The Privacy Flaw Threatening US Democracy

Talk of creeping authoritarianism in the United States seems to be everywhere—in the news, in books, and in conversations among neighbors around the country. The January 6 insurrection and the events that followed have Americans increasingly worried about the fate of democracy in their country.

An NPR/Ipsos poll from January found that 64 percent of Americans believe democracy is “in crisis and at risk of failing.” A Yahoo News/YouGov poll from June found that more than half of Democrats and Republicans think it’s “likely” the US will “cease to be a democracy in the future.”

The two most likely Republican presidential nominees for 2024—Donald Trump and Ron DeSantis—both exhibit an authoritarian mindset. Critics are ringing alarm bells over what could happen to American democracy should one of these men end up in the White House, but little has been said about what the current president and Congress could do right now to constrain a future autocrat.

One of the primary tools authoritarian leaders around the world use to control their citizens is mass surveillance. Neil Richards, a law professor at Washington University in St. Louis, says Congress needs to pass legislation that protects the privacy of Americans so existing surveillance mechanisms can no longer be abused.

“We need a robust federal privacy law, we need robust enforcement mechanisms, we need to somehow rein in the commercial surveillance apparatus because that’s a key component in authoritarian regimes. … They co-opt the existing cameras and sensors,” Richards says. “It used to be that it would be a fascist’s dream to have a camera and a speaker in every home, and of course, we did it to ourselves.”

Woodrow Hartzog, a law professor at Boston University, says any privacy laws that Congress passes need to be written with the understanding that a future president could try to find ways to get around these privacy protections.

“Congress should focus on making sure that the rules that they do pass are specific and constrained enough to give a legal mandate and prevent shenanigans when a different regime takes over,” Hartzog says. “If you create a rule that can easily be watered down or circumvented, then that’s not a very helpful privacy rule.”

Congress is working on data privacy legislation known as the American Data Privacy Protection Act, but critics have claimed that it doesn’t go far enough to protect people’s privacy. The Federal Trade Commission is also reportedly working to create new rules for how large tech companies handle people’s data, and Hartzog says those rules could theoretically provide a helpful check on an authoritarian government because it would have less ability to “co-opt our own devices against us.”

As many Americans learned following the overturning of Roe v Wade, it’s important to have strong privacy rights in place before changes in the law or shifts in power threaten basic civil liberties. What doesn’t appear to be a major risk to your rights now can become a substantial threat later on.

“Everybody should care about privacy because information is power, and human information confers power over human beings,” Richards says. “In an information society where so many decisions are made based upon our data, having meaningful protections for that information across the board is essential if we are to remain free, happy, and able to flourish in our lives.”

Richards notes that following President Richard Nixon’s resignation in the 1970s, American lawmakers realized they needed to protect against future presidents abusing their power in the ways Nixon did, which led to major policy reforms. He says something similar should happen now.

“This has happened before. After Watergate, where it was clear that President Nixon had abused the powers of his office and had violated the privacy of American citizens, there were a series of rules put in place restricting the ability of future presidents to do that,” Richards says. “There was a federal privacy law—the Privacy Act of 1974 was passed—there were a whole bunch of open government and government ethics rules that were put in place.”

Following the resignation of Richard Nixon over the Watergate scandal, Congress passed legislation like the Ethics in Government Act, the Government in the Sunshine Act, the Inspector General Act of 1978, the Presidential Records Act, and more in response to the Nixon administration’s widespread misconduct. Former President Trump is now facing the possibility of being charged with violating the Presidential Records Act over his handling of classified documents.

Congress needs to pass new legislation to protect privacy and protect against corruption, Richards says, because we’ve seen what can happen when a president decides to test how much they’re able to do with the power that’s available to them. He says the Trump administration demonstrated this repeatedly.

There is the risk of any legislation Congress passes being struck down by what is now an ultra-conservative Supreme Court, however. Hartzog says legislation will have to be written with this in mind.

“Anything that is going to get passed has to be cognizant of the state of the Supreme Court right now and their tendencies,” Hartzog says. “That includes, of course, a very skeptical view of certain kinds of privacy, such as decisional privacy rights, as we’ve seen with Roe recently.”

A law that based a right to privacy on long-standing traditions may not be struck down by the current Supreme Court—with its so-called originalist point of view—and Hartzog says lawmakers are already starting to focus on this strategy when crafting legislation.

It’s also going to be important to build up and safeguard institutions, Richards says, because strong institutions help prevent would-be authoritarians from wielding so much power. He says government agencies should be doing everything they can to become more independent and more robust so they can withstand future abuses of power, and Congress should work to protect these institutions.

Congress has spent ample time focusing on how to keep the next presidential election from being stolen, but it hasn’t really considered what it could be doing to protect the rights of Americans if an election ends up being stolen or a would-be authoritarian wins an election outright.

If support for authoritarian leaders remains strong, one could feasibly come to power. Preparing for that now is better than simply reacting to abuses of power when they inevitably use the weapons we left waiting for them.