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Total Information Awareness

For years, Republicans have been able to compile far more information about their potential supporters than Democrats could. The GOP’s “Voter Vault” database was so panoptic that some people joked it knew what kind of pizza each voter preferred. This year, however, all that changed: Barack Obama deployed a campaign database that made the GOP’s data-gathering efforts look like the work of amateurs.

Howard Dean laid the foundation during the Democrats’ post-2004 Dark Ages, creating a unified “voter file” for Democratic campaigns nationwide to use. The voter file interface doesn’t itself say much about you, but it does help different Democratic campaigns realize they’ve been in touch with the same person, so that database records can be linked up. Meanwhile, the private, progressive Catalist pulled together every data point they could: What did Democrats around the country know about how people voted and what their motivations were?

The Obama campaign then took these pieces of back-end infrastructure and gave them the full-out Web 2.0 treatment: faster, shinier, and above all, more social. Supporters who signed up for the social network were invited to link to their friends, check off the issues that motivated them, and blog at length about themselves. Those who downloaded the Obama ’08 iPhone app let it see their list of contacts. Every time they gave money, made a phone call to a swing-state voter, or even just clicked on a link in an email from David Plouffe, they gave the campaign a few more bytes of personally-traceable data. No campaign in history has ever been as disciplined about storing all these data points in one meticulously organized data warehouse, or about using that information to reach out to voters using exactly the media and messages they’d be receptive to.

It’s not as though such databases are unheard of in American life. Your supermarket has a database on how single-digit price changes affect your weekly egg consumption; Google has a record of every question you’ve ever wondered about enough to search for an answer. Want to reach women with three or fewer credit cards and an interest in cats, in a household containing a grandparent and a veteran? InfoUSA has a list of 10,082 of them. Here, as with his expertly-executed brand identity, Obama is just emulating the example of successful data-rich high-tech companies. But the thought that the President-elect of the United States knows more about us than Santa Claus does seems like fair grounds for concern.

You don’t need to be paranoid to come up with privacy threats involving the profiles the Obama campaign has assembled on its supporters. What if they gave your call records to the NSA? There are marketers out there who’d pay good money to know that you’re a 38-year-old suburbanite who’s concerned about the environment. And if Bill Ayers was at one of those Obama house parties you went to, your own run for President in 2024 is so toast. All of which raises an important question: Just what can they do with all that information?

It turns out that the Obama campaign's use of the data is almost completely unregulated. The U.S. has no comprehensive privacy law, meaning that once your name is in a database somewhere, there's basically nothing you can do about it. Indeed, many of the special-purpose privacy laws we do have-- e.g., the do-not-call list, the CAN-SPAM Act, and California's Online Privacy Protection Act--only apply to businesses, not political groups. The Obama campaign can share the contents of its databases with the DNC, or with Wal-Mart, or Hugo Chavez: anyone it chooses.

What about the privacy policy at Contrary to popular belief, having a "privacy policy" doesn't mean that a site has actually promised to protect your privacy. Here's what the privacy policy actually says:

"It is our general policy not to make Personal Information available to anyone other than our employees, staff, and agents. We may also make personal information available to organizations with similar political viewpoints and objectives, in furtherance of our own political objectives."

There's a fine art to writing mealy-mouthed privacy policies that sound reassuring but promise nothing, and the Obama campaign has clearly studied at the feet of private-sector master equivocators. Courts have held that phrases like "general policy" are empty aspirations, rather than legally enforceable commitments. And the second sentence is more of a warning than a reassurance.

The Federal Election Commission does control how donor lists are used, though not in the way you might expect. It prohibits anyone else from harvesting the lists off the FEC's website and using them for fundraising--but it doesn't prevent campaigns from sharing lists voluntarily. And, of course, it affirmatively requires that records of donations over $200 be made public.

There's not even a law against sharing the databases with the government. While the Supreme Court held in 1958 that the First Amendment right to freedom of association protected the NAACP from being forced to turn its membership lists over to the state of Alabama, this wouldn't be a case of compelled disclosure. Candidate Obama could simply give his databases to the White House without needing to wait for an order from President Obama.

Given the anything-goes legal landscape, should we be afraid of the ObamaBase? Actually, no. The Obama campaign has the means and the opportunity to violate your privacy--but it doesn’t have much of a motive. From a partisan political perspective, most of the things the Obama campaign could do to its supporters would be unmitigated disasters for the Obama 2012 effort.

Take, for example, the single biggest pressure Obama faces in connection with his $750 million mailing list: to share it with other Democrats. There are party insiders who’d love to put the 10-million member list in the hands of the DNC, which would coordinate in helping down-ticket Democrats take advantage of his grassroots money machine.

From Obama’s perspective, though, massive Democratic spam would undermine both his distinctive brand identity and his ability to get his own message out . Note how Obama has used his list since the election: He didn’t use it to raise money for Jim Martin’s Senate run-off in Georgia, but he did use it when his incoming administration’s political interests were involved--for example, when Joe Biden wrote to the list, “Let's welcome Hillary to the team ... by helping to retire her debt.”

There’s a related concern about micro-targeting. If it’s creepy that junk mailers merchants know you’re a working mother concerned about crime and safety when they decide which ads to send you, how much creepier is it if a political campaign knows it? Micro-targeting, though, can actually be one of the motivating reasons to share more information about yourself with a campaign. If you're a single-issue environmental voter, you want the Obama campaign to send you highly-detailed pitches on environmental issues.

Even the ultimate concern of sharing data with the government (a cause that has many on the left in arms when it's the telephone companies doing the sharing) isn't a realistic worry here. The Obama administration isn't about to use its supporter lists to send the FBI to rough up its volunteers. The feds generally have more convenient procedures available in legitimate criminal investigations. They can get a court order to find out whom you’ve been calling, for instance, as long as they have “reasonable grounds to believe” the records are “relevant” to an investigation. It’s hard to imagine how an investigator who couldn’t come up with “reasonable grounds” could still make a persuasive case to Obama’s database custodians. Besides, the political fallout if such an information-sharing arrangement were to be made public would be immense.

Fundamentally, the last thing the Obama campaign wants is for the magic lists to become government data. Putting them in public hands would mean leaving them behind when Obama leaves office--and potentially seeing the data used against Democrats. So far, Obama's strategy for bringing his supporters into his administration has been to ask them to sign up afresh at, not to turn over their private data directly.

There's a pattern here, and it gets at something important about the Obama campaign. Obama's relationship with his supporters is built in large part on trust and their personal connections with him and with other supporters. Even back when "generic Democrat" was polling better than the relatively unknown Barack Obama, he was massively outraising other Democratic institutions, which didn't correspondingly benefit from his surge in first-time donors. Doing anything to jeopardize his supporters' sense of trust in his online operation would strike at the heart of what made it so effective.

So, it’s in Obama’s interest not to send your mailing address to the Sierra Club or to a swing-state Congressional campaign from halfway across the country. At the very least, we better hope it is, because no one can do a thing about it if he decides it isn’t.

James Grimmelmann is an associate professor with the Institute for Information Law and Policy at New York Law School.

By James Grimmelmann