Two years ago, there was a massive outcry against the hiring, by Indian political parties, of Cambridge Analytica, a data mining and analytics firm. The episode highlighted the need for regulating social media platforms by way of a comprehensive data protection law which takes issues such as political micro-targeting seriously. With the recently introduced draft of the data protection law, the Personal Data Protection Bill, 2019, the debate has again resurfaced. In the Internet age, any data protection law must be alive to the potential impact of social media companies in shaping public opinion. The current draft empowers the Central government to notify social media intermediaries as significant data fiduciaries if their user base crosses a certain threshold and whose actions are likely to have an impact on electoral democracy. This provision merits serious discussion to ensure that digital tools are used for enhancing democracy through citizen engagement, and not for harvesting personal data for voter targeting.

In today’s world, online presence, which ensures greater outreach, is a key source of competitive advantage. This realisation gave rise to strategic efforts by political parties to tap into the fragmented political discourse by catering to the individual. Earlier, the idea was to capture mass issues. But in the present day and age, the focus of the campaign is the individual. Political parties are increasingly employing data-driven approaches to target individual voters using tailor-made messages. Such profiling has raised huge concerns of data privacy for individuals and has become a burning issue for political debate. Therefore, the concerns related to regulation of the digital world are being debated in all jurisdictions which have experienced the impact of this technological advancement.

Although, each jurisdiction may have distinct factors influencing the final shape of the Internet governance model, the reasons for the initial debate are common to all, i.e. to arrest any negative externalities emerging out of the Internet. Therefore, any forward-thinking regulatory framework needs to have both supervisory mechanisms in place as well as effective law enforcement tools in its quiver.

This situation is not particularly characteristic of Indian politics. The United States and European countries are equally affected by the impact of this unregulated practice of micro-targeting. This practice has raised some serious concerns with regard to the kind of data that is being collected, the manner in which voters are being profiled, how transparent the process of profiling and targeting is, what the nature of functioning of organisations engaged in this business is, and how neutral globally present intermediaries such as Google and Facebook are. Recently, regulators in the U.S. and Brazil have held Cambridge Analytica guilty of employing illegal practices while harvesting personal data of millions of Facebook users.

Over the years, political advisory and advertising firms have devised sophisticated tools to gather voter data and made proper campaign products out of it. The politicians of today’s age leave no stone unturned while canvassing for votes. The reason why this issue becomes important is that the passive users are just not aware of what they are being subjected to.

The informational autonomy of the voter is under serious threat because the entire business of collecting personal data continues to remain unregulated and is also proprietary in nature. It is extremely difficult to trace the methods used by such firms to scrutinise the personal life and intimate details of the individual. This threat becomes imminent in light of the rising number of political firms which are making most use of the right to freedom of speech and expression. The status of this right is near absolute with regard to political speech in most countries such as the U.S. It is but obvious that this can be misused by political entities. Profiling the potential voter has become a thriving industry. Therefore, there are extremely well-crafted techniques when it comes to electoral campaigning.

There is serious harm to the country’s democratic nature resulting on account of loss of informational autonomy. The liberating and anti-establishment potential of the Internet are considered as a promise for the health of a liberal democracy. At the same time, it can have serious ramifications if this potential is used by demagogues to spread fake news and propaganda.

Although the digital revolution is being celebrated everywhere, the regulatory efforts regarding different spheres of its influence have only been reactionary. While innovators have continued to develop more advanced technologies, the regulators have never been able to catch up with it. There are infinite contours of this information age; hence, the scope of a data protection framework also needs to be sensitive towards the magnitude of a variety of data usage. The electoral process in India is becoming increasingly advanced in terms of use of data. It is highly likely that within a few years, Indian political parties may start using the same tactics as used by their U.S. counterparts in targeting individual voters. It remains to be seen as to how the privacy law responds to the implications of political micro-targeting.

Prashant Singh is a Delhi-based lawyer. Meghna Sharma works as Programme Officer, National Centre for Promotion of Employment for Disabled People

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