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2014 Wis. L. Rev. 861 (2014)
Voter Privacy in the Age of Big Data

handle is hein.journals/wlr2014 and id is 881 raw text is: 









        VOTER PRIVACY IN THE AGE OF BIG DATA

                             IRA S. RUBINSTEIN*

            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.

Introduction             ........................................862
I. Data-Driven Political Campaigns........................866
        A. Voter Data and Regulatory Gaps................       ......868
             1. State Voter Registration Databases         ...............868
             2. Donor and Response Data....................870
                a. Donor Data ......................            ..........870
                b. Response Data ......................871
            3. Campaign Web Sites......................                    872
                a. Required Data................                ..........873
                b. Volunteered Data...................        .........873
                c. Observed Data ......................       .........874
                d. Inferred Data       ....................       ............874



         *   Adjunct Professor of Law and Senior Fellow, Information Law Institute,
New York University School of Law. For helpful comments, I thank Joseph Lorenzo
Hall, Ronald Lee, Aleecia McDonald, William McGeveran, Peter Schuck, Joseph Turow,
Felix Wu, Tal Zarsky, and workshop participants at the NYU Privacy Research Group
and the Seventh Annual Privacy Law Scholars Conference. Thanks also to Ken Villa for
outstanding research assistance.

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