On the issue of surveillance, those who advocate for privacy are viewed by powerful people and institutions as nuisances. At best. Fourth Amendment crusaders are often dismissed as radicals, if they’re recognized at all. At worst, they are targeted by high-ranking officials, or even by the President himself.
But while commercial media ignores the ballooning police state, we continue to keep tabs on new harrowing developments in tech like facial recognition and Automated License Plate Readers. And for that we often turn to Alex Marthews. As the national chair of Restore the Fourth, a badass advocacy org watching the watchers, he is among the first experts we call to help explain the incursion of everything from drones with long-range zoom to policy puzzles. Speaking of which …
Along with BINJ Executive Director Jason Pramas, I recently spoke with Marthews about the history of the Foreign Intelligence Surveillance Act and its secret courts in the US, as well as the current struggle in Congress as lawmakers decide whether to extend Section 702 of FISA. At the time of our interview on May 12, a temporary 45-day extension prevented the warrantless surveillance program from lapsing, allowing lawmakers more time to negotiate a long-term reauthorization or significant legislative reforms.
That extension ends on June 12. Notably, Massachusetts Congresswoman Katherine Clark serves as the House Minority Whip and wields influence over Dems who are split on the issue. In the meantime, we asked Marthews to jog us through relevant past political happenings, right up to the current strange alignments in DC and possible outcomes of ongoing negotiations. His comments, edited in brief, are parsed by subtopic below, and available via full videos on the BINJ YouTube page. You can also click the section titles to view shorter clips.
On the ‘Golden Age of Surveillance’
I always ask privacy advocates what it’s like to push for change on issues that everyone from wingnut militia types to celebrities claims to be worried about, but rarely bothers to help with. In fact, they often end up sabotaging the people actually doing the heavy lifting.
In other words: why the hell don’t more people give a damn about this stuff when it happens in real life?
“We have a lot less privacy than we used to … and as part of that, law enforcement and intelligence agencies are in a freaking bonanza Golden Age of Surveillance,” Marthews said. “And the stuff that they know about you in granular detail and about your associations and where you go and who and what you do and who you do it with is stuff that they couldn’t imagine having access to in, say, the early 1990s.”
He added: “This is like the Stasi’s wet dream come to life, and done on a partially voluntary basis by the trackers that we all carry around with us and the ways that we interact with services and firms online.”
How much spying are they really doing?
“Under [Section] 702, there are currently 350,000 targets, and then the NSA has the right for foreign intelligence collection purposes to gather the communications of all of those 350,000 people. Note: this is not all of the surveillance the NSA is doing, this is just this one program. And it’s just that this is the one that Congress is currently sort of vaguely willing to reform.
“Those people, just by definition because they have foreign intelligence information that is of interest to the United States in particular, they are presumably communicating with at least some Americans. Of course that concern means that the privacy rights of millions of Americans who happen to be communicating with foreigners who happen to have been targeted by NSA … are implicated because the NSA gathers it and then other agencies dip into it as well.”
Taylor Swift is involved?
I asked Alex how the government is selling this crap on today’s terms. “One hilarious thing that has been advanced against our position is a CIA fact sheet that was published and they said, Well, you know you can’t do any reforms to 702 because otherwise Taylor Swift would have died.”
“Apparently there were some people who were planning to bomb a Taylor Swift concert in Austria. But if you put warrant protections in for the communications of US persons who are located in the US, there’s nothing to suggest publicly that the people who are planning to bomb a Taylor Swift concert in Austria were US persons.”
Why didn’t Democrats stop this when they were in power?
It does not appear that Democrats in Washington foresaw a rage-drinking jet-setter like Kash Patel getting command of the FBI. Marthews explained …
“In 2024, [Congress] renewed [FISA] and expanded it in disturbing ways and refused to add significant reforms. The reforms that they added were basically, Okay, we’re going to trust that the FBI is well run by competent people because Joe Biden’s got this. And so we’re going to add internal sign-offs and we’re going to reduce the number of FBI agents who have routine access to this database, and we’re going to just see how that goes. …
“It’ll be okay because if there are abuses, then the Privacy and Civil Liberties Oversight Board or the inspector generals will do their job professionally and the FBI attorneys will honestly inform the courts as to any abuses that may be occurring.”
The current situation on the Hill
Marthews: “It’s a really interesting situation with Congress. You’ve got a very narrow majority that Speaker [Mike] Johnson has in the House, and Speaker Johnson does not want reform. However, he has about 20 Republicans who are giving him grief on this topic.
“On the Democratic side, relative to two years ago, Democrats are newly sensitized to some of the data privacy risks that might be involved with having Kash Patel in charge of the FBI and a President who appears not to be stable enough to be able to keep it together even in security briefings on the Iran war.
“We already have the Congressional Progressive Caucus and the Congressional Hispanic Caucus and the Congressional Asian Caucus and the Congressional Black Caucus highlighting that this is an issue and that these powers need reform.
“But for leadership, for folks like Katherine Clark and Hakeem Jeffries, they already have their eye on the presidency of President Newsom or President Buttigieg or whoever it’s going to be, and they want to preserve these powers as much as they can. They want to preserve the ability of the NSA to tap secretly into every business network in the United States. They want to preserve the ability, under this power, [to collect] the communications of anyone who is applying for any immigration benefit from the United States and the people they communicate with.”
Don’t forget the local angle
Marthews: “It’s really important to include state and local law enforcement in this reform. If you don’t, then what will happen is the FBI will be under a warrant requirement to an FBI Joint Terrorism Task Force, and they’ll talk to the person who’s assigned to that from state or local law enforcement and say to them, Well, we can’t do this without a warrant, but you can, so you go get this information and then share it with us, and that would be completely legal.”
You can view our full interview with Alex here
And you can find more from Alex at warrantless.org
