By GARANCE BURKE AND JASON DEAREN
Native regulation enforcement businesses from suburban Southern California to rural North Carolina have been utilizing an obscure cellphone monitoring device, at occasions with out search warrants, that offers them the facility to observe folks’s actions months again in time, in keeping with public data and inner emails obtained by The Related Press.
Police have used “Fog Reveal” to go looking a whole bunch of billions of data from 250 million cell units, and harnessed the info to create location analyses recognized amongst regulation enforcement as “patterns of life,” in keeping with hundreds of pages of data concerning the firm.
Bought by Virginia-based Fog Information Science LLC, Fog Reveal has been used since at the very least 2018 in legal investigations starting from the homicide of a nurse in Arkansas to tracing the actions of a possible participant within the Jan. 6 rebel on the Capitol. The device is never, if ever, talked about in court docket data, one thing that protection attorneys say makes it tougher for them to correctly defend their purchasers in instances wherein the know-how was used.
The corporate was developed by two former high-ranking Division of Homeland Safety officers beneath ex-President George W. Bush. It depends on promoting identification numbers, which Fog officers say are culled from standard cellphone apps akin to Waze, Starbucks and a whole bunch of others that focus on advertisements primarily based on an individual’s actions and pursuits, in keeping with police emails. That data is then bought to firms like Fog.
“It’s type of a mass surveillance program on a funds,” mentioned Bennett Cyphers, a particular advisor on the Digital Frontier Basis, a digital privateness rights advocacy group.
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This story, supported by the Pulitzer Middle for Disaster Reporting, is a part of an ongoing Related Press collection, “Tracked,” that investigates the facility and penalties of choices pushed by algorithms on folks’s on a regular basis lives.
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The paperwork and emails have been obtained by EFF via Freedom of Info Act requests. The group shared the information with The AP, which independently discovered that Fog bought its software program in about 40 contracts to almost two dozen businesses, in keeping with GovSpend, an organization that retains tabs on authorities spending. The data and AP’s reporting present the primary public account of the intensive use of Fog Reveal by native police, in keeping with analysts and authorized consultants who scrutinize such applied sciences.
“Native regulation enforcement is on the entrance traces of trafficking and lacking individuals instances, but these departments are sometimes behind in know-how adoption,” Matthew Broderick, a Fog managing associate, mentioned in an electronic mail. “We fill a niche for underfunded and understaffed departments.”
Due to the secrecy surrounding Fog, nevertheless, there are scant particulars about its use and most regulation enforcement businesses received’t talk about it, elevating considerations amongst privateness advocates that it violates the Fourth Amendment to the U.S. Constitution, which protects towards unreasonable search and seizure.
What distinguishes Fog Reveal from different cellphone location applied sciences utilized by police is that it follows the units via their promoting IDs, distinctive numbers assigned to every machine. These numbers don’t include the identify of the telephone’s consumer, however could be traced to houses and workplaces to assist police set up pattern-of-life analyses.
“The aptitude that it had for citing simply anyone in an space whether or not they have been in public or at residence appeared to me to be a really clear violation of the Fourth Modification,” mentioned Davin Corridor, a former crime knowledge evaluation supervisor for the Greensboro, North Carolina Police Division. “I simply really feel offended and betrayed and lied to.”
Corridor resigned in late 2020 after months of voicing considerations concerning the division’s use of Fog to police attorneys and the town council.
Whereas Greensboro officers acknowledged Fog’s use and initially defended it, the police division mentioned it allowed its subscription to run out earlier this 12 months as a result of it didn’t “independently profit investigations.”
However federal, state and native police businesses across the U.S. proceed to make use of Fog with little or no public accountability. Native police businesses have been enticed by Fog’s reasonably priced worth: it may well begin as little as $7,500 a 12 months. And a few departments that license it have shared entry with different close by regulation enforcement businesses, the emails present.
Police departments additionally like how shortly they will entry detailed location data from Fog. Geofence warrants, which faucet into GPS and different sources to trace a tool, are accessed by acquiring such knowledge from firms, like Google or Apple. This requires police to acquire a warrant and ask the tech firms for the precise knowledge they need, which might take days or even weeks.
Utilizing Fog’s knowledge, which the corporate claims is anonymized, police can geofence an space or search by a particular machine’s advert ID numbers, in keeping with a consumer settlement obtained by AP. However, Fog maintains that “we have now no method of linking indicators again to a particular machine or proprietor,” in keeping with a gross sales consultant who emailed the California Freeway Patrol in 2018, after a lieutenant requested whether or not the device may very well be legally used.
Regardless of such privateness assurances, the data present that regulation enforcement can use Fog’s knowledge as a clue to search out figuring out data. “There isn’t a (private data) linked to the (advert ID),” wrote a Missouri official about Fog in 2019. “But when we’re good at what we do, we should always have the ability to work out the proprietor.”
Federal oversight of firms like Fog is an evolving authorized panorama. On Monday, the Federal Trade Commission sued a knowledge dealer known as Kochava that, like Fog, supplies its purchasers with promoting IDs that authorities say can simply be used to search out the place a cell machine consumer lives, which violates guidelines the fee enforces. And there are payments earlier than Congress now that, if handed, would regulate the business.
Fog’s Broderick mentioned in an electronic mail that the corporate doesn’t have entry to folks’s private data, and attracts from “commercially out there knowledge with out restrictions to make use of,” from knowledge brokers “that legitimately buy knowledge from apps in accordance with their authorized agreements.” The corporate refused to share details about what number of police businesses it really works with.
“We’re assured Legislation Enforcement has the accountable management, constraints, and political steerage on the municipal, state, and federal stage to make sure that any regulation enforcement device and methodology is appropriately utilized in accordance with the legal guidelines of their respective jurisdictions,” Broderick mentioned.
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Kevin Metcalf, a Washington County, Arkansas prosecutor, mentioned he has used Fog Reveal with out a warrant, particularly in “exigent circumstances.” In these instances, the regulation supplies a warrant exemption when a crime-in-process endangers folks or an officer.
Metcalf additionally leads the Nationwide Little one Safety Job Pressure, a nonprofit that combats little one exploitation and trafficking. Fog is listed on its website as a activity pressure sponsor and an organization government chairs the nonprofit’s board. Metcalf mentioned Fog has been invaluable to cracking lacking kids instances and homicides.
“We push the boundaries, however we do them in a method that we goal the unhealthy guys,” he mentioned. “Time is of the essence in these conditions. We will’t wait on the standard search warrant route.”
Fog was used efficiently within the homicide case of 25-year-old nurse Sydney Sutherland, who had final been seen jogging close to Newport, Arkansas earlier than she disappeared, Metcalf mentioned.
Police had little proof to go on after they discovered her telephone in a ditch, so Metcalf mentioned he shared his company’s entry to Fog with the U.S. Marshals Service to determine which different units had been close by on the time she was killed. He mentioned Fog helped lead authorities to arrest a farmer in Sutherland’s rape and homicide in August 2020, however its use was not documented in court docket data reviewed by AP.
Cyphers, who led EFF’s public data work, mentioned there hasn’t been any earlier file of firms promoting this type of granular knowledge on to native regulation enforcement.
“We’re seeing counties with lower than 100,000 folks the place the sheriff is utilizing this extraordinarily excessive tech, extraordinarily invasive, secretive surveillance device to chase down native crime,” Cyphers mentioned.
One such buyer is the sheriff’s workplace in rural Rockingham County, North Carolina, inhabitants 91,000 and simply north of Greensboro, the place Corridor nonetheless lives. The county purchased a one-year license for $9,000 final 12 months and lately renewed it.
“Rockingham County is tiny by way of inhabitants. It by no means ceases to amaze me how small businesses will scoop up instruments that they simply completely don’t want, and no person wants this one,” Corridor mentioned.
Sheriff’s spokesman Lt. Kevin Suthard confirmed the division lately renewed its license however declined to supply specifics about using Fog Reveal or how the workplace protects people’ rights.
“As a result of it could then be much less efficient as criminals may very well be cognizant that we have now the machine and alter their fee of the crimes accordingly. Make sense?” Suthard mentioned.
Fog has aggressively marketed its device to police, even beta testing it with regulation enforcement, data present. The Dallas Police Division purchased a Fog license in February after getting a free trial and “seeing an illustration and listening to of success tales from the corporate,” Senior Cpl. Melinda Gutierrez, a division spokeswoman, mentioned in an electronic mail.
Fog’s device is accessed via an online portal. Investigators can enter a criminal offense scene’s coordinates into the database, which brings again search outcomes displaying a tool’s Fog ID, which is predicated on its distinctive advert ID quantity.
Police can see which machine IDs have been discovered close to the placement of the crime. Detectives or different officers may search the placement for IDs going ahead from the time of the crime and again at the very least 180 days, in keeping with the corporate’s consumer license settlement. However, Fog’s knowledge can return so far as June 2017, in keeping with emails from a Fog consultant to Florida and California regulation enforcement businesses.
Whereas the info doesn’t immediately establish who owns a tool, the corporate typically provides regulation enforcement data it wants to attach it to addresses and different clues that assist detectives work out folks’s identities, in keeping with firm representatives’ emails.
It’s unclear how Fog makes these connections, however an organization it refers to as its “knowledge associate” known as Venntel, Inc. has entry to a fair better trove of customers’ cell knowledge.
Venntel is a big dealer that has provided location knowledge to businesses akin to Immigration and Customs Enforcement and the FBI. The Division of Homeland Safety’s watchdog is presently investigating how U.S. border brokers used Venntel knowledge to trace folks’s areas contained in the U.S. with out a search warrant. The corporate additionally has confronted congressional inquiries about privateness considerations tied to federal regulation enforcement businesses’ use of its knowledge.
Venntel and Fog work intently collectively to assist police detectives throughout investigations, emails present. Their advertising brochures are practically similar, too, and Venntel workers has beneficial Fog to regulation enforcement, in keeping with the emails. Venntel mentioned “the confidential nature of our enterprise relationships” prevented them from responding to AP’s particular questions, and Fog wouldn’t touch upon the connection.
Whereas Fog says in its advertising supplies that it collects knowledge from hundreds of apps, like Starbucks and Waze, firms should not all the time conscious of who’s utilizing their knowledge. Venntel and Fog can acquire billions of information factors crammed with detailed data as a result of many apps embed invisible monitoring software program that observe customers’ conduct. This software program additionally lets the apps promote custom-made advertisements which can be focused to an individual’s present location. In flip, knowledge brokers’ software program can hoover up private knowledge that can be utilized for different functions. Fog didn’t particularly say the way it obtained the info from Starbucks and Waze.
For his or her half, Starbucks and Waze denied any relationship to Fog. Starbucks mentioned it had not given permission to its enterprise companions to share buyer data with Fog.
“Starbucks has not accredited Advert ID knowledge generated by our app for use on this method by Fog Information Science LLC. In our evaluation up to now, we have now no relationship with this firm,” mentioned Megan Adams, a Starbucks spokesperson.
“We have now by no means had a relationship with Fog Information Science, haven’t labored with them in any capability, and haven’t shared data with them,” a Waze spokesperson mentioned.
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Fog Information Science LLC is headquartered in a nondescript brick constructing in Leesburg, Virginia. It additionally has associated entities in New Jersey, Ohio and Texas.
It was based in 2016 by Robert Liscouski, who led the Division of Homeland Safety’s Nationwide Cyber Safety Division within the George W. Bush period. His colleague, Broderick, is a former U.S. Marine brigadier common who ran DHS’ tech hub, the Homeland Safety Operations Middle, throughout Hurricane Katrina in 2005. A Home bipartisan committee report cited Broderick amongst others for failing to coordinate a swift federal response to the lethal hurricane. Broderick resigned from DHS shortly thereafter.
In advertising supplies, Fog additionally has touted its means to supply police “predictive analytics,” a buzzword typically used to explain high-tech policing instruments that purport to foretell crime hotspots. Liscouski and one other Fog official have labored at firms centered on predictive analytics, machine studying and software program platforms supporting synthetic intelligence.
“It’s able to delivering each forensic and predictive analytics and close to real-time insights on the day by day actions of the folks recognized with these cell units,” reads an electronic mail saying a Fog coaching final 12 months for members of the Nationwide Fusion Middle Affiliation, which represents a community of intelligence-sharing partnerships created after the Sept. 11 assaults.
Fog’s Broderick mentioned the corporate had not invested in predictive purposes, and supplied no particulars about any makes use of the device had for predicting crime.
Regardless of privateness advocates’ considerations about warrantless surveillance, Fog Reveal has caught on with native and state police forces. It’s been utilized in quite a few high-profile legal instances, together with one which was the topic of the tv program “48 Hours.”
In 2017, a world-renowned unique snake breeder was discovered useless, mendacity in a pool of blood in his reptile breeding facility in rural Missouri. Police initially thought the breeder, Ben Renick, might need died from a toxic snake chew. However the proof quickly pointed to homicide.
Throughout its investigation, emails present the Missouri State Freeway Patrol used Fog’s portal to seek for cellphones at Renick’s residence and breeding facility and zeroed in on a cell machine. Working with Fog, investigators used the info to establish the telephone proprietor’s id: it was the Renicks’ babysitter.
Police have been capable of log the babysitter’s whereabouts over time to create a sample of life evaluation.
It turned out to be a dead-end lead. Renick’s spouse, Lynlee, later was charged and convicted of the homicide.
Prosecutors didn’t cite Fog in a listing of different instruments they used within the investigation, in keeping with trial displays examined by the AP.
However Missouri officers appeared happy with Fog’s capabilities, regardless that it didn’t immediately result in an arrest. “It was fascinating to see that the system did choose up a tool that was completely within the space that day. Too unhealthy it didn’t belong to a suspect!”a Missouri State Freeway Patrol analyst wrote in an electronic mail to Fog.
In one other high-profile legal probe, data present the FBI requested state intelligence officers in Iowa for assist with Fog because it investigated potential individuals within the occasions on the U.S. Capitol on Jan. 6.
“Not definitive however nonetheless ready to speak issues over with a FOG rep,” wrote Justin Parker, deputy director of the Iowa Division of Public Security, in an electronic mail to an FBI official in September 2021. It was unclear from the emails if Fog’s knowledge factored into an arrest, and neither the FBI nor Iowa officers would remark.
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Metcalf, the Arkansas prosecutor, has argued towards congressional efforts to require search warrants when utilizing applied sciences like Fog Reveal.
He believes Individuals have given up any cheap expectation of privateness after they use free apps and likens EFF’s objections to tech like Fog to a “cult of privateness.”
“I feel persons are going to need to decide on whether or not we would like all this free know-how, we would like all this free stuff, we would like all of the selfies,” he mentioned. “However we are able to’t have that and on the identical time say, ‘I’m a non-public individual, so you possibly can’t have a look at any of that.’ That simply appears loopy.”
Though he’s not an official Fog worker, Metcalf mentioned he would step in to guide coaching periods together with the device for federal prosecutors, federal businesses and police, together with the Chicago Police Division, the emails present.
That form of hands-on service and word-of-mouth advertising in tight-knit regulation enforcement circles appears to have helped enhance Fog’s recognition.
The Maryland State Police is among the many many businesses which have had contracts for Fog Reveal, and data present investigators believed it had plenty of potential.
“Firms have receptors throughout. Malls, procuring facilities, and so on. They’re throughout you,” wrote Sgt. John Bedell of the Felony Enforcement Division, in an electronic mail to a colleague. The company bought a 12 months of entry to Fog in 2018.
“Image getting a suspect’s telephone then within the extraction with the ability to see everyplace they’d been within the final 18 months plotted on a map you filter by date ranges,” wrote Bedell. “The success lies within the secrecy.”
Elena Russo, a spokesperson for the company, confirmed it had a Fog license beforehand however that it had lapsed. “Sadly, it was not useful in fixing any crimes,” she wrote in an electronic mail.
Nonetheless, as extra native policing businesses join Fog, some elected officers mentioned they’ve been left at nighttime. A number of officers mentioned there wasn’t sufficient data to understand what providers Fog truly supplies.
“Who is that this firm? What are the monitor data? What are the privateness protections?” requested Anaheim council member Jose Moreno, remembering his confusion about Fog throughout a 2020 council assembly. “That night time our chief had little or no data for us.”
In Anaheim, the Fog license was paid for by a federal “City Space Safety Initiative,” DHS grants that assist localities fund efforts to stop terrorism. A police spokesman mentioned the division has not used it.
Protection attorneys fear there are few authorized restrictions on regulation enforcement’s use of location knowledge.
It’s a niche police businesses exploit, and infrequently don’t disclose in court docket, mentioned Michael Value, litigation director of the Nationwide Affiliation of Felony Protection Legal professionals’ Fourth Modification Middle.
“(Fog) is exceedingly uncommon to see within the wild as a result of the cops typically don’t get warrants,” mentioned Value.
“Even if you happen to do ask for (data) typically they are saying ‘We don’t know what you might be speaking about.’”
Privateness advocates fear Fog’s location monitoring may very well be put to different novel makes use of, like preserving tabs on individuals who search abortions in states the place it’s now unlawful. These considerations have been heightened when a Nebraska woman was charged in August with serving to her teenage daughter finish a being pregnant after investigators obtained maintain of their Fb messages.
Authorities’s use of location knowledge remains to be being weighed by the courts, too. In 2018, the Supreme Court docket dominated that police usually want a warrant to have a look at data that reveal the place cellphone customers have been.
Practically two years after strolling off the crime knowledge supervisor job with the Greensboro police pressure, Davin Corridor nonetheless worries about police surveillance in neighboring communities.
“Anybody with that login data can do as many searches as they need,” Corridor mentioned. “I don’t consider the police have earned the belief to make use of that, and I don’t consider it ought to be authorized.”
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AP Nationwide Author Allen G. Breed contributed from Greensboro, North Carolina. Dearen reported from New York and Burke reported from San Francisco.
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This reporting was produced in collaboration with researchers Janine Graham, Nicole Waddick and Jane Yang in addition to the College of California, Berkeley’s Human Rights Middle Investigations Lab and College of Legislation.
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Observe Garance Burke and Jason Dearen on Twitter at @garanceburke and @jhdearen. Contact AP’s international investigative staff at [email protected] or https://www.ap.org/tips/
