By GARANCE BURKE AND JASON DEAREN

September 1, 2022 GMT

Native legislation enforcement businesses from suburban Southern California to rural North Carolina have been utilizing an obscure cellphone monitoring tool, at instances with out search warrants, that provides them the facility to comply with folks’s actions months again in time, in keeping with public information and inner emails obtained by The Related Press.

Police have used “Fog Reveal” to go looking lots of of billions of information from 250 million cell units, and harnessed the info to create location analyses recognized amongst legislation enforcement as “patterns of life,” in keeping with 1000’s of pages of information concerning the firm.

Offered by Virginia-based Fog Information Science LLC, Fog Reveal has been used since no less than 2018 in prison investigations starting from the homicide of a nurse in Arkansas to tracing the actions of a potential participant within the Jan. 6 revolt on the Capitol. The tool isn’t, if ever, talked about in court docket information, one thing that protection attorneys say makes it more durable for them to correctly defend their shoppers 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 fashionable cellphone apps corresponding to Waze, Starbucks and lots of of others that focus on advertisements based mostly on a particular person’s actions and pursuits, in keeping with police emails. That info is then offered to firms like Fog.

“It’s form of a mass surveillance program on a price range,” stated Bennett Cyphers, a particular advisor on the Digital Frontier Basis, a digital privateness rights advocacy group.

_____

This story, supported by the Pulitzer Middle for Disaster Reporting, is a part of an ongoing Related Press sequence, “Tracked,” that investigates the facility and penalties of choices pushed by algorithms on folks’s on a regular basis lives.

____

The paperwork and emails have been obtained by EFF via Freedom of Info Act requests. The group shared the recordsdata with The AP, which independently discovered that Fog offered its software program in about 40 contracts to just about two dozen businesses, in keeping with GovSpend, a firm that retains tabs on authorities spending. The information and AP’s reporting present the primary public account of the in depth use of Fog Reveal by native police, in keeping with analysts and authorized specialists who scrutinize such applied sciences.

“Native legislation enforcement is on the entrance strains of trafficking and lacking individuals instances, but these departments are sometimes behind in know-how adoption,” Matthew Broderick, a Fog managing accomplice, stated in an electronic mail. “We fill a hole for underfunded and understaffed departments.”

Due to the secrecy surrounding Fog, nevertheless, there are scant particulars about its use and most legislation enforcement businesses gained’t talk about it, elevating issues amongst privateness advocates that it violates the Fourth Modification to the U.S. Structure, 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 gadget. These numbers don’t include the title of the telephone’s consumer, 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 have been in public or at residence appeared to me to be a very 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 issues concerning 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 yr 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 inexpensive worth: it will probably begin as little as $7,500 a yr. And a few departments that license it have shared entry with different close by legislation enforcement businesses, the emails present.

Police departments additionally like how rapidly they’ll entry detailed location info from Fog. Geofence warrants, which faucet into GPS and different sources to trace a gadget, 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 gadget’s advert ID numbers, in keeping with a consumer settlement obtained by AP. However, Fog maintains that “we’ve got no method of linking alerts again to a particular gadget 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 tool might be legally used.

Regardless of such privateness assurances, the information present that legislation enforcement can use Fog’s knowledge as a clue to seek out figuring out info. “There isn’t a (private info) 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 be capable to determine the proprietor.”

Federal oversight of firms like Fog is an evolving authorized panorama. On Monday, the Federal Commerce Fee sued a knowledge dealer referred to as Kochava that, like Fog, supplies its shoppers with promoting IDs that authorities say can simply be used to seek out the place a cell gadget 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 stated in an electronic mail that the corporate doesn’t have entry to folks’s private info, 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 Legislation Enforcement has the accountable management, constraints, and political steerage on the municipal, state, and federal degree to make sure that any legislation enforcement tool and technique is appropriately utilized in accordance with the legal guidelines of their respective jurisdictions,” Broderick stated.

___

Kevin Metcalf, a Washington County, Arkansas prosecutor, stated he has used Fog Reveal with out a warrant, particularly in “exigent circumstances.” In these instances, the legislation supplies a warrant exemption when a crime-in-process endangers folks or an officer.

Metcalf additionally leads the Nationwide Youngster Safety Process Power, a nonprofit that combats baby exploitation and trafficking. Fog is listed on its web site as a process pressure sponsor and a firm government chairs the nonprofit’s board. Metcalf stated Fog has been invaluable to cracking lacking kids instances and homicides.

“We push the bounds, however we do them in a method that we goal the dangerous guys,” he stated. “Time is of the essence in these conditions. We will’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 units 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 court docket information reviewed by AP.

Cyphers, who led EFF’s public information work, stated there hasn’t been any earlier report of firms promoting this type of granular knowledge on to native legislation 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 tool 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 yr 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 only completely don’t want, and no one wants this one,” Corridor stated.

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 will then be much less efficient as criminals might be cognizant that we’ve got the gadget and regulate their fee of the crimes accordingly. Make sense?” Suthard stated.

Fog has aggressively marketed its tool to police, even beta testing it with legislation enforcement, information present. The Dallas Police Division purchased a Fog license in February after getting a free trial and “seeing a demonstration and listening to of success tales from the corporate,” Senior Cpl. Melinda Gutierrez, a division spokeswoman, stated in an electronic mail.

Fog’s tool is accessed via a net portal. Investigators can enter a crime scene’s coordinates into the database, which brings again search outcomes exhibiting a gadget’s Fog ID, which is predicated on its distinctive advert ID quantity.

Police can see which gadget IDs have been discovered close to the situation of the crime. Detectives or different officers can even search the situation for IDs going ahead from the time of the crime and again no less than 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 legislation enforcement businesses.

Whereas the info doesn’t straight determine who owns a gadget, the corporate usually offers legislation enforcement info it wants to attach it to addresses and different clues that assist detectives determine folks’s identities, in keeping with firm representatives’ emails.

It’s unclear how Fog makes these connections, however a firm it refers to as its “knowledge accomplice” referred to as Venntel, Inc. has entry to a good better trove of customers’ cell knowledge.

Venntel is a massive dealer that has equipped location knowledge to businesses corresponding to Immigration and Customs Enforcement and the FBI. The Division of Homeland Safety’s watchdog is at the moment 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 issues tied to federal legislation 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 advisable Fog to legislation enforcement, in keeping with the emails. Venntel stated “the confidential nature of our enterprise relationships” prevented them from responding to AP’s particular questions, and Fog wouldn’t remark on the connection.

Whereas Fog says in its advertising supplies that it collects knowledge from 1000’s of apps, like Starbucks and Waze, firms are usually not all the time conscious of who’s utilizing their knowledge. Venntel and Fog can accumulate billions of information factors stuffed with detailed info as a result of many apps embed invisible monitoring software program that comply with customers’ conduct. This software program additionally lets the apps promote personalized advertisements which might be focused to a particular person’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 acquired the info from Starbucks and Waze.

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 info with Fog.

“Starbucks has not authorized Advert ID knowledge generated by our app for use on this method by Fog Information Science LLC. In our evaluate to this point, we’ve got no relationship with this firm,” stated Megan Adams, a Starbucks spokesperson.

“We now have by no means had a relationship with Fog Information Science, haven’t labored with them in any capability, and haven’t shared info 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 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 capacity 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 every day actions of the folks recognized with these cell units,” reads an electronic mail saying a Fog coaching final yr 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 purposes, and supplied no particulars about any makes use of the tool had for predicting crime.

Regardless of privateness advocates’ issues about warrantless surveillance, Fog Reveal has caught on with native and state police forces. It’s been utilized in a variety of high-profile prison instances, 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 chunk. 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 gadget. Working with Fog, investigators used the info to determine the telephone proprietor’s identification: it was the Renicks’ babysitter.

Police have 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 a checklist of different instruments they used within the investigation, in keeping with trial reveals examined by the AP.

However Missouri officers appeared happy with Fog’s capabilities, although it didn’t straight result in an arrest. “It was fascinating to see that the system did decide up a gadget 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 prison probe, information 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.

___

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 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 make a determination on whether or not we wish all this free know-how, we wish all this free stuff, we wish all of the selfies,” he stated. “However we will’t have that and on the identical time say, ‘I’m a personal particular person, so you possibly can’t take 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 guide coaching classes together with the tool 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 in tight-knit legislation enforcement circles appears to have helped improve Fog’s reputation.

The Maryland State Police is among the many many businesses which have had contracts for Fog Reveal, and information present investigators believed it had a lot of potential.

“Firms have receptors throughout. Malls, buying facilities, and so on. They’re throughout you,” wrote Sgt. John Bedell of the Prison Enforcement Division, in an electronic mail to a colleague. The company bought a yr 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 stated they’ve been left at nighttime. A number of officers stated there wasn’t sufficient info to understand what companies Fog truly supplies.

“Who is that this firm? What are the observe information? 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 info 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 legislation enforcement’s use of location knowledge.

It’s a hole police businesses exploit, and infrequently don’t disclose in court docket, stated Michael Worth, litigation director of the Nationwide Affiliation of Prison Protection Legal professionals’ Fourth Modification Middle.

“(Fog) is exceedingly uncommon to see within the wild as a result of the cops usually don’t get warrants,” stated Worth.

“Even if you happen to do ask for (info) generally they are saying ‘We don’t know what you might be speaking about.’”

Privateness advocates fear Fog’s location monitoring might 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 issues have been heightened when a Nebraska girl was charged in August with serving to her teenage daughter finish a being pregnant after investigators acquired maintain of their Fb messages.

Authorities’s use of location knowledge continues 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 information that reveal the place cellphone customers have been.

Almost 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 info 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 Faculty of Legislation.

___

Comply with Garance Burke and Jason Dearen on Twitter at @garanceburke and @jhdearen. Contact AP’s world investigative group at [email protected] or

LEAVE A REPLY

Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.