VOTER PRIVACY IN THE AGE OF BIG DATA

In the 2012 presidential election, the major candidates and political parties assembled extraordinarily detailed political dossiers on every American voter. These dossiers allowed them to target voters based on the likelihood of their registering to vote, supporting a candidate, donating to a campaign, or casting a ballot on Election Day. Despite this pervasive use of big data techniques, the privacy implications of data-driven campaigning have not been thoroughly explored, much less regulated. This Article suggests that political dossiers may be the largest unregulated assemblage of personal data in contemporary American life. It analyzes the main sources of voter data and the absence of privacy laws regulating the collection and use of such data. It also explores the potential privacy harms of voter microtargeting under the twin rubrics of information privacy (control over personal information) and political privacy (the personal sphere necessary for democratic deliberation and self-determination). This Article advocates a modest proposal for addressing these harms, which has two components. The first is a mandatory disclosure and disclaimer regime requiring political actors to be more transparent about their use of voter microtargeting and related campaign data practices. The second is the enactment of new federal privacy restrictions on commercial data brokers that would equally apply to firms providing data consulting services to political campaigns. This proposal is necessarily modest because it operates in the shadow of the First Amendment. The Article concludes by defending both components of the proposal against likely constitutional objections.