bona fide voters are being left out or excluded from the process. In terms of public voting records, there is a compelling state interest in reducing fraud, and in promoting political debate. Each of these ideas is furthered by public access to voting records. However, if notions of informational privacy rise to a high enough level, they may implicate the requisite first amendment authority to challenge the public access.
Although this paper does not directly address privacy issues in terms of campaign contributions, campaign finance laws demonstrates additionally views into the courts ideas and campaigns and elections. Additionally, one cannot talk about election law without talking about money. The cost of running campaigns is astronomical. A Oregon state house seat will cost $250,000 as well a Portland city council seat. A county commission seat representing 90,000 voters can cost almost a dollar a vote. Because money plays such a large role in elections a peek into some of the information available is relevant.
In all elections all money going into a campaign (contributions) and all money leaving the campaign (expenditures) are carefully recorded in the Contributions & Expenditures report (C&E). The reporting requires that all contributions $50 and over be reported.56 Specifically, the person (or entity) name, address, occupation, and amount contributed must be noted. These reports are kept on file at County elections and at the Secretary of States office. They are fully accessible to the public. For federal races go to http://www.votenet.com/.
The Supreme Court has ruled that money equals speech for First Amendment purposes. Buckley v. Valeo, 424 U.S. 1 (1976). In Buckley, the court struck down Federal Election Commission's (FEC) regulation which limited the amount of money a candidate could spend while running for office. The court noted that limiting money would impose quantity restrictions on political communication and reduce the size of the audience to be reached. Id. at 18. In this ruling the court indicates that a candidates ability to reach voters is protected by the First Amendment.
The court noted a important distinction in interpreting the First Amendment by distinguishing constraints of time, place and manner, and quantity. Id. The First Amendment allows for restrictions regarding the time, place and manner of speech. In Buckley, the court viewed spending restrictions as a restriction of quantity of political expression. The was not a cognizable restriction under the First Amendment. A limitation on the quantity of political expression reduces the number of voters reached. Under a broad reading of this reasoning a restriction on a candidate ability to reach voters violates the First Amendment.57
Although it has not been litigated, it would seem that a restriction on a candidates ability to obtain lists of registered voters might conflict with the candidates right to reach voters. In Buckley, the court refused to allow restrictions on how much money a candidate could spend in attempting to reach their constituency. If a case arose where a candidate was not allowed to use a list of voters to solicit support, it would seem this could affect their ability to effectively reach voters, and would reduce the quantity of speech. The reasoning would be that if they did not know who was registered to vote they would have to spend more time and resources on non-voters. In Buckley, money was a means to reach voters, voter lists are a direct link in the exchange of contacting voters.
Part V. Voter Lists and the Law
This section will briefly describe the nuts and bolts of voter lists, how they are used, and some of the ways they are manipulated. A good site to view concurrently with this section is http://www.voteraccess.com/who.htm. This should display a typical database form used by a campaign.
Voter lists usually include a voters name, address, party, affiliation, and voting record. By "voting record" I mean, a record of which elections if any did the person vote. In Oregon these lists are initially gathered on disk from country elections for about $100.58 The voter file does not contain phone numbers. Often what happens is the phone numbers are matched by a private source.
The voter lists are used for three things, walking, mailing, and phoning. In Greidinger, the court noted among the valid state interest was promoting participation in the electoral process.59 One clear way this goal is achieved is in allowing the candidate to reach out to the voters. The difficulty is there is not enough time or money to reach all the voters. All of the candidates time is spent acquiring either money or votes. When a candidate is looking for votes it is deadly spending time with people who are not going to vote. When walking the precincts the voter lists provide a excellent way of finding those people who are correctly registered to vote. There is still not enough time to reach all of these people. What the campaign does with the voter file is query it to find the people who are most likely to vote. When door-knocking (walking through a given precinct) the candidate will only talk to those people who are most likely to vote.
Phoning works much the same way as door-knocking with two key differences. First phone numbers are not provided by county elections. They must be purchased. The matching program is itself hazardous. It looks at the last name, and the first numerical street address (10015 Terwilliger, would be just 10015). The hope is that no two "Jones" live at the same house number on two different streets. The danger arises when the computer becomes attached to a given phone number and spits it out every time it sees "Jones". This leads to the same number appearing in hundreds of different places.
The second difference is most relevant to Oregon. The vote-by-mail system has a interesting aid for campaigns. People can turn in their ballot every day, for up to three weeks before the election. Every day the campaign can purchase the names of people that turned in their ballot. These people can then be taken off the phoning lists. This further narrows the universe people are calling. Election day is usually spent calling through people the campaign has identified, who have not turned in their ballot.
In both door-knocking and phoning the campaign adds to its information in the voter file. Voters are individually asked if they are supporting the campaign. They are put on a scale of 1 through 5, one being most likely to vote. Campaigns keep this information. for future races. In addition these numbers are filtered into all the calling and mailing lists.
In Oregon all elections are vote by mail. This means that one of the most effective tools of a campaign is a good mail plan. The idea is to keep the medium the same. If one is going to vote by mail, give them lots of mail. However, mail is incredibly expensive. The average piece of mail costs between .40 and .55 cents to make and mail. At such a high cost the campaign wants to mail to the smallest number of people. The voter file again provides those who are most likely to vote. These people will get most of the "persuasion" or "issue" pieces. These are substantive pieces about the candidate. This is contrasted with "Get Out The Vote" (GOTV) pieces. As the name suggests these pieces remind and encourage people to vote. The voting lists determine who gets which piece of mail. A person who always voters will not get a GOTV letter, because they are going to vote without any help from the campaign. As mentioned above the campaign tries to find its supporters, and its fence sitters. Supporters get less mail than fence sitters.
The Computer makes all this wonderfully simply. All the above information is quickly translated into Microsoft Access. Where it can spit out a list in seconds of (for example) all those people who have phone numbers between the ages of 30 to 45, female, independent, have voted in at least 4 of the last 5 elections, live in a certain precincts which tend to vote more in sync with the campaigns issues, who the campaign has not contacted yet, but who has received at least two pieces of mail.
Part VI. Elections, Voter lists, Campaigns, and Privacy
The current law allows for voter lists to be culled and used in campaigns. While there are some important reasons for this type of activity, the use of computers has brought the issue of individual privacy into potential conflict with the rights of campaigns to reach voters. Examining Rights under the First Amendment allows for a useful application of how courts may decide these issues. Also the novel concept of Informational Privacy suggests what issues may be on the Horizon. The paper ends by suggesting some solutions which may aid us in reserving our privacy interests without compromising the rights of campaigns to express their ideas.
The First Amendment and Associational Privacy
The First Amendment insures individuals that there rights to associate with others will not be compromised by government exposition of a groups rank and file membership lists.60 In compiling voting lists the government provides enough information to associate individuals as groups. Essentially the whole goal of filtering through data bases is to get a manageable list of individuals who have certain habits (voting frequency) and beliefs (supported previous elections, which were favorable to the campaign). In this country a similar system used by the census bureau was used to identify Japanese-Americans during world war II.61 The citizens were then taken to internment camps. The census bureau collected punch cards which were then tabulated on a "mechanical computer."62 This example is intended to illustrate that identifiable information can be dangerous.
A few things mitigate what might appear to immediate infringements on First Amendment rights. First, NAACP, was based on a government asking for a groups list of members. In the case of voting records the government is not requiring people to divulge any expressive information . However, as the use of data piling progresses this distinction may disappear. Every time someone votes it becomes part of the voting record. Computers allow campaigns to churn through this information in order to develop groups of people who can be reasonably associated with each other. It is likely that this would not be a winning argument. In NAACP, the state was asking for the lists of all rank and file members of foreign corporations operating in the state. The court could not glean the compelling state interest here as it affected the First Amendment rights. In the case of voting the state has a interests in collecting the information to allow for more efficient campaigns.
First Amendment, the rights of the campaign
Perhaps the biggest difficulty with any kind of legal argument in terms of restricting voter lists is that it would infringe on the ability of the political process. In Buckley v Valeo, the court was clear that the quantity of speech, especially in political campaigns, was a legitimate goal of the First Amendment.64 Looking at the legislative history of Oregon's law, the individual parties have been very interested in keeping the voter file available so as to effectively reach voters.65 These two example demonstrate the laws deference to campaigns as a useful tool to increases political participation.
As indicated in the Privacy report,66 government is wary of interfering with the First Amendment rights of private entities. It could be argued that by not providing voter lists to parties or campaigns, there is no First Amendment problem because the government is not restricting the actions of the campaigns. There are two problems with this argument. The first is that with computer databases, where a party gets it information is a matter of choice. If they don't get voter lists from the government they will get them from other sources. The effect of this on individuals then would be minimal because they would still be segregated and stereotyped but for a whole set of different reasons.67 The Second problem is related to the first problem. This new information might lead to worse information. One of the dangers of having little control over one's informational privacy is the possibility that bad information will be used. If campaigns are kept from accurate list of who is actually registered to vote, this could create inefficiency in our electoral system.
A final argument against restricting voter lists is that it creates a unfair advantage for incumbents.68 Once a candidate is elected they have identified a large numbers of supporters. Every year that they are in office furthers this list. A challenger has too overcome this source of information. Further the incumbent has built up relations with the constituents and is thus less likely to offend their privacy interests, because they expect some contact with the incumbent. A challenger is in exactly the opposite position and is more likely to offend voters.69
Indicated above are some of the tough First Amendment problems which one would need to evade in order to impose restrictions on how voting information is gathered and used. Here we look at some of the problems associated with computer data piling in terms of informational privacy.
The state has a strong interest in making allowing people to vote. If this right were compromised it might present a compelling state interest. There are a two ways this may occur because of computer data piling. The first is that people won't want to register to vote because they won't want to give submit their information. There is anecdotal evidence of people not registering to vote in fear of receiving jury duty.70 Perhaps they will only vote in elections they care about. Under the logic that they less they vote the less mail, and phoning they will receive. At this point in time with such low voter turnout to begin with, it is unlikely that this would be a salient argument. However, as information becomes more valuable, it might become a disincentive for system.
The second way people may become disenfranchised is more insidious. When campaigns target individuals they leave others out. These people then never get information, or solicited to become members of the voting public. This ostraciziaton furthers the divide among voters and non-voters. As mentioned in Greidinger, the state has a interest in "promoting 'participation in the electoral process.'". Greidinger at 34. If participation was being limited by campaigns targeting groups of voters, and along the lines of Buckley this effects participation in our democracy, then the state would have a compelling interest in limiting the ability of campaigns to target voters. The information age might prove this argument as more valid. As computers are able to digest such large amounts of information their accuracy will slowly move along the spectrum from prediction towards determination.
Right to Informational Privacy.
If the right to informational privacy were to become a tenant of our laws it might provide some help in this area. First if one has the right to control ones information then as soon as the voter file is modified it would infringe on your right to privacy. Almost all voter files are immediately modified by adding phone numbers.
Another way the courts may examine the issue is that by registering to vote one is agreeing take part in the process and is tacitly inviting contacts with campaigns.71 Most people do not find great value in being contacted by a campaign. This argument seems to do more harm than good because it would invite people not to register, or perhaps to register late enough in the year as to prevent contact.
One possible solution to the some of the problems out lined above would be to simply not make the voter file available on disk. Campaign do not have the resources to enter the volume of names in a country let alone a state. This would also serve the compelling state interest of having voter records available to people who need to check if they are properly registered to vote, for example ballot initiatives require valid signatures, which means the person has to be registered at their current address. It would also allow further the goal of preventing fraud by allowing the public to check the voter file if there was some belief of corruption.
This may not even be that bad for campaigns. One of the worst case scenarios for a campaign is a race where no one votes. This means you spend a lot of money on reaching out to people who don't vote. For example in school board elections in New York City can have as low as a 7% turnout. However, making the voter file available on paper or at the elections office would allow a campaign to find those people. Individual humans could sort through the information in a reasonable amount of time, by just looking for those people who voted in school board elections.
The problems with this are that it is some what inconvenient. More importantly it might limit some of the rights we already have. For example, under Oregon law you cannot use a voter list that you get from the country for commercial purposes. This means that anyone who does spend the time entering the data, would not be restricted from using it for commercial purposes.
This may protect our ballot box, but in terms of our right to informational privacy it will be a drop in the bucket. Campaigns will still do mailing and phoning. Market researchers will examine surveys and buying patterns, and perhaps even history's of web sites visited to produce a manageable list of voters. But it is our democracy. Making the ballot free from coercion is one of the most important rights in a democratic society. How one votes should ultimately be a private matter.
1 Note that there are "islands" precincts of 5-20 people. These islands, are overlapped districts that don't fit in anywhere.
2 The smallest race is probably for State Representative, which is about 40,000 people. Interestingly some of the lesser known seats (like school board) pull from a larger voting pool. And less people vote in these elections, sorting these voters out is an extremely valuable.
3 "Congress shall make no law respecting an establishment of religion, or prohibiting there free exercise thereof; or abridging the freedom of speech or of the press; or of the right of the people peaceably to assemble and to petition the Government for a redress of grievances." U.S. Const. amend. I.
4In the 19th century it was common for employees to jeopardize their jobs if they did not vote in sync with their employers. Burson v. Freedman, 504 US 191, n7 (1992)
6Principles for Providing and Using Personal Information (1995), available at http://www.iitf.nist.gov/ipc/ipc/ipc-pubs/niiprivprin_final.html. (ITTF Principles)
7John Adams thought that a major impetus for the revolution was English intrusion into the private lives of Americans. See The Privacy Protection Study Comm., Personal Privacy in an Information Society,Page 345 (1977) citing Hiller Zobel ad Kivin Wroth (eds.), Legal Papers of John Adams, (Harvard University Press, Cambridge:1965) Vol.2, Case NO.44, pp.106-144.
8 California v. Ciarolo, 476 U.S. 207, 212-213 (1986).
9AOKI http://www.cyberspacelaw. org/aoki/index.html see part IV.
10 Roberts v U.S. Jaycees, 468 US 609 (1984).
11Paul M. Schwartz & Joel Reidenberg, Data Privacy Law: A Study of United States Data Protection (1996), page 42.
12The Privacy Protection Study Comm., Personal Privacy in an Information Society, Page 345 (1977) citing Hiller Zobel ad Kivin Wroth (eds.), page 22.
15 US v Olmstead, 277 U.S. 438, at 479. (Bradeis J. dissenting) It should be noted that this was a government intrusion issue under the Fourth Amendment. However Its significance is the breadth given to the idea of privacy in the fourth.
17see Chuy v Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd Cir. 1979), physician on football team was liable for intentional infliction of emotional distress when he divulged the (inaccurate) medical condition of one of the players to the media.
18One area where injury is not needed is in trespass. Injury is assumed in trespass, because one's property right to exclusion is immediately violated. One's right to control one's information would have to be the equivalent of property rights. There is a obvious difficulty here, in that people need to have others use their personal information to exist in society. Where we don't need to interact directly with one's another property to communicate and interact. For example, it would be easy to interact with someone without ever seeing their property, yet it would be inconvenient to attempt similar interactions in fear of intruding on a persons privacy information.
195 U.S.C. §552(a). It is interesting to note the findings by Congress in promulgation of this act. "1) the privacy of an individual is directly affected by the collection, maintenance, use, and dissemination of personal information by Federal agencies; (2) the increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use, or dissemination of personal information." P.L. 93-579, § 2, 88 Stat. 1896.
21Freedom of Information Act 5 U.S.C. §552(b)(6).
25Griswold v. Connecticut 381 U.S. 479, 484-486.
27See supra note 6 (ITTF Principles)
28Indeed, NII [National Information Infrastructure] transactional data may reveal who communicated with whom, when, and for how long, as well as who bought what, for what price. Significantly, this type of personal information is automatically generated, in electronic form, and is therefore especially inexpensive to store and process. ITTF Principles, Supra note 6.
30"They are intended to guide all NII participants and should be used by those who are drafting laws and regulations, creating industry codes of fair information practices, and designing private sector and government programs that use personal information." Id.
34Ambrose Bierce, The Devils Dictionary, Dover Publications, New York 1993.
35See Reynolds v Smith, 377 U.S. 533, 561-562 (1964), right to suffrage is a fundamental constitutional interest; also see Wesberry v Sanders, 376 U.S. 1 17 (1976) "….no right is more precious in a free country".
37 Burson v. Freeman, 504 US 191 (1992) The case was about a Tennessee law which prohibited campaigning near in the area immediately around the polling place. Justice Blackmun wrote a extensive history of voting in the United States. The court held that there is a compelling state interest in preventing voter fraud to allow states to pass laws restricting speech within a given area around the voting area.
38A dictionary of Latin Words and phrases, Oxford University press, New York, 1998.
46The Ambrose Bierce quote at the top comes from a collection of his work. He started writing during the civil war and continued till the early 20th century.
48Burson, 504 US 191, 199-202.
49"In sum, and examination of the history of election regulation in this country reveals a persistent battle against two evils: voter intimidation and election fraud." Id. at 206.
52 see ORS 247.955(1) "…no person to whom a list of electors is made available …shall use any information in the list for commercial purposes." And Cal. Elections Code §2194(a) (1995), "Shall be confidential and shall not appear on any computer terminal, list, affidavit, duplicate affidavit, or other medium routinely available to the public at the county elections official's office"
53"Voter Registration: Passed and returned to the Senate for concurrence in Assembly amendments on a 44-31 vote a bill (SB 1518) by Sen. Milton Marks (D-San Francisco) to restrict access to voter registration records to prevent stalkers from obtaining home addresses and telephone numbers of their potential victims." Los Angeles Times August 24th, 1994.
54Va. Code Ann §24.1-56 "Books open to public inspection. -- Registration books shall be kept and preserved…[and] shall be opened to the inspection of any qualified voter at the office of the registrar…."
55Va. Code Ann. § 24.1-23(8) provides in part, "Furnish…precinct lists…to candidates for election or political party nomination to further their candidacy…[to] incumbent officeholders to report to their constituents…"
56Contributions under $50 need not be reported, however the campaign is responsible for keeping those records as well. The most important reason is that the $50 reporting minimum is a aggregate figure. So if you can contribute $40 in June and then $20 in August you need to report in the August filling a contribution over $50.
57The court noted that "the Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression…" Bukley, at 14.
58In Greidinger, the court noted that Virginia charged over $5000 for a state wide voter file. Greidinger, at 1345.
61David Burnham, The Rise of the Computer State, 1983. Page 23
63Although, in many states not belonging to party will prevent you from voting in a party primary
65 Oregon House Committeee on Elections, amendments to ORS 247.940. House Bill 1400. (1969) available on microfiche.
67See Mary J Culnan, and Priscilla M. Regan, Privacy Issues and the Creation of Campaign Mailing Lists, 11 Information Society 85, 90. introduces the idea that data sorting essentially creates stereotyping.