Since Abraham Lincoln admonished his fellow Whig Party members in 1840 “to make a perfect list of all the voters in their respective districts, and to ascertain with certainty for whom they will vote,” political campaigns in the United States have relied on accurate voter data to educate citizens on key issues, persuade the undecided, and mobilize their supporters.
The advent of sophisticated, up-to-the-minute location data from smartphones, which is always made available with a user’s explicit consent, has vastly increased campaigns’ capacity to target the right voters with the right messages. Political advertisers are not alone in relying on this geolocation data generated by a users’ smartphone. In the U.S. this year, marketers are estimated to spend more than $32 billion on location targeted mobile advertising.
Americans are rightly concerned about their privacy and how sensitive data is secured and used. But it is Congress, not bureaucrats, who should make the laws governing data privacy. A federal judge earlier this month rebuffed the Federal Trade Commission, led by Biden-appointed Lina Khan, and its effort to criminalize the basic framework of geographically targeted advertising that political campaigns use – with consumers’ permission – to educate voters about key issues and turn them out to vote.
U.S. District Court Judge Lynn Winmill dismissed the FTC’s lawsuit against Kochava, a medium-sized Idaho-based company, who has provided the Democratic party –– with mobile advertising data. The court ruled that the FTC failed to offer sufficient evidence that this data has been abused nor have consumers been harmed. The FTC has amended and refiled it’s complaint. The new complaint will be assessed by the judge, and we will see if it will passes muster.
This is yet another attempt to criminalize political campaigning with modern technology. Dating back to 2017, major technology companies including Facebook, Google, Twitter, TikTok, and Spotify have implemented additional restrictions on political advertisers – including outright bans – that exceed what is required by federal and state laws or regulations. These policies largely serve to keep bona fide political candidates from reaching voters and instead reward fabulists on both ends of the political spectrum with expanded reach.
In the United States, where freedom of speech is enshrined in our Constitution, political speech is especially privileged. This preeminence even extends to paid political advertising. The Federal Communications Commission requires broadcasters to provide candidates with a lower ad rate and the U.S. Postal Services sends political mail to the front of the line. It is the only way to ensure that candidates are treated fairly in public forums.
The private companies that own the modern town square would do well to model their policies with these principles in mind, but it is especially alarming that the federal government has taken steps to punish political advertisers and limit the reach and effectiveness of candidates’ campaign messages.
Now, Congress is taking steps to address consumer data protection. The bipartisan leadership of the House Energy and Commerce Committee says “enacting a comprehensive federal privacy law is a top priority.” They’ve begun hearings on the topic and have sent letters to data broker companies requesting information about how consumers’ data is used.
It doesn’t matter where a consumer buys their Coca-Cola, Tide, Downy, or the thousands of other household products and brands that spend billions of dollars advertising to Americans each year. But when it comes to elections, reaching voters in specific districts matters a great deal and accurate data allows for that.
It’s important that we get this right, and Congress, through a deliberative process, not the courts and overreaching bureaucrats, is the correct forum. As Congress addresses the issue of data privacy, it’s important to remember that political speech deserves pride of place.
Eric Wilson is a Republican political technologist. He is the Executive Director of the Center for Campaign Innovation, a non-profit research center guiding conservatives through the digital transformation of politics and advocating for the increased adoption of digital communications technology by candidates and elected officials. This article was originally published by RealClearPolicy and made available via RealClearWire.
