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Saturday, May 16, 2009
Is Tim Hudak's "Cell Phone Brigade" a violation of privacy legislation?
[NOTE: Please see edits further down the post regarding the applicability of privacy legislation to the Ontario PC party and its leadership campaigns. If the Ontario PC Party is exempt from Ontario's Privacy Act then clearly they are not breaking that law. Nonetheless I am leaving the post up for the sake of transparency on my part and because I think there are still questions as to whether this use of membership data is ethical, regardless of whether or not it is legal.]
The Conservative Party of Canada has been in hot water this week over the leaking of its membership lists to the Ontario PC party's leadership candidates. But are the federal Conservatives the only ones whose membership lists are being shared improperly?
Tim Hudak's networking website has a "Cell Phone Brigade" campaign. To become a part of the brigade, you simply submit your name and cell phone number. Shortly thereafter, Hudak's camp will send you a text message with the name and phone number of a "potential supporter" - let's assume this includes Ontario PC party members and past members and not members from, say, the federal Tories' lists.Once a number indicating the support level of the "potential supporter" has been sent to Hudak's campaign by the brigader, they are sent information for another individual.
Although this dissemination of personal information is small compared to the CPC losing control of its entire Ontario list, the individuals to whom the information is being sent have less (if any) reason to keep from using the information in any way they see fit. There does not seem to be any attempt to insure that those receiving the phone numbers have anything to do with the Tim Hudak leadership campaign or the Ontario PC party at all and there is no request that information is not disseminated further.
[EDIT: In the comments, former PCPO President and Tim Hudak campaign chair Blair McCreadie helpfully explains that the Freedom of Information and Protection of Privacy Act does not apply to the Ontario PC Party and points out (as I noted by posting the relevant part of the PCPO Constitution) that buying a membership means that your information will be used by leadership candidates.
I still question whether buying a membership gives leadership campaigns the right to give out personal information to anyone who asks for it, but I suppose we shouldn't be surprised that politicians make sure that the laws protecting Ontarians' privacy don't apply to them.
So Hudak's cell phone brigade strategy versus Ontario's privacy legislation (from which it is apparently exempt) is after the jump.]
According to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31,
42. (1) An institution shall not disclose personal information in its custody or under its control except, [...]
(b) where the person to whom the information relates has identified that information in particular and consented to its disclosure;
(c) for the purpose for which it was obtained or compiled or for a consistent purpose;
(d) where disclosure is made to an officer, employee, consultant or agent of the institution who needs the record in the performance of their duties and where disclosure is necessary and proper in the discharge of the institution's functions;
43. Where personal information has been collected directly from the individual to whom the information relates, the purpose of a use or disclosure of that information is a consistent purpose under clauses 41 (1) (b) and 42 (1) (c) only if the individual might reasonably have expected such a use or disclosure. R.S.O. 1990, c. F.31, s. 43; 2006, c. 34, Sched. C, s. 6.
[EDIT: Note again that this legislation apparently does not apply to the Ontario PC Party. I am leaving it here simply so that readers can compare it to the use of PC members' information and judge for themselves whether or not they think it ought to.]
The PCPO Constitution's rules for use of the membership registry permit leadership candidates to use the lists, and section 42.(1) (d) of the Privacy Act allows for the use of the registry by agents or officers of the campaign, such as a phone bank, but this is not the same as sending out the numbers to any individual with a cell phone.
If Ontario PC members have not consented to the disclosure of their information and/or would not reasonably expect their information to be disclosed to anyone willing to register for Hudak's phone campaign, it would appear that this initiative is indeed in violation of Ontario's privacy legislation.
(Thanks to Ker for her help with this article and h/t to the guy who got my (unlisted) phone number from Hudak's database and called me.)
Posted by Janet Neilson on May 16, 2009 | Permalink
I'm pretty sure Obama's campaign did something like this first.
Posted by: Terrence Watson | 2009-05-16 1:30:56 AM
The short answer is: No, this is not an invasion of privacy. (Has the Shotgun Blog gone off the deep end? It is starting to lose its relevance.)
Posted by: John R. | 2009-05-16 6:32:23 AM
John, membership lists for political parties are not public. Many members don't want to be identified as belonging to a political party in their wider comunity, because it is bad for their business or carear. Now let us assume that you are expected to call someone in your own area. What if you get someone that didn't want many other people to know about his/her affiliation?
I ask you to explain why that isn't an invasion of privacy, and do Janet the courtesy of giving a well thought out answer.
Posted by: hughmacintyre | 2009-05-16 7:11:10 AM
Having volunteered on more campaigns than I'd like to admit, I don't see what the difference is between this cell phone brigade thing and a normal phone bank.
Only difference I see is that a phone bank happens at a campaign office, this brigade doesn't. Same idea though. I walk into the campaign, I'm given a list of party members to call, and I call them.
Hugh, you know damn well that if I want to be malicious, I can do so from the comfort of an official phone bank - I don't need numbers sent to my cell phone in order to do so.
Posted by: iSurvedJT | 2009-05-16 7:40:05 AM
I agree with John, the short answer is no. The longer answer is complicated and essentially involves moral and ethical questions.
However, the information being given such as a telephone number is generally common knowledge; it is not difficult to obtain telephone numbers without being provided with them. In addition, being provided with a telephone number is hardly any massive violation of personal information.
Would it stand up in a court of law? This country's courts are not likely to take such a case too seriously. (interesting that I never received such a call actually)
Of course, when it comes to questions of ethics, we find ourselves looking at a new can of worms.
Posted by: Jordan Alcock | 2009-05-16 7:51:11 AM
Jordan - if these were numbers from the phone book or other public database, I'd agree with you.
However, these are numbers from the Ontario PC party's lists that identify someone as a PC (or former PC) and gives out their phone number - even if that number is unlisted and can *not* normally be easily found.
Posted by: Janet | 2009-05-16 8:07:02 AM
Before people get too wrapped up in this, there's a big unanswered question remaining. Did these members consent to have this information published? If so, no case can be made for violation. Also, if these numbers were compiled with this sort of thing in mind from the outset, it would meet the requirements of Section 42(c) and 43.
Why would anyone become a card-carrying member of a political party if they didn't want to become involved in the political process? And this "cell phone brigade" isn't doing anything telemarketers aren't already. This whole post seems like an attempt to manufacture a crime where none exists.
Posted by: Shane Matthews | 2009-05-16 8:50:42 AM
I think it depends on what they consent to, though.
When a person includes his phone number on an application to join a political party, he should reasonably expect to be contacted by the party or a call centre the party has hired. Is it unreasonable that he expects not to be contacted by private citizens who have been given his contact information without his knowledge? That's the dilemma here. I don't know how the Obama campaign carried out their similar "call an undecided voter" thing.
The distribution of information on the membership lists, which are, as Hugh mentioned, supposed to be confidential, is actually covered in the PCPO constitution. It's prohibited unless the candidate has the written approval of the executive.
The questions here are a) does his campaign have the written approval of the executive and b) does membership in a political party imply consent to have one's contact information distributed to party members not operating as part of a formal call centre?
Posted by: Ker | 2009-05-16 10:26:39 AM
We were quite surprised by Ms. Neilson's comments about the "Cell Phone Brigade", posted here.
Had she reviewed the Party membership form before posting her comments, she would know that when a prospective member joins the PC Party of Ontario, they are specifically asked to consent to the collection and use of their membership information by the Party, and to the disclosure of this information to riding associations, PC MPPs and leadership candidates and their campaigns.
Ms. Neilson can also take comfort in the fact that the legislation she is quoting in her posting only applies to the Government of Ontario, its agencies and service providers. It simply does not apply to the leadership campaigns, or any other political campaigns.
Obviously, we're disappointed that she would make her posting without bothering to check her facts, or to actually look at the correct legislation.
Most importantly, we are pleased and proud that Tim Hudak is among the first leadership candidates in Canada to use this cutting-edge and innovative technology to directly engage our supporters and the Party membership.
Using these techniques will make our Party stronger, and help us to build a team of grassroots conservatives to defeat Dalton McGuinty in 2011.
We're certain that all readers of the Western Standard blog share that goal.
Chair, Tim Hudak Campaign
Past President, Ontario PC Party
Posted by: Blair McCreadie | 2009-05-16 10:45:55 AM
Blair - would you not agree there's a difference between sharing personal info with a leadership campaign or riding association and having that info given out somewhat randomly to volunteers who support a leadership candidate.
As someone who has been making phone calls for a leadership candidate I can tell you that the members are not happy with the volume of phone calls they have been receiving. Many of them complained they were receiving 3 or more phone calls every day from various leadership candidates. This is an issue that the PCPO (and all political parties) will need to address in the future. What you call cutting edge technology would be considered by many to be the telephone equivalent of spam.
I don't fault any of the candidates for working hard to ID as many voters as possible, that's essential in running a leadership campaign. But as fewer and fewer Canadians are willing to join political parties we must consider that constant phone calls may be one of the reasons that people are reluctant to join.
I'm not sure what the answer is, but it's in the interests of all partisans to figure it out.
Posted by: Matt | 2009-05-16 11:33:07 AM
Thank you for the clarification. As you can see above, I've made it clear to readers that the FIPPA was not violated by Mr. Hudak's leadership campaign.
If you also pass along the relevant legislation, I'd be happy to include it along with the FIPPA excerpt for our readers' information.
Posted by: Janet | 2009-05-16 12:02:34 PM
I have to agree with Matt. Membership on right-here.ca is open to anyone. I don't question the integrity of Mr. Hudak's supporters for one second, but who's to say spammers with no ties to the Ontario PC party couldn't abuse this service? Can you expand what safeguards are in place to prevent this from happening?
I also agree that there is a difference between sharing personal information with a leadership campaign or riding association and sharing it with volunteers who don't need to be members of the party to sign up for the service. Does the relevant legislation expand on who is considered to be included in the umbrella term "leadership campaign?"
Posted by: Ker | 2009-05-16 12:31:28 PM
In the last leadership race in 2004 - I recall the Klees campaign getting into "hot water" about the use of their lists. Specifically, they shared their lists with "volunteers" and there was an investigation.
The results of the investigation is not know to me but I do recall that disciplanry action in the form of a fine was considered or at least rumoured to be considered.
Perhaps someone who reads this will have more information.
Posted by: Spammer | 2009-05-17 7:08:34 AM
Spammer is right. Klees gave the list to Charles McVety who used the list both for leadership and for raising money for canada christian college. It also explains why i got an email from mcvety in this campaign as well.
I am told that he was almost bounced from the race last time because of the violation.
I am also told it is why Klees best organizers have left him and gone to work for elliott this time.
Great organizers like Nick Kouvalis, Patrick Harris, Richard Ciano who do not want to work for Frank's homophobic and anti woman agenda.
Posted by: Jacob | 2009-05-17 9:41:25 AM
Previous comment by "Jacob" is frightfully inaccurate.
I have a great deal of time and respect for Frank Klees. But I did not work for him last time. Certainly don't consider him homophobic or anti woman. No way, no how.
Frank would make a great leader, and I'll gladly support him if he wins. I just think Christine Elliott would make a better leader, and is the best to take on Dalton in 2011. That's why I am supporting Christine.
Posted by: Richard Ciano | 2009-05-17 4:44:14 PM
Jacob, I know Nick, Patrick and Richard and I know that none of them consider to Frank Klees homophobic or anti-woman.
(Nor does opposition to same-sex marriage and abortion make one homophobic or anti-woman, by the way.)
Posted by: Janet | 2009-05-18 9:47:16 AM
There is a big difference between applying technology for the sake of doing so, and using it to achieve results.
Your word choice of 'cutting-edge' technology to 'engage supporters' is a bit misleading. If the Hudak campaign is trying to imitate the Obama campaign; here's a short list of how Obama used phone numbers to his advantage:
Conduct non-intrusive surveys (e.g. are you registered to vote yet? what zip code are you in?)
send reminder messages about the cutoff dates for voter registration and link to registration forms
tell people to mail in their ballots to vote absentee
Invite people to campaign events in their area code
Remind people to get out and vote on Election Day
Promote down-ballot candidates on a zipcode-by-zipcode basis
Now if the Hudak campaign sent me text messages about useful information such as the above or policy ideas, or how I can raise my voice with McGuinty, rather than to promote a partisan agenda via a mild form of spam. I wouldn't be as upset. Nor would a bunch of other people.
Technology is essential, yes. But there's a right way and wrong way. And since the Hudak campaign is so adamant about "the right away", there needs be some seriously evaluation of where the team is spending their technology efforts.
Posted by: Bo | 2009-05-19 1:32:09 PM
As the Social Media director for the Hudak campaign, I thought I would respond to your comments.
Firstly, I should note that folks who want to sign up for campaign updates can do so - they can sign up for text updates to their cell phone via our website. It is my understanding we are the only campaign to offer such an application. As an Elliott team member, Bo, you may be able to elaborate further.
Secondly, the Cell Phone Brigade is an initiative our team devised to allow Tim's supporters to participate DIRECTLY in helping to elect Tim as Leader. As you most certainly know, most folks won't participate in 5 hours of phone banking at a candidate headquarters. This gives them an opportunity to reach out to potential supporters one call at a time - right from their cell phone.
And the program has been tremendously successful. We've had numerous folks approach Tim in his travels to offer how impressed they were that a volunteer, rather than a phone house, called them to personally ask for their support. I would be very interested to hear the details on the "bunch of other people" you say are complaining. We have not received any complaints.
This is just one initiative in our team's ongoing efforts to engage our supporters to take action, along with our Facebook applications, our active social network, training videos and other programs.
Tim Hudak Campaign
Posted by: Brett Bell | 2009-05-19 7:58:33 PM
I'd like to first make it clear that I am not an Elliott team member, nor apart of any team.
Don't get me wrong, in no way I am suggesting that the Hudak team didn't do a good job technically in implementing the initiatives. In fact, I find your team the most technically innovative at the moment. You have the resources and you are putting them to use. I am however, questioning how successful they really are.
You define the SMS campaign as "tremendously successful", I'd like to know your definition of that phrase. Looking at the Drive to Victory app on Facebook, the MAU is only 299 after roughly a month of being launched - that is a rather dismal number. 299 includes people who just visited the app and didn't use it.
From that number, I'd guess the app has a total user count of 200 tops. I could be wrong, yes, but from the 800+ apparent supporters on Facebook and the 14,000 supposedly new members the Hudak camp signed up; I wouldn't brand 299 a number of "tremendous success".
And technically speaking, "our active social network" is overstated. From a data point of view, Ning owns all rights to that.
"In February 2009, Ning removed the control of network creators over their own members and combining all member data from thousands of individual networks created using the Ning platform."
So I don't know how that is any different than say the Elliott, Hillier, Klees team running their social media efforts from Facebook - at absolutely no cost to them.
Just my 2 cents.
Posted by: Bo | 2009-05-20 12:49:41 PM
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