The Future Is Creepy

I had the chance today to be at a talk by two of the members of the legal “brain-trust” of President Obama’s re-election campaign, NYU’s professors Rick Pildes and Sam Issacharoff. (I have to brag: it was one of those moments that make NYU the best law school in the world.) Yet although they spoke a bit about the specifically legal work they did for the campaign, the main topic of their remarks was the impressive data-mining operation that the campaign deployed to identify its likely supporters and make sure that support translated into votes. Using publicly or commercially available information, the campaign set up a massive database containing prodigious amounts of information on millions of voters, and used this information to make its pitch to these voters in ways designed (and tested) to be the most effective. According to profs. Pildes and Issacharoff, as well as this account of the data operations by CNN/Time and an envious paean by the Republican columnist Marc Thiessen in the Washington Post, this was fantastically effective. Profs. Pildes and Issacharoff told of the data people on the Obama campaign having predicted the outcome of the early voting in Ohio to within a few dozen votes―out of more than 1,600,000. (Over at the Volokh Conspiracy, however, Ilya Somin had some anecdotal evidence that not everything worked quite that mind-blowingly well.) Assuming that the data campaign really was as effective as insiders claim, its success has some interesting implications, both in the realm of law and in that of political philosophy. (And in that of practical politics too, naturally, but I try to stay away from that here.)

Legally, one obvious place for investigation seems to be privacy law. I cheerfully admit, however, that my knowledge of the subject is, at present, nil, especially as regards the United States. In Canada, there is a patchwork of federal and provincial statutes regulating the collection of personal information of the sort the Obama campaign used (one example that came up several times in the discussion today was magazine subscriptions, which apparently tell quite a lot about one’s politics). Some of these statutes apply to governmental entities; other to the private sector. For the most part, they do not apply to political parties, but they might impede the parties’ collection of information from other sources. They might also be expanded to cover political parties (and other non-profit organizations).

If they are, or to the extent that privacy legislation does apply to parties, there arises a further question, suggested by a case in which the Supreme Court of Canada just granted leave to appeal, as the blog The Court reports. Very briefly, the dispute is about whether preventing a union, pursuant to privacy legislation, from filming people crossing its picket lines is a violation of its freedom of expression. The Alberta Court of Appeal held that it did. If that decision is upheld, it would seem a logical, though probably not an obvious, step to argue that preventing a political party from creating a database it needs to mount an effective campaign is a violation of its Charter rights, notably its right effectively to participate in the political process, which the Supreme Court, in Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912, held was part of s. 3 of the Charter.

Moving from law to political philosophy, the obvious issue to think about is the morality of this enterprise of targeting individual voters on the basis of personal information about them. The (admittedly few) friends with whom I have discussed it think it is ethically troubling. I’m not sure about that, but I do think it is creepy. Yet there is, maybe, a positive spin to be put on it. What the Obama campaign did was, in effect, a shift from trying to persuade people to support it to identifying those who already supported it, more or less, and making sure that they voted. This is disturbing if we hold to the high-minded notion that election campaigns are about persuading voters. But is this notion so high-minded? Is it so good for democracy if voters are (only) thinking about politics and deciding to vote one way or the other during the 35 (in Canada) or 60 (in the US) days of an election campaign? Arguably not―the process of making up one’s mind should be (more or less) permanent. If an election campaign is the time to reveal preferences rather than to shape them, then the shaping of the voters’ preferences must take place at all times between elections; this means that politicians must be constantly engaged with the electorate, and that might just be a great thing, insofar as it would blunt the not uncommon criticism of representative democracy as being democratic only once every four years. Yet perhaps this is too rosy a view. Constant engagement with the electorate may well degenerate into populism; there is a reason most countries have elections every four or five years, rather than more frequently. And anyway, it’s not clear that (most of) the electorate has the appetite for such engagement. And even if those worries are unfounded, the creepiness factor remains―though I suppose we will get used to it soon enough.

I conclude on an even creepier, indeed perhaps paranoid thought, blending the legal and the political strands of my reflection. The Obama campaign’s database of voters and information on how effectively to communicate with them is immensely valuable. Mr. Obama himself has no use for it anymore, since he cannot run for re-election. But to those who aspire to succeed him, it would be invaluable. And legally, as profs. Pildes and Issachoroff told us, the database belongs to him, or more precisely to his campaign committee, over which he―not the Democratic Party―has control. Is it paranoid to suppose that the control of this amazing resource will allow him effectively to designate his successor by handing over to him or her a weapon which no challenger could hope to match? If so, the future might be even creepier than we think.

UPDATE: The New York Times also has a story on this, focusing on how data analysis drove the Obama campaign’s purchases of TV advertisements.

UPDATE #2: The post as originally written was quite obviously wrong in stating that private-sector privacy legislation probably applied to parties. I have re-written that passage. I discuss the issue of privacy and political parties in more detail here.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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