One Person, Endless Data: Prohibiting Personal Political Viewpoint Data Processing to Combat Voter Suppression

Journal of Civil Rights and Economic Development, Mar 2025

(Excerpt) Polarization in American politics and elections continues to rise, due in no small part to advancing digital marketing technologies co-opted by political actors. In 2016, Cambridge Analytica, a political consulting firm, spearheaded right-wing populist campaigns to political victory in the United States and United Kingdom. The firm reconfigured commercial data processing methods to process personal political viewpoint data (“PPVD”) and perform “psychological manipulation.” While the firm has since dissolved, such practices are still used to manipulate American elections. The European Union (“EU”), also in 2016, enacted the General Data Protection Regulation (“GDPR”). As a comprehensive data privacy reform, GDPR, in part, prohibited PPVD processing. In so doing, GDPR proscribed the techniques Cambridge Analytica used to lead the Brexit movement and Donald Trump to electoral victories. Permitting political campaigns to process PPVD allows them to manipulate voters and suppress turnout in elections. GDPR is a comprehensive defense against a novel threat to the principle of democratic self-government. American data privacy regulations are virtually nonexistent. The EU, unlike the United States, accounted for PPVD processing in its comprehensive data privacy reform package with a specific prohibition. As the world’s largest economy, the United States must also specifically prohibit PPVD processing to combat increasingly effective methods of voter manipulation and suppression. GDPR offers the terms of such a prohibition. To repair the damaged integrity in their elections, the United States must prohibit PPVD processing to combat increasingly effective methods of voter manipulation and suppression. Luckily, GDPR demonstrates a path forward. With minimal modification, Congress can adopt GDPR’s PPVD processing prohibition to protect voter data. This Note first examines contemporary data processing techniques and how those techniques—including microtargeting, the premier data processing methodology—are used to manipulate voters. Later, this Note highlights the perceived efficacy and public opinion surrounding those practices. Further comment is made on the anachronistic data privacy landscape in the United States. Then, this Note suggests adoption of the most relevant provisions of GDPR necessary to protect self-determination in American elections. This Note concludes by reiterating the import of personal political data and underscoring the exigence of the recommended prohibitions.

Article PDF cannot be displayed. You can download it here:

https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1961&context=jcred

One Person, Endless Data: Prohibiting Personal Political Viewpoint Data Processing to Combat Voter Suppression

Journal of Civil Rights and Economic Development Volume 37, Fall 2024, Issue 1 Article 5 One Person, Endless Data: Prohibiting Personal Political Viewpoint Data Processing to Combat Voter Suppression William Eddy Follow this and additional works at: https://scholarship.law.stjohns.edu/jcred Part of the Civil Rights and Discrimination Commons, Privacy Law Commons, and the Science and Technology Law Commons This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in Journal of Civil Rights and Economic Development by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . EDDY.DOCX (DO NOT DELETE) 11/16/24 7:27 PM ONE PERSON, ENDLESS DATA: PROHIBITING PERSONAL POLITICAL VIEWPOINT DATA PROCESSING TO COMBAT VOTER SUPPRESSION WILLIAM EDDY* INTRODUCTION Polarization in American politics and elections continues to rise,1 due in no small part to advancing digital marketing technologies co-opted by political actors.2 In 2016, Cambridge Analytica, a political consulting firm, spearheaded right-wing populist campaigns to political victory in the United States and United Kingdom.3 The firm reconfigured commercial data processing methods to process personal political viewpoint data (“PPVD”) and perform “psychological manipulation.”4 While the firm has since dissolved,5 such practices are still used to manipulate American * J.D., St. John’s University School of Law, 2023; Executive Notes & Comments Editor, Journal of Civil Rights & Economic Development, 2022–23. 1 See generally PEW RSCH. CTR., POLITICAL POLARIZATION IN THE AMERICAN PUBLIC (2014), https://www.pewresearch.org/wp-content/uploads/sites/4/2014/06/6-12-2014-Political-Polarization-Release.pdf [https://perma.cc/W332-338H] (discussing the rise in political polarization across two decades of public polling). 2 Isabel Kusche, The Old in the New: Voter Surveillance in Political Clientelism and Datafied Campaigning, 7 BIG DATA & SOC’Y 1, 2 (2020). 3 See Sam Meredith, Here’s Everything You Need to Know About the Cambridge Analytica Scandal, CNBC, https://www.cnbc.com/2018/03/21/facebook-cambridge-analytica-scandal-everything-you-need-to-know.html [https://perma.cc/9DZ9-6GTL] (last updated Mar. 23, 2018, 9:21 AM). 4 Id. 5 See, e.g., Rebecca Ballhaus & Jenny Gross, Cambridge Analytica Closing Operations Following Facebook Data Controversy, WALL ST. J., https://www.wsj.com/articles/cambridge-analytica-closing-operations-following-facebook-data-controversy-1525284140 [https://web.archive.org/web/20230925005834/https://www.wsj.com/articles/cambridge-analytica-closing-operations-following-facebook-data-controversy-1525284140] (last updated 27 EDDY.DOCX (DO NOT DELETE) 11/16/24 7:27 PM 28 JOURNAL OF CIVIL RIGHTS & ECONOMIC DEVELOPMENT [Vol. 37:1 elections.6 The European Union (“EU”), also in 2016, enacted the General Data Protection Regulation (“GDPR”).7 As a comprehensive data privacy reform, GDPR, in part, prohibited PPVD processing.8 In so doing, GDPR proscribed the techniques Cambridge Analytica used to lead the Brexit movement and Donald Trump to electoral victories.9 Permitting political campaigns to process PPVD allows them to manipulate voters and suppress turnout in elections.10 GDPR is a comprehensive defense against a novel threat to the principle of democratic self-government. American data privacy regulations are virtually nonexistent.11 The EU, unlike the United States, accounted for PPVD processing in its comprehensive data privacy reform package with a specific prohibition.12 As the world’s largest economy,13 the United States May 2, 2018, 7:20 PM); Nicholas Confessore, Cambridge Analytica and Facebook: The Scandal and the Fallout so Far, N.Y. TIMES (Apr. 4, 2018), https://www.nytimes.com/2018/04/04/us/politics/cambridge-analytica-scandal-fallout.html [https://web.archive.org/web/20240415093133/https://www.nytimes.com/2018/04/04/us/politics/cambridge -analytica-scandal-fallout.html]. 6 See Elizabeth Culliford, How Political Campaigns Use Your Data, REUTERS (Oct. 12, 2020), https://graphics.reuters.com/USA-ELECTION/DATA-VISUAL/yxmvjjgojvr/ [https://perma.cc/CG5P-MDJF]. 7 Council Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation), 2016 O.J. (L 119) 1 [hereinafter GDPR], https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L:2016:119:FULL [https://perma.cc/XMA8EHXL]. 8 Council Directive 2016/680 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data by Competent Authorities for the Purposes of Prevention, Investigation, Detection or Prosecution of Criminal Offences or the Execution of Criminal Penalties, and on the Free Movement of Such Data, and Repealing Council Framework Decision 2008/977/JHA, 2016 O.J. (L 119) 89, 107–08. 9 See Confessore, supra note 5. While Cambridge Analytica could not be fined under GDPR because of the timing of the regulation’s enactment, it faced other sanctions under the United Kingdom’s Data Protection Act. David Pegg, Cambridge Analytica Owner Fined £15,000 for Ignoring Data Request, GUARDIAN, https://www.theguardian.com/uknews/2019/jan/09/cambridge-analytica-owner-scl-elections-fined-ignoring-data-request [https://perma.cc/3SY6-J4JC] (last updated Jan. 10, 2019). 10 See, e.g., Confessore, supra note 5; Kimberly Rhum, Information Fiduciaries and Political Microtargeting: A Legal Framework for Regulating Political Advertising on Digital Platforms, 115 NW. U. L. REV. 1829, 1831 (2021); see also infra Section I.B. 11 For a selection of fragmented data protection statutes, see infra note 131. 12 Prior to GDPR, Council Directive 95/46 of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L 281) 31 was the EU’s regulatory framework for data privacy. 13 William Schomberg & Toby Chopra, China to Leapfrog U.S. as World’s Biggest Economy by 2028 - Think Tank, REUTERS (Dec. 25, 2020, 7:15 PM), EDDY.DOCX (DO NOT DELETE) 2024] 11/16/24 7:27 PM ONE PERSON, ENDLESS DATA 29 must also specifically prohibit PPVD processing to combat increasingly effective methods of voter manipulation and suppression. GDPR offers the terms of such a prohibition.14 To repair the damaged integrity in their elections,15 the United States must prohibit PPVD processing to combat increasingly effective methods of voter manipulation and suppression. Luckily, GDPR demonstrates a path forward. With minimal modification, Congress can adopt GDPR’s PPVD processing prohibition to protect voter data. This Note first examines contem (...truncated)


This is a preview of a remote PDF: https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1961&context=jcred
Article home page: https://scholarship.law.stjohns.edu/jcred/vol37/iss1/5

William Eddy. One Person, Endless Data: Prohibiting Personal Political Viewpoint Data Processing to Combat Voter Suppression, Journal of Civil Rights and Economic Development, 2025, pp. 5, Volume 37, Issue 1,