Becoming Illegible
By Alex Marthews of Restore the Fourth
On July 19, 2024, James C. Scott, who long taught at Yale, passed away. He wrote throughout his life of the fragility and importance of human communities. In his seminal work Seeing Like A State (1998), he described the terrifying zeal of “High Modernist” intellectuals and planners, whose “efficient” technical solutions vandalized those communities and everything that gave meaning to people’s lives in the name of “improving” them, “civilizing” them, and making them “legible.”
Smartphones and their apps lure people into making themselves legible to power. In the 1990s, most people’s landline phone conversations were never tapped. Technologically, they could not be retrospectively mined for suspicious content. Conversations between friends or family members or over the back fence were the same. Now, smartphones are everywhere, and the costs of data collection, processing and storage have cratered. As a direct result, our legibility to those in power, and particularly to the police and intelligence community, has increased. So, the question before us is not so much how to stop it—it’s too large and multifarious and profitable for anyone to stop it altogether—but how to manage it in ways that preserve a space for all of us to express ourselves and thrive, without our every thought and movement being continuously visible to the state. Edward Snowden, the NSA whistleblower, described the NSA’s contractors of ten years ago as being able to “literally watch your ideas form as you type;” now, they’re not only watching, but using your thoughts as raw meat for AI-driven “insights.”
When Snowden came out of the NSA, a group of colleagues including myself created a coalition of local and national pressure groups called Restore The Fourth. We made ourselves, as people who love privacy, purposely visible to people in power. We ran protests, incorporated, and began to advocate for privacy, for the Fourth Amendment, and against government surveillance. We have active chapters in California, Minnesota, New York, Massachusetts, Rhode Island, and Pennsylvania. We run a congressional scorecard which rates representatives and senators according to their votes on privacy matters at decidethefuture.org. We have fought to introduce and implement ordinances outlawing secret surveillance in cities across America. And we just came out of our biggest ever battle in 2023–4.
This was the battle: The NSA collects communications on a mass basis, sifting through them for foreign intelligence insights. The FBI is allowed to dip into a subset of these communications—those gathered under Section 702 of the FISA (Foreign Intelligence Surveillance Act) Amendments Act—and can do so without a warrant, even when searching the communications of US persons. The FBI has done this millions of times over the last few years, blowing a massive hole in the Fourth Amendment, which requires that when the US government searches or seizes a US person's communications, it only does so based on “probable cause” that the surveillance target is involved in an actual crime, as determined by a judge. The intelligence community argues that they can do this because the people targeted by the NSA for collection under Section 702 are all non-US persons without recognized Fourth Amendment rights. However, the volume of information on US persons “incidentally” collected under this authority is vast and gives the FBI correspondingly vast warrantless surveillance powers.
We stitched together an unlikely alliance, including liberal lions like Pramila Jayapal, Jerry Nadler, and Ron Wyden, and FBI-skeptical Republicans like Mike Lee, Andy Biggs, and Warren Davidson. We pushed for the requirement that the FBI procure a warrant before they searched the communications of US persons held by the NSA. We pushed for the same before US agencies could purchase datasets on US persons (the Fourth Amendment Is Not For Sale Act), and for reforms to the secret Foreign Intelligence Surveillance Court (the Lee-Leahy reforms).
On the first of these, the Biden administration really pulled out all the stops to prevent passage. Senate Majority Leader Chuck Schumer, Minority Leader Mitch McConnell, Speaker of the House Mike Johnson, and House Minority Whip Katherine Clark bonded across party lines to lean on their legislators. Apparently, nothing matters more than handing expanded surveillance powers to the intelligence agencies that the incoming president will control.
Even with all of this opposition, surveillance reforms pulled ahead in the vote, 212–211 until Speaker Johnson, seeing that any remaining votes would be more likely to come from our side, added his vote in opposition and banged the gavel to make our amendment fail. It was heartbreaking. The House still passed the Fourth Amendment Is Not For Sale Act, the biggest surveillance reform since 9/11, but the Senate is unlikely to take it up and pass it this session. Kamala Harris, as a Senator and as Attorney General of California, had some interest in surveillance issues, but as of yet has not made it a priority in her campaign.
Democrats who had an excellent track record on privacy, like representatives Ted Lieu from California and Jamie Raskin of Maryland, folded to administration pressure. They trusted that for once the FBI might be telling them the truth—the same FBI that, under Trump, happily spied on Black Lives Matter leaders without a warrant, and the same FBI that continues to surveil every movement on the left that aims to change the economic, social, or racial order of things.
I learned some things from this fight.
One: The adults are not in charge. Those who understand data and its impacts are mostly outside the House, patiently lifting their voices to explain that mass surveillance powers endanger all of us. The police and the intelligence community, on the other hand, find it almost impossible to imagine that their own powers may pose a risk to ordinary people. The more avidly they collect, the more criminals they find, and the more threats they uncover, and that’s good, right? Surely only people who have something to hide would object to them finding more threats and criminals. What law enforcement personnel don’t realize is that the more intensely you try to see everything, the more threats you see. If you dig deep enough, often enough, everybody at some point thinks Unapproved Thoughts about America. We all hide things. We have locks on our doors, passcodes on our phones, and curtains on our windows for good reason. It’s not healthy or right for our every move to be mercilessly exposed and exploited, in the name of safety or any other thing. But it’s a rare cop or spy who will see things that way.
Two: This isn’t about party. There will likely never be a president of either party who is willing to give up the surveillance powers 9/11 gave them. But there are also people on each side of the partisan divide who genuinely care about this particular kind of privacy—just as there are bootlicking authoritarians on both sides as well. You don’t get ahead in intelligence or law enforcement by vigorously defending people’s due process rights, so the people who rise to the top at those agencies tend to be “secretive authoritarians”—people who believe deeply in those agencies’ power to detect, deter, and coerce, and in the secrecy that makes it possible.
Three: The intelligence agencies—the FBI, NSA, CIA, and others—haven’t changed, and until warrantless surveillance powers end, they will have the whip hand over the politicians, not the other way around. Data surveillance is only going to get cheaper and easier, and members of Congress often have more to hide than the rest of us. Speaker Johnson was a “reformer” too, until the agencies called him into a secure room and showed him all the information they had. We have to work together, left and right, if we’re going to fix this.
Four: The Founders, in passing the Fourth Amendment of the Bill of Rights, did better than they knew. They were right that government searches and seizures are dangerous. In a datafied world, the people who hold the data hold the power, and that power is geometrically increasing.
Last: Not every fight will be successful. We have gotten further than ever this time around, but by a bare margin, we did lose. Despite that, there is always merit in the fight. There’ll be another fight right up until April 2026, when these powers next expire. We hold the flag up for a better world, where privacy continues to exist. Whatever form that fight takes, whatever organizations continue this battle, there are few battles in the world more worth fighting.
It’s up to you and me to be the sand in the gears, and we can’t do that while being fully legible to the powers we’re fighting. Since Snowden, there are now easy-to-use, free tools to help you keep your communications private, like Signal; to keep your browsing private, like Tor; to keep your email private, like Protonmail. We all have to be more conscious about the tech we use and don’t use, and the information we put out into the world about ourselves.
But freedom is about more than tech. It’s also a philosophy of life. We have to be aware that the whole power of the state to discipline us rests on dividing us. Its health lies in getting us to hate one another, whether it’s The Welfare Queens, The Muslims, The Chinese, The Deplorables, The Trans, or The Woke. The State machinery needs enemies; those it doesn’t find, it will eagerly make. If one group of people’s sets of divergent traits don’t work, they’ll try another and another, and eventually, that group will include you. So beyond the tech, we need to actively work to reduce our fear of one another, and to make our communities stronger. Part of protecting privacy, part of protecting freedom, is about reaching out and helping one another.
[Editor's note: Alex Marthews has served as the national chair of nonpartisan Fourth-Amendment advocacy group Restore the Fourth for a decade. The organization creates a scorecard for elected officials and candidates grading their dedication to privacy rights. Their evaluation for the presidential race can be found here.]