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NEW YORK (AP) — Civil rights lawyers and Democratic senators are pushing for legislation that would limit U.S. law enforcement agencies’ ability to buy cellphone tracking tools to follow people’s whereabouts, including back years in time, and sometimes without a search warrant.
Concerns
about police use of the tool known as “Fog Reveal” raised in an investigation
by The Associated Press published earlier this month also surfaced in a Federal
Trade Commission hearing three weeks ago. Police agencies have been using the
platform to search hundreds of billions of records gathered from 250 million
mobile devices, and hoover up people’s geolocation data to assemble so-called
“patterns of life,” according to thousands of pages of records about the
company.
Sold by
Virginia-based Fog Data Science LLC, Fog Reveal has been used since at least
2018 in criminal investigations ranging from the murder of a nurse in Arkansas
to tracing the movements of a potential participant in the Jan. 6 insurrection
at the Capitol. The tool is rarely, if ever, mentioned in court records,
something that defense attorneys say makes it harder for them to properly
defend their clients in cases in which the technology was used.
“Americans
are increasingly aware that their privacy is evaporating before their eyes, and
the real-world implications can be devastating. Today, companies we’ve all
heard of as well as companies we’re completely unaware of are collecting troves
of data about where we go, what we do, and who we are,” said Sen. Ed Markey, a
Massachusetts Democrat.
Panelists and
members of the public who took part in the FTC hearing also raised concerns
about how data generated by popular apps is used for surveillance purposes, or
“in some cases, being used to infer identity and cause direct harm to people in
the real world, in the physical world and being repurposed for, as was
mentioned earlier, law enforcement and national security purposes,” said Stacey
Gray, a senior director for U.S. programs for the Future of Privacy Forum.
The FTC
declined to comment specifically about Fog Reveal.
Matthew
Broderick, a Fog managing partner, told AP that local law enforcement was at
the front lines of trafficking and missing persons cases, but often fell behind
in technology adoption.
“We fill a gap for underfunded and understaffed
departments,” he said in an email, adding that the company does not have access
to people’s personal information, nor are search warrants required. The company
refused to share information about how many police agencies it works with.
Fog Reveal
was developed by two former high-ranking Department of Homeland Security
officials under former President George W. Bush. It relies on advertising
identification numbers, which Fog officials say are culled from popular
cellphone apps such as Waze, Starbucks and hundreds of others that target ads
based on a person’s movements and interests, according to police emails. That
information is then sold to companies like Fog.
Federal
oversight of companies like Fog is an evolving legal landscape. Last month, the
Federal Trade Commission sued a data broker called Kochava that, like Fog,
provides its clients with advertising IDs that authorities say can easily be
used to find where a mobile device user lives, which violates rules the
commission enforces. And a bill introduced by Sen. Ron Wyden that is now before
Congress seeks to regulate the way government agencies can obtain data from
data brokers and other private companies, at a time when privacy advocates
worry location tracking could be put to other novel uses, such as keeping tabs
on people who seek abortions in states where it is now illegal.
“It wasn’t long ago that it would take
high-tech equipment or a dedicated group of agents to track a person’s
movements around the clock. Now, it just takes a few thousand dollars and the
willingness to get in bed with shady data brokers,” said Wyden, an Oregon
Democrat. “It is an outrage that data brokers are selling detailed location
data to law enforcement agencies around the country — including in states that
have made personal reproductive health decisions into serious crimes.”
Because of
the secrecy surrounding Fog, there are scant details about its use. Most law
enforcement agencies won’t discuss it, raising concerns among privacy advocates
that it violates the Fourth Amendment to the U.S. Constitution, which protects
against unreasonable search and seizure.
Advocates on
both sides of the aisle should be concerned about unrestricted government use
of Fog Reveal, said former Virginia Republican Rep. Bob Goodlatte, who
previously served as U.S. House Judiciary Chairman.
“Fog Reveal
is easily de-anonymized tracking of Americans’ daily movements and location
histories. Where we go can say a lot about who we are, who we associate with,
and even what we believe or how we worship,” said Goodlatte, who now works as a
senior policy advisor to the Project for Privacy and Surveillance
Accountability. “The current political climate means that this technology could
be used against people left, right and center. Everyone has a stake in curbing
this technology.”
The New York
Police Department used Fog Reveal at its Real Time Crime Center in 2018 and
2019, a previously undisclosed relationship confirmed by public records. A spokesperson
said in an emailed statement that the NYPD used Fog on a trial basis, “strictly
in the interest of developing leads for criminal investigations and lifesaving
operations such as missing persons.” The department did not say if it was
successful in either scenario.
Two
nonprofits that have supported privacy rights cases in New York City said the
tool exploited consumers’ personal data and was “ripe for abuse,” according to
Surveillance Technology Oversight Project Executive Director Albert Fox Cahn.
“The lack of
any meaningful regulation on the collection and sale of app data is both a
consumer and privacy crisis,” Legal Aid Society Staff Attorney Benjamin Burger
wrote in a recent post. “Both federal and state governments need to develop
policies that will protect consumer data.”
Burke
reported from San Francisco.
This story,
supported by the Pulitzer Center on Crisis Reporting, is part of an ongoing
Associated Press series, “Tracked,” that investigates the power and
consequences of decisions driven by algorithms on people’s everyday lives.
Follow
Garance Burke and Jason Dearen on Twitter at @garanceburke and @jhdearen.
Contact AP’s global investigative team at Investigative@ap.org or
https://www.ap.org/tips/