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.

Rights and Disagreement

Charles Krauthammer has an interesting op-ed in the Washington Post discussing President Obama’s endorsement of same-sex marriage, and accusing him of taking an intellectually incoherent approach to this matter. Mr. Obama has said that marriage – including of the same-sex variety – is a right; he has also said that the issue of allowing same-sex marriage (or not) should be for each state to decide. Mr. Krauthammer charges that this is contradictory: rights are rights are rights, and if something is a right, then it’s a right everywhere, and not state by state. It is the same argument that Dahlia Lithwick and Sonja West made in an op-ed on Slate (which I criticized here on other grounds). Mr. Krauthammer’s colleague Ruth Marcus also raised this issue a few days ago. It seems like a compelling argument, but it is wrong.

It is fine to say, in the abstract, that if something is a right it is a right everywhere and is not negotiable. (Actually, that too is a very controversial position, but let’s assume it.) The problem, as Jeremy Waldron likes to remind us, is that we don’t have any agreed upon means of verifying, to the satisfaction of everyone, the claim that something is a right, the way we have agreed upon ways of verifying the veracity of a claim made by a scientific theory. Thus even assuming that there exists a truth of the matter regarding rights, we can never be sure that we are, at any given moment, in possession of the truth about a claim of right. We think, of course, that our opinions about rights are correct; but if we are honest with ourselves, we cannot trivialize the possibility that we are mistaken.

We must recognize, therefore, that disagreements about right are can be reasonable. And that means recognizing – a possibility for which Mr. Krauthammer does not allow –  that someone who does not share our views about a certain claim of rights is not, for that reason, a bigot. I suspect that, if we think of the international realm, we mostly share that view. We do not think that every country that does not share our views about rights is bigoted. We might think them wrong, but not immoral. And we do not think that we ought to impose our views on them. We recognize that these are matters over which good faith disagreement is possible, and it is not wrong for each polity to resolve this disagreement as it thinks best – because it just might that they, rather than us, will get at the right answer.

Mr. Obama’s position might simply the application of this line of thinking inside the United States. He thinks that same-sex marriage is a right. But he acknowledges the possibility of good-faith disagreement on the matter (after all he, supposedly, until recently had doubts ), and thinks that this disagreement is best resolved in each state separately. This is not contradictory or incoherent.

There might be one more problem with that position. Where rights are codified in an authoritative document, like the U.S. Constitution, it seems strange to accept that it might mean different things to different people. But we know it does; people disagree about what the Constitution means just like they disagree about the underlying issues of rights. Unless one accepts the Dworkinian “one right answer” view, it need not be particularly troubling that the same document is interpreted differently by different people.

For once, left, right, and centre are united at criticizing Mr. Obama. And the irony is that this criticism is quite unfair.