Political Campaigns Are Spying on You, and There Are No Rules to Stop Them

Ted Cruz is just the latest candidate to mine data from Facebook and other sources to learn more about voters.

Sen. Ted Cruz speaks in Nashua, New Hampshire, on April 18. His campaign has been especially aggressive in collecting data about potential supporters.
Brendan Sasso
Add to Briefcase
Brendan Sasso
Dec. 15, 2015, 2:18 p.m.

If In­ter­net com­pan­ies like Google or Face­book mis­lead users and vi­ol­ate their pri­vacy, they can find them­selves in trouble with fed­er­al reg­u­lat­ors. If gov­ern­ment agen­cies spy on people without the prop­er au­thor­iz­a­tion, they can get slapped down by a judge.

Polit­ic­al cam­paigns, however, face no such hurdles when it comes to scrap­ing in­form­a­tion from private cit­izens.

In­stead, they op­er­ate in a leg­al dead zone out­side the reach of fed­er­al reg­u­lat­ors. The Fed­er­al Trade Com­mis­sion reg­u­lates com­mer­cial pri­vacy is­sues, but has no jur­is­dic­tion over polit­ic­al cam­paigns. The Fed­er­al Elec­tion Com­mis­sion reg­u­lates cam­paigns, but has es­sen­tially no pri­vacy reg­u­la­tions.

In re­cent years, cam­paigns have be­come in­creas­ingly ag­gress­ive in their ef­forts to build psy­cho­lo­gic­al pro­files on mil­lions of po­ten­tial voters. “There are no lim­its, and there should be,” said Jeff Chester, the ex­ec­ut­ive dir­ect­or of the Cen­ter for Di­git­al Demo­cracy, a pri­vacy ad­vocacy group. “Do you really want the Left or the Right to have a dossier about you to fig­ure out how to ma­nip­u­late you?”

Barack Obama’s 2008 cam­paign pi­on­eered meth­ods for col­lect­ing in­form­a­tion about voters and tar­get­ing them with tailored mes­sages. With the help of Sil­ic­on Val­ley tech gurus, his 2012 reelec­tion cam­paign took that ini­ti­at­ive to new heights with its “Pro­ject Nar­whal,” which fused vari­ous data­bases in­to a massive pool of in­form­a­tion on po­ten­tial voters.

In the 2016 cam­paign, it ap­pears that Sen. Ted Cruz is lead­ing the way on soph­ist­ic­ated voter tar­get­ing. Ac­cord­ing to The Guard­i­an, the Texas Re­pub­lic­an’s cam­paign has hired a firm called Cam­bridge Ana­lyt­ica to har­vest in­form­a­tion on tens of mil­lions of Face­book users without their per­mis­sion and then com­bine it with pub­lic re­cords. The cam­paign’s smart­phone app scrapes the phone for ad­di­tion­al con­tacts, The Wash­ing­ton Post re­por­ted this week.

The goal of the in­form­a­tion col­lec­tion is to al­low the Cruz cam­paign to build psy­cho­lo­gic­al pro­files of po­ten­tial sup­port­ers and then de­liv­er the best mes­sage to try to get them in­volved in the cam­paign. So a per­son who re­ceived high scores on “neur­oticism” might re­ceive a pro-gun pitch with a pic­ture of a burg­lar break­ing in­to a home, The Post ex­plained. Or a per­son who scored high on “open­ness” might get a mes­sage about fam­ily val­ues. In par­tic­u­lar, Cruz is us­ing his data-crunch­ing ma­chine to try to lock down sup­port from Chris­ti­an con­ser­vat­ives.

Dav­id Vladeck, a pro­fess­or at Geor­getown Uni­versity Law Cen­ter and a former top FTC of­fi­cial, said that Cruz’s tac­tics might be par­tic­u­larly soph­ist­ic­ated but there’s noth­ing truly ground­break­ing about them. “There have been tre­mend­ous ef­forts by both sides to ac­quire as much as in­form­a­tion as pos­sible and to mine the hell out of it,” Vladeck said. “I’m sure each party has thou­sands of data points on each of us.”

One of the reas­ons that cam­paigns are able to col­lect data so eas­ily is that much of the in­form­a­tion they’re after is already pub­lic. Cam­paign fin­ance and elec­tion laws are fo­cused on pro­mot­ing trans­par­ency, not pro­tect­ing pri­vacy. So a per­son’s name, gender, date of birth, ad­dress, party af­fil­i­ation, dona­tion his­tory, and vot­ing his­tory (when they voted but not for whom they voted) is of­ten avail­able in pub­lic re­cords.

“Voter data may be the largest con­cen­tra­tion of un­reg­u­lated per­son­al in­form­a­tion in the U.S. today,” Ira Ru­bin­stein, a pro­fess­or at New York Uni­versity School of Law, wrote in a 2014 law re­view art­icle titled “Voter Pri­vacy in the Age of Big Data.”

In re­cent years, cam­paigns have also been us­ing their web­sites to quietly col­lect data about po­ten­tial sup­port­ers. Every pe­ti­tion a user signs, sur­vey she com­pletes, news­let­ter she opens, or video she watches can provide more in­sight in­to who she is. The pri­vacy policy of Obama’s 2012 site even ac­know­ledged that the cam­paign could use third-party ad net­works to in­stall cook­ies (small track­ing files) on com­puters to re­cord the oth­er web­sites users vis­ited in or­der to “de­liv­er ad­vert­ising … tar­geted to your in­terests.”

In­form­a­tion that cam­paigns can’t col­lect from pub­lic re­cords or through their own web­sites, they can buy from “data brokers,” firms that com­pile massive data­bases of per­son­al in­form­a­tion. That in­form­a­tion can come from a wide range of sources, in­clud­ing so­cial-me­dia sites, Web brows­ing, sur­veys, magazine sub­scrip­tions, or pur­chas­ing his­tor­ies. Many data brokers sell their data­bases for mar­ket­ing or fraud de­tec­tion. But there are a new breed of data brokers fo­cus­ing ex­clus­ively on polit­ic­al cam­paigns.

“A whole in­dustry has aris­en around this,” Vladeck said. “A lot of people get paid a lot of money to do this work for polit­ic­al cam­paigns.”

While law­makers on both sides of the aisle have ex­pressed alarm about gov­ern­ment sur­veil­lance and cor­por­ate data min­ing, it seems un­likely that Con­gress will crack down on polit­ic­al cam­paigns any­time soon. “There’s a huge con­flict of in­terest be­cause mem­bers of Con­gress and polit­ic­al groups are all us­ing these tac­tics,” Chester said.

There are some state laws pro­hib­it­ing de­cept­ive cam­paign prac­tices, but they’re rarely en­forced. It seems es­pe­cially un­likely that a state would try to use one of those laws to curb polit­ic­al data col­lec­tion.

Vladeck ar­gued that cam­paigns should be more trans­par­ent about how they’re col­lect­ing and us­ing per­son­al data, but he also warned that tough laws could vi­ol­ate the free speech rights of can­did­ates. “I think there are ser­i­ous First Amend­ment prob­lems with the gov­ern­ment reg­u­lat­ing how cam­paigns use big data,” he said. “Polit­ic­al speech is at the core of the First Amend­ment.”

What We're Following See More »
Mnuchin Meets with MBS
4 hours ago
Bolton Lands in Russia for Talks
6 hours ago
Sandra O'Connor Stepping Back From Public Life
6 hours ago

"Sandra Day O’Connor, the first woman on the Supreme Court has stepped back from public life. ...She last made public appearances over two years ago. This summer she turned over an office she had kept at the Supreme Court to the court’s most recently retired justice, Anthony Kennedy. Her son Jay O’Connor said in a telephone interview that his mother began to have challenges with her short-term memory. That made some public events more difficult. He says she now stays close to her Phoenix home."

HHS Could Nix Title IX Protections for Transgender Students
10 hours ago

"The Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance, according to a memo obtained by The New York Times. The department argued in its memo that key government agencies needed to adopt an explicit and uniform definition of gender as determined 'on a biological basis that is clear, grounded in science, objective and administrable.' The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with."

Saudis Admit Khashoggi Killed in Embassy
3 days ago

"Saudi Arabia said Saturday that Jamal Khashoggi, the dissident Saudi journalist who disappeared more than two weeks ago, had died after an argument and fistfight with unidentified men inside the Saudi Consulate in Istanbul. Eighteen men have been arrested and are being investigated in the case, Saudi state-run media reported without identifying any of them. State media also reported that Maj. Gen. Ahmed al-Assiri, the deputy director of Saudi intelligence, and other high-ranking intelligence officials had been dismissed."


Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.