Position Statement on Legal Considerations of Digital Technologies in Elections

Submitted by Vaishnavi Venkatesan and Ananya Saraogi, Research Members on Legal Considerations of Digital Technologies in Elections.

Introduction

Digitization has become ubiquitous in our everyday lives. It adopts a multi-disciplinary approach, creating a major impact across numerous spheres. One such area is that of elections. Elections are the heartbeats of democracy and one of the most important functions a nation undertakes. Location of polling stations, electronic voters’ registers, electronic voting machines or internet voting systems, optical scanners that count paper ballots are some spheres where digital solutions to elections have already been applied.

However, this digitization is not without challenges and needs to be scrutinized thoroughly, encompassing all legal and technical aspects which would prove to be a hindrance or otherwise to this process. It is imperative that Digital solutions for elections must comply with the applicable principles for democratic elections, free and fair elections being an integral component of the same. The authors will be dealing with multiple facets requiring consideration before a comprehensive digital solution for elections is realized.

Regulatory Considerations pertaining to the digitization of elections

At this juncture, it is pertinent to note that electoral and political processes are country-specific and influenced by historical, geographical, cultural and other specificities. This means that a solution found to be successful in one place may not be implemented in the same way and/or may not be successful elsewhere. However, there are some common principles that the legislator or regulator should consider when faced with the introduction of digital solutions in elections.

In the opinion of the author, while regulating digital solutions to electoral processes, legal principles, inherited from mechanical or other low-tech solutions, are not appropriate for policing digital solutions, even if they have been upgraded. In general, analogies with traditional processes are not enough for such regulation, as the secrecy of the process is a vital feature of free and fair elections and must not be compromised at any cost. As far as the question of regulation at the federal or central level arises, the question poses additional complexities. Switzerland, a federal country, may offer a good example in this respect: unlike other aspects of elections, internet voting is primarily and mainly regulated at the federal level, ensuring the same standards throughout the country.

Data Protection and Cyber Security Aspects

Secrecy and anonymity are two of the most important elements of free and fair elections. Electoral data are sensitive data and, as such, warrant stricter requirements and a greater degree of care, which is to be provided for in electoral legislation. It is to be noted that data protection in the case of elections means the protection of certain data from the data controller (for instance, the electoral authority).

Voting secrecy requires that neither electoral authority nor other actors know how a voter has voted. The same authority should, at the same time, control access to the solution as such access is limited to the right holders only. This makes use of digital solutions for some aspects of elections, such as voting, particularly delicate. Especially, in a country like India where a majority of the population is technologically illiterate, data privacy poses a major consideration.

There is a need for weighing-up values like security and transparency or the freedom to vote. These decisions are the preconditions for the implementation of digital techniques. Further, it is imperative that exists a stringent regulation for Cybersecurity as digital elections might enable a single actor (including a foreign power) to control elections; absent durable, tamper-evident proof of the correct result/ data. Regulatory frameworks should address risk strategies, protection measures, verification possibilities, and contingency planning, amongst others. Therefore, no international guiding document can be a ‘one fits all’ solution to the implementation of such policies. Digital technology may not always be the best solution, it needs to go hand in hand with a country’s cultural and demographic diversity, literacy etc which is nation-specific. Ultimately, the decision to introduce digital solutions is a national prerogative to be taken by the national legislator based on considerations specific to the national situation, which should be in strict conformity with constitutional principles.

Right to Information

The Electoral Act had been amended in 2018 including various provisions which dealt with the different types of the voting system, protection of personal data. Representatives of the Assembly are to be elected by direct universal suffrage. Introduction of technology in the voting machines have led to ease of access to the citizens and for the government officials keeping the count of the votes.

After the famous Cambridge Analytica case, legislators had become cautious while dealing with the provisions in relation to the protection of personal data. The protection needs to start from the time a voter gets registered. Every citizen needs to be assured of the fact that his or her personal data has been protected and not on the verge of getting hacked. This hack could lead to the overturn of the elections.

While the elections have been already conducted in the EU Parliament, various countries elections are in the row. With the news being restricted to the pandemic and lack of accurate information from the government officials, the future of elections is a big question mark.

The citizens have the right to access information about the functioning of their nation and most of the European countries have greater restrictions to access voter data.

Conclusions

The recommendations on standards of e-voting by the Council of Europe has been very precise and elaborate. The author has raised valid questions which would need to be considered. Democracy has been the root of every nation and the misappropriation of the term leads to the termination of the nation.

Voting secrecy and the regulation of personal data is of utmost importance in relation to the keeping the privacy of the citizens intact. On the other hand, the citizens also have the right to be acknowledged of the protection of their data.

To understand the development, please refer to:

https://rm.coe.int/ardita-driza-maurer-digital-technologies-regulations-fin/16809e7f8f

 

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