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Data privacy issues may be coming to a campaign near you

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WASHINGTON — In the wake of revelations about the misuse of user data by Facebook and a closely watched 10-hour grilling of CEO Mark Zuckerberg by lawmakers last month, the issue of data privacy is slowly muscling its way into the political conversation.

According to Jen Duffy, who as senior editor of the nonpartisan Cook Political Report monitors races across the country, data privacy as a campaign issue is "coming to a general election near you."

Some examples of lawmaker attention have been highly visible. For example, Florida Democratic senator Bill Nelson, who is facing a tough re-election match-up against GOP Gov. Rick Scott, was among the most outspoken critics of Zuckerberg during his testimony.

Others have gone a little more under the radar, at least for now. That can be seen in a sharply-worded letter from 37 state attorneys general to Facebook demanding answers about the Cambridge Analytica scandal — a letter that included among its signatories at least eight AG's who were running or contemplating running for governor or federal office.

One of them was Missouri Republican Josh Hawley, who is challenging Democrat Claire McCaskill for her Senate seat in one of the most hotly contested races in the country. President Donald Trump carried Missouri by 19 points in 2016 and McCaskill has fashioned herself as a moderate populist in the state but is considered vulnerable by dint of her party affiliation.

Hawley's actions went further than the letter. In November 2017, his office launched an investigation into Google for possible violations of Missouri's anti-trust and consumer protection laws.

Then in April, Hawley's office launched another investigation, this time into Facebook, demanding the company disclose when it turns over user data to political groups.

Hawley said his primary concerns were whether data collected by these platforms could be abused — using the data to deny someone a loan for example, or by allowing it to be sold on the dark web — and whether tech companies might be putting their "thumb on the scale" for particular parties and campaigns.

Big tech companies have gotten by with the "trust us" defense for far too long, said Hawley, who was critical of Zuckerberg's congressional testimony. "That's lovely, but it doesn't excuse you from following the law."

In an interview with NBC News, Hawley said Missouri had robust tools in its laws to address possible problems with Google and Facebook, but if elected to the Senate, he would make regulating their activity at the federal level a priority.

Hawley would not, however, be more specific about what kinds of regulations he would propose.

Indeed, it is still unclear whether or how Congress will find a way to deal with misuses of consumer data online.

Ari Ezra Waldman, a professor of law at New York Law School and an expert in law, technology and sociology, says he doesn't see much evidence that Congress will be able to adequately address the issue.

"Generally states are going to be a much more fertile incubator of privacy regulation," said Waldman.

For example, says Waldman, a bill moving through the California legislature would create a state data protection authority to regulate the use of Californian's data online.

Though Hawley is clear that his investigations are not part of a campaign strategy, they are part of the record he will campaign on.

But Waldman said he thinks Hawley's investigations are politically motivated.

"The subpoena that he released was focused on Facebook turning over information about how much different political campaigns paid for Facebook user data. So he is focused on the way Facebook is impacting our politics, but notably is not looking at foreign interference," said Waldman.

Waldman also noted, as have others, that Hawley's office announced the investigation into Google four days after his campaign received $5,400 from Google critic and Silicon Valley billionaire Peter Thiel — the maximum allowable contribution for a federal race. Thiel previously donated $300,000 to Hawley's campaign for Missouri Attorney General.

Hawley has said the donation from Thiel had nothing to do with his investigation of Google, and told NBC News that he has not discussed the investigation with him.

As more people have become aware of the issues surrounding their online data, there is more potential for candidates like Hawley to use it to distinguish themselves, especially in tight races like his.

And while some see partisan tones in Hawley's investigation, the issue of data privacy as a whole has the potential to cut across party lines.

A recent NBC News/Wall Street Journal Poll that surveyed voters on their views of data privacy issues and their feelings toward big tech companies showed real concerns, but no big gaps between Democrats and Republicans.

When asked about the level of influence tech companies had over their lives, 38 percent of both Democratic and Republican voters said Facebook has too much influence. Meanwhile, 24 percent of Democrats and 30 percent of Republicans said Google has too much influence.

There was some difference between parties in levels of enthusiasm for regulating tech companies.

When asked about regulating companies like Facebook and Twitter, 46 percent of Democrats and 29 percent of Republicans said they were not regulated enough.

Duffy says Hawley will likely need to make regulating tech companies a populist issue to appeal to Republican voters, but the idea has mass appeal, particularly for candidates who focus their messages on stolen data from corporate breaches.

As Duffy pointed out, many people have gotten a letter from a company warning them that their data has been stolen. "That's not comforting," she said, but it means people understand the issue.

And though the role of this issue in politics is new, Waldman says there is the potential for voters to start getting organized around it.

"This is the first time people outside the privacy field are getting interested," said Waldman. "That doesn't automatically make a social movement, but it is a necessary step for one."

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