The same parliamentary groups that consider that personal data are "the manna of this century" and a commodity coveted "by those who want to invade privacy to manipulate it" have supported a law that allows parties to collect personal data about political opinions in the framework of their electoral activities to elaborate ideological profiles. This option has triggered the alarm. Unidos Podemos has announced that it will appeal to the Constitutional Court and the European Commission will scrutinize the norm to avoid violating the community regulation on privacy.
With personal information about an immense range of political opinions obtained in web pages and other sources of public access, the Law on Data Protection and Guarantee of Digital Rights, approved in November – with the votes of PSOE, PP, Citizens and Basque and Catalan nationalists – authorizes parties to send propaganda via email, WhatsApp or networks. These shipments will not be considered an activity or commercial communication and the recipients may object to receiving them. According to the norm, these activities must be protected in the "public interest" and have "adequate guarantees". But experts consulted argue that it opens the door to electoral spam and they doubt that it ensures the control, use and destiny of the data and restrains any type of harmful use, as its advocates proclaim.
The most critical, Borja Adsuara, professor and expert in law and digital strategy, considers that the articles are a "scandal" and advances that is being studied by the European committee of the data protection agencies. Also the Spanish is attentive. Its head, Mar Spain, maintains that from the body that directs the parties will be monitored because the law does not allow them to make ideological profiles, but send non-personalized propaganda without prior authorization. According to their interpretation, the parties can not outline ideological, sexual, religious or any other type of information that citizens are giving through their browsing on the Internet or social networks. Failure to comply with this rule can result in fines of 20 million euros.
But the third final provision of the law, which modifies Article 58 of the Organic Law of General Electoral Regime (Loreg) leaves little room for doubt. Those who defend it rely on recital 56 of the EU regulation: "If, within the framework of electoral activities, the functioning of the democratic system requires in a Member State that political parties collect personal data on the political opinions of the people, The processing of such data may be authorized for reasons of public interest, provided that adequate guarantees are offered. "
This same recital is adduced by Adsuara, according to which the regulation only authorizes the collection of personal data on political opinions if the democratic system is in danger. For example: "If external interference is detected that adulterate an electoral campaign through a network of bots organized And this does not seem to be the case in Spain. "
In this line, the professor of emeritus of Administrative Law of the Carlos III University Tomás de la Quadra-Salcedo notes that the regulation leaves to the States a regulation that consists of determining what is the public interest of allowing the parties to gather political opinions and what are the guarantees? But he believes that the matter "deserves open discussion in Parliament and not an amendment that incorporates European foresight without a clear and conscious debate about its consequences and scope."
1. The collection of personal data related to the political opinions of the persons carried out by political parties in the framework of their electoral activities will be protected in the public interest only when adequate guarantees are offered.
2. The political parties, coalitions and electoral groups may use personal data obtained in web pages and other sources of public access for the realization of political activities during the electoral period.
3. The sending of electoral propaganda by electronic means or messaging systems and the hiring of electoral propaganda in social networks or equivalent media will not be considered as business activity or communication.
4. The aforementioned informative activities will clearly identify their electoral nature.
5. The recipient will be provided with a simple and free way of exercising the right of opposition.
The EU regulation establishes the exceptions to the prohibition of dealing with data related to political opinions, "but it does so in a very imprecise and highly criticized way," says De la Quadra-Salcedo. He adds that article 58 bis distorts the sense of the regulation by saying that there is public interest "when adequate guarantees are offered". "The guarantees do not have to be offered by the parties; the law has to fix them, "he says, and asks:" How can we guarantee that it's only for electoral purposes, that no copies are taken, that the databases with opinions for the future are destroyed? Who is watching? " That is why he believes that the law abdicates his obligation to specify guarantees and leaves the door open for parties to do so.
In addition, it maintains that one thing is guarantees and another public interest that justifies collecting data on political opinions to elaborate ideological profiles. In this case, it considers that the law should clearly specify if it is thought that these practices are useful for the formation of public opinion or debate.
After article 58 bis, experts see the shadow of Cambridge Analityca. De la Quadra-Salcedo explains that the practices of this and other digital companies aimed at ratifying people in their convictions – hiding all the information that would benefit a party or the one that would hurt the one that wants to do the campaign-, "no it seems that they go in the sense of the public interest of a well-informed opinion, but segmented and manipulated. "
Adsuara also believes that with the text in hand could be done "legally" activities such as Cambridge Analityca, the company that sent massively false news with data obtained from Facebook users without their consent. But in the Spanish case "it would be lawful because in the absence of the consent of the users, political parties are granted a legal authorization". Adsuara goes a step further and ensures that the amendment introduced at the last minute aims to legalize practices that were already being done. For de la Quadra-Salcedo it is possible that it was done with good intention, thinking that it is better to regulate the phenomenon before continuing to look the other way.
In turn, Carlos Sánchez Almeida, lawyer and member of the Platform for the Defense of Freedom of Information, considers that the law goes beyond a regulation that makes it clear that "the creation of ideological databases is prohibited" and that parties "can only manage the data of their affiliates". For Sánchez Almeida, what is worrying is not receiving political propaganda through electronic means but the possible creation of citizen profiles labeled by their ideology. "There does not have to be a Big Brother that just by giving a retweet to a message the parties have at their disposal an algorithm that captures that data. It is opening a spigot that we do not know how it will end. "
In addition, De la Quadra-Salcedo invokes the principle of "equality of arms" for the formation of public opinion and the will of the electors. "Will all the parties have the same conditions to access the profiles?" He asks. Today, the formation of public opinion is being delivered by users to companies such as Facebook that could manipulate or alter the accuracy of their profiles in favor of some games or others. If it is not limited, the pretended public interest in forming the electoral will can open the door to manipulation.