Voter Privacy in the Digital Age

Discussion of findings

Implications of data gathered on state forms

Phone number

The fact that it is optional and not required for voters to provide a phone number in more than half of the states is an indication that this data is not essential for administration purposes. Only five states redact individuals’ telephone numbers from voter lists; that most don’t helps make voter lists very valuable to political campaigns and parties who rely on voters’ phone numbers to conduct outreach activities. Political campaigns innovated the practice of telemarketing and for decades have relied on phone banks, often staffed by volunteers, to contact and influence voters. Today’s political campaigns are taking telemarketing to a new level through the use of pre-recorded messages featuring the voices of politicians or actors. The campaigns use computers to auto-dial voters; if a voter is not home the pre-recorded campaign message is left on the voter’s answering machine or voicemail system.

Sometimes the strategy is to make the pre-recorded call at a time when the voter is not home so that the message will be left on the voter’s message system. As one company that sells such services advertised during the 2002 election, “Pre-recorded calls sent to live pick-ups are not only ignored, they are intrusive. A call delivered to an answering machine in your warm and sincere voice costs a very small fraction of a direct mail piece but has many times the vote-generating ability.”²⁶ While this strategy may be effective for political campaigns, it also means that an increasing number of voters are receiving anonymous hang-ups if they answer their phones when such calls are placed.

Such practices may succeed in getting the campaign’s message out, but at what cost? While it is unknown at this time whether political “voicemail spam” has a chilling impact on political participation, Congress did find, when it passed the Telephone Consumer Protection Act of 1991 (TCPA), that:

“[R]esidential telephone subscribers consider automated or prerecorded telephone calls, regardless of the content or the initiator of the message, to be a nuisance and an invasion of privacy.”²⁷

Although by law commercial enterprises are prohibited from placing pre-recorded calls, campaigns are allowed to do so because calls for noncommercial purposes are exempt under the TCPA.

Gender

Required in a majority of states, gender designations may provide election administrators with a useful breakdown of the voter population. But gender information also offers value to secondary users of voter lists. By matching gender and age information on voter lists, secondary users can know the demographic composition of a certain household’s voters. In nine states the “gender” field consists of a salutation check box that includes the titles, “Mr.”, “Mrs.”, “Ms.”, and “Miss”. In selecting their salutation, female voters may also be providing their marital status, which can be a valuable demographic detail for secondary users.

Social Security number

The private, individualized nature of a Social Security number (SSN) can make it a reliable form of personal authentication. However, the value of an SSN in facilitating identity theft and other crimes has made the public more wary of disclosing their SSNs.

Voters who are concerned about identity theft will be relieved to know that Social Security numbers are redacted from voter lists in every state where they are collected, with the exception of Iowa. In addition, Aristotle, the largest broker of voter data, does not disseminate voters’ SSNs.

While these redaction practices may give voters some comfort that their Social Security numbers are being protected, they do not address the fact that by merely collecting this data and storing it on government computers, election agencies put such sensitive data at risk of being accidentally or deliberately accessed by others. And while states today are redacting SSNs from voter lists, this has not always been the case; it has only been in recent years that the public and government have become more aware of the dangers of making SSNs widely accessible. It is likely that early purchasers of voter lists obtained and retain SSNs from states that collected them.

Though 19 states do provide some notice on their voter registration forms as to why SSNs are collected, another 11 states do not provide such notice; in seven of these states providing the SSN is optional for voters, but without proper notice about why the number is requested in the first place, it is unreasonable to expect that prospective voters can make an informed decision about whether or not to provide their SSN.

In 1992, Virginia voter Marc Alan Greidinger sued his state over its requirement that he provide an SSN in order to register to vote. Specifically, Greidinger objected to a lack of notice on the form explaining why his SSN was being requested, as well as the fact that his SSN was available to view by any Virginia voter and disclosed on voter lists made available to secondary users. The court decision turned on whether the state’s declared interest in preventing voter fraud outweighed the plaintiff’s privacy interest. He won his case on appeal, with the court finding that “Greidinger’s right to vote is substantially burdened by the public disclosure of his SSN.”²⁸

The appeals court directed Virginia to alleviate this burden by “either deleting the requirement that a registrant disclose his SSN or eliminating the use of SSNs in voter registration records open to public inspection and contained in voter registration lists.” Prompted in part by the Greidinger suit, Virginia developed a Privacy Act notice to include on the top of the state’s voter registration form. Today Virginia is one of only eight states requiring registrants to provide a full Social Security number, and it complies with the Federal Privacy Act of 1974 by informing voters that the purpose for collecting SSNs is to “ensure that no person is registered in more than one place,” that their registration form will not be open to public inspection and that their SSN will “appear on reports produced only for official use by voter registration and election officials.”

Place of birth, date of birth

Of the 14 states collecting voters’ place of birth, only two (AZ, VT) redact this information from voter lists. Every state collects voters’ date of birth, but only eleven partially or fully redact voters’ birthdates from voter lists.

A person’s birth date and birth place is private, personal information and so may function as a form of voter authentication. However, this information may be too personal to be appearing before secondary users. Knowing someone’s place and date of birth, a would-be thief could obtain a birth record that can be used to commit identity theft.

Race

Only one of the nine states collecting race on their voter registration forms, Pennsylvania, is not located in the U.S. South. Six of these states are required to comply with the Voting Rights Act of 1965, which was enacted to redress historical patterns of racial discrimination in voter registration practices in the South. While race-based information is useful for these reasons of compliance, it has value for secondary users for different reasons: it enables voters to be sorted and targeted by race. None of the nine states collecting race information redact this data from voter lists. Three states that collect race information also allow secondary commercial use (LA, NC, SC). Even where race data is not collected on forms it is still utilized by campaigns. Data vendors such as Aristotle gather race and ethnicity data from other sources, and campaigns often assume a voter’s race or ethnicity based on surname.

E-mail address

Just as telephone numbers provide campaigns and marketers convenient access to voters, in the future e-mail addresses may become an even more important means of contact. This study found that only two states (CA, IN) are seeking e-mail addresses on their voter registration forms. But this is likely to become more common. A California elections official said that the state added e-mail as an optional field on its voter application because some counties were seeking an alternate way to contact voters. E-mail could facilitate communications between elections offices and voters; one could see a future in which election reminders and voter information guides are distributed to voters via e-mail. E-mail addresses are coveted by campaigns and marketers for different reasons. The cost of composition and delivery is lower than other means of communication, and the recipient can be targeted with customized content in the same way that campaigns currently target voters with direct mail.

Though few states collect voters’ e-mail addresses, campaigns are able to gather e-mail addresses for voters from other sources to send out unsolicited campaign e-mail messages, also called “spam.” Commercial restrictions on spam do not apply to political email because campaigns enjoy protected political speech under the First Amendment. Because campaigns rely on vendors to provide email addresses they often end up sending political spam to voters who are not eligible to vote for them. Such inefficiencies in political e-mail may give politicians greater incentive to seek changes to voter registration forms to include voters’ e-mail addresses.

Driver’s license number

A driver’s license number is an existing unique identifier that can be used by election administrators for authentication and avoidance of duplication. Although in the past it was common for states to use one’s Social Security number as the driver’s license number, that is not the case anymore—every state issues a distinct number for its driver’s licenses. Still, the driver’s license number itself is of a personal, private nature and should not be made available to secondary users. However, five states do not redact voters’ driver’s license numbers from voter lists (FL, NC, OK, SD, TX).

The state of Michigan presents a unique case of using driver information to verify voter registration. In Michigan, the drivers’ license number serves as a voter’s registration number, and the state’s computer files are linked so that changes to one’s driver’s license automatically update the voter’s registration. This kind of verification system may become more common as states comply with the Help America Vote Act (HAVA), which relies on driver’s licenses for voter verification.

Signature

A voter’s signature cannot be data-entered into a voter list and therefore does not get redistributed through voter lists. However, this is changing. With increased use of early voting and mail-in balloting, some jurisdictions are beginning to convert voters’ signatures into a digitized, electronic format to use when authenticating early voters or mailed-in ballots; in doing so, the signature becomes a government record and may be subject to public records laws. In Boulder County, Colorado, a voter-rights activist, Al Kolwicz, in 2002 purchased 75,944 digitized signatures on electronic tape from the county clerk’s office for $50. According to the clerk, Charlotte Houston, “We did not like the idea of someone purchasing the tape that we keep signatures on. It was done because we could not find a legal option not to do it.”²⁹ In response, the Colorado legislature enacted a law prohibiting the sale or disclosure of digitized signatures from voter files.³⁰

Optional vs. required information

While most states gather “optional” information from voters, many state voter registration forms fail to include adequate notice clearly indicating which fields are optional and which are required, or what purpose the optional information provided will serve. While this lack of adequate notice may be due to poor form design, it also makes one wonder whether states are being intentionally vague in an attempt to collect more data from voters that will be useful to secondary users. Optional fields also raise the question of whether the optional data is truly needed to administer elections. Providing a phone number is optional in 28 states; if providing a phone number is not viewed as necessary for administering elections, then one must ask whether it really needs to be collected from voters in the first place.

Notice to voters

The overall lack of notice about secondary users, combined with inadequate notice about optional fields on the form, deprives voters of being able to make truly informed decisions about how much information they want to provide when registering to vote. Prominent penalty notice on voter registration forms, combined with the lack of adequate public record, secondary uses, Social Security and optional notice, may be leading voters to part with more information than necessary when registering to vote, out of a desire to be “better safe than sorry.” More robust notice would give voters the ability to exercise “informed consent” when registering to vote. Such notice, however, may also deter some people from wanting to register at all, which may be one reason why notice on registration forms is lacking in the first place.

Data added to voter registration records

All states add data to voter lists tracking each voter’s turnout history in past elections. This information provides campaigns and other purchasers of voter lists with an idea of who is likely to participate in future elections. Campaigns can then target their message to reach those people who are most likely to vote and ignore those who vote infrequently or not at all.

Whether a voter has cast an absentee ballot or is registered as a permanent absentee voter is also often included in voter lists. This knowledge can be used to a campaign’s advantage. If a campaign knows which voters will be receiving a ballot by mail before the election, it can target those voters early and not bother to call them on election day to “get out the vote.”

Knowledge about who has requested absentee ballots can also play a role in facilitating absentee ballot fraud. In Texas, a voter’s absentee status is made public, as well as the date when absentee ballots go out in the mail. These two pieces of information together enable campaigns to anticipate where and when absentee ballots are received by voters. In South Dallas, campaigns have long utilized “voter assistants” who show up on absentee voters’ doorsteps the day their ballots arrive and “assist” those voters with casting their ballots. Texas also permits campaigns to return absentee ballots on voters’ behalf. The combination of these laws and practices enables campaigns to engage in such “dirty tricks” as completing absentee ballots for residents in nursing homes and stealing ballots out of voters’ mailboxes. National Public Radio reported that ballot “brokers” sometimes obtain stacks of absentee ballots, mark them, and then attempt to “sell” the marked ballots to political campaigns, threatening to destroy ballots favorable to a candidate if the candidate doesn’t buy the ballots.³¹

Absentee voting is growing in popularity and many states are permitting greater use of absentee ballots as well as opportunities for voters to register as permanent absentee voters. As the South Dallas example shows, campaigns’ knowledge of who the absentee voters are, combined with other election provisions, can lead to increased opportunities for voter fraud. If voter lists are to include absentee voting information, then states need to consider whether this information could facilitate voter fraud as has been the case in South Dallas. One Texas state legislator, Rep. Steven Wolens, has introduced a bill, HB 54 that would, among other things, require information about who has requested an absentee ballot to be made public the day after the election.

Voter record suppression and confidentiality programs

A growing number of states are attempting to address the need for voter privacy by creating special programs and procedures to protect the confidentiality of certain classes of voters, such as judges and victims of domestic violence. With 27 states already offering confidentiality programs to certain voters, the remaining 24 may consider doing likewise. Such programs demonstrate sensitivity that some people will refrain from voting if doing so requires them to make their personal information accessible and possibly place their safety at risk. However, these programs are only effective if they are publicized through channels that reach the classes of voters the programs seek to protect. A bigger policy question to consider is whether it’s a good idea to continue singling out certain classes of voters for privacy protection, or whether any voter, for whatever reason, should have the right to keep their voter registration confidential.

Secondary users

Political uses: Voter profiling

All states permit campaigns to acquire voter lists; as discussed in the “Trends underway” section of this study, many campaigns “enrich” voter lists by adding data from other sources. Enriched voter lists enable campaigns to target voters by income, family size, homeowner status, occupation, organizational membership, magazine subscriptions, and political donations, thereby allowing campaigns to upgrade individual voter records into sophisticated voter profiles.

Because the burden of “educating” voters is placed on campaigns, it is therefore left up to campaigns to decide who gets informed and what they know. It is not in a campaign's interest to spend its time and money informing people who are not likely to vote for them, or at all. Consequently, the most likely voters are heavily courted by the campaigns while unlikely voters are largely ignored. While this has long been the case, the availability of voter registration data in computerized formats has greatly enabled campaigns to even more precisely target their most likely supporters and ignore opponents and nonvoters altogether.

Demographically, nonvoters tend to be people who are younger, more transient, less wealthy and less educated than people who vote. If people who are not likely to vote are never courted by campaigns they are likely to remain nonvoters. Thus, voter profiling may be contributing to the perpetual decline in voter turnout.

Governmental uses: Incumbent mailings

Elected officials access voter lists for their own campaigns; this widely permitted secondary use falls under the category of “political.” However, these same politicians may, once in office, be able to use voter lists for mailings to constituents. In California, incumbent lawmakers sent out 7 million mailers to voters in the Summer of 2002, all as official government business and at taxpayer expense. While California law forbids these mailers from being overt campaign advertisements, incumbents use them to boost their name recognition among targeted groups of voters. One Assembly member sent 47,090 women voters in his district a mailer about self-defense workshops. Another lawmaker sent a “Senior Legislative Update” to 35,000 elderly voters in his district. In one case, an Assembly member facing a tough re-election bid in a new Assembly district sent “constituent mail” to select voters who were not currently constituents, but were residents of the newly-drawn district. The total cost of the California Legislature’s Summer 2002 mailings was estimated to be $3.5 million. ³²

Such incumbent mailing practices raise several concerns. In addition to the imbalance this practice creates between incumbents and challengers, it is also apparent that lawmakers are now engaged not only in voter profiling but also constituent profiling. Legislators are elected to represent all people in their district, not only registered voters. While campaigns are free to choose whom they want to target, the idea of politicians using taxpayer dollars to inform select groups of voters is exclusionary and inappropriate.

Governmental uses: Jury duty

Since voter lists have been used for jury pools in many states for many years, the question of whether jury duty is a deterrent to voter registration has been considered by several scholars. It is a relevant question to consider in light of this study. If citizen awareness that voter data is used for a secondary purpose that may land them on a jury deters one’s desire to register, then what impact will knowledge of other secondary uses have on registration and participation?

States can do one of three things with voter lists and jury duty: they can use only the voter lists to call jurors; they can use voter lists and other lists, such as licensed drivers lists, to call jurors; or they can use different lists altogether. Stephen Knack has studied the likelihood of whether people are registered to vote based on their perception of juror source lists. In an analysis of data from the 1991 National Election Study, Knack found that:

Of survey respondents who named voter registration lists as the sole source for juror lists, 71.4 percent were registered to vote;
Of respondents who named voter lists and at least one other list as the source for juror lists, 77.1 percent were registered to vote;
Of respondents who named drivers license or some list other than voter lists as a juror source, 82.1 percent were registered to vote.

These findings suggest that the more aware people are that voter lists are used for jury duty, the less likely they are to be registered to vote.³³

A study by Eric Oliver and Raymond E. Wolfinger found that individual knowledge of juror source lists has a small but detectable effect on voter registration status. Their study concluded that other factors, such as residential mobility and an interest in politics, are much more strongly correlated with registration status. They found that the perceived threat of jury duty may deter registration for a only small number of people, estimated at no more than two percent of the electorate.³⁴ Still, if as many as two percent of citizens are not registered in order to avoid jury duty, that represents potentially several million nonvoters.

Governmental uses: Law enforcement

Law enforcement may find new uses for voter lists in waging the War on Terrorism. Following the September 11, 2001 terrorist attacks, Congress passed the Aviation and Transportation Security Act, which mandates the creation of a “no-fly” list to be used to identify airline passengers that potentially pose a security risk. According to a 2002 San Francisco Chronicle article, the law requires the new Transportation Security Administration to coordinate with federal intelligence and law-enforcement agencies to share database information on individuals who may pose a risk to transportation or national security; already the CIA, FBI, INS and the State Department are contributing names to the “no-fly” list. The same article reported that 20 Wisconsin anti-war activists were recently detained and questioned at San Francisco International airport, and that a Green Party activist was detained at a Maine airport last year.³⁵

While it is not known whether voter lists are currently being used to profile airline passengers, factors such as one’s party registration or voter turnout history might be useful for such purposes; those who vote frequently and are registered with one of the two major parties might be viewed as less of a risk than those who are registered with a minor party, or are not registered to vote at all. Voter lists may also be found to be useful to the U.S. government’s new “Total Information Awareness” project, which seeks to bring together numerous public and private databases for the purpose of identifying people who pose a security risk.

Pricing

While the pricing method for voter lists varies from state to state, there is one characterization that fits across the board: voter information is an inexpensive commodity. This is due largely to the sense that voter lists are public records and therefore should be affordable.

The pricing for voter lists is, by the standards of commercial databases, quite low. In many cases, a statewide voter list consisting of hundreds of thousands or even millions of records can be purchased in electronic form for under $1,000. By comparison, proprietary commercial lists, such as a group membership or magazine readership, typically sell for $80 per one thousand records.

It may not be feasible for states to raise their list prices, however, because many states set such prices based on the fact that it is public data. As low as the prices are, state and local governments do make some money by selling voter data. Limiting secondary uses of voter lists will likely decrease a revenue source for state and local governments. This potential loss of revenue may lead some states and counties to resist attempts to limit the collection and dissemination of personal voter data that is valuable to secondary users.

Penalties and enforcement

Many states prohibit the resale or retransmission of a purchased voter list, yet parties, consultants and data brokers appear to be violating these laws as a standard practice.

The mechanism many states employ to catch unauthorized usage may be deficient. Seeding the voter list with distinct false names works as a tracking device if the user is merely copying the list and using it for mailings. But when the purchased voter list is merged into a larger database, the decoy names routinely are thrown out, because they do not match any existing records. Thus, the election agencies’ key method for protecting data is routinely foiled.

In the early 1990s, a leading data vendor, Metromail, was accused of integrating and misusing voter data from states that prohibit commercial use. Metromail, which gathers and maintains information on individuals and sells it to businesses seeking to target their marketing efforts, had added personal data from voter lists that it obtained from other secondary sources, including the AFL-CIO and Aristotle. Using such data was in direct violation of the laws of those states that prohibit commercial use of voter lists. Following investigations from Arizona and California, plus a front-page story in the Wall Street Journal, Metromail claimed that at first it had not known about the commercial prohibitions of some states but had later purged its databases of all voter data that came from those states. No state assessed a penalty. ³⁶

The Metromail case highlights the difficulty of enforcing laws against secondary use of voter lists. Making commercial use illegal means having to enforce the prohibition, which requires time, money and effort. Even then, actual evidence of misuse can be hard to track. It is difficult to determine whether a data vendor or other direct-marketing company that gains access to voter lists will in fact delete voter data from the records of those people living in the 29 states that prohibit commercial use.

Data security risks in government offices

One of the most important principles regarding information privacy is the need for data an individual provides to be held secure against improper access or disclosure. While privacy policies and regulations would represent a good step toward protecting voter privacy, they may not address another risk to voter data, that being accidental or intentional security breaches of government computers.

There are three basic ways that the security of government computers can be breached: 1) unauthorized access by government employees; 2) negligence; and 3) intrusion by hackers. There are many examples of such breaches in numerous government agencies that handle sensitive data on American citizens. For example:

Unauthorized access: A study conducted by the General Accounting Office in 1997 revealed that hundreds of Internal Revenue Service employees had viewed the tax returns filed by friends, enemies, relatives and celebrities. In response, Congress enacted the Taxpayer Browsing Protection Act of 1997, which makes unauthorized browsing of federal taxpayer information a felony.
Negligence: Government audits published in 2002 found that several federal government agencies cannot account for thousands of computers. The Customs Service lost track of approximately 2,000 computers while the Justice Department couldn’t account for 400.³⁷ The Internal Revenue Service, which loaned 6,600 laptop and desktop computers to volunteers who provided tax-filing assistance to citizens cannot account for 93 percent of them. The IRS could also not guarantee that sensitive personal and financial information stored on those computers was removed as required.³⁸
Intrusion by hackers: Hackers routinely try to break into government computers and often succeed. In May 2002 a hacker broke into the California state controller’s computer system, which contains the personnel records for 260,000 public employees, including those in highly public positions, such as judges, politicians and university professors. The personnel records include the kind of sensitive data, such as addresses and Social Security numbers, that can be used to financially or physically harm someone.³⁹

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