By GARANCE BURKE AND JASON DEAREN
Native regulation enforcement companies from suburban Southern California to rural North Carolina have been utilizing an obscure cellphone monitoring instrument, at instances with out search warrants, that provides them the ability to observe folks’s actions months again in time, in response to public information and inner emails obtained by The Related Press.
Police have used “Fog Reveal” to go looking tons of of billions of information from 250 million cell gadgets, and harnessed the information to create location analyses identified amongst regulation enforcement as “patterns of life,” in response to hundreds of pages of information in regards to the firm.
Offered by Virginia-based Fog Knowledge Science LLC, Fog Reveal has been used since at the least 2018 in prison 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 instrument 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 by which 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 in style cellphone apps akin to Waze, Starbucks and tons of of others that focus on advertisements based mostly on an individual’s actions and pursuits, in response to police emails. That info is then bought to corporations like Fog.
“It’s kind 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.
This story, supported by the Pulitzer Middle for Disaster Reporting, is a part of an ongoing Related Press collection, “Tracked,” that investigates the ability and penalties of choices pushed by algorithms on folks’s on a regular basis lives.
The paperwork and emails had been obtained by EFF via 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 just about two dozen companies, in response to GovSpend, an organization 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 response to 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 e-mail. “We fill a niche for underfunded and understaffed departments.”
Due to the secrecy surrounding Fog, nonetheless, there are scant particulars about its use and most regulation enforcement companies gained’t focus on it, elevating issues amongst privateness advocates that it violates the Fourth Modification to the U.S. Structure, 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 via their promoting IDs, distinctive numbers assigned to every system. These numbers don’t include the identify of the cellphone’s consumer, however might be traced to properties 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 had been in public or at house 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 indignant and betrayed and lied to.”
Corridor resigned in late 2020 after months of voicing issues 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 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 companies across the U.S. proceed to make use of Fog with little or no public accountability. Native police companies have been enticed by Fog’s reasonably priced worth: it may 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 companies, the emails present.
Police departments additionally like how rapidly they will entry detailed location info from Fog. Geofence warrants, which faucet into GPS and different sources to trace a tool, are accessed by acquiring such knowledge from corporations, like Google or Apple. This requires police to acquire a warrant and ask the tech corporations for the precise knowledge they need, which may 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 system’s advert ID numbers, in response to a consumer settlement obtained by AP. However, Fog maintains that “we now have no means of linking indicators again to a particular system 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 instrument might be legally used.
Regardless of such privateness assurances, the information present that regulation enforcement can use Fog’s knowledge as a clue to search out figuring out info. “There is no such thing as 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 of work out the proprietor.”
Federal oversight of corporations like Fog is an evolving authorized panorama. On Monday, the Federal Commerce Fee sued a knowledge dealer known as Kochava that, like Fog, offers its shoppers with promoting IDs that authorities say can simply be used to search out the place a cell system 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 e-mail that the corporate doesn’t have entry to folks’s private info, and attracts from “commercially accessible 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 companies it really works with.
“We’re assured Legislation Enforcement has the accountable management, constraints, and political steering on the municipal, state, and federal stage to make sure that any regulation enforcement instrument and technique is appropriately utilized in accordance with the legal guidelines of their respective jurisdictions,” Broderick mentioned.
Kevin Metcalf, a Washington County, Arkansas prosecutor, mentioned he has used Fog Reveal with no warrant, particularly in “exigent circumstances.” In these instances, the regulation offers a warrant exemption when a crime-in-process endangers folks or an officer.
Metcalf additionally leads the Nationwide Baby Safety Process Pressure, a nonprofit that combats little one exploitation and trafficking. Fog is listed on its web site as a job pressure sponsor and an organization government chairs the nonprofit’s board. Metcalf mentioned Fog has been invaluable to cracking lacking youngsters instances and homicides.
“We push the bounds, however we do them in a means that we goal the unhealthy guys,” he mentioned. “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 mentioned.
Police had little proof to go on after they discovered her cellphone in a ditch, so Metcalf mentioned 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 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 information reviewed by AP.
Cyphers, who led EFF’s public information work, mentioned there hasn’t been any earlier document of corporations 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 instrument 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 just lately renewed it.
“Rockingham County is tiny by way of inhabitants. It by no means ceases to amaze me how small companies will scoop up instruments that they simply completely don’t want, and no one wants this one,” Corridor mentioned.
Sheriff’s spokesman Lt. Kevin Suthard confirmed the division just lately 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 could then be much less efficient as criminals might be cognizant that we now have the system and regulate their fee of the crimes accordingly. Make sense?” Suthard mentioned.
Fog has aggressively marketed its instrument to police, even beta testing it with regulation enforcement, information 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 e-mail.
Fog’s instrument is accessed via an internet 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 system IDs had 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 at the least 180 days, in response to the corporate’s consumer license settlement. However, Fog’s knowledge can return so far as June 2017, in response to emails from a Fog consultant to Florida and California regulation enforcement companies.
Whereas the information doesn’t straight establish who owns a tool, the corporate usually provides regulation enforcement info it wants to attach it to addresses and different clues that assist detectives work out 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 an excellent larger trove of customers’ cell knowledge.
Venntel is a big dealer that has provided location knowledge to companies 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 no search warrant. The corporate additionally has confronted congressional inquiries about privateness issues tied to federal regulation enforcement companies’ use of its knowledge.
Venntel and Fog work carefully collectively to assist police detectives throughout investigations, emails present. Their advertising brochures are almost equivalent, too, and Venntel workers has really useful Fog to regulation enforcement, in response to 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, corporations aren’t all the time conscious of who’s utilizing their knowledge. Venntel and Fog can acquire billions of knowledge factors stuffed with detailed info as a result of many apps embed invisible monitoring software program that observe customers’ habits. 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 bought the information 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 info with Fog.
“Starbucks has not authorized Advert ID knowledge generated by our app for use on this means by Fog Knowledge Science LLC. In our evaluate up to now, we now have no relationship with this firm,” mentioned Megan Adams, a Starbucks spokesperson.
“We now have by no means had a relationship with Fog Knowledge Science, haven’t labored with them in any capability, and haven’t shared info with them,” a Waze spokesperson mentioned.
Fog Knowledge 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 basic 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 usually used to explain high-tech policing instruments that purport to foretell crime hotspots. Liscouski and one other Fog official have labored at corporations targeted 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 gadgets,” reads an e-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 functions, and supplied no particulars about any makes use of the instrument 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 quite a few 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 useless, mendacity in a pool of blood in his reptile breeding facility in rural Missouri. Police initially thought the breeder, Ben Renick, may 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 house and breeding facility and zeroed in on a cell system. Working with Fog, investigators used the information to establish the cellphone proprietor’s identification: 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 displays examined by the AP.
However Missouri officers appeared happy with Fog’s capabilities, despite the fact that it didn’t straight 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 e-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 e-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 in opposition to congressional efforts to require search warrants when utilizing applied sciences like Fog Reveal.
He believes People 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 personal particular person, so you’ll be able to’t take 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 instrument for federal prosecutors, federal companies 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 improve Fog’s reputation.
The Maryland State Police is among the many many companies which have had contracts for Fog Reveal, and information present investigators believed it had a number of potential.
“Corporations have receptors throughout. Malls, buying facilities, and many others. They’re throughout you,” wrote Sgt. John Bedell of the Prison Enforcement Division, in an e-mail to a colleague. The company bought a 12 months of entry to Fog in 2018.
“Image getting a suspect’s cellphone 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 e-mail.
Nonetheless, as extra native policing companies join Fog, some elected officers mentioned they’ve been left at nighttime. A number of officers mentioned there wasn’t sufficient info to understand what companies Fog truly offers.
“Who is that this firm? What are the monitor information? What are the privateness protections?” requested Anaheim council member Jose Moreno, remembering his confusion about Fog throughout a 2020 council assembly. “That evening 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 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 companies exploit, and infrequently don’t disclose in court docket, mentioned Michael Value, 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,” mentioned Value.
“Even should you 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 conserving tabs on individuals who search abortions in states the place it’s now unlawful. These issues had been heightened when a Nebraska lady was charged in August with serving to her teenage daughter finish a being pregnant after investigators bought 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 have a look at information 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 info 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 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.