Senators Push To Reform Police’s Cellphone Tracking Tools

As Democrats want leg­is­la­tion lim­it­ing author­i­ties’ abil­i­ty to use cell­phone track­ing tools to fol­low people’s where­abouts, imag­ine these dev­as­tat­ing tools in the hands of racist, mur­der­ous, and abu­sive police.

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.”(The Grio)