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.
