Rachel Roy was invited to speak on a panel regarding politics and privacy regulation at the 20th Annual Privacy and Security Conference held in Victoria last month. For those of you with a keen interest in this subject, we’ve posted her speaking notes.
The Facebook/Cambridge Analytica controversy reveals that political parties and campaigns thrive on personal data. Politicians require businesses and public agencies to follow privacy laws to ensure personal information is kept secure and not improperly used. However, in Canada at least, political parties are not subject to the same level of scrutiny when it comes to how they collect, store and use people’s data. A House of Commons committee has recently recommended significant changes to Canada’s privacy laws, including tighter restrictions on political parties, in order to protect Canadians’ privacy and the country’s democratic voting system. Should political parties be subject to the same privacy protection rules as apply to government agencies and the corporate sector? Or are there essential differences that call for a different set of expectations and legal requirements?
There are two aspects missing from debates about personal information and political parties in Canada. First, there is a failure to recognize the unique and fundamental role political parties play in our democratic society in comparison to other organizations. Second, there is a lack of understanding regarding how political parties are already regulated in Canada – and the stellar elections bodies responsible for overseeing their operations and more importantly, their communications with voters.
NATURE OF POLITICAL PARTIES
In Canada, political parties are the engine of democracy. Political parties develop policy platforms, share these with voters and encourage voters to get out on election day to choose their government based on these platforms. Political parties are not external organizations that impose their will on voters; rather, they are made up of voters who are their members, donors and supporters. In most cases, voters get to nominate their candidates and have a say in the policy development and campaign strategies of political parties.
In the past, voter outreach focused on traditional methods of communication: TV, newspaper and radio ads, and door-to-door communications, whether via one-on-one conversations with canvassers or via leaflets in mailboxes or addressed mail. This is also how elections bodies traditionally communicated with voters – door-to-door enumeration and voter cards mailed to households.
Elections bodies have traditionally provided political parties with voters lists to facilitate these communications. Voters lists generally consist of names and addresses – often acquired through other government bodies such as Canada Revenue Agency, driver licensing, etc. In some northern jurisdictions, the voters list contains phone numbers due to the difficulty posed by door-to-door contact.
Today, as we all know, traditional methods of communications are being surpassed by digital methods of communication. Many people use social media as their primary source of news. The email address has become the new phone number (which was itself once the new PO box). Elections bodies and political parties have had to adapt or face low voter engagement and turnout. Or, even worse, a democracy that is chosen disproportionately by one segment of the population based on a generational divide related to the audiences for traditional communications: if our practices and regulatory rules are aimed at facilitating traditional methods of voter outreach and restricting online and digital methods, only the demographic that relies on TV, newspapers, and telephone landlines will be engaged in our democratic processes.
Elections bodies and political parties are adapting to these changes. All of society is adapting – voters can now update their information online with elections bodies and even Canada Revenue Agency has started collecting email addresses and not simply postal addresses and phone numbers.
When approaching the issue of personal information and political parties, we must not lose sight of the fact that the core purpose of political parties is to communicate and mobilize voters to enable a representative democracy. This is distinct from other organizations in Canada that use personal information for their own purposes, whether for profit or not. This is also why political parties are given voter lists and are subject to different regulations when it comes to communications with the public in comparison to third parties who engage in election advertising.
REGULATION OF POLITICAL PARTIES
Canadian elections are a global gold standard – our election officials travel the world assisting other democracies with transparent and fair elections. A former Elections BC Chief Electoral Officer assisted with running Egypt’s first democratic elections after the Arab Spring. Elections bodies in Canada have the experience and knowledge to deal with emerging issues related to political party communications with voters. They understand the importance of an informed electorate and the role of political parties in this. They also ensure Canadian elections are transparent and fair.
As a result, elections bodies are responsible for regulating political party communications with voters and use of the voter lists and other information provided by elections bodies to political parties. Political parties may only use this information for communicating with voters, which includes soliciting donations, volunteers and party members (being the driving force behind parties).
A few examples will illustrate how elections bodies have reacted to issues that have emerged in the past related to problematic communications with voters, resulting in regulations that ensure transparency and fairness in Canadian elections while not limiting political party communications with voters.
Pierre Poutine (the Robocall Scandal)
Despite CRTC and election rules to the contrary, a Conservative Party staffer used robocalls to communicate with voters in a misleading way that interfered with their voting rights. The individual responsible received jail time. Election rules were reformed in relation to political party (and third party) communications with voters by phone in order to prevent this type of misconduct in the future. The Voter Contact Registry now requires political parties to register with the CRTC prior to engaging in phoning campaigns during elections (in addition to following all the CRTC rules they were subject to previously). Political parties must keep copies of phone scripts and records related to their communications by phone with voters.
Thus, the transparency and fairness of Canadian elections were strengthened without unduly interfering with political party communications with voters by phone.
In response to improper voter manipulation techniques – which should be distinguished from legitimate voter persuasion attempts in any conversation about Cambridge Analytica – the rules for online election advertising have been tightened. Internet platforms that permit election-related advertising will now be required to create and maintain registries documenting the election advertising activities that they host. While election rules already require political parties and third parties to identify themselves in online advertising, the new registries will include easily-accessible copies of ads and details about who is responsible for them. That means in the future, a voter (and the media) will be able to go to Facebook’s Canadian election registry, look up a political party and see the ads that they are targeting at Canadian voters.
This promotes transparency and fairness in Canadian elections without interfering with legitimate political party digital communications with voters. This is a win-win outcome for Canadian democracy: improper and illegitimate advertising is curtailed, while legitimate online voter outreach activities, which are essential to fostering participation in elections, can proceed unhindered.
BC OIPC Approach
The application of PIPA to political parties in British Columbia is frequently referred to as the way of the future for other Canadian jurisdictions. With respect, the Commissioner’s recent report on the use of personal information by political parties fails to strike the right balance and does not adequately address or incorporate the existing regulation of parties by Elections BC.
In the UK, political parties have been given special status in comparison to other organizations in recognition of the special role they play in a democratic society in order to allow parties to carry out their campaigning activity. They have distinct access to information and different rules around the use of personal information, as compared to other organizations.
In BC, however, the Commissioner’s Report has failed to recognize the unique nature of political parties as organizations who use voter information to enhance our most fundamental democratic processes, and not merely for their own benefit.
For example, the OIPC disagrees with the BC Legislature’s choice to grant political parties access to “who-voted” data in the Election Act – going so far as to call it an unreasonable invasion of citizen’s privacy. However, these sections remain in the Election Act and for good reason.
Research on voter turnout has shown that reference to an individual’s past voting record encourages an individual to vote. In a time when voter turnout has been declining, engaging citizens and encouraging higher turnout is critical to a properly functioning democracy. As such, assessing the efficacy of voter turnout strategies by referencing “who-voted” data is an evidence-based approach to increasing citizen participation in elections that should not be overlooked.
In the United States, an individual’s past voting record – i.e. the fact that they voted, not who they voted for – is a matter of public record. While we should not adopt the American approach to privacy rights wholesale, we should be looking at this type of specific practice. There are good, evidence-based public policy reasons for providing who voted data to political parties which should be considered before reaching the conclusion that this data is an unreasonable invasion of privacy. Indeed, the purpose of PIPA requires the Commissioner to consider the needs of political parties in relation to this data.
Under the Election Act, Elections BC has both the authority and jurisdiction to ensure that political parties take appropriate precautions in relation to voter information and has the authority to audit political party practices in this regard. Indeed, after the 2017 provincial election, EBC conducted an in-depth survey of all political party and candidate campaigns in relation to their protection of personal information. However, the results of this survey are neither referred to nor incorporated in the Commissioner’s report.
The Commissioner’s comments that the OIPC will be working collaboratively with Elections BC in the future are encouraging. Elections bodies in Canada have a unique role and a wealth of experience in increasing voter engagement while also protecting Canadian democratic principles.
Political parties have significantly fewer resources than governments or for-profit organizations – they run primarily on donations from voters. Political parties rely on the guidance they get from Elections BC and the OIPC to figure out how they should handle personal information of voters. Elections BC and the OIPC should collaborate in creating policies, procedures and training materials as resources for political campaigns that strike the right balance between personal privacy and voter engagement.
Democracy is jeopardized when political party communications are limited. A lack of informed voters results in less engaged citizens and less representative democracy. Political parties use voters’ personal information for their own benefit, in a sense: they seek to encourage voters to vote for their candidates. But in doing so they foster general engagement with the democratic process.
A robust campaign process in which a diverse range of parties reach out to all kinds of voters, of all ages and demographics, and encourage them to participate leads to a flourishing and vibrant democracy. A stifled campaign process in which only those voters who watch TV news, read newspapers, and have landline phones get these messages leads to a lopsided democracy that leaves whole swaths of the population disengaged. That is a very real threat to the health of our democracy and a crucial consideration to be weighed against personal privacy considerations.