Big Data, Political Campaigning and the Law: Democracy and Privacy in the Age of Micro-Targeting

259 Pages·2020·2.826 MB·English

by  Normann Witzleb, Moira Paterson, Janice Richardson

Big Data, Political Campaigning and
the Law
In this multidisciplinary book, experts from around the globe examine how data-
driven political campaigning works, what challenges it poses for personal privacy
and democracy, and how emerging practices should be regulated.
The rise of big data analytics in the political process has triggered official inves-
tigations in many countries around the world, and become the subject of broad
andintensedebate.Politicalpartiesincreasinglyrelyondataanalyticstoprofilethe
electorate and to target specific voter groups with individualised messages based
on their demographic attributes. Political micro-targeting has become a major
factor in modern campaigning, because of its potential to influence opinions, to
mobilise supporters and to get out votes. The book explores the legal, philoso-
phical and political dimensions of big data analytics in the electoral process. It
demonstrates that the unregulated use of big personal data for political purposes
notonlyinfringesvoters’privacyrights,butalsohasthepotentialtojeopardisethe
future of the democratic process, and proposes reforms to address the key reg-
ulatory and ethical questions arising from the mining, use and storage of massive
amounts of voter data.
Providinganinterdisciplinaryassessmentoftheuseandregulationofbigdatain
the political process, this book will appeal to scholars from law, political science,
politicalphilosophyandmediastudies,policymakersandanyonewhocaresabout
democracy in the age of data-driven political campaigning.
Normann Witzleb, Moira Paterson and Janice Richardson all work at the
Faculty of Law, Monash University, Australia.

Big Data, Political Campaigning and
the Law
Democracy and Privacy in the Age of
Micro-Targeting
Edited by
Normann Witzleb, Moira Paterson and
Janice Richardson
Firstpublished
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Contents
List of contributors vii
1 Political micro-targeting in an era of big data analytics: An overview
of the regulatory issue 1
JANICERICHARDSON,NORMANNWITZLEBANDMOIRAPATERSON
PARTI
The need for a civic disposition 15
2 From mass to automated media: Revisiting the ‘filter bubble’ 17
MARKANDREJEVICANDZALAVOLCIC
3 Filter bubbles, democracy and conceptions of self: A brief genealogy
and a Spinozist perspective 34
JANICERICHARDSON
4 Voting public: Leveraging personal information to construct voter
preference 47
JACQUELYNBURKELLANDPRISCILLAM.REGAN
PARTII
Public international and European law 69
5 Internationallawandnewchallengestodemocracyinthedigitalage:
Big data, privacy and interferences with the political process 71
DOMINIKSTEIGER
6 Social media in election campaigns: Free speech or a danger for
democracy? 99
UDOFINK
vi Contents
7 Freedom of processing of personal data for the purpose of electoral
activities after the GDPR 114
MAEVEMCDONAGH
PARTIII
Domestic laws in Canada, Australia, the United States and
the United Kingdom 139
8 From the doorstep to the database: Political parties, campaigns, and
personal privacy protection in Canada 141
COLINJ.BENNETTANDMICHAELMCDONALD
9 Voter privacy in an era of big data: Time to abolish the political
exemption in the Australian Privacy Act 164
MOIRAPATERSONANDNORMANNWITZLEB
10 Big Data and the electoral process in the United States:
Constitutional constraint and limited data privacy regulations 186
RONALDJ.KROTOSZYNSKIJR
11 Data and political campaigning in the era of big data – the UK
experience 214
STEPHANIEHANKEY,RAVINAIKANDGARYWRIGHT
Index 236
Contributors
Mark Andrejevic is Professor of Media and Communication in the School of
Media, Film and Journalism at Monash University. He is the author of Reality
TV: The Work of Being Watched; iSpy: Surveillance and Power in the Digital
Era; and Infoglut: How Too Much Information is Changing the Way We Think
andKnow.Heisalsotheauthorofmorethan75journalarticlesandacademic
book chapters on surveillance, digital media and popular culture, as well as a
co-editor of Commercial Nationalism and What’s Become of Australian Cul-
tural Studies?
ColinJ.BennettreceivedhisBachelor’sandMaster’sdegreesfromtheUniversity
of Wales, and his PhD from the University of Illinois at Urbana-Champaign.
Since 1986 he has taught in the Department of Political Science at the Uni-
versity of Victoria, where he is now Professor. He has enjoyed Visiting Pro-
fessorships at Harvard’s Kennedy School of Government, the Center for the
Study of Law and Society at University of California, Berkeley, the School of
Law, University of New South Wales, the Law, Science, Technology and
Society Centre at the Vrije Universiteit in Brussels and at the University of
Toronto. His research has focused on the comparative analysis of surveillance
technologies and privacy protection policies at the domestic and international
levels. Inadditionto numerousscholarlyandnewspaperarticles, hehaswritten
or edited seven books, including The Governance of Privacy (MIT Press, 2006,
with Charles Raab) and The Privacy Advocates: Resisting the Spread of Surveil-
lance(MITPress,2008),andpolicyreportsonprivacyprotectionforCanadian
and international agencies. He was co-investigator of a large SSHRC Major
Collaborative Research Initiative grant entitled ‘The New Transparency: Sur-
veillanceandSocialSorting’whichculminatedinthereport:TransparentLives:
Surveillance in Canada. Through a SSHRC Partnership Grant on ‘Big Data
Surveillance’,heiscurrentlyresearchingthecaptureanduseofpersonaldataby
political parties in Western democracies.
Jacquelyn Burkell is an Associate Professor in the Faculty of Information and
Media Studies at the University of Western Ontario. She holds a PhD in Cog-
nitive Science from the University of Western Ontario. This background,
viii Listofcontributors
including a focus on behavioural decision making, informs her research, which
examines how technological mediation changes social interaction and informa-
tionbehaviour.Sheco-leadsaworkinggrouponAIgovernanceandpoliciesin
the Autonomy Through Cyberjustice Technologies SSHRC Partnership grant
(led by Karim Benyekhlef of the University of Montreal), where her research
focusesonaccountability(explanatorymechanisms)andalgorithmicbias.Sheis
a co-investigator on the eQuality project (a SSHRC Partnership Grant led by
Valerie Steeves and Jane Bailey, University of Ottawa), where her work focuses
on empirical examinations of attitudes toward and experiences of behavioural
tracking.
Udo Fink is a Professor of Law at the Johannes Gutenberg University Mainz
(Germany). He holds a Chair in Public Law, European Law, International
Public Law and International Trade Law. From 1990 to 1996 he was an
Assistant Professor at the Institute of Public International Law, University of
Cologne, where he obtained his Habilitation (post-doctoral degree). From
1996 to 2000 he was an Associate Professor for Public International Law,
International CommercialLaw at theUniversity Göttingen(Germany). He has
been visiting professor inter alia at the Lewis & Clarke Law School, Portland,
Oregon, the University of Louisville, Kentucky, and Trinity College Dublin,
Ireland.Since2002hehasbeentheDirectoroftheSchoolofGermanLawand
Schoolof PolishLaw, attheUniversity ofKrakow, Poland,andsince2011has
been the Co-Director of Mainz Media Institute. His research interests are in
the area of the law of the United Nations, international media law, the Eur-
opean Convention on Human Rights and constitutional law.
Stephanie Hankey is a designer, technologist and activist who has been working
internationallyattheintersectionoftechnology,humanrightsandcivilliberties
for the past 20 years. Her work combines her art, design and technology
background with her focus on privacy, personal data and ethics. She is the
Executive Director of the Berlin-based NGO the Tactical Technology Collec-
tive, which she co-founded in 2003. She has been awarded an Ashoka Fellow-
ship for her work as a social entrepreneur. In 2016/17 she was an affiliate at
the Berkman Klein Center for Internet and Society at Harvard University, and
in 2017 she was made a Visiting Industry Associate at the Oxford Internet
InstituteattheUniversityofOxford.ShehasadegreeintheHistoryofDesign
andArtfromManchesterMetropolitanUniversityandaMaster’sinComputer-
Related Design from the Royal College of Art, London.
Ronald J. Krotoszynski Jr is the John S. Stone Chair, Director of Faculty
Research and Professor of Law at the University of Alabama School of Law.
Before embarking on his academic career, he practised law as an associate with
Covington & Burling, in Washington, DC. Prior to joining the faculty at the
University of Alabama School of Law, he served on the law faculties at the
Washington and Lee University School of Law and the Indiana University
Listofcontributors ix
McKinney School of Law. He has also taught as a visiting professor at
Washington and Lee University School of Law, William and Mary School of
Law, Brooklyn Law School, Florida State University School of Law, Seattle
University School of Law, Texas A&M University School of Law and Syracuse
University College of Law. He writes and teaches in the areas of constitutional
law, administrative law, First Amendment law and comparative constitutional
law. He is the author of The Disappearing First Amendment (Cambridge Uni-
versity Press, 2019), Privacy Revisited: A Global Perspective on the Right to Be
Left Alone (Oxford University Press, 2016), Reclaiming the Petition Clause:
Seditious Libel,“Offensive”Protest,andtheRighttoPetition theGovernmentfor
aRedressofGrievances(YaleUniversityPress,2012),andTheFirstAmendment
in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of
Speech (New York University Press, 2006). His law review articles have
appeared in leading national law reviews and journals, including the Yale Law
Journal, the Michigan Law Review, the Duke Law Journal, the Northwestern
University Law Review, the Georgetown Law Journal and the Texas Law
Review. Krotoszynski is also the co-author of casebooks in administrative law
and First Amendment law.
Maeve McDonagh is a Professor at the Law School, University College Cork,
Ireland. She specialises in information law and is the author of Freedom of
Information Law (Thomson Round Hall, 3rd edition, 2015) and Cyber Law
(with M. O’Dowd) (International Encyclopaedia of Laws Series, Kluwer Law,
2nd edition, 2015). She has published widely in the field of information law
and has advised various governments on the drafting and implementation of
FOI legislation. She has been engaged as an expert on information law matters
by the Organisation for Security and Cooperation in Europe (OSCE) and by
the European Commission. She has taught law at National University of Ire-
land Galway, La Trobe University, Melbourne, Australia, and University Col-
lege Cork, and hasserved as Dean of the Faculty andHead of theDepartment
of Law at University College Cork. She has been a visiting Professor at the
University of Melbourne, University College London, Monash University, La
Trobe University and Queensland University of Technology. She was Deputy
Chair of the inaugural Press Council of Ireland from 2007 to 2013. In 2012,
she was one of three international experts on freedom of information law
appointed as members of the newly established Independent Appeals Panel on
access to information of the Asian Development Bank. Her appointment has
been renewed twice. In 2013, she was appointed by the Irish government to
the FOI Implementation Review Group. In 2015, she was appointed to the
board of the Broadcasting Authority of Ireland.
MichaelMcDonaldholdsanMAfromtheUniversityofVictoriawhereheresear-
ched the Canadian government’s 2017 apology to LGBTQ2+ communities in
Canada. Specifically, he examined the pre-apology process, the government’s
substantive post-apology policy initiatives, and queer and trans community