Trump’s voter fraud commission tests the privacy of public records.

“Publicly Available” Data Can Still Pose a Major Risk to Privacy

“Publicly Available” Data Can Still Pose a Major Risk to Privacy

The citizen’s guide to the future.
July 12 2017 1:15 PM
FROM SLATE, NEW AMERICA, AND ASU

Trump’s Voter Data Haul Tests the Privacy of Public Records

Just because information is “publicly available” does not mean it is, or should be, widely available.

A voter casts her ballot.
A voter casts her ballot on May 25 in Basin, Montana.

Janie Osborne/Getty Images

The Presidential Advisory Commission on Election Integrity is a grand title for a body tasked with the impossible: vindicating Donald Trump’s spurious claims about widespread voter fraud by more than 3 million voters in the 2016 election.

On June 28, the controversial commission commenced its work, starting with an extensive information request to all 50 states and the District of Columbia. At the heart of the request is an audacious and unprecedented demand for detailed and sensitive voter data. The commission asked for personal data on each of the country’s 200 million registered voters, including full names, addresses, dates of birth, party affiliations, voting history back to 2006, the last four digits of Social Security numbers, military status, other state registrations, felony convictions, and overseas citizen information.

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None of this information is widely accessible, and it is certainly not consolidated federally given the states’ constitutional authority over election administration. The request was silent on how the data would be used, what else it would be combined with, and how it would be protected.

When critics began to cry foul, the commission emphasized that it was asking exclusively for “publicly available” data—that is, data available on a request from a member of the public under state law, usually in the course of political and election processes. But the implication was rather wider, that this is data that is generally “up for grabs.” The request initially added that any documents supplied to the commission would also be “made available to the public.” But in subsequent court filings, the commission scaled back, stating that it only intended to make available narrative responses, not voter data. For good measure, it added it would de-identify any personally identifiable data prior to public release.

Controversy immediately engulfed the commission’s request, with strong and outspoken reactions from many states, pushback in Washington, and a set of urgent lawsuits. The most prominent of these is a request for a restraining order by leading privacy campaign organization EPIC. Under mounting pressure, on Monday the commission wrote to the states saying it was suspending data collection, a situation that will continue at least until the U.S. District Court for the District of Columbia rules on the case early next week.*

States were originally requested to reply by the tight deadline of July 14, preceding a meeting of the commission on July 19. While 20 states and the District of Columbia have flatly refused to comply with the request, 17 have agreed in principle to give limited public information (in most cases, names, addresses, and voting districts). A further five states would give public information if certain conditions and assurances were met. As of Wednesday morning, eight states either haven’t received the request or are still deciding what to do.

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Only one state, Arkansas, has actually handed over limited data, though the commission deleted it on Monday after EPIC identified that it had been sent to a military repository uncertified to receive personal information.* Of the 17 states that propose to comply with the request, all have insisted that they will provide only publicly available information. In many states, this precludes transfer of Social Security numbers, dates of birth, and other data—a double bind that would make any federal data-matching and verification task, an endeavor traditionally reserved to state coordination, futile.

Whether through luck or cunning, in focusing on “publicly available” information, the commission and states have hit on a fantastically interesting issue at the heart of contemporary privacy debates. It is also a nuanced one. In short, naming information “public” is the beginning of a conversation about privacy, not the end of it.

Although complying states intend to take the high ground by saying they will provide only “publicly available data,” they are in fact conflating the data’s availability (with practical restrictions on a state-by-state basis) with its broad accessibility.

No state seems to have appreciated this distinction, a revelation that is of enduring significance even if the commission’s current request ultimately fails. What’s more, it also shows a disregard of citizens’ expectations about their voting records.

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A forthcoming article by privacy researchers Kirsten Martin and Helen Nissenbaum takes issue with the idea that information can be placed into two clear buckets—private versus public. They back this up with empirical research, demonstrating that people are strongly resistant to sharing their personal information, even when it is contained in a public record.

The research, which uses voting records as one of its core examples, shows that 75 percent of 992 people surveyed consider it either “not OK” or “definitely not OK” to make information in public records more accessible, including by making it available online. This number rises to 84 percent when the information in issue is voting records, with 55 percent of those surveyed stating that this is definitely not OK, compared with 13 percent for criminal records, 26 percent for property records, and 27 percent for marriage records.

Why might people be so concerned about sharing voting records? We can find the answer in another part of the Martin and Nissenbaum study, which concerned assessments about the relative ease of accessing information.

Only 13 percent of those surveyed judged it to be “easy” or “very easy” to access voting history, while 70 percent think their voting records are “hard” or “very hard” to access. This explains the shock and outrage of many citizens upon reading about the presidential commission’s data request: Many had only just realized that their voting history and party affiliation is publicly available—and that it might be made more accessible. The “anything goes” attitude to public records—as illustrated by the election commission’s protest that it is just asking for publicly available data—oversimplifies how individuals judge access to and use of such records. This matters all the more today, Martin and Nissenbaum write, when “technology for gathering, disseminating, and manipulating data has vastly amplified the ‘anything’ that it allows.”

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Understanding that citizens have strong normative impulses about the appropriate flow of public data provides an avenue for more nuanced thinking by state caretakers of voter records. The “only public records” qualifier offers little comfort and will not stem a sense of betrayal by officials. Many of the states that felt obliged to accept the commission’s request clearly felt misgivings in doing so but could not see clear to articulating this in terms of expectations of voters themselves.

As one example that moves in this direction, consider Arizona Secretary of State Michele Reagan, who was at first inclined to comply with the commission’s request. But she changed her mind, stating that while members of the public can normally request voter records, “this appears to be no normal request. … I cannot in good conscience release Arizonans’ sensitive voter data for this hastily organized experiment.” As her counterpart in Louisiana, Tom Schedler, emphasized, “disclosure of such sensitive information is more likely to diminish voter participation rather than foster it.”

There are plenty of grounds for speculation and cynicism about the motivations and methods of the presidential commission, including that it must have known that its overreaching demands would attract the ire and resistance of states; that a range of technical solutions are available to cross-check sensitive data without needing to see the data itself; and that its data haul would be messy and its matching inconclusive.

States that have resisted the commission have been excoriating in their responses, which is great. But not 1 in 50 has taken up the challenge of pulling apart the privacy of public records. It’s about time they did.

*Correction, July 13, 2017: Due to a production error, this piece originally misidentified the date when the Election Integrity Commission stopped data collection and deleted information received so far. That happened Monday, July 10, not Tuesday, July 11. (Return.)

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, follow us on Twitter and sign up for our weekly newsletter.

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Julia Powles is a lawyer and research fellow at Cornell Tech and New York University.