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 software, at occasions with out search warrants, that offers them the facility to observe folks’s actions months again in time, in response to 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 cellular gadgets, and harnessed the info to create location analyses recognized amongst regulation enforcement as “patterns of life,” in response to hundreds of pages of data in regards to the firm.
Offered by Virginia-based Fog Information Science LLC, Fog Reveal has been used since not less than 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 revolt on the Capitol. The software is never, if ever, talked about in courtroom data, one thing that protection attorneys say makes it more durable for them to correctly defend their shoppers in circumstances through which the expertise was used.
The corporate was developed by two former high-ranking Division of Homeland Safety officers underneath former President George W. Bush. It depends on promoting identification numbers, which Fog officers say are culled from well-liked cellphone apps similar to Waze, Starbucks and a whole bunch of others that concentrate on adverts based mostly on an individual’s actions and pursuits, in response to police emails. That data is then bought to firms like Fog.
“It’s type of a mass surveillance program on a finances,” stated Bennett Cyphers, a particular adviser on the Digital Frontier Basis, a digital privateness rights advocacy group.
This story, supported by the Pulitzer Middle on Disaster Reporting, is a part of an ongoing Related Press sequence, “Tracked,” that investigates the facility and penalties of selections pushed by algorithms on folks’s on a regular basis lives.
The paperwork and emails had been obtained by EFF by means of Freedom of Data Act requests. The group shared the recordsdata with The AP, which independently discovered that Fog bought its software program in about 40 contracts to almost two dozen businesses, in response to 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 response to analysts and authorized specialists who scrutinize such applied sciences.
Federal oversight of firms like Fog is an evolving authorized panorama. On Monday, the Federal Commerce Fee sued a knowledge dealer known as Kochava that, like Fog, gives its shoppers with promoting IDs that authorities say can simply be used to seek out the place a cellular machine person lives, which violates guidelines the fee enforces. And there are payments earlier than Congress now that, if handed, would regulate the business.
“Native regulation enforcement is on the entrance traces of trafficking and lacking individuals circumstances, but these departments are sometimes behind in expertise adoption,” Matthew Broderick, a Fog managing associate, stated in an electronic mail. “We fill a spot for underfunded and understaffed departments.”
Due to the secrecy surrounding Fog, nevertheless, there are scant particulars about its use and most regulation enforcement businesses gained’t talk about it, elevating considerations amongst privateness advocates that it violates the Fourth Amendment to the U.S. Constitution, which protects in opposition to unreasonable search and seizure.
What distinguishes Fog Reveal from different cellphone location applied sciences utilized by police is that it follows the gadgets by means of their promoting IDs, distinctive numbers assigned to every machine. These numbers don’t comprise the identify of the telephone’s person, however will be traced to properties and workplaces to assist police set up pattern-of-life analyses.
“The aptitude that it had for mentioning simply anyone in an space whether or not they had been in public or at residence appeared to me to be a really clear violation of the Fourth Modification,” stated 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 in regards to the division’s use of Fog to police attorneys and town council.
Whereas Greensboro officers acknowledged Fog’s use and initially defended it, the police division stated 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 value: It might 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 particular knowledge they need, which may take days or perhaps 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 response to a person settlement obtained by AP. However, Fog maintains that “now we have no manner of linking indicators again to a particular machine or proprietor,” in response to a gross sales consultant who emailed the California Freeway Patrol in 2018, after a lieutenant requested whether or not the software could possibly be legally used.
Regardless of such privateness assurances, the data present that regulation enforcement can use Fog’s knowledge as a clue to seek out figuring out data. “There is no such thing as 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 must always be capable to determine the proprietor.”
Fog’s Broderick stated in an electronic mail that the corporate doesn’t have entry to folks’s private data, and attracts from “commercially obtainable 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 Regulation Enforcement has the accountable management, constraints, and political steering on the municipal, state, and federal degree to make sure that any regulation enforcement software and technique is appropriately utilized in accordance with the legal guidelines of their respective jurisdictions,” Broderick stated within the electronic mail.
“Search warrants should not required for the usage of the general public knowledge,” he added Thursday, saying that the info his product presents regulation enforcement is “lead knowledge” and shouldn’t be used to determine possible trigger.
Kevin Metcalf, a prosecutor in Washington County, Arkansas, stated he has used Fog Reveal with out a warrant, particularly in “exigent circumstances.” In these circumstances, the regulation gives a warrant exemption when a crime-in-process endangers folks or an officer.
Metcalf additionally leads the Nationwide Little one Safety Process Power, a nonprofit that combats youngster exploitation and trafficking. Fog is listed on its website as a activity power sponsor and an organization govt chairs the nonprofit’s board. Metcalf stated Fog has been invaluable to cracking lacking kids circumstances and homicides.
“We push the boundaries, however we do them in a manner that we goal the dangerous guys,” he stated. “Time is of the essence in these conditions. We are able to’t wait on the normal 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 stated.
Police had little proof to go on once they discovered her telephone in a ditch, so Metcalf stated he shared his company’s entry to Fog with the U.S. Marshals Service to determine which different gadgets had been close by on the time she was killed. He stated Fog helped lead authorities to arrest a farmer in Sutherland’s rape and homicide in August 2020, however its use was not documented in courtroom data reviewed by AP.
Cyphers, who led EFF’s public data work, stated there hasn’t been any earlier file of firms promoting this sort 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 software to chase down native crime,” Cyphers stated.
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 not too long ago renewed it.
“Rockingham County is tiny when it comes to inhabitants. It by no means ceases to amaze me how small businesses will scoop up instruments that they only completely don’t want, and no one wants this one,” Corridor stated.
Sheriff’s spokesman Lt. Kevin Suthard confirmed the division not too long ago renewed its license however declined to supply specifics about the usage of Fog Reveal or how the workplace protects people’ rights.
“As a result of it might then be much less efficient as criminals could possibly be cognizant that now we have the machine and regulate their fee of the crimes accordingly. Make sense?” Suthard stated.
Fog has aggressively marketed its software 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 indication and listening to of success tales from the corporate,” Senior Cpl. Melinda Gutierrez, a division spokeswoman, stated in an electronic mail.
Fog’s software is accessed by means of 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 had been discovered close to the situation of the crime. Detectives or different officers may also search the situation for IDs going ahead from the time of the crime and again not less than 180 days, in response to the corporate’s person license settlement.
The emails and Fog’s Broderick contend the software can truly search again years, nevertheless. Emails from a Fog consultant to Florida and California regulation enforcement businesses stated the software’s knowledge stretched again so far as June 2017. On Thursday Broderick, who had beforehand refused to handle the query, stated it “solely has a 3 12 months attain again.”
Whereas the info doesn’t immediately establish who owns a tool, the corporate usually offers regulation enforcement data it wants to attach it to addresses and different clues that assist detectives determine folks’s identities, in response to 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 good larger trove of customers’ cellular knowledge.
Venntel is a big dealer that has provided location knowledge to businesses similar to Immigration and Customs Enforcement and the FBI. The Division of Homeland Safety’s watchdog is auditing how the places of work underneath its management have used industrial knowledge. That comes after some Democratic lawmakers requested it to analyze U.S. Customs and Border Safety’s use of Venntel knowledge to trace folks with out a search warrant in 2020. The corporate additionally has confronted congressional inquiries about privateness considerations tied to federal regulation enforcement businesses’ use of its knowledge.
Venntel and Fog work carefully collectively to help police detectives throughout investigations, emails present. Their advertising and marketing brochures are almost similar, too, and Venntel workers has advisable Fog to regulation enforcement, in response to the emails. Venntel stated “the confidential nature of our enterprise relationships” prevented it from responding to AP’s particular questions, and Fog wouldn’t touch upon the connection.
Whereas Fog says in its advertising and marketing supplies that it collects knowledge from hundreds of apps, like Starbucks and Waze, firms should not at all times conscious of who’s utilizing their knowledge. Venntel and Fog can gather billions of knowledge factors stuffed with detailed data as a result of many apps embed invisible monitoring software program that follows customers’ habits. This software program additionally lets the apps promote personalized adverts which might 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.
Previous to publication, Fog’s Broderick refused to say how the corporate received knowledge from Starbucks and Waze. However on Thursday, he stated he didn’t know the way knowledge aggregators collected the data Fog Reveal attracts from, or the particular apps from which the info was drawn.
For his or her half, Starbucks and Waze denied any relationship to Fog. Starbucks stated it had not given permission to its enterprise companions to share buyer data with Fog.
“Starbucks has not permitted Advert ID knowledge generated by our app for use on this manner by Fog Information Science LLC. In our evaluation thus far, now we have no relationship with this firm,” stated Megan Adams, a Starbucks spokesperson.
“We’ve got 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 stated.
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 adminstration. 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 and marketing supplies, Fog additionally has touted its potential to supply police “predictive analytics,” a buzzword usually 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 each day actions of the folks recognized with these cellular gadgets,” reads an electronic mail asserting 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 stated the corporate had not invested in predictive functions, and supplied no particulars about any makes use of the software 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 various high-profile legal circumstances, together with one which was the topic of the tv program “48 Hours.”
In 2017, a world-renowned unique snake breeder was discovered lifeless, 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 cellular machine. Working with Fog, investigators used the info to establish the telephone proprietor’s id: it was the Renicks’ babysitter.
Police had been in a position to 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 an inventory of different instruments they used within the investigation, in response to trial reveals examined by the AP.
However Missouri officers appeared happy with Fog’s capabilities, though it didn’t immediately result in an arrest. “It was attention-grabbing to see that the system did decide up a tool that was completely within the space that day. Too dangerous 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. Iowa officers didn’t reply and the FBI declined to remark.
Metcalf, the Arkansas prosecutor, has argued in opposition to congressional efforts to require search warrants when utilizing applied sciences like Fog Reveal.
He believes Individuals have given up any affordable expectation of privateness once they use free apps and likens EFF’s objections to tech like Fog to a “cult of privateness.”
“I feel persons are going to should decide on whether or not we wish all this free expertise, we wish all this free stuff, we wish all of the selfies,” he stated. “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 stated he would step in to steer coaching classes together with the software for federal prosecutors, federal businesses and police, together with the Chicago Police Division, the emails present.
That sort of hands-on service and word-of-mouth advertising and marketing in tight-knit regulation enforcement circles appears to have helped enhance Fog’s reputation.
The Maryland State Police is among the many many businesses which have had contracts for Fog Reveal, and data present investigators believed it had quite a lot of potential.
“Firms have receptors throughout. Malls, buying 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 having 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 stated they’ve been left in the dead of night. A number of officers stated there wasn’t sufficient data to understand what providers Fog truly gives.
“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 forestall terrorism. A police spokesman stated 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 spot police businesses exploit, and sometimes don’t disclose in courtroom, stated Michael Value, litigation director of the Nationwide Affiliation of Felony Protection Attorneys’ Fourth Modification Middle.
“(Fog) is exceedingly uncommon to see within the wild as a result of the cops usually don’t get warrants,” stated Value.
“Even if you happen to do ask for (data) generally they are saying ‘We don’t know what you might be speaking about.’”
Privateness advocates fear Fog’s location monitoring could possibly be put to different novel makes use of, like protecting tabs on individuals who search abortions in states the place it’s now unlawful. These considerations had been heightened when a Nebraska girl was charged in August with serving to her teenage daughter finish a being pregnant after investigators received 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 typically want a warrant to take 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 power, Corridor nonetheless worries about police surveillance in neighboring communities.
“Anybody with that login data can do as many searches as they need,” Corridor stated. “I don’t consider the police have earned the belief to make use of that, and I don’t consider it must be authorized.”
AP Nationwide Author Allen G. Breed contributed from Greensboro, North Carolina. Dearen reported from New York and Burke reported from San Francisco.
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 Regulation.