This Essay examines a set of emerging problems in election law-the increased use of online behavioral advertising to target voters, the failure of the law to address deceptive campaign tactics, and the convergence of these two issues in an Internet-based society.1 The Essay begins with a discussion of voter suppression and deceptive campaign tactics in the context of behavioral advertising. Part II examines the law surrounding voter fraud, intimidation, and suppression, finding that there is a lack of attention to penalizing voter suppression, particularly at the federal level. Though there are some laws at the state level, more can be done. The Essay concludes by examining, in Part III, how political campaigns have put behavioral advertising to use and offers recommendations for moving forward.
I. ONLINE BEHAVIORAL TRACKING AND THE POTENTIAL FOR VOTER SUPPRESSION
On July 31, 2010, the Wall Street Journal (WSJ) began a series investigating how much information advertisers are able to gather about Internet users.2 The study found, among other things, that "cookies" are no longer the only method for tracking consumers, the profiles compiled from the tracking data are continually refreshed, providing advertisers with a constant stream of data to be bought and sold, and that the tracking technologies used by companies are often never brought to the attention of consumers.3 Tracking consumers led advertisers, according to the WSJ, to spend twenty-three billion dollars in the previous year.4 The specificity of the profiles created by advertisers is so exact, that one consumer, confronted with her online profile, commented that it was "unnerving."5
The comments about the WSJ story fall into four broad categories - those who find that the WSJ story serves only to stoke the flames of paranoia surrounding threats to privacy,6 to others finding that people should take the initiative to be more informed about how to protect themselves from privacy invasive technologies,7 to those who believe that tracking is the quid pro quo for free content,8 to those who are grateful for the information provided because, though they may be sophisticated readers and consumers, they may not be as technologically literate as they would prefer.9 Overlaying most ofthe comments is an awareness that privacy is at risk when people interact on the Internet.10
Indeed, that last category of users is precisely the group that concerned Senator John D. (Jay) Rockefeller (D-W. Va.) in a July 2010 hearing by the Committee on Commerce Science & Transportation on Online Consumer Privacy.11 Before presenting the panel with several questions, Senator Rockefeller described a world in which individuals are continually tracked as they conduct their daily business - information about books purchased and read, stores entered and products bought, prescriptions filled and shampoos chosen becomes revenue generating data.12 The businesses collecting this data use it to then build a "personality profile" on the user, predicting future purchases, intellectual interests, and medical issues.13 Though it may seem "fantastic," Senator Rockefeller stated, the truth is that computers are doing this type of extensive profiling on consumers to provide targeted advertising.14 Though the advertising might be useful, the data used to compile a portrait ofthe perfect ad could also be used to design a scam directed at a specific user.15 Senator Rockefeller asked the witness several questions about the notice consumers have about these practices which track consumers online, while they walk public streets, how much of their personal information is being shared with third parties, what benefits consumers get from this tracking, and what recourse they have to demand greater anonymity from advertisers.16
Senator Rockefeller concluded his opening statement with several poignant examples ofthe users whose welfare he thought was being threatened by the increased use of online behavioral tracking:
I am talking about ordinary Internet users. …