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| Photo Credit: AP. |
(AP) - Local law enforcement agencies from suburban Southern California to rural North Carolina have been using an obscure cellphone tracking tool, at times without search warrants, that gives them the power to follow people’s movements months back in time, according to public records and internal emails obtained by The Associated Press.
Police have
used “Fog Reveal” to search hundreds of billions of records from 250 million
mobile devices, and harnessed the data to create location analyses known among
law enforcement as “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.
A cruiser
sits in a parking lot outside police headquarters in Greensboro, N.C., on
Wednesday, June 22, 2022. The city decided to let lapse its contract with Fog
Reveal, a powerful phone-tracking tool that some advocates fear violates
people's privacy rights. (AP Photo/Allen G. Breed)
A cruiser
sits in a parking lot outside police headquarters in Greensboro, N.C., on
Wednesday, June 22, 2022. (AP Photo/Allen G. Breed)
Former
police data analyst Davin Hall uses the Waze navigation app while driving
through Greensboro, N.C., on Wednesday, June 22, 2022. Hall quit the city's
police force in part over its use of Fog Reveal, a powerful cellphone-tracking
tool that the company says uses data from apps like Waze to track mobile
devices. A Waze spokesperson said the company has not heard of Fog and has no
relationship to it. (AP Photo/Allen G. Breed)
Former
police data analyst Davin Hall uses the Waze navigation app while driving
through Greensboro, N.C., on Wednesday, June 22, 2022. (AP Photo/Allen G.
Breed).
The company
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.
“It’s sort
of a mass surveillance program on a budget,” said Bennett Cyphers, a special
adviser at the Electronic Frontier Foundation, a digital privacy rights
advocacy group.
This story,
supported by the Pulitzer Center for 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.
The
documents and emails were obtained by EFF through Freedom of Information Act
requests. The group shared the files with The AP, which independently found
that Fog sold its software in about 40 contracts to nearly two dozen agencies,
according to GovSpend, a company that keeps tabs on government spending. The
records and AP’s reporting provide the first public account of the extensive
use of Fog Reveal by local police, according to analysts and legal experts who
scrutinize such technologies.
Federal oversight
of companies like Fog is an evolving legal landscape. On Monday, 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 there are bills before Congress now that, if passed, would regulate the
industry.
“Local law
enforcement is at the front lines of trafficking and missing persons cases, yet
these departments are often behind in technology adoption,” Matthew Broderick,
a Fog managing partner, said in an email. “We fill a gap for underfunded and
understaffed departments.”
Because of
the secrecy surrounding Fog, however, there are scant details about its use and
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.
What
distinguishes Fog Reveal from other cellphone location technologies used by
police is that it follows the devices through their advertising IDs, unique
numbers assigned to each device. These numbers do not contain the name of the
phone’s user, but can be traced to homes and workplaces to help police
establish pattern-of-life analyses.
“The
capability that it had for bringing up just anybody in an area whether they
were in public or at home seemed to me to be a very clear violation of the
Fourth Amendment,” said Davin Hall, a former crime data analysis supervisor for
the Greensboro, North Carolina, Police Department. “I just feel angry and
betrayed and lied to.”
Hall
resigned in late 2020 after months of voicing concerns about the department’s
use of Fog to police attorneys and the city council.
Former
police data analyst Davin Hall quit the Greensboro, N.C., police force in part
over its use of Fog Reveal, a powerful cellphone-tracking tool. “The capability
that it had for bringing up just anybody in an area whether they were in public
or at home seemed to me to be a very clear violation of the Fourth Amendment,”
Hall said. (AP Photo/Allen G. Breed)
Former
police data analyst Davin Hall quit the Greensboro, N.C., police force in part
over its use of Fog Reveal, a powerful cellphone-tracking tool. “The capability
that it had for bringing up just anybody in an area whether they were in public
or at home seemed to me to be a very clear violation of the Fourth Amendment,”
Hall said. (AP Photo/Allen G. Breed)
While
Greensboro officials acknowledged Fog’s use and initially defended it, the
police department said it allowed its subscription to expire earlier this year
because it didn’t “independently benefit investigations.”
But federal,
state and local police agencies around the U.S. continue to use Fog with very
little public accountability. Local police agencies have been enticed by Fog’s
affordable price: It can start as low as $7,500 a year. And some departments
that license it have shared access with other nearby law enforcement agencies,
the emails show.
Police
departments also like how quickly they can access detailed location information
from Fog. Geofence warrants, which tap into GPS and other sources to track a
device, are accessed by obtaining such data from companies, like Google or
Apple. This requires police to obtain a warrant and ask the tech companies for
the specific data they want, which can take days or weeks.
Using Fog’s
data, which the company claims is anonymized, police can geofence an area or
search by a specific device’s ad ID numbers, according to a user agreement
obtained by AP. But, Fog maintains that “we have no way of linking signals back
to a specific device or owner,” according to a sales representative who emailed
the California Highway Patrol in 2018, after a lieutenant asked whether the
tool could be legally used.
You might
know that your cellphone has a unique code that allows advertisers to target
you for promotions. What you may not know: That same number could be helping
police surveil you without a warrant. (AP video: Allen Breed, Haven Daley)
Despite such
privacy assurances, the records show that law enforcement can use Fog’s data as
a clue to find identifying information. “There is no (personal information)
linked to the (ad ID),” wrote a Missouri official about Fog in 2019. “But if we
are good at what we do, we should be able to figure out the owner.”
Fog’s
Broderick said in an email that the company does not have access to people’s
personal information, and draws from “commercially available data without
restrictions to use,” from data brokers “that legitimately purchase data from
apps in accordance with their legal agreements.” The company refused to share
information about how many police agencies it works with.
“We are
confident Law Enforcement has the responsible leadership, constraints, and
political guidance at the municipal, state, and federal level to ensure that
any law enforcement tool and method is appropriately used in accordance with
the laws in their respective jurisdictions,” Broderick said in the email.
“Search
warrants are not required for the use of the public data,” he added Thursday,
saying that the data his product offers law enforcement is “lead data” and
should not be used to establish probable cause.
Kevin
Metcalf, a prosecutor in Washington County, Arkansas, said he has used Fog
Reveal without a warrant, especially in “exigent circumstances.” In these
cases, the law provides a warrant exemption when a crime-in-process endangers
people or an officer.
Metcalf also
leads the National Child Protection Task Force, a nonprofit that combats child
exploitation and trafficking. Fog is listed on its website as a task force
sponsor and a company executive chairs the nonprofit’s board. Metcalf said Fog
has been invaluable to cracking missing children cases and homicides.
“We push the
limits, but we do them in a way that we target the bad guys,” he said. “Time is
of the essence in those situations. We can’t wait on the traditional search
warrant route.”
Fog was used
successfully in the murder case of 25-year-old nurse Sydney Sutherland, who had
last been seen jogging near Newport, Arkansas, before she disappeared, Metcalf
said.
Police had
little evidence to go on when they found her phone in a ditch, so Metcalf said
he shared his agency’s access to Fog with the U.S. Marshals Service to figure
out which other devices had been nearby at the time she was killed. He said Fog
helped lead authorities to arrest a farmer in Sutherland’s rape and murder in
August 2020, but its use was not documented in court records reviewed by AP.
Cyphers, who
led EFF’s public records work, said there hasn’t been any previous record of
companies selling this kind of granular data directly to local law enforcement.
“We’re
seeing counties with less than 100,000 people where the sheriff is using this extremely
high tech, extremely invasive, secretive surveillance tool to chase down local
crime,” Cyphers said.
A crime
scene unit van sits outside the Rockingham County Sheriff's Department in
Wentworth, N.C., on Saturday, July 23, 2022. The rural county of just 91,000
residents subscribes to the powerful Fog Reveal service, which gives police the
power to track cellphones, sometimes without a warrant. (AP Photo/Allen G.
Breed)
A crime
scene unit van sits outside the Rockingham County Sheriff's Department in
Wentworth, N.C., on Saturday, July 23, 2022. (AP Photo/Allen G. Breed)
One such
customer is the sheriff’s office in rural Rockingham County, North Carolina,
population 91,000 and just north of Greensboro, where Hall still lives. The
county bought a one-year license for $9,000 last year and recently renewed it.
“Rockingham
County is tiny in terms of population. It never ceases to amaze me how small
agencies will scoop up tools that they just absolutely don’t need, and nobody
needs this one,” Hall said.
Sheriff’s
spokesman Lt. Kevin Suthard confirmed the department recently renewed its
license but declined to offer specifics about the use of Fog Reveal or how the
office protects individuals’ rights.
Fog has
aggressively marketed its tool to police, even beta testing it with law
enforcement, records show. The Dallas Police Department bought a Fog license in
February after getting a free trial and “seeing a demonstration and hearing of
success stories from the company,” Senior Cpl. Melinda Gutierrez, a department
spokeswoman, said in an email.
Fog’s tool
is accessed through a web portal. Investigators can enter a crime scene’s
coordinates into the database, which brings back search results showing a
device’s Fog ID, which is based on its unique ad ID number.
Police can
see which device IDs were found near the location of the crime. Detectives or
other officers can also search the location for IDs going forward from the time
of the crime and back at least 180 days, according to the company’s user
license agreement.
The emails
and Fog’s Broderick contend the tool can actually search back years, however.
Emails from a Fog representative to Florida and California law enforcement
agencies said the tool’s data stretched back as far as June 2017. On Thursday
Broderick, who had previously refused to address the question, said it “only
has a three year reach back.”
While the
data does not directly identify who owns a device, the company often gives law
enforcement information it needs to connect it to addresses and other clues
that help detectives figure out people’s identities, according to company
representatives’ emails.
It is
unclear how Fog makes these connections, but a company it refers to as its
“data partner” called Venntel, Inc. has access to an even greater trove of
users’ mobile data.
A lamp
shines outside police headquarters in Greensboro, N.C., on Wednesday, June 22,
2022. The city recently let lapse its contract for Fog Reveal, a powerful
cellphone-tracking tool that some advocates fear violates people's privacy
rights. (AP Photo/Allen G. Breed)
A lamp
shines outside police headquarters in Greensboro, N.C., on Wednesday, June 22,
2022. The city recently let lapse its contract for Fog Reveal, a powerful
cellphone-tracking tool that some advocates fear violates people's privacy
rights. (AP Photo/Allen G. Breed)
Venntel is a
large broker that has supplied location data to agencies such as Immigration
and Customs Enforcement and the FBI. The Department of Homeland Security’s
watchdog is auditing how the offices under its control have used commercial
data. That comes after some Democratic lawmakers asked it to investigate U.S.
Customs and Border Protection’s use of Venntel data to track people without a
search warrant in 2020. The company also has faced congressional inquiries
about privacy concerns tied to federal law enforcement agencies’ use of its
data.
While Fog
says in its marketing materials that it collects data from thousands of apps,
like Starbucks and Waze, companies are not always aware of who is using their
data. Venntel and Fog can collect billions of data points filled with detailed
information because many apps embed invisible tracking software that follows
users’ behavior. This software also lets the apps sell customized ads that are
targeted to a person’s current location. In turn, data brokers’ software can
hoover up personal data that can be used for other purposes.
Prior to
publication, Fog’s Broderick refused to say how the company got data from
Starbucks and Waze. But on Thursday, he said he did not know how data
aggregators collected the information Fog Reveal draws from, or the specific
apps from which the data was drawn.
For their
part, Starbucks and Waze denied any relationship to Fog. Starbucks said it had
not given permission to its business partners to share customer information
with Fog.
“Starbucks
has not approved Ad ID data generated by our app to be used in this way by Fog
Data Science LLC. In our review to date, we have no relationship with this
company,” said Megan Adams, a Starbucks spokesperson.
“We have
never had a relationship with Fog Data Science, have not worked with them in
any capacity, and have not shared information with them,” a Waze spokesperson
said.
Fog Data
Science LLC is headquartered in a nondescript brick building in Leesburg,
Virginia. It also has related entities in New Jersey, Ohio and Texas.
It was
founded in 2016 by Robert Liscouski, who led the Department of Homeland
Security’s National Cyber Security Division in the George W. Bush
adminstration. His colleague, Broderick, is a former U.S. Marine brigadier
general who ran DHS’ tech hub, the Homeland Security Operations Center, during
Hurricane Katrina in 2005. A House bipartisan committee report cited Broderick
among others for failing to coordinate a swift federal response to the deadly
hurricane. Broderick resigned from DHS shortly thereafter.
In marketing
materials, Fog also has touted its ability to offer police “predictive
analytics,” a buzzword often used to describe high-tech policing tools that
purport to predict crime hotspots. Liscouski and another Fog official have
worked at companies focused on predictive analytics, machine learning and
software platforms supporting artificial intelligence.
“It is
capable of delivering both forensic and predictive analytics and near real-time
insights on the daily movements of the people identified with those mobile
devices,” reads an email announcing a Fog training last year for members of the
National Fusion Center Association, which represents a network of
intelligence-sharing partnerships created after the Sept. 11 attacks.
Fog’s
Broderick said the company had not invested in predictive applications, and
provided no details about any uses the tool had for predicting crime.
Despite
privacy advocates’ concerns about warrantless surveillance, Fog Reveal has
caught on with local and state police forces. It’s been used in a number of
high-profile criminal cases, including one that was the subject of the
television program “48 Hours.”
In 2017, a
world-renowned exotic snake breeder was found dead, lying in a pool of blood in
his reptile breeding facility in rural Missouri. Police initially thought the
breeder, Ben Renick, might have died from a poisonous snake bite. But the
evidence soon pointed to murder.
During its
investigation, emails show the Missouri State Highway Patrol used Fog’s portal
to search for cellphones at Renick’s home and breeding facility and zeroed in
on a mobile device. Working with Fog, investigators used the data to identify
the phone owner’s identity: it was the Renicks’ babysitter.
Police were
able to log the babysitter’s whereabouts over time to create a pattern of life
analysis.
It turned
out to be a dead-end lead. Renick’s wife, Lynlee, later was charged and
convicted of the murder.
Prosecutors
did not cite Fog in a list of other tools they used in the investigation,
according to trial exhibits examined by the AP.
But Missouri
officials seemed pleased with Fog’s capabilities, even though it didn’t
directly lead to an arrest. “It was interesting to see that the system did pick
up a device that was absolutely in the area that day. Too bad it did not belong
to a suspect!” a Missouri State Highway Patrol analyst wrote in an email to
Fog.
In another
high-profile criminal probe, records show the FBI asked state intelligence
officials in Iowa for help with Fog as it investigated potential participants
in the events at the U.S. Capitol on Jan. 6.
“Not
definitive but still waiting to talk things over with a FOG rep,” wrote Justin
Parker, deputy director of the Iowa Department of Public Safety, in an email to
an FBI official in September 2021. It was unclear from the emails if Fog’s data
factored into an arrest. Iowa officials did not respond and the FBI declined to
comment.
Metcalf, the
Arkansas prosecutor, has argued against congressional efforts to require search
warrants when using technologies like Fog Reveal.