Donald TrumpDonald John TrumpIvanka Trump, Jared Kusher's lawyer threatens to sue Lincoln Project over Times Square billboards Facebook, Twitter CEOs to testify before Senate Judiciary Committee on Nov. 17 Sanders hits back at Trump's attack on 'socialized medicine' MORE, in his bid to target the anxieties of Middle America, has spent considerable time and energy packaging himself as a stalwart champion of “law-and-order.” Not since the 1968 Nixon campaign has the U.S. seen a candidate so fiercely committed to portraying the nation as an unsafe and lawless society coming apart at the seams. And so in these final weeks of the election, we may want to take pause and remember that the success of Nixon’s law-and-order rhetoric also had a devastating impact on American privacy rights. A Trump presidency, if history is any indicator, could be even more disastrous.

The first president to declare “war on crime” was Nixon’s predecessor, Lyndon B. Johnson, who after a landslide victory in 1964 appointed a special presidential commission to address a large nationwide spike in violent crime. Congress soon began diverting millions in federal resources to beef-up state and local law enforcement -- money that police departments used to purchase, among other things, state-of-the-art wiretapping equipment and a host of other devices that drastically expanded the surveillance capabilities of American law enforcement.

ADVERTISEMENT

But LBJ also had a strong ideological regard for the right to privacy, and within a few years he came to believe that the surveillance techniques being used by police presented a larger danger to America’s safety.  He felt so strongly about curbing government surveillance, in fact, that he condemned it in his 1967 State of the Union address and later sent a proposal to Congress called the Right of Privacy Act which would have banned all private and police wiretapping except in those cases deemed by Johnson himself as essential to national security. The bill referred to privacy as “the first right denied by a totalitarian system [and] the hallmark of a free society."   

It was a critical moment in the history of American privacy. But the ‘68 election year was fast approaching, and while members of Congress recognized the growing public concern over surveillance they were also receptive to the powerful law-and-order rhetoric rising from the political right -- especially that of the eventual Republican presidential candidate Richard Nixon.

Nixon was fond of referring to the United States as a “lawless society.” The phrase made frequent appearances in his stump speeches and flowed seamlessly into the connections he drew between himself and the nation’s “silent majority.”

Few congressmen wanted to be branded “soft on crime” and so proposals to constrain government surveillance were easily characterized as hampering the creation of a safe society. Instead, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968 and granted near blanket authority to federal and local law enforcement to use electronic surveillance in ways that had nothing to do with national security. The contrast between the final bill and Johnson’s original recommendations was startling.  When it passed, one Senator referred to it as the “End to Privacy Act.”

We now know that as president, Nixon authorized a slew of secret and often illegal surveillance operations against anti-war protesters, civil rights leaders, and other “dissent” organizations.  Ironically, it was this same disregard for American privacy rights that ultimately led to the Watergate scandal and his eventual resignation in 1974.  

So what about Donald Trump?  The candidate who, according to former campaign manager Paul Manafort, was proudly channeling Nixon’s ’68 RNC speech at this year’s convention. The candidate who says “this election is a choice between law, order & safety – or chaos, crime, and violence.”

If elected, according to Trump, he would immediately begin large scale surveillance operations targeting mosques, noting last November that “we’re going to have to do certain things that were frankly unthinkable a year ago.” He would be “fine with” restoring bulk data collection provisions to the Patriot Act because “when you have the world looking at us and would like to destroy us as quickly as possible” he prefers to “err on the side of security." He would order whomever he selects as his Attorney General to begin “watching” the Black Lives Matter movement. And he would “certainly implement” a national database to keep track of American Muslims.

This is a fragile time for the right to privacy.  It would be even if Trump had not secured the Republican nomination. With the arrival of the digital age the capacity for public and private institutions to collect and process information about Americans has grown exponentially since the Nixon years.

Of course law-and-order is important. So is protecting Americans from acts of terror. But history shows us that Nixon's demagoguery about law-and-order had a spillover effect on political culture that paved the way for practices that hampered our privacy rights. Looking at Trump's rhetoric, we should expect the re-emergence of such law-and-order rhetoric to foreshadow dangerous times for privacy in America.

As a social and political issue, privacy has both the urgency and resonance capable of evolving into the sort of struggle that comes to define a generation. Above all, we must be wary not to let our conversations fall into what privacy expert Daniel Solove calls the “all-or-nothing fallacy” -- where the tradeoff between privacy and security is incorrectly framed as a one-or-the-other choice. The goal here is balance. Not whether privacy should be protected but how it should be protected as we strive to keep ourselves safe.  

Lawrence Cappello, is a lecturer of privacy law and U.S. history at Queens College, and the director of quantitative research at the CUNY Center for Latino Studies. Twitter: @lawcappello.


The views expressed by authors are their own and not the views of The Hill.