Voter Privacy in the Digital Age

Introduction

In the United States there are approximately 215 million eligible voters, and about two-thirds, or 144 million, are registered to vote.¹ One out of three eligible American voters remains unregistered to vote.

The chief purposes of voter registration are to prevent voter fraud and to facilitate election administration. An equally important but less well-known purpose is to provide political campaigns with contact and personal information about voters and their history of election participation. Campaigns have utilized voter lists for decades; a book dating from the 1920s examining the use of voter data shows that even back then campaigns were making use of voter registration lists.²

The role of voter data in political campaigns

The United States’ electoral process relies on political candidates and parties to provide information to voters and promote voter participation. “Voter contact” is a key component to any successful political campaign, and campaigns use every means at their disposal to contact voters, especially those voters who are most likely to vote for them.

One way campaigns ensure that their message reaches the most desirable of voters is to know who those voters are in the first place. The key source of information about registered voters is the so-called “voter list,” also called a “voter roll” or “voter file,” that is maintained by election agencies. Voter lists are comprised largely of personal information supplied by voters when they filled out their voter registration forms. The most common types of information collected on voter registration forms include name, address, signature, date of birth, phone number, gender, party affiliation, and all or part of the voter’s Social Security number.

Voter lists as public record

Voter registration forms are processed by local election agencies, who input the data from the forms into voter lists. Voter lists are public record because they are government documents created by government agencies. If a state’s laws do not explicitly permit the redistribution of voter lists, public records laws have been widely utilized as justification for redistribution to secondary users.

Public records laws serve to promote government accountability and protect the public against government secrecy. The notion that government records should be accessible to the public has a long tradition in the United States. Until digital technology made them more easily accessible, public records were characterized by “practical obscurity”— open, but often in limited formats and locations that reduce access to the records. Supreme Court Justice John Paul Stevens defended the notion of practical obscurity in a 1989 decision limiting journalists’ access to criminal records compiled and computerized by government agencies. Stevens wrote: “There is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives and local police stations throughout the country and a computerized summary located in a single clearinghouse.”³

The growing tension between public records and practical obscurity goes to the heart of voter privacy. On the one hand, a person’s voter registration record is by tradition and law a public record because all citizens have an interest in ensuring the legitimacy of all voters and the integrity of the electoral system. On the other hand, widespread access to personal voter data can jeopardize a voter’s privacy and safety.

Voter data exists in two distinct formats:

1. Actual registration forms held on file at an election office. These forms, also called “affidavits” are public records that meet the standard of practical obscurity, because anyone who wants to view the actual document must visit an election office and the forms can only be viewed one at a time. Some states block out certain information (such as a Social Security number or signature) from public inspections; many allow viewing but not copying.

2. Voter lists compiled by election agencies and consisting of the information supplied by voters on their registration forms. Before computerization, voter lists were protected to some degree by the notion of practical obscurity because such lists were available only on paper. Now that voter lists are widely available in a computerized format, they are also easy to duplicate, transfer and utilize in connection with other lists and databases. These computerized voter lists and the secondary uses of such data are the focus of this study.

The notion of personal privacy

The notion of a right to personal privacy is “nowhere but everywhere”⁴ —it is not enshrined in the Bill of Rights or anywhere else in the U.S. Constitution⁵, but most Americans have a reasonable expectation that they ought to be able to enjoy their space free of unwanted intrusion. A seminal work called “The Right to Privacy” established a concise definition that has come to dominate privacy discussions since its authors, Louis Brandeis and Samuel Warren, wrote it in 1890: “The right to be let alone.” In 1967 Alan Westin updated the concept of information privacy with his influential book Privacy and Freedom. Westin defines privacy as: “The claim of individuals, groups, or institutions to determine for themselves when, how and to what extent information about them is communicated to others.” ⁶

In the past two decades—a time roughly corresponding with the development of the computer age—public opinion polls have recorded a growing concern over the erosion of personal privacy at the hands of business and government. In 1978, a Harris poll on national attitudes found that 67 percent of Americans were concerned about threats to their personal privacy. By the mid-1990s, this same survey of American public opinion found that 84 percent were concerned about privacy, and polls in recent years continue to show a high level of public awareness of privacy threats.⁷

One important study on public records and privacy was conducted in 2001 by the American Society of Newspaper Editors and the First Amendment Center. In the survey, 50 percent of respondents said voter registration information “should not be made available to the public,” while 47 percent said it should be made available.⁸ These survey results show that when it comes to balancing the need for voter information with the need to protect personal privacy, the public appears to be divided.

The rise of identity theft, abetted by the unfettered exchange—and lax protection—of private personal information, has also raised awareness of how privacy breaches can harm consumers. The Federal Trade Commission reported in 2004 that identity theft persists as the top-rated complaint the agency has received over the past four years, comprising 42 percent of the nearly half million complaints logged by the agency.⁹

Contents: About this study Key findings and recommendations Introduction Trends underway Findings Discussion of findings Recommendations Conclusion Endnotes Appendix

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This page was first published on June 9, 2004 | Last updated on January 23, 2012
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