Public papers and internal emails obtained by The Associated Press reveal that local police enforcement agencies from suburban Southern California to rural North Carolina have been utilizing an obscure cellphone monitoring program that gives them the capacity to follow people’s activities for months back in time.
According to thousands of pages of documents, police have utilized “Fog Reveal” to search hundreds of billions of records from 250 million mobile devices, and have used the data to produce location analyses known as “patterns of life” in the criminal justice system.
Fog Data Science LLC of Virginia sells a product called Fog Reveal, which has been used in at least two separate criminal investigations so far in 2019: one involving the murder of an Arkansas nurse, and the other tracking the whereabouts of a person suspected of taking part in the January 6 insurrection at the Capitol. It is difficult for defense counsel to adequately represent their clients in cases involving the use of the technology because it is rarely, if ever, addressed in court records.
Two former high-ranking officials from George W. Bush’s Department of Homeland Security created the company. To do this, it uses advertising identification numbers, which, according to police emails, are harvested from widely used mobile apps like Waze, Starbucks, and hundreds of others to tailor advertisements to users’ locations and activities. Information like this is sold to businesses like Fog.
A further benefit for law enforcement agencies is the ease with which they can obtain precise location data from Fog. Obtaining such information from companies like Google or Apple allows for the use of geofence warrants, which use GPS and other sources to track a device. It can take days or weeks for authorities to secure a warrant and then negotiate with tech companies to get the particular information they need.
According to a user agreement obtained by AP, cops can utilize geofencing or search by device ad ID numbers using data that Fog claims to have anonymised. In 2018, a lieutenant from the California Highway Patrol emailed a sales representative to find out if the tool was legal. The sales representative replied that Fog “has no way of linking signals back to a specific device or owner.”
In spite of these privacy guarantees, the data shows that law enforcement can utilize Fog’s data as a lead in their search for personal information. According to a 2019 report from a Missouri government official, “there is no (personal information) linked to the (ad ID)” with Fog. We should be able to identify the owner, though, assuming we’re any good at what we do.
Arkansas’s top prosecutor, Metcalf, has fought back against calls for a warrant requirement for the use of Fog Reveal and similar technology in the halls of Congress.
He thinks Americans have given up all hope of privacy when they use free apps, and he calls the Electronic Frontier Foundation’s (EFF) opposition to technologies like Fog a “cult of privacy.”
“I think people are going to have to make a decision on whether we want all this free technology, we want all this free goods, and we want all the selfies,” he remarked. However, “I’m a private person, so you can’t look at any of that,” cannot coexist with such a system. That’s really absurd.
Despite not being an official Fog employee, in emails, Metcalf offers to train federal prosecutors, federal agencies, and police, including the Chicago Police Department, on how to use the program.
Providing such personal attention and encouraging word of mouth amongst the close-knit police community appears to have boosted Fog’s popularity.
Records suggest that Fog Reveal has been contracted by a number of different organizations, including the Maryland State Police, who felt it had a great deal of potential.
“Corporations have ears in every nook and cranny. Places like malls and shopping complexes where people can go to shop. “They’re all around you,” Sgt. John Bedell of the Criminal Enforcement Division wrote in an email to a coworker. A subscription to Fog was purchased for the organization in 2018.
“Imagine obtaining a suspect’s phone and then, during extraction, being able to view every place they’d gone in the last 18 months mapped on a map you filter by date ranges,” writes Bedell. “Secrecy is the key to success.”
Agency spokeswoman Elena Russo said the agency had a valid Fog license in the past, but that it had since expired. ‘Unfortunately, it was not useful in solving any crimes,’ she lamented in an email.
Though more local police departments are signing up for Fog, some elected officials have complained that they have been kept in the dark. Several authorities complained that they lacked sufficient data to understand the scope of Fog’s offerings.