Voter Privacy Act of 2019

II 116TH CONGRESS 1ST SESSION S. 2398 To amend the Federal Election Campaign Act of 1971 to ensure privacy with respect to voter information. IN THE SENATE OF THE UNITED STATES JULY 31, 2019 Mrs. FEINSTEIN introduced the following bill; which was read twice and referred to the Committee on Rules and Administration A BILL To amend the Federal Election Campaign Act of 1971 to ensure privacy with respect to voter information. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Voter Privacy Act of 4 2019’’. 5 SEC. 2. FINDINGS. 6 Congress makes the following findings: 7 (1) According to the Pew Research Center, 90 8 percent of Americans reported using the internet in 9 VerDate Sep 11 2014 02:12 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2398.IS S2398 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 2398 IS 2019, which was an increase from 52 percent in 1 2000. 2 (2) Internet service providers, browsers, 3 websites, search engines, email providers, device 4 manufacturers, and certain social media companies 5 collect unique data on nearly every American’s on- 6 line and increasingly offline activities, every day. 7 (3) One United States based search engine ad- 8 vertises its ability to track hundreds of categories of 9 data about specific individuals including age, gender, 10 occupation, income level, sexual orientation, national 11 origin, religion, medical conditions such as AIDs, 12 erectile dysfunction, bipolar disorder, eating dis- 13 orders, and sexually transmitted diseases, family in- 14 formation such as number of children, children with 15 special needs, infertility, and substance misuse, and 16 support for social issues such as reproductive rights, 17 unions and labor issues, and support for gun rights. 18 (4) Targeting services, such as certain large 19 search engines and social media platforms, maintain 20 sophisticated data profiles on nearly every American. 21 These targeting services are used by third parties to 22 target and deliver communications to specific indi- 23 viduals based on their sensitive personal information, 24 VerDate Sep 11 2014 02:12 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2398.IS S2398 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 2398 IS even if a third party does not control any individ- 1 ual’s personal information. 2 (5) In testimony before the Committee on the 3 Judiciary of the Senate titled, ‘‘Understanding Dig- 4 ital Advertising Ecosystem and the Impact on Data 5 Privacy’’, the Committee received the following testi- 6 mony regarding behavioral advertising: ‘‘almost 7 every single time you visit a website: data about you 8 is broadcast to tens or hundreds of companies, which 9 lets advertisers compete for the opportunity to show 10 you an ad. Advertising is necessary, and this sounds 11 OK. But wait until you hear what information about 12 you is in that big broadcast: it can include your – 13 inferred sexual orientation, political views, whether 14 you are Christian, Jewish, or Muslim, etc., whether 15 you have AIDs, erectile dysfunction, or bi-polar dis- 16 order. It includes what you are reading, watching, 17 and listening to. It includes your location, sometimes 18 right up to your exact GPS coordinates. And it in- 19 cludes unique ID codes that are as specific to you 20 as is your social security number, so that all of this 21 data can be tied to you over time. This allows com- 22 panies you have never heard of to maintain intimate 23 profiles on you, and on everyone you have ever 24 known.’’. 25 VerDate Sep 11 2014 02:12 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2398.IS S2398 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 2398 IS (6) Online surveillance techniques are becoming 1 more sophisticated. According to the Center for In- 2 formation Technology Policy at Princeton Univer- 3 sity, new website tracking software can provide real- 4 time surveillance of an individual’s online activity: 5 ‘‘Unlike typical analytics services, that provide ag- 6 gregate statistics, these scripts are intended for re- 7 cording and playback of individual browsing ses- 8 sions, as if someone is looking over your shoulder.’’. 9 (7) The volume of data now publicly available 10 and attributable to a specific individual permits re- 11 searchers to infer private information about that in- 12 dividual that the individual never disclosed publicly. 13 (8) According to a study from researchers at 14 Cambridge University and Microsoft Research, an 15 individual’s social media posts, pictures, and profile 16 information can be combined to reliably infer that 17 individual’s latent personality traits, including open- 18 ness, conscientiousness, extraversion, agreeableness, 19 and neuroticism. Prior to internet-based data track- 20 ing, the only way to obtain that type of sensitive 21 psychological data would have been for an individual 22 to elect to respond to a detailed personality question- 23 naire. 24 VerDate Sep 11 2014 02:12 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2398.IS S2398 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 2398 IS (9) According to a study published by the Na- 1 tional Academy of Sciences, computers can predict 2 an individual’s latent personality traits better than 3 humans. Specifically, researchers found that a com- 4 puter needed only 10 social media impressions to 5 better predict an individual’s responses to a person- 6 ality questionnaire than a coworker, 70 for a cohabi- 7 tant or friend, 150 for a family member, and 300 8 for a spouse. 9 (10) Communications tailored to an individual’s 10 unique personality traits are designed to manipulate 11 cognitive function rather than to persuade via ap- 12 peals to rational decision making. A forthcoming 13 publication by Julie E. Cohen titled ‘‘Between Truth 14 and Power’’ describes the phenomenon as follows 15 ‘‘The operation of the digital information environ- 16 ment has begun to mimic the operation of the collec- 17 tion of brain structures that mid-twentieth-century 18 neurologists christened the limbic system and that 19 play vital roles in a number of precognitive func- 20 tions, including emotion, motivation, and habit-for- 21 mation,’’ and observed that ‘‘today’s networked in- 22 formation flows are optimized to produce what social 23 psychologist Shoshana Zuboff calls instrumentarian 24 power: They employ a radical behaviorist approach 25 VerDate Sep 11 2014 02:12 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2398.IS S2398 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 2398 IS to human psychology to mobilize and reinforce pat- 1 terns of motivation, cognition, and behavior that op- 2 erate on automatic, near-instinctual levels and that 3 may be manipulated instrumentally’’. 4 (11) According to numerous studies, messages 5 tailored to an individual’s unique personality traits 6 are materially more effective at altering an individ- 7 ual’s behavior. 8 (12) A recent study published in the National 9 Academy of Sciences found that it is possible to con- 10 duct psychological manipulation efforts online that 11 are targeted and customized to each individual’s 12 unique personality traits on a national scale. 13 (13) Candidates, campaigns, and political orga- 14 nizations are increasingly using online data to infer 15 personality traits and other psychological character- 16 istics regarding specific United States persons, using 17 that nonpublic information to target psychologically 18 manipulative communications and using algorithms 19 and other automated processes to automatically re- 20 fine communications over time to improve their ef- 21 fectiveness. 22 (14) According to a study titled ‘‘Voter Privacy 23 in the Age of Big Data’’, political entities ‘‘assemble 24 a vast array of [personally identifiable information] 25 VerDate Sep 11 2014 02:12 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2398.IS S2398 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 2398 IS into detailed dossiers on practically every American 1 voter in order to target voters with individualized 2 messages . . . Most voters are ignorant of the steps 3 taken to create these dossiers and know even less 4 about related targeting practices.’’. 5 (15) The study further found that ‘‘Political 6 databases hold records on almost 200 million eligible 7 American voters. Each records contains hundreds if 8 not thousands of fields derived from voter rolls, 9 donor and response data, campaign web data, and 10 consumer and other data obtained from data bro- 11 kers, all of which is combined into a giant assem- 12 blage . . . Ubiquitous personal identifiers (name, 13 address, telephone numbers, email addresses, IP ad- 14 dresses, cookies, mobile devices IDs, and other 15 unique IDs) allow campaigns to link and integrate 16 these diverse data sets, while data mining and so- 17 phisticated statistical techniques allow them to en- 18 gage in highly strategic and cost-effective analysis 19 and targeting,’’ and that ‘‘Campaign insiders and 20 paid consultants who not only view voter microtar- 21 geting as highly effective but also have assigned it 22 a crucial role in determining the outcome of the past 23 three presidential campaigns.’’. 24 VerDate Sep 11 2014 02:12 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2398.IS S2398 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 2398 IS (16) The political consulting firm Cambridge 1 Analytica reportedly used a database of 220,000,000 2 Americans, including thousands of unique data 3 points on each individual and inferred personality 4 trait analysis, to conduct ‘‘psychological operations 5 changing people’s minds not through persuasion but 6 through ‘informational dominance’, a set of tech- 7 niques that includes rumor, disinformation and fake 8 news’’. Cambridge Analytica reportedly worked in 44 9 United States elections in 2014 and another 50 in 10 2016, including on behalf of 2 major Presidential 11 campaigns. 12 (17) In Sorrell v. IMS Health Inc., the Su- 13 preme Court invalidated a Vermont State law re- 14 garding restrictions on the use of personal informa- 15 tion as violating the First Amendment. The court 16 held that the government’s prohibition ‘‘disfavor[ed] 17 . . . speech with a particular content,’’ namely mar- 18 keting, and ‘‘disfavor[ed] specific speakers, namely 19 pharmaceutical manufacturers’’ because it interfered 20 with the manufacturers’ attempts to persuade recipi- 21 ents to use their products. Psychological targeting 22 techniques seek to manipulate, not to persuade. 23 (18) In Citizens United v. FEC, the Supreme 24 Court invalidated the Federal Election Campaign 25 VerDate Sep 11 2014 02:12 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2398.IS S2398 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 2398 IS Act’s prohibition on corporate independent expendi- 1 tures on the grounds that ‘‘the First Amendment 2 does not allow political speech restrictions based on 3 a speaker’s corporate identity’’. Allowing individuals 4 to control the use of their own personal information 5 in the context of an election does not restrict the po- 6 litical speech of any person based on their identity. 7 (19) In Buckley v. Valeo, the Supreme Court 8 invalidated the Federal Election Campaign Act’s ex- 9 penditure limitations, finding that they ‘‘impose di- 10 rect and substantial restraints on the quantity of po- 11 litical speech’’. Allowing individuals to control the 12 use of their own personal information in the context 13 of an election does not limit the any person’s quan- 14 tity of political speech. 15 SEC. 3. SENSE OF CONGRESS. 16 It is the sense of Congress that— 17 (1) the Federal Government has a compelling 18 interest in protecting voters from surveillance and 19 manipulation; and 20 (2) the Voter Privacy Act of 2019 is the most 21 narrowly tailored approach to protecting voters from 22 psychological manipulation online, however the Fed- 23 eral Government’s interest would justify additional 24 prohibitions if this Act is insufficient. 25 VerDate Sep 11 2014 02:12 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2398.IS S2398 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 2398 IS SEC. 4. VOTER DATA PRIVACY. 1 (a) IN GENERAL.—Title III of the Federal Election 2 Campaign Act of 1971 (52 U.S.C. 30101) is amended by 3 adding at the end the following new subtitle: 4 ‘‘Subtitle B—Privacy of Voter’s 5 Personal Information 6 ‘‘SEC. 351. DEFINITIONS. 7 ‘‘In this subtitle: 8 ‘‘(1) COVERED ENTITY.—The term ‘covered en- 9 tity’ means— 10 ‘‘(A) any candidate, political committee, 11 national committee, connected organization, or 12 political party (as those terms are defined in 13 section 301); 14 ‘‘(B) any political organization under sec- 15 tion 527 of the Internal Revenue Code of 1986; 16 and 17 ‘‘(C) any person that obtains an individ- 18 ual’s personal information for the purpose of 19 conducting— 20 ‘‘(i) a public communication as de- 21 fined in section 301(22), except for pur- 22 poses of this subtitle such term includes a 23 communication by means of any paid inter- 24 net or paid digital communication; 25 VerDate Sep 11 2014 02:12 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2398.IS S2398 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 2398 IS ‘‘(ii) an electioneering communication 1 as defined in section 304(f)(3); 2 ‘‘(iii) any communication that would 3 be an electioneering communication as de- 4 fined in such section if such section were 5 applied— 6 ‘‘(I) by taking into account com- 7 munications made over the internet; 8 ‘‘(II) without regard to subpara- 9 graph (A)(i)(III) of such section with 10 respect to communications described 11 in subclause (I) of this clause; and 12 ‘‘(III) by treating the facilities of 13 any online or digital newspaper, mag- 14 azine, blog, publication, or periodical 15 in the same manner as the facilities of 16 a broadcasting station for purposes of 17 subparagraph (B)(i) of such section; 18 ‘‘(iv) an independent expenditure as 19 defined in section 301(17); or 20 ‘‘(v) a generic campaign activity as 21 defined in section 301(21). 22 ‘‘(2) TARGETING SERVICE.—The term ‘tar- 23 geting service’ means any interactive computer serv- 24 ice, as defined in section 230(f)(2) of the Commu- 25 VerDate Sep 11 2014 02:12 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2398.IS S2398 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 2398 IS nications Act of 1934 (42 U.S.C. 230(f)(2)), that al- 1 lows [Text truncated for display. Full text available on Congress.gov.]