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What is fog detection? A legal scholar explains an app some police forces use to track people without a warrant

What is fog detection?  A legal scholar explains an app some police forces use to track people without a warrant

What is fog detection? A legal scholar explains an app some police forces use to track people without a warrant

Government agencies and private security companies in the US have found a cost-effective way to engage in warrantless operations surveillance of individuals, groups and places: a pay-to-access web tool called Fog Reveal.

The tool allows law enforcement officials to see “life patterns”—where and when people work and live, who they hang out with and what places they visit. The tool’s maker, Fog Data Science, claims it has billions of data points from over 250 million US mobile devices.

Fog Reveal came to light when it Electronic Frontier Foundation (EFF), a nonprofit organization that advocates for online civil liberties, investigated the location data brokers and discovered the program through a Freedom of Information Act request. EFF’s investigations found that Fog Reveal allows law enforcement and private companies to identify and track people and monitor specific places and events, such as rallies, protests, places of worship and health clinics. The Associated Press found that nearly two dozen government agencies across the country contracted with Fog Data Science to use this tool.

The government’s use of Fog Reveal highlights a problematic distinction between data privacy and electronic surveillance laws in the US. It is this distinction that creates a kind of loophole, allowing the collection, aggregation and use of vast amounts of personal data in ways that are not transparent. to most people. That distinction is far more important on the Supreme Court’s trail Dobbs v. Jackson Women’s Health Organization the decision that abolished the constitutional right to abortion. Dobbs places the privacy of reproductive health information and related data points, including relevant location data, at significant risk.

The wealth of personal data that Fog Data Science sells and government agencies buy exists as increasingly advanced technologies in smart devices collect ever-increasing amounts of intimate data. Without meaningful choice or control on the part of users, manufacturers of smart devices and applications collect, use and sell this data. It is a technological and legal dilemma threatens the privacy and freedom of the individualand that’s the problem I worked years as a lawyer, researcher and professor of law.

State supervision

US intelligence agencies have long used the technology to engage in surveillance programs such as PRISMcollection of data about individuals from technology companies such as Google, especially since 9/11 – supposedly for reasons of national security. These programs are usually authorized and subject to Foreign Intelligence Surveillance Act and Patriot Act. While there is a critical discussion on merits and abuses of these laws and programs, they operate under little oversight from the courts and Congress.

Domestic law enforcement agencies also use surveillance technology, but generally with greater restrictions. The US Supreme Court ruled that the Constitution The Fourth Amendmentwhich protects against unreasonable search and seizure, and the federal Electronic Surveillance Act requires domestic law enforcement agencies to obtain a warrant before monitoring someone’s location using a GPS device or cell location information.

Fog Reveal is something else entirely. The tool—made possible by smart device technology and that gap between data privacy and electronic surveillance law protections—allows domestic law enforcement and private entities to buy access to collected data on most U.S. cellphones, including location data. It enables the tracking and tracing of people on a massive scale without court oversight or public transparency. The company has made few public comments, but details about its technology have come to light through the aforementioned EFF and AP investigations.

Fog Reveal data

Every smartphone has advertising ID – a series of numbers that uniquely identify the device. Advertising IDs are allegedly anonymous and not directly linked to a subscriber’s name. In reality, this may not be the case.

Private companies and apps use the GPS capabilities of smartphones, which provide detailed location data and advertising IDs, so that wherever a smartphone goes and every time a user downloads an app or visits a website, it creates a trail. Fog Data Science says it gets this “commercially available data” from data brokers, allowing the tool to track devices via their advertising IDs. Although these numbers do not contain the name of the phone user, they can easily be traced to homes and workplaces to help police identify the user and determine analysis of life patterns.

What is fog detection?  A legal scholar explains an app some police forces use to track people without a warrant

Fog Reveal allows users to see that a specific cell phone was in a specific location at a specific time.
Electronic Frontier Foundation, CC BY

Law enforcement’s use of Fog Reveal shines a spotlight on the loophole between US data privacy and electronic surveillance laws. The loophole is so large that — despite Supreme Court rulings requiring a warrant for law enforcement to use GPS and cellphone location data to track people — it’s unclear whether law enforcement’s use of Fog Reveal is illegal.

Electronic surveillance versus data privacy

The protection of electronic surveillance laws and data privacy mean two very different things in the US. There are strong federal electronic surveillance laws that govern domestic surveillance. The Law on Privacy of Electronic Communications regulates when and how domestic law enforcement authorities and private entities can “eavesdrop”, i.e. intercept a person’s communications or track their location.

Along with Fourth Amendment protections, ECPA generally requires law enforcement agencies to obtain a warrant based on probable cause to intercept a person’s communications or track a person’s location using GPS and cellular network location information. Also, ECPA allows an officer to obtain a warrant only when the officer is investigating certain crimes, so the law limits its authority to allow surveillance of only serious crimes. Violating the ECPA is a felony.

The vast majority of states have laws that mirror the ECPA, although some states, like Maryland, provide citizens with greater protections against unwanted surveillance.

The Fog Reveal tool raises huge privacy and civil liberties concerns, but what it sells – the ability to track most people at any time – can be allowed because The US does not have a comprehensive federal data privacy law. The ECPA permits interception and electronic surveillance when a person consents to such surveillance.

With little in the way of federal data privacy laws, when someone clicks “I agree” in a pop-up box, there are several restrictions on the collection, use, and aggregation of user data by private entities, including location data. This is the loophole between data privacy and electronic surveillance law protections and creates a framework that supports it the huge US data exchange market.

AP investigative reporter Garance Burke explains how she and her colleagues discovered the use of Fog Reveal by law enforcement.

The need for a data privacy law

Without strong federal data privacy safeguards, smart device manufacturers, app makers, and data brokers will continue, unfettered, to use sophisticated smart device sensor technologies and GPS capabilities to collect and commercially harvest vast amounts of intimate and revealing data. As it stands, that collection of data may not be protected from law enforcement agencies. But the permitted commercial use of advertising IDs to track devices and users without significant notice and consent could change if US Data Privacy Actapproved by the Committee on Energy and Commerce of the US House of Representatives by a 53-2 vote July 20, 2022 passes.

The future of ADPPA is uncertain. The app industry strongly resists any restrictions on its data collection practices, and some states oppose ADPPA’s federal preemption provision, which could minimize the protections afforded by state data privacy laws. For example, Nancy Pelosi, the speaker of the US House of Representatives, said lawmakers would have to address concerns from California that the bill would undo stronger state protections before calling for a vote on the ADPPA.

The stakes are high. Recent law enforcement investigations point that out real world consequences arising from a lack of robust data privacy protections. Given the Dobbs decision, these situations will multiply without congressional action.



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