It is important for India's constitutional machinery to awaken to the need to regulate the usage of personal data for political purposes within the country.
The use of social media platforms and big data analytics within political campaigns has "revolutionized" the way elections are fought and won in India. Political parties are now allocating a significant proportion of their budgets to digital marketing, as well as hiring professional outfits to fashion their online footprint.
Political consulting firms tied to political parties have mushroomed across the nation. Organisations like 'Citizens for Accountable Governance' and 'Indian Political Action Committee' have been employing hundreds of engineers and management consultants to crunch electoral data and implement learnings on the ground.
In the aftermath of the revelations of how illegally captured Facebook data of 50 million American citizens was used by a political consulting firm (Cambridge Analytica) to influence the outcome of the 2016 US Presidential elections, the Bharatiya Janata Party (BJP) and the Indian National Congress (INC), inter alia, are fighting off allegations that they too engaged the services of Cambridge Analytica. Investigations into the cyber infrastructure developed by these political parties have indicated that they share the personal data of their users with foreign consulting firms that provide them with actionable insights. Moreover, government machinery is often flexed to obtain such data – in March 2018, the Director General of the National Cadet Corps programme was instructed by the Prime Minister's Office to obtain the personal contact information of 15 lakh cadets, a majority of whom will be first time voters in the upcoming general elections.
The obvious objective behind such efforts is to build detailed profiles of, and secure a direct connect to, potential voters. But the rise of such technology in the political spectrum has also fundamentally disrupted the way our democracy functions. The ability to profile an electorate allows political parties to gain unparalleled visibility into the lives of their voters, and understand exactly who is likely to vote for them, and who isn't. This fundamentally diminishes the concept of a secret ballot, since electoral allegiances can be discerned through the lifestyles of people. By using modern social technology to targeting their voter base, political parties can focus solely on those voters falling within their 'voting penumbra', while ignoring those voters who do not form part of their traditional voter base.
Given the 'first past the post' system in India, such picking and choosing by political parties of whom to cater to, causes a deep fragmentation of the electorate at a scale previously unseen. Winning parties, often securing little more than a third of the votes cast, no longer need to put up the semblance of standing for all people in a constituency. Instead, they merely need to maintain their captive vote base in order to remain in power. Effectively, governments at every level of our democracy become 'of certain people, for certain people, by certain people'.
Moreover, digital targeting allows personalized messaging to be delivered directly, and often anonymously, to each individual voter, without such individualized forms of outreach being accessible by the public at large. This allows political parties to have different messaging for different voters, thereby introducing a form of 'selective campaigning'. For instance, to cater to Community A, a political party could promise to cap reservations, while to cater to a Community B, the same political party could promise to sub-divide existing quotas so as to allocate greater benefit. The ability to dispatch such micro-messages allows political parties to avoid having to take a larger stand on issues at the overall level, thereby diminishing the importance of a political manifesto. It is thus unsurprising that the manifestos of most political parties in recent times are often delayed until right before the election, or not released at all.
Additionally, data mining and social media platforms have enabled the creation and dissemination of 'fake news', i.e. news articles containing information favouring one candidate or impugning another, which are verifiably false. Fake news can have tremendous reach and impact over social media platforms like Facebook, Twitter and WhatsApp, all of which have far larger followings than traditional print media. Given the traction that incendiary news can gain online, with such content going 'viral' within hours, political parties can benefit tremendously from targeting such 'fake news' at appropriate audiences. On account of the unchecked prevalence of fake news throughout the country, significant proportions of an electorate will make electoral choices on the basis of false information, thereby further vitiating the concept of a 'free and fair' election.
Further, the possession of such detailed profiles would enable political parties to selectively discriminate against the residents in the states/regions where they are in power. Since the aggregation of personal data would allow the construction of regional and geographical profiles, right to down a neighbourhood level, ruling parties could use such data to influence the allocation of public resources in various constituencies.
For instance, with the rise of smart grids and inter-linked Aadhaar numbers, electricity boards could be manipulated to allocate additional electricity to households/neighbourhoods with established affinity for the ruling party. Neighbourhoods containing residents affiliated with opposition parties would, alternatively, bear the brunt of load shedding or other deprivations. Such administrative rewards and retribution for political affiliations can fundamentally alter the political fabric of a region, giving the incumbent political party unimaginable power for the extent of its term and beyond. In many instances, such technologically enabled discrimination is undetectable, even by the affected parties.
It is also important to note that such digital outreach activities are not cheap. Political parties spend (hundreds of) crores to advertise on social media platforms. Platforms such as Facebook, Twitter and Instagram constantly data-mine their users to build complex and accurate profiles of their personalities. From an individual's activity on social media platforms, such as the liking of Facebook pages, retweeting of posts, or uploading of photographs from specific locations, these tech companies can identify our political leanings, financial backgrounds and demographic information.
Umbrella corporations like Google, with access to email accounts, search engine data and mobile phones (through their Android operating systems) are able to build detailed psychological profiles of users, potentially identifying their moods or specific fears. By registering as an advertiser on such platforms, this data can be exploited by political parties (or anonymous fronts acting on their behalf) to target specific individuals with messaging designed to provoke a certain response – in this case, the casting of a vote for a certain candidate. For instance, voters specifically fearing/disliking a particular religion or community can be directly identified and targeted with propaganda designed to elicit a certain electoral response.
To avail of such tools, political parties spend enormous resources – which include the cost of advertising and the maintenance of large 'IT teams' to handle such activities. Such expenditure is often incurred by third parties,
making it virtually undetectable, albeit a violation of Indian law. Under the Representation of the People Act, 1951, the expenditure in connection with the election of a candidate is subject to a ceiling; this is intended to ensure that candidates without large resources can also contest elections and stand a fair chance of winning. Yet, the large quantum of funds spent on political activity on digital platforms to directly benefit a candidate in his constituency, invariably flows under the radar of the Election Commission and spending limits are violated in this manner.
Modern psephology has proven the power of social media campaigns for political purposes. A study on the 2010 US Congressional Elections, published in the scientific journal Nature, indicated a significant correlation between the voting activity of individuals exposed to the political mobilization messages of their peers. Investigations into use of social media platforms by foreign powers to influence the 2016 US Presidential Elections are still ongoing.
Given: (A) the massive increase in mobile phones accompanied by cheap and easy access to the internet, across India, and (B) that a majority of India's population comprising young and impressionable first-time users of the internet, who can be easily swayed by targeted messaging online – there is a serious danger of Indian democracy being compromised. Instances of riots and political protests engineered through propaganda spread on social networks, are rife throughout the nation. Hence, it is important for India's constitutional machinery to awaken to the need to regulate the usage of personal data for political purposes within the country.
Ironically, the Indian government has taken a multitude of steps in the opposite direction. The implementation of the Aadhaar project has seen the collection of sensitive demographic and biometric data from 1.2 billion Indian residents thus far. This personal data has been diverted and stored in myriad databases maintained by various State and private agencies, without adequate security safeguards.
Further, through the process of validating Aadhaar numbers (called an 'authentication'), the State will have access to a sensitive digital record of all activities undertaken by an individual within the country. This includes welfare benefits, medical services received from government hospitals, travel records, financial information and even phone records. Such data is far more sensitive than the data possessed by social media platforms, as it extends to every aspect of an individual's life (whether conducted online or offline). The aggregation and use of such data to profile individuals would give immensely accurate and intimate insights into their lives, thereby amounting to an egregious violation of the fundamental right to privacy.
Complicating the problem is the fact that such invasions of privacy are invariably undetectable. Thus, access to such personal data by political parties (or any entity for that matter), must be restricted both under law and with technical safeguards. However, the Aadhaar Act is woefully inadequate in this context, and does not even extend to the entire scope of the Aadhaar project. For example, consider the fact that the personal data collected from Indian residents during Aadhaar enrolment, was diverted, in contravention of law, to legally unregulated databases known as 'State Resident Data Hubs' (SRDH), which are maintained by respective State governments.
The personal data in the various SRDHs is freely accessible by any political party, as neither is there any law governing the SRDHs, nor is there an overarching data protection law in India. Note that the use of such personal data for electoral purposes has already begun – in 2013, the Maharashtra government engaged SAS, a foreign private corporation, to analyse and seed state election records within individual Aadhaar numbers, thereby creating a database of voters linked to detailed and sensitive personal data. Latest revelations by Cambridge Analytica whistleblower Christopher Wylie indicate assistance sought by political parties as far back as 2010 to harness digital profiles of voters and use that to score electoral points.
The landmark verdict in KS Puttaswamy v. Union of India saw the Supreme Court of India establish the right to privacy as a fundamental right, despite the protestations of the Indian government. Unless serious steps are taken towards entrenching the respect for this right throughout our democratic systems and processes, the hard-fought right to privacy will be meaningless and Indian democracy will be all the poorer for it.
Varun Mathew is a Delhi based lawyer. He specialises in Information Technology and Cyber Security laws.