Is the Electoral Commission ready to ensure data protection and privacy to facilitate a credible electoral process?

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The Electoral Commission released a revised road map for the upcoming 2020/21 general elections, and indicated that media based campaigns will substitute mass rallies. This decision has sounded like another pandemic to political actors including commentators preparing for the general elections. The concerns are premised on the media accessibility challenges in comparison to traditional campaign methods that guarantee accessibility.

As political actors continue being outraged by the restriction of mass rallies basing on accessibility issues, the invisible elephants in the room- data protection and privacy are ignored yet they could have far reaching consequences regarding the legitimacy and the integrity of the electoral process and results.

The use of personal data such as voters’ names, age, address, telephone numbers, and other information generated from social media platforms for political campaigning and biometric verification and authentication of voters will be very popular in the forthcoming elections yet a plethora of case law and special rapporteurs on the right to privacy have concluded that technologies like biometrics are intrusive in nature.

With a web-based media including social media affording new opportunities for exchanges of opinions and information, the concerns and debate on data protection and privacy are very pertinent to the electoral process. Political parties and candidates will use these technologies which rely on big personal data sets to reach out to potential voters, in turn, the Electoral Commission will be relying on biometric data to verify and authenticate the identity of voters indicating that personal data and the use of digital technologies will be at the center stage of the electoral process.

This poses an untamed threat to the right to privacy in this electoral process. Personal data is inextricably linked to the right to privacy. The right to privacy includes the ability of individuals to determine who holds information about them and how that information is used. The right to privacy is an enabling right that permits the enjoyment of other human rights, most notably, in the context of elections and political campaigning, the right to freedom of expression, freedom to hold opinions (which is none derogable) and the right to political participation. The right to privacy therefore, enables individuals to form opinions, including political opinions, without undue interference.


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With the prevailing stand of the Electoral Commission that there will be no mass rallies, it is important to note that there are no regulations that regulate political campaigns on digital technologies. As much as the current law recognizes the use of media as a form of campaigning, it doesn’t address the peculiar issues such as data protection and privacy and their effects on the electoral integrity, legitimacy and process.

Personal data is a political asset in the realm of digital political campaigning, candidates create their own datasets for political intelligence to help form campaign strategies and adapt campaign messaging in a bid to get political influence. Some of the techniques used are profiling and data-driven targeting. Profiling is a way to collect, derive, infer, or predict information about individuals and groups, personal preferences, interests among others. Such knowledge can be used to inform decisions, score, and rank, evaluate and assess the potential voters to make a decision that personalizes an individual’s environment.

Profiling enhances data-driven targeting techniques which may include geo-fencing, micro-targeting and search influence. They enable the creation of information filter bubbles of interests for political campaigning that are fertile avenues for spreading misinformation intended to manipulate potential voters and amplify social divisions including influencing actions of the voters. The Cambridge Analytica scandal demonstrated the impact of profiling and machine learning on electoral processes, our Electoral Commission should be able to pick lessons from this scandal.

The data intensive techniques deployed in the context of elections and political campaigning like profiling and micro-targeting, can constitute manipulative and unlawful interference with the right to form opinions and to be informed. Therefore, political actors with legitimate access to voters’ registers and other data storage and collecting or processing technologies affecting personal data should not wield unfettered power to access and use personal data at the expense of ensuring a credible electoral process.

Therefore, in the digital space, political campaigns use sophisticated data operations and if not regulated, they have far reaching consequences on the legitimacy and integrity of the electoral process and results
The entities or persons that have access to personal data and for what purposes must be prescribed by law and as much as the Data protection and Privacy Act, 2019 permits the collection of special personal data, there are no any other regulations that regulate such entities or persons on how they can use special personal data without infringing on the right to privacy and ensuring the protection of such sensitive data.

National Information Technology Authority as a regulatory body has not given direction on the same yet it has the mandate to ensure compliance and enforcement of the Data Protection and Privacy Act. It’s therefore high time the Electoral Commission got out of the comfort zone and addressed these realities that may challenge the validity and credibility of the electoral process.


 

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