Election Law Paradox: The one who can fix it is the one who benefits from it being flawed

Are the elections in Israel secret and held equally? Sometimes it is precisely the latest technology that reveals a basic defect that has existed since time immemorial. This seems to be the case with the election apps, which have taken the tedious procedure of collecting voter data and adding speeds to it.

Do we focus on the right issues when we talk about the challenges and dangers of digitizing elections? The last word in this area is, presumably, the election apps. In Israel, the election app that made headlines is “Elector”, both because it was chosen for use by the Likud, the largest and most well-publicized party, and because it was conducted negligently and in violation of the law.

The topics on which the public debate on the app focused were mainly of privacy. Not for nothing: “Elector” violated the law by maintaining prohibited data, was negligent in maintaining permitted data and was responsible for a huge leak of data of all eligible voters in Israel. The practice of privacy is important and significant, but is it possible that we have missed other issues along the way?

Dealing with privacy issues was also the main reason why the Election Committee rejected a petition on the matter, submitted by the public petitioners Adv. Shachar Ben-Meir and Adv. Yitzhak Aviram. The committee claimed that the Privacy Protection Authority handles privacy issues and therefore the legal issues raised by the application are not within its authority. Although the petition also included a claim that the use of the app entailed a violation of the election laws themselves, the committee chose not to engage in this as well and sent the petitioners to the Knesset.

But in the Knesset, those who have the upper hand on the counter of legislation are also those who benefit from the existing flaws in the existing legislation.

The notebook is open and the hand is taking notes

For more than a decade, the discourse on election management, in Israel and around the world, has been characterized by a growing preoccupation with the technological aspect of the campaign. In 2008, Rafi Mann wrote here about the “first digital candidate,” Barack Obama, who was educated to take advantage of the technological advantages of the Internet to gather information about voters and donors. Here in Israel, the digital candidate is without a doubt Benjamin Netanyahu.

It seems that Netanyahu and the Likud are constantly one step ahead of the other parties and candidates when it comes to using technological means for propaganda purposes. Even when they are not the first to identify the technological tool, they seem to make the most effective use of it. Perhaps because of a special campaign wisdom, perhaps because of a particularly large organic support base, and perhaps because of the ability to demonstratively disregard the provisions of the law or contractual regulations.

Thus, Netanyahu and the Likud have been operating the largest extensive network of groups for years, in open networks such as Facebook or closed ones such as WhatsApp, some of which are identified as supportive and some of which are disguised, designed to spread propaganda and misinformation. In the election campaigns themselves, the Likud is prominent in the use of technological means: in the first campaigns in the current round, which has been going on for two years, it was the use of Facebook’s messenger software, the “Bibi-bot.” In the previous and current campaign, the use of the “Elector” election app stands out. Prof. Anat Ben-David even pointed out here in “The Seventh Eye” the innovation that is in fact the distributed use of various technological capabilities.

Prime Minister Benjamin Netanyahu, from a video in which he asks his supporters to use the “Elector” app (screenshots)

The election app is actually a digital diary. It does not invent the wheel, but makes it much more efficient. Parties have always gathered information about voters, in order to know how to best manage the resources invested in election propaganda. General propaganda during the campaign and specific “lecturer” propaganda on election day itself. For this purpose, they receive, according to law, the “voter register”, which contains data on all those entitled to vote in Israel. However, they are not allowed to keep it and are obliged to eradicate it after Election Day, so as not to set up databases on voters’ voting patterns.

You will not be surprised to find that this provision is violated by the parties, is not seriously enforced and the punishment for violating it is ridiculous: the Privacy Authority recently ruled that the Likud and Yisrael Beiteinu used previous voting data. The punishment: nothing. This is the authority the Election Commission referred the petitioners to. The parties …

As mentioned, the information gathered about the voters is used to adjust propaganda during the election campaign, and on election day itself to motivate voters – or to suppress elections, if one also takes into account the possibility that the Likud is willing to break the law. A possibility that has repeatedly materialized in recent election campaigns.

Substantial violation of election secrecy

Now imagine the following picture: A Likud observer sitting in the polling station. Legally. The “Elector” election app is installed on his cell phone. Although the Privacy Authority determined that the application violated the law in various ways, “Elector” claims that they corrected their way. The application contains the voter register with data on all those entitled to vote in the State of Israel. Although the Privacy Authority determined that the Likud violated the law while also retaining data from previous voter registers, despite the obligation to remove the register from election to election, assuming that the Likud amended their way, the observer, the application and its voter register data are valid.

And why not be legal? After all, as we mentioned, the parties always held the ballot paper in their hands, and always collected information from the polls. Instead of using the notebook, the app is now used. Nevertheless, it can be argued that the very digitization of this information gathering changes its essence, both due to the scope of the dissemination of the information and due to the ability to consolidate databases and thus produce new information that did not exist before.

For example, because of the use of the application, the information collected is potentially exposed to all users of the application. Or, for example, the app allows you to add to the voter register data “layers” information in the form of data on voting patterns (whether collected or stored illegally). The question of the legality of this situation was also brought to the attention of the Election Commission, but it rejected the very preoccupation with the issue.

Polling stations, 2021 elections (Photo: Avi Rokach)

Polling stations, 2021 elections (Photo: Avi Rokach)

But the petition also inevitably involved an appeal on the basis of election laws, and not just because of a violation of privacy laws. According to the election regulations, it is forbidden to make a phone call or turn on radios and televisions while voting. On this basis, attorneys Ben-Meir and Yitzhak Aviram claimed in the previous election campaign that “the Likud intends to use the application on Election Day to mark the identity of the citizens who came to vote, while materially violating the election secrecy.”

The chairman of the election committee, Judge Neil Handel, also referred to this in his decision: “In the same matter, the question was discussed in which cases it is possible to take pictures of voters who came to vote, in a way that may reveal their arrival to vote. As the citation shows, the question of whether the very disclosure of the fact that a particular voter voted or not voted violates the principle of secrecy has not been decided. It should be noted, as also quoted, that the practice for many years is that representatives of various parties on the polling station – members of the polling committee or observers – mark on a copy of the register in their possession the identity of voters at the polling station. This is to pass on this information to their party members, so that they can try to contact those who may support the party and have not yet voted.

“The question is whether this practice is in line with the principle of secrecy, and even if the answer is yes – is this also the case when we move from the pages of the application to the application and the network.

“[…] The Electoral Code was enacted in 1969, and since then many applications and lines of code have been written, also in connection with the election campaign. Technology can be said to have changed the face of elections, in both direct and indirect, overt and covert ways. Along with technology – in parallel and intertwined – perceptions about concepts related to privacy and secrecy have also changed. Technology, by itself, may alone change the attitude towards these concepts from end to end or, at the very least, affect the proper balances. Do not necessarily cut an equal cut between data that appears on a sheet of paper, which must be physically photographed and transmitted, and data that can be sent to all corners of the globe at the click of a button.

“This is a question that requires a deep understanding of technological details along with a normative re-examination of various arrangements in the Electoral Law, and their adaptation to the present day. It may be appropriate to change the existing law, in principle or in practice, even in one aspect or another.”

The cat is responsible for the security procedures of the cream

Bottom line, the court sent the petitioners to the legislature. But has technology really changed the face of elections? As Judge Handel himself writes, “the practice for many years” is that party pollsters collect information about voters at the polls so that the party can concentrate resources on appealing to unopposed supporters, even though this is a violation of electoral secrecy, and although this information can in principle be used improperly or Illegality, such as applying pressure to vote or not to vote, which will be individually adjusted.

This “practice” also reveals another flaw in the election process. Not only are the elections in Israel not really secret, they are also not egalitarian. After all, not every party has the ability to put observers on every ballot. These defects are not related to technological changes, and existed in law even then, in 1969, before “many applications and lines of code” were written.

The one who can rectify the situation is the Knesset, which will update the election laws. Both to adapt them to the digital age of 2021, and also to correct the material flaws that exist at any given time. Defects that fall into the hands of the big and wealthy parties, and give an unfair advantage to those who are willing to “play dirty.” Unsurprisingly, those who fit this description, Benjamin Netanyahu and the Likud, are also the ones who repeatedly thwart the attempt to update the law.