Elizabeth Warren vs. Oracle
There is a little-known weapon in American politics, and that is information on the voter that can be purchased. Both sides vie for the same intel, hoping that they will find the perfect formula that will unlock their campaign, leading to a win. While largely unknown to the public, Oracle alone has 80 data brokers under its umbrella. Companies like L2 Data and i360 market themselves to political Candidates and Parties as the magic that will sweep voters into the booth, and make them the one to beat.
This practice is now so prevalent that there has been legislation proposed by Elizabeth Warren and co- sponsored by Bernie Sanders, as well as Sens. Ron Wyden (D-Ore.), Patty Murray (D-Wash.), Sheldon Whitehouse (D-R.I.) and Bernie Sanders (I-Vt.).
…and virtually no one has heard of it. Why?
The tech news publication Motherboard, which first reported on this proposed legislation, has identified several data brokers selling location data gathered from smartphones of people visiting abortion clinics, information that could easily be weaponized by prosecutors to crack down on pregnancy terminations.
“Data brokers profit from the location data of millions of people, posing serious risks to Americans everywhere by selling their most private information,” said Warren, “With this extremist Supreme Court poised to overturn Roe v. Wade and states seeking to criminalize essential health care, it is more crucial than ever for Congress to protect consumers’ sensitive data,” she continued.
“The Health and Location Data Protection Act will ban brokers from selling Americans’ location and health data, rein in giant data brokers, and set some long and health data, rein in giant data brokers, and set some long overdue rules of the road for this $200 billion industry.”
While our government has been highly divisive recently, both parties have support for data privacy laws. This bill was originally called The Health and Location Data Protection Act, and while it didn’t pass, it did manage to create a conversation around privacy, and the use of data.
Collecting Personal Data to Win Elections
For us, the consumer, it’s not too far a leap from anti-abortion sentiment to election interference. Data harvesting is a hot topic these days, and all of a sudden, people are interested in finding out why their data is so highly sought after. Why is it so valuable? And who should own it? Most people have understood HIPAA, which is a medical privacy act that protects patient medical information, but they do not realize that it doesn’t cover everything in the digital sphere. As apps and the digital experience become more ingrained in our lives, we become more and more targeted through social media, the apps that we use for convenience, and the surveillance of our private lives that we take for granted. Our entire lives are tracked. And businesses and politicians want to use it to their advantage. A lot of our information can be found through open-source investigations, and a lot of apps make a tidy profit selling customer data. This practice alone was completely under the radar until very recently, and by the time the public caught on, it was largely too late. And so, we have a cottage industry cropping up around all this data, which includes information that is both relevant to and available for political campaigns. It is estimated that almost $30 million was paid to election data brokers between the 2020 Presidential Election and the 2022 Midterms. That’s a lot of money. And that’s a lot of influence.
It is interesting to note that a higher budget for data purchases did not necessarily correlate to a win. Justin Sherman, a fellow and research lead at the Data Brokerage Project at Duke University’s Sanford School of Public Policy recently testified before the U.S. Senate Committee on Finance. He talked about the threat data brokers pose to privacy and national security and is skeptical of embracing data brokers as a tool for social advocacy. OpenSecrets, a Think Tank that analyzes election data brokers, found low money-to-win rates for candidates who spent on data brokers.
Election Data Brokers Leveraging the Digital Age
This practice poses a clear concern over the issue of privacy. The FEC (Federal Election Committee) states privacy concerns with using data in this manner. The FEC’s own regulations reflect the tension between privacy concerns and monetizing massive troves of personal data. The Federal Election Campaign Act of 1972 “prohibits the sale or use of any information about those donors, including their names and addresses, for the purpose of soliciting contributions or for commercial purposes” to protect the privacy of election donors. This tension comes along with the territory of new technology, whereas digital data collection is not yet considered to fall under the legal scope of this act, but the privacy concerns are there nonetheless.
There currently is no federal law regulating the data broker industry. Sen. Bill Cassidy (R-La.) introduced the Delete Act earlier this year (2022) with Sen. Jon Ossoff (D-Ga.), which would allow the Federal Trade Commission to establish a portal for individuals to submit a one-time request to opt out of data broker collection. Under the DELETE Act, data brokers must then delete the personal information and data within 31 days. However, since it works to their advantage, it’s unknown if any other legislation will be passed.