Talking about “Brexit: The Uncivil War”—digital technologies and political campaigns

@LawAhead

Through a thrilling depiction of real-life politics, Brexit: The Uncivil War puts a spotlight on how the digital era has transformed democracy.

Author: Pedro Peña, Attorney of the Spanish Parliament and Associate Professor IE Law School

As he was making his way to a promotional meeting for his latest book, Adrian Wooldridge, a columnist for The Economist, thought he was hallucinating when he read the word “Brexit” written on an enormous, well-lit billboard on Hollywood Boulevard. Alarmed, Wooldridge asked the taxi driver, who was taking him through Los Angeles, if what he was seeing was actually real. To make the story even juicier, it turned out that the driver was a Nigerian immigrant with a university degree and specialization in large political failures caused by disastrous decisions and destructive leaders. The driver answered the question in the affirmative, to refer later in detail to the film depicted on the board, whose original title was “Brexit: The Uncivil War” and simply called “Brexitin the US.

Directed by Toby Haynes, written by James Graham, the film and sustained by a new display of talent, strength, and interpretive brilliance of Benedict Cumberbatch in the lead role, Brexit: The Uncivil War is a film which premiered this past January and can be viewed in Spain via HBO’s streaming platform. The film—part documentary, part political thriller—deftly tells the story of the referendum campaign leading to the United Kingdom choosing to leave the European Union with great pacing, and considerable care to maintain impartiality.

Set from the “Leave” perspective, the film focuses its spotlight on the controversial figure and mastermind behind the campaign, Dominic Cummings (brought to life on screen by Cumberbatch). In its mostly linear plot, with the exception of the prologue and epilogue depicting Cummings’ appearance before a fictional public inquiry in 2020, the film advances with a steady pulse and is driven by a soundtrack made up of musical pieces by Beethoven. It starts with the beginnings of an unlikely coalition, when a far-right deputy and a conservative lobbyist try to overcome Cummings’ reluctance to put himself at the helm of the transformative and disruptive project after having been burned out by his time as an advisor in Cameron’s government (and being fed up with politics at Westminster). The story continues through to a surprising victory announcement at the Manchester Town Hall. Throughout the film, which runs for about 90 minutes, the viewer witnesses firsthand internal battles among the distinct factions of Eurosceptics in the UK: the extravagant and colorful faction led by Nigel Farage, leader of the UK Independence Party, and insurance businessman Arron Banks; that of the traditional MPs and conservative donors, critical of the Prime Minister’s party line; and that including the stars of the Tories: Boris Johnson, Mayor of London, and Michael Gove, Minister of Justice.

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The film also looks at, perhaps to no surprise, how both sides of the referendum, Leave and Remain, present themselves to the voting population as the safest and most trustworthy option. Both sides construct their political narrative to convince “undecideds” using a handful of topics (the economy, immigration, cost, funding for the National Health Service, etc.) harping on each issue with simple and supposedly persuasive messaging. And the film accompanies them throughout their respective campaigns, through both the personal moments—from meetings in pubs to focus groups and door-to-door visits—and those which are more digital, through the use of data analysis and a constant presence on social media.

The viewer feels the uncertainty and tension build during the final stretch of the campaign. With politicians, advisors, volunteers, and even the everyday citizen increasingly becoming aggressive, uncertain, and polarized, they become less interested in the facts or in maintaining any dignity or respect for the opposition. This tension hits a boiling point with the murder of Jo Cox (MP and member of the Labour Party) just days before the vote. And while the film skillfully handles narration of the intrigues and political conspiracies of the time thanks to a collaboration with Tim Shipman and Craig Oliver, authors of two of the best-selling books on Brexit[1], it suffers from fluctuations in its character development. The main antagonists appear robust and credible—for example, Cummings is presented as an obsessive, charismatic workaholic while Oliver appears to be more stable, conventional and reasonable—but Farage and Banks are depicted as near caricatures. The two are portrayed as buffoons in Bermuda shorts with enormous pints in hand. Similarly, Johnson and Gove are presented as distracted and unstable political novices, which in reality they are not. There are scenes with undeniable dramatic force, such as the conversation between Cummings and Oliver in a pub right before the “last orders,” where the two mutually accuse each other of having led their fellow citizens to tribalism and disaffection. They also predict what will happen soon after: a process filled with confusion, uncertainty, weariness, and dependence which today is at a standstill, unresolved, and far from satisfying the expectations created before the referendum[2].

The film highlights the transformative impact of the use of big data, combined with segmentation and personalized advertising to create tailor-made political ads for every individual and social group according to their demographic characteristics, lifestyles, consumer habits, and traits inferred from other types of data.

The film, regardless of its artistic liberties, is frankly interesting from a political point of view, as it focuses on a number of current issues of indisputable relevance. Among these, without making an exhaustive list, are the following: the so-called post-truth and fake news; the referendum as a tool for making important decisions and direct democracy; the role of experts; dichotomies between outsiders and insiders (or “people and caste,” as some would have said in the Spain of 2016) and old and new policy (a theme also emblematic of the era); the contempt for parliament and the loss of all trust in institutions; irresponsible statements and promises made in electoral campaigns; and political parties’ lack of coherent plans for the future. But above all, the film highlights the transformative impact of the use of digital technologies in politics. Or, to put it more accurately, the use of big data, combined with segmentation and personalized advertising to create tailor-made political ads for every individual and social group according to their demographic characteristics, lifestyles, consumer habits, and traits inferred from other types of data. This is shown as the film opens with Cummings accused of having taken part in political microtargeting (the technical term for the act described in the previous paragraph), altering the democratic process. The film later continues with the protagonist, alone and mischievously looking at the camera, telling the viewer what is going to happen next, as “everyone knows who won, but not everyone knows how.”

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This leads us to look closely at AggregateIQ (AIQ), a data analytics company, which comes onto the scene in Hyde Park, in front of the Royal Albert Hall, 161 days before the referendum[3]. It is there that we see the encounter between Cummings and Zach Massingham, AIQ´s young co-founding partner, who offers him sophisticated algorithms to create highly flexible personalized advertisements for political campaigns, able to predict outcomes and accordingly, evolve, adapt and change them in real time. And when a restless Cummings asks him why he and his team are interested in entering the campaign, Massingham is sincere in his response: to see if his software works in real life, with the venerable British democracy as the perfect guinea pig. Moreover, it is a software that can both personally and individually locate and reach out even to those individuals who are not registered to vote: 3 million citizens whose political existence the Remain Party ignores, which, according to Massingham, “are within our reach, and if we can get to them, will be ours.”

From that moment forward, AIQ would become the guide for the official Leave campaign[4]: they settle into its general headquarters surrounded by secrecy, take up more than half of the allowed budget for election expenses, and determine, with their input, the content of the political agenda for Brexit advocates. Because, for the first time in a political campaign in the UK, a contender is going to have access to a software that combines Facebook, Twitter, voter registries, electoral polls, and door-to-door campaigns together in one database, constantly updated and modifiable in real time. In fact, the real Dominic Cummings later calculated that his campaign created around 1 billion targeted ads in the months leading up to the referendum, mostly via Facebook, with multiple versions that were constantly revised using an interactive feedback loop[5].

How Brexit sparked the data debate

There are dozens of explanations for why Brexit happened. None of them focus on a single cause, and almost all suggest that its supporters made a more intelligent and effective use of digital technologies and social networks. In this regard, Craig Oliver, director of the official Remain campaign, makes the revealing observation that participation in the referendum was 6% higher than that of the general elections in 2015, and that these 2.8 million additional voters predominantly supported Leave (just as Massingham had anticipated in the film). If these voters had acted like those in 2015, the Remain supporters would have won, 52.2% to 47.5%[6]. In any case, only a few months after the British people opted for Brexit, a series of legal questions arose regarding digital political advertising in the referendum (Was its use in line with the provisions set forth by electoral laws? Did it respect citizens’ privacy and data protection rights?). Questions also touched on morality (Did the digital campaign treat target audiences on social networks with respect, honesty, and transparency?), and politics (Does the massive proliferation of personalized electoral advertising fragment the public space to the extent that it is impossible to have a rational debate on common ground?).

All of these questions have been tackled after the referendum, through various institutional channels. For example, the Information Commissioner’s Office (ICO) pointed out that this investigation had uncovered “a disturbing disregard for voters’ personal privacy.” Additionally, they found that “citizens can only make truly informed choices about who to vote for if they are sure that those decisions have not been unduly influenced”[7]. The Electoral Commission (EC) has described the pernicious nature of political microtargeting saying, “Only the voter, the campaigner and the platform know who has been targeted with which messages. Only the company and the campaigner know why a voter was targeted and how much was spent on a particular campaign[8].” Lastly, the Digital, Culture, Media and Sport Committee (DCMS) of the House of Commons has proposed to increase the powers of the EC so that they, among other things, can request information relevant to their investigations from social media and digital platforms, increase fines for non-compliance with electoral legislation, and even oppose an election for having carried out illegal actions during a campaign[9].

From the British referendum in 2016 until today, political campaigns have given increasing importance to the use of data in the design and implementation of electoral advertising[10]. In the film, the character of Robert Mercer, one of Trump’s main donors and a central figure in the infamous Facebook/Cambridge Analytica case, sums up this trend, “Money is one thing, but data is power, this is just the beginning.” Parties and candidates (similar to companies) collect, combine, and analyze data from individuals and certain groups. They create their own data bases and access those of third parties, purchased from intermediaries or found through agreements with digital platforms. They then send personalized messages to voters in thousands of different versions, depending on the context and circumstances, until the desired impact is achieved in each case. This all occurs in a way that makes the previously mentioned institutional efforts in the UK and in other countries, used to preserve the essential democratic principles and processes in the face of the generalized use of digital technologies in electoral campaigns, more than justified[11]. Because rights like privacy, ideological freedom, and anti-discrimination in terms of opinion are all at real or potential risk. Also because digital platforms, political players, and even unknown businesses know (and can learn) more about us than we could have ever imagined. Values such as cohesion, solidarity, and the idea of community are also threatened if political offers are not upright and transparent, but rather modifiable and dependent on secret algorithms. In the extreme, this would lead to as many audiences as individuals making up the electoral census, multiplying the possibility of manipulation, fragmentation, polarization, and exclusion in democratic electoral processes. And so, at this point, the argument that the effects of technology depend on how it is used is a trivial form of consolation, if it is not rounded out with Kranzberg’s famous first law: “Technology is neither good nor bad; nor it is neutral.”

A few months after the British people opted for Brexit, a series of legal questions arose regarding digital political advertising in the referendum. 

However, with all of the above being true, it is necessary to keep in mind four reasons which serve to qualify and moderate a radically critical and negative conclusion (which is perhaps a bit rash and insufficiently tested) about the use of digital technologies and the impact microtargeting has on political campaigns[12]. The first relates to technology’s advantages, which it certainly has. For example, it can, as witnessed in the case of the British referendum, increase electoral participation (in 2016 a record was set in the UK with 46 million voters registered), and offer voters relevant and specific information according to their needs and interests. The second is connected to an objective assessment of all democratic societies: between the idealized concept of having a public sphere as a space for discussion and rational deliberation and the reality of debates and political campaigns where schematism, passionate appeal, and the starkest partisanship predominate, there is an immense divide. So, we cannot simply accuse technology of breaking something that never existed or that was broken long ago. The third refers to the way in which distinct elements within a constitutional system (the electoral system, the structure of political parties, the protection of rights, the political culture, budget restraints, etc.) or the very nature of the type of election (a referendum, local or presidential elections, etc.) can affect the effectiveness of political microtargeting campaigns. Lastly, the fourth, and perhaps the most important, is purely pragmatic. In order to combat the risks previously mentioned, which are not hypothetical but rather a part of our reality, it is possible to act from parliament, the quintessential democratic power. Parliament can approve or modify—according to conclusions gathered through scientific research on this topic —privacy and electoral laws that protect the rights of individuals, guarantee transparent, clean, and neutral electoral processes and improve the quality of public debate.

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Pedro Peña is a lawyer with vast experience in telecommunications, audiovisual and internet law. He has been general counsel and secretary to the Board of Jazztel and Vodafone. He also worked in the public sector, as secretary general of RENFE. He is an Attorney of the Spanish Parliament, holding different positions in the Congress of Deputies, discontinuously, from 1986 up to now. Mr. Peña is Associate Professor of IE, holds a Law Degree from Universidad Autónoma de Madrid and a Master of Laws (LLM) from Columbia University School of Law. His writings on digital and law are in sociedadgigabit.com.

Note: The views expressed by the author of this paper are completely personal and do not represent the position of any affiliated institution.

[1] Tim Shipman, All Out War (William Collins, 2016) and Craig Oliver, Unleashing Demons (Hodder, 2016).
[2] In this way, it has been said that the end result of Brexit shows us “how easily the popular demand for more democracy can end up having the opposite effect.” David Runciman, How Democracy Ends, (Basic Books, 2018), 48.
[3] AIQ worked on creating online advertising for four pro-Brexit organizations, previously it had done the same in the Republican primaries in the United States; they also maintained a close partnership with Cambridge Analytica, as stated in «Disinformation and ‘fake news’: Final Report,” House of Commons, Digital, Culture, Media and Sport Committee, February 2019
[4] On April 13, 2016, the Electoral Commission designated “Vote Leave” and “Stronger Britain in Europe” as the two official campaigns
[5] Jaime Bartlett, Josh Smith, and Rose Acton, “The Future of Political Campaigning”, (London, Demos, 2018), 26
[6] Oliver, Unleashing Demons, 402
[7] “Investigation into the use of data analytics in political campaigns,” Information Commissioner’s Office, November 2018
[8] “Digital Campaigning: increasing transparency for voters,” Electoral Commission, June 2018
[9] «Disinformation and ‘fake news’: Final Report,” House of Commons, Digital, Culture, Media and Sport Committee, February 2019.
[10]  IBM estimates that 90% of data that exists has been created in the last two years, “Tech Trends 2018,” (Deloitte, 2018).
[11] In Spain, the amendment of Organic Law 5/1985 of 19 June on the General Electoral System, by Organic Law 3/2018, of 5 December, Protection of Personal Data and guarantee of digital rights, adding a new article on the use of media technology and personal data in electoral activities, has not only become controversial, but has led to the publication of a circular by the Spanish Agency for Data Protection, in order to establish the criteria to which it will respond in the application of the law, and the filing of a constitutional challenge against it, promoted by the ombudsman.
[12] Frederik J. Zuiderveen Borgesius, et al., «Online Political Microtargeting: Promises and Threats for Democracy», (Utrecht Law Review, 2018).