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What Is Fog Reveal? A Legal Scholar Explains The App Some Police Forces Are Using To Track People Without A Warrant

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The Rockingham County Sheriff’s Department in Wentworth, N.C., is among the law enforcement agencies the AP found using the Fog Reveal location tracking tool. AP Photo/Allen G. Breed

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

The tool enables law enforcement officers to see “patterns of life” – where and when people work and live, with whom they associate and what places they visit. The tool’s maker, Fog Data Science, claims to have billions of data points from over 250 million U.S. mobile devices.

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

Government use of Fog Reveal highlights a problematic difference between data privacy law and electronic surveillance law in the U.S. It is a difference that creates a sort of loophole, permitting enormous quantities of personal data to be collected, aggregated and used in ways that are not transparent to most persons. That difference is far more important in the wake of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision, which revoked the constitutional right to an abortion. Dobbs puts the privacy of reproductive health information and related data points, including relevant location data, in significant jeopardy.

The trove of personal data Fog Data Science is selling, and government agencies are buying, exists because ever-advancing technologies in smart devices collect increasingly vast amounts of intimate data. Without meaningful choice or control on the user’s part, smart device and app makers collect, use and sell that data. It is a technological and legal dilemma that threatens individual privacy and liberty, and it is a problem I have worked on for years as a practicing lawyer, researcher and law professor.

Government surveillance

U.S. intelligence agencies have long used technology to engage in surveillance programs like PRISM, collecting data about individuals from tech companies like Google, particularly since 9/11 – ostensibly for national security reasons. These programs typically are authorized by and subject to the Foreign Intelligence Surveillance Act and the Patriot Act. While there is critical debate about the merits and abuses of these laws and programs, they operate under a modicum of court and congressional oversight.

Domestic law enforcement agencies also use technology for surveillance, but generally with greater restrictions. The U.S. Supreme Court has ruled that the Constitution’s Fourth Amendment, which protects against unreasonable search and seizure, and federal electronic surveillance law require domestic law enforcement agencies to obtain a warrant before tracking someone’s location using a GPS device or cell site location information.

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

Fog Reveal’s data

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

Private companies and apps harness smartphones’ GPS capabilities, which provide detailed location data, and advertising IDs, so that wherever a smartphone goes and any time a user downloads an app or visits a website, it creates a trail. Fog Data Science says it obtains this “commercially available data” from data brokers, permitting the tool to follow devices through their advertising IDs. While these numbers do not contain the name of the phone’s user, they can easily be traced to homes and workplaces to help police identify the user and establish pattern-of-life analyses.

a screenshot showing a text box with a row of icons at the top over a satellite view of a neighborhood
Fog Reveal allows users to see that a specific mobile phone was at a specific place at a specific time.
Electronic Frontier Foundation, CC BY

Law enforcement use of Fog Reveal puts a spotlight on that loophole between U.S. data privacy law and electronic surveillance law. The hole is so large that – despite Supreme Court rulings requiring a warrant for law enforcement to use GPS and cell site data to track persons – it is not clear whether law enforcement use of Fog Reveal is unlawful.

Electronic surveillance vs. data privacy

Electronic surveillance law protections and data privacy mean two very different things in the U.S. There are robust federal electronic surveillance laws governing domestic surveillance. The Electronic Communications Privacy Act regulates when and how domestic law enforcement and private entities can “wiretap,” i.e., intercept a person’s communications, or track a person’s location.

Coupled with Fourth Amendment protections, ECPA generally requires law enforcement agencies to get a warrant based on probable cause to intercept someone’s communications or track someone’s location using GPS and cell site location information. Also, ECPA permits an officer to get a warrant only when the officer is investigating certain crimes, so the law limits its own authority to permit surveillance of only serious crimes. Violation of ECPA is a crime.

The vast majority of states have laws that mirror ECPA, although some states, like Maryland, afford citizens more protections from unwanted surveillance.

The Fog Reveal tool raises enormous privacy and civil liberties concerns, yet what it is selling – the ability to track most persons at all times – may be permissible because the U.S. lacks a comprehensive federal data privacy law. ECPA permits interceptions and electronic surveillance when a person consents to that surveillance.

With little in the way of federal data privacy laws, once someone clicks “I agree” on a pop-up box, there are few limitations on private entities’ collection, use and aggregation of user data, including location data. This is the loophole between data privacy and electronic surveillance law protections, and it creates the framework that underpins the massive U.S. data sharing market.

AP investigative journalist Garance Burke explains how she and her colleagues uncovered law enforcement use of Fog Reveal.

The need for data privacy law

Without robust federal data privacy safeguards, smart device manufacturers, app makers and data brokers will continue, unfettered, to utilize smart devices’ sophisticated sensing technologies and GPS capabilities to collect and commercially aggregate vast quantities of intimate and revealing data. As it stands, that data trove may not be protected from law enforcement agencies. But the permitted commercial use of advertising IDs to track devices and users without meaningful notice and consent could change if the American Data Privacy Protection Act, approved by the U.S. House of Representatives Committee on Energy and Commerce by a vote of 53-2 on July 20, 2022, passes.

ADPPA’s future is uncertain. The app industry is strongly resisting any curtailment of its data collection practices, and some states are resisting ADPPA’s federal preemption provision, which could minimize the protections afforded via state data privacy laws. For example, Nancy Pelosi, speaker of the U.S. House of Representatives, has said lawmakers will need to address concerns from California that the bill overrides the state’s stronger protections before she will call for a vote on ADPPA.

The stakes are high. Recent law enforcement investigations highlight the real-world consequences that flow from the lack of robust data privacy protection. Given the Dobbs ruling, these situations will proliferate absent congressional action.

The Conversation

Current member of IEEE-USA, serving on its AI Policy Committee, and Co-Chair of its Privacy, Equity, and Justice in AI Subcommittee.
Prior grant research work includes: funding from National Security Agency (NSA) as part of the National Initiatives in Cyber Education to develop an open access course, “Cyberlaw: Policy & Operations” since published nationwide by NSA; and funding from U.S. Department of Justice’s Office of Community Oriented Policing Services to analyze, via published legal memos, issues of privacy, Constitutional rights, and other legal issues in the use of UAVs (drones) by domestic law enforcement.

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When The Supreme Court Loses Americans' Loyalty, Chaos – Even Violence – Can Follow

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Policemen keep a mob back as James Meredith, a Black student trying to enroll at the University of Mississippi, is driven away after being refused admittance to the all-white university in Oxford on Sept. 25, 1962. AP Photo

The Supreme Court’s historically low public standing has prompted a national conversation about the court’s legitimacy. It’s even drawn rare public comment from three sitting Supreme Court justices.
What’s referred to by experts as the problem of “judicial legitimacy” may seem abstract, but the court’s faltering public support is about more than popularity.

Eroding legitimacy means that government officials and ordinary people become increasingly unlikely to accept public policies with which they disagree. And Americans need only look to the relatively recent past to understand the stakes of the court’s growing legitimacy problem.

Cost ‘paid in blood’

The Supreme Court’s 1954 decision in Brown v. Board of Education shined a light on many white Americans’ tenuous loyalty to the authority of the federal judiciary.

In Brown, the court unanimously held that racial segregation in public education violates the equal protection clause of the 14th Amendment. The justices were abundantly aware that their decision would evoke strong emotions. So Chief Justice Earl Warren worked tirelessly to ensure that the court issued a unanimous, short and readable opinion designed to calm the anticipated popular opposition.

Warren’s efforts were in vain. Rather than recognizing the court’s authoritative interpretation of the Constitution, many white Americans participated in an extended, violent campaign of resistance to the desegregation ruling.

A highway with old cars on it and a billboard that says 'IMPEACH EARL WARREN' on the side.
Resistance in the South to the Supreme Court’s school desegregation order was strong and often violent. This billboard urged impeachment of the court’s then-chief justice, Earl Warren.
AP photo

The integration of the University of Mississippi in 1962 provides a pointed example of this resistance.

The Supreme Court had backed a lower federal court that ordered the university to admit James Meredith, a Black Air Force veteran. But Mississippi Gov. Ross Barnett led a wide-ranging effort to stop Meredith from enrolling at Ole Miss, including deploying state and local police to prevent Meredith from entering campus.

On Sunday, Sept. 30, 1962, Meredith nevertheless arrived on the university’s campus, guarded by dozens of federal marshals, to register and begin classes the next day. A crowd of 2,000 to 3,000 people gathered on campus and broke into a riot. Meredith and the marshals were attacked with Molotov cocktails and gunfire. The marshals fired tear gas in return.

In response, President John F. Kennedy invoked the Insurrection Act of 1807 and ordered the U.S. Army onto campus to restore order and protect Meredith. Overnight, thousands of troops arrived, battling rioters.

Armed troops along a sidewalk in the night, with fire in the background.
President John F. Kennedy called in federal troops to quell the violence against James Meredith’s enrollment in the University of Mississippi in 1962.
Lynn Pelham/Getty Images

The violence finally ended after 15 hours, leaving two civilians dead – both killed by rioters – and dozens of wounded marshals and soldiers in addition to hundreds of injuries among the insurgent mob.

The next day, Oct. 1, Meredith enrolled in the university and attended his first class, but thousands of troops remained in Mississippi for months afterward to preserve order.

What some call “the Battle of Oxford” was fueled by white racism and segregation, but it played out against the backdrop of weak judicial legitimacy. Federal courts did not command enough respect among state officials or ordinary white Mississippians to protect the constitutional rights of Black Mississippians. Neither Gov. Barnett nor the thousands of Oxford rioters were willing to follow the court order for Meredith to enroll at the university.

In the end, the Constitution and the federal courts prevailed only because Kennedy backed them with the Army. But the cost of weak judicial legitimacy was paid in blood.

Legitimacy leads to acceptance

In contrast, when people believe in the legitimacy of their governing institutions, they are more likely to accept, respect and abide by the rules the government – including the courts – ask them to live under, even when the stakes are high and the consequences are far-reaching.

For example, two decades ago, the Supreme Court resolved a disputed presidential election in Bush v. Gore, centered on the counting of ballots in Florida. This time, the court was deeply divided along ideological lines, and its long, complicated and fragmented opinion was based on questionable legal reasoning.

Police in helmets with riot gear with smoke in the background.
Clashes between riot police and Donald Trump supporters near the U.S. Capitol on Jan. 6, 2021, in Washington.
Shay Horse/NurPhoto via Getty Images

But in 2000, the court enjoyed more robust legitimacy among the public than it does today. As a consequence, Florida officials ceased recounting disputed ballots. Vice President Al Gore conceded the election to Texas Gov. George W. Bush, specifically accepting the Supreme Court’s pivotal ruling.

No Democratic senator challenged the validity of Florida’s disputed Electoral College votes for Bush. Congress certified the Electoral College’s vote, and Bush was inaugurated.

Democrats were surely disappointed, and some protested. But the court was viewed as sufficiently legitimate to produce enough acceptance by enough people to ensure a peaceful transition of power. There was no violent riot; there was no open resistance.

Indeed, on the very night that Gore conceded, the chants of his supporters gathered outside tacitly accepted the outcome: “Gore in four!” – as if to say, “We’ll get you next time, because we believe there will be a next time.”

Risks ahead

But what happens when institutions fail to retain citizens’ loyalty?

The Jan. 6, 2021, insurrection showcased the consequences of broken legitimacy. The rioters who stormed the Capitol had lost faith in systems that undergird American democracy: counting presidential votes in the states, tallying Electoral College ballots and settling disputes over election law in the courts.

The rioters may well have believed their country was being stolen, even if such beliefs were baseless. So, they rebelled in the face of a result they didn’t like.

This threat is far from gone. In addition to numerous important questions about individual rights and the scope of government power, the Supreme Court may soon be asked to resolve disputes over the administration of elections and the power to certify election winners – particularly the authority to designate a slate of presidential electors.

Nothing is certain in politics, but the specter of constitutional crisis looms over the United States. It’s dangerously unclear whether the Supreme Court retains enough legitimacy to authoritatively resolve such disputes. If it doesn’t, the court’s abstract legitimacy problem could once again end with blood in the streets.

The Conversation

Joseph Daniel Ura has previously received research funding from the National Science Foundation and funding for academic programs from the Charles Koch Foundation.

Matthew E. K. Hall has previously received research funding from the National Science Foundation.

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Republicans And Democrats See News Bias Only In Stories That Clearly Favor The Other Party

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If you detect news media bias, that perception may be a result of your own bias. Anna Moneymaker/Getty Images

Charges of media bias – that “the media” are trying to brainwash Americans by feeding the public only one side of every issue – have become as common as campaign ads in the run-up to the midterm elections.

As a political scientist who has examined media coverage of the Trump presidency and campaigns, I can say that this is what social science research tells us about media bias.

First, media bias is in the eye of the beholder.

Communications scholars have found that if you ask people in any community, using scientific polling methods, whether their local media are biased, you’ll find that about half say yes. But of that half, typically a little more than a quarter say that their local media are biased against Republicans, and a little less than a quarter say the same local media are biased against Democrats.

Research shows that Republicans and Democrats spot bias only in articles that clearly favor the other party. If an article tilts in favor of their own party, they tend to see it as unbiased.

Many people, then, define “bias” as “anything that doesn’t agree with me.” It’s not hard to see why.

‘Liberal bias’ in the media is a constant topic on Fox News.

‘Media’ is a plural word

American party politics has become increasingly polarized in recent decades. Republicans have become more consistently conservative, and Democrats have become more consistently liberal to moderate.

As the lines have been drawn more clearly, many people have developed hostile feelings toward the opposition party.

In a 2016 Pew Research Center poll, 45% of Republicans said the Democratic Party’s policies are “so misguided that they threaten the nation’s well-being,” and 41% of Democrats said the same about Republicans. A poll conducted in midyear 2022 by Pew showed that “72% of Republicans regard Democrats as more immoral, and 63% of Democrats say the same about Republicans.”

Not surprisingly, media outlets have arisen to appeal primarily to people who share a conservative view, or people who share a liberal view.

That doesn’t mean that “the media” are biased. There are hundreds of thousands of media outlets in the U.S. – newspapers, radio, network TV, cable TV, blogs, websites and social media. These news outlets don’t all take the same perspective on any given issue.

If you want a very conservative news site, it is not hard to find one, and the same with a very liberal news site.

First Amendment rules

“The media,” then, present a variety of different perspectives. That’s the way a free press works.

The Constitution’s First Amendment says Congress shall make no law limiting the freedom of the press. It doesn’t say that Congress shall require all media sources to be “unbiased.” Rather, it implies that as long as Congress does not systematically suppress any particular point of view, then the free press can do its job as one of the primary checks on a powerful government.

When the Constitution was written and for most of U.S. history, the major news sources – newspapers, for most of that time – were explicitly biased. Most were sponsored by a political party or a partisan individual.

The notion of objective journalism – that media must report both sides of every issue in every story – barely existed until the late 1800s. It reached full flower only in the few decades when broadcast television, limited to three major networks, was the primary source of political information.

Since that time, the media universe has expanded to include huge numbers of internet news sites, cable channels and social media posts. So if you feel that the media sources you’re reading or watching are biased, you can read a wider variety of media sources.

Front page of the April 15, 1789 edition of the Gazette of the United States
Thomas Jefferson described this partisan newspaper, The Gazette of the United States, as ‘a paper of pure Toryism … disseminating the doctrines of monarchy, aristocracy, and the exclusion of the people.’
Library of Congress, Chronicling America collection

If it bleeds, it leads

There is one form of actual media bias. Almost all media outlets need audiences in order to exist. Some can’t survive financially without an audience; others want the prestige that comes from attracting a big audience.

Thus, the media define as “news” the kinds of stories that will attract an audience: those that feature drama, conflict, engaging pictures and immediacy. That’s what most people find interesting. They don’t want to read a story headlined “Dog bites man.” They want “Man bites dog.”

The problem is that a focus on such stories crowds out what we need to know to protect our democracy, such as: How do the workings of American institutions benefit some groups and disadvantage others? In what ways do our major systems – education, health care, national defense and others – function effectively or less effectively?

These analyses are vital to citizens – if we fail to protect our democracy, our lives will be changed forever – but they aren’t always fun to read. So they get covered much less than celebrity scandals or murder cases – which, while compelling, don’t really affect the ability to sustain a democratic system.

Writer Dave Barry demonstrated this media bias in favor of dramatic stories in a 1998 column.

He wrote, “Let’s consider two headlines. FIRST HEADLINE: ‘Federal Reserve Board Ponders Reversal of Postponement of Deferral of Policy Reconsideration.’ SECOND HEADLINE: ‘Federal Reserve Board Caught in Motel with Underage Sheep.’ Be honest, now. Which of these two stories would you read?”

By focusing on the daily equivalent of the underage sheep, media can direct our attention away from the important systems that affect our lives. That isn’t the media’s fault; we are the audience whose attention media outlets want to attract.

But as long as we think of governance in terms of its entertainment value and media bias in terms of Republicans and Democrats, we’ll continue to be less informed than we need to be. That’s the real media bias.

This story is an updated version of an article that was originally published on Oct. 15, 2020.

The Conversation

Marjorie Hershey does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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How Debt-For-Climate Swaps Can Help Solve Low-Income Countries' Fiscal And Environmental Challenges At The Same Time

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Debt swaps in some countries have involved commitments to protect the ocean. Ashley Cooper/Corbis via Getty Images

Barbados Prime Minister Mia Amor Mottley spoke passionately to the United Nations General Assembly in September about the mounting debt many developing countries are shouldering and its increasing impact on their ability to thrive.

The average debt for low- and middle-income countries, excluding China, reached 42% of their gross national income in 2020, up from 26% in 2011. For countries in Latin America and the Caribbean, the annual payments just to service that debt averaged 30% of their total exports.

At the same time, these countries are facing a “triple crisis of climate change, of pandemic and indeed now the conflict that is leading to the inflationary pressures that lead regrettably to people taking circumstances into their own hands,” Mottley said.

Rising borrowing costs coupled with high inflation and slow economic growth have left developing countries like hers in a difficult position when it comes to climate change. High debt payments mean countries have fewer resources for mitigating and adapting to climate change. Yet climate change is increasing their vulnerability, and that can raise their sovereign risk, increasing the cost of borrowing. Declining productive capacity and tax base can lead to higher debt risks. It’s a vicious cycle.

As one solution, countries and international organizations are talking about “debt-for-climate swaps” to help tackle both problems at the same time. U.N. Deputy Secretary-General Amina Mohammed mentioned debt-for-climate swaps ahead of the 2022 U.N. Climate Change Conference, Nov. 6-18, as one option for refinancing countries’ “crippling” debt.

How debt swaps work

Debt-for-climate swaps allow countries to reduce their debt obligations in exchange for a commitment to finance domestic climate projects with the freed-up financial resources.

They have been used since the late 1980s to preserve the environment and address the liquidity crisis in developing countries, including Bolivia, Costa Rica and Belize. These are commonly known as “debt-for-nature swaps.”

Belize, for example, was able to lower its debt in exchange for committing to designate 30% of its marine areas as protected areas and to spend $US4 million a year for the next two decades on marine conservation under a complex debt-for-nature swap.

The swap, organized in 2021 by The Nature Conservancy, involves the U.S.-based environmental group lending funds at a low-interest rate to Belize to buy back $553 million in commercial debt at a deep discount of 45%. The Nature Conservancy raised funds from the investment bank Credit Swisse via the issuance of “blue bonds” backed by the U.S. government, which gave the bonds a strong investment-grade credit rating.

Similarly, Costa Rica has carried out two debt-for-nature swaps with the United States. Under the swaps, Costa Rica agreed to allocate $53 million for conservation projects. It has already planted more than 60,000 trees and reversed its deforestation.

A child runs along large sandbags that form a sea wall while others pay in the water below.
Low-income Pacific Island nations like Kiribati, Tuvalu and the Marshall Islands are fighting to protect their land from sea-level rise and erosion with sea walls like this one. Debt for climate swaps could free up money for such projects without expanding the country’s debt.
Mario Tama/Getty Images

While debt-for-nature swaps have been used mostly for conservation, the same concept could be expanded to climate change mitigation and adaptation activities, such as building solar farms or sea walls. Some finance experts have suggested that debt-for-climate swaps could be structured in a way that could also encourage private-sector bond holders to exchange the national debt they hold for carbon offsets.

Three keys to successful debt-for-climate swaps

I work with the Climate Policy Lab at the Fletcher School at Tufts University. Our experience with debt swaps offers lessons for the design and implementation of debt-for-climate swaps.

First, the complex governance structures of debt swaps have limited their use. In the past, transactions were generally small, generating only about $1 billion in funding for the environment from 1987 to 2003. A term sheet template for future debt-for-climate swaps could reduce the complexity and lower the time and costs involved.

Second, debt-for-climate swaps would need to relieve enough of the debt burden to allow debtor countries to invest in climate adaptation and mitigation projects. For instance, the U.S. created debt-for-nature swaps with Indonesia in 2009 that were criticized for not doing enough to help the Indonesian government achieve its conservation goals.

Another concern is known as “additionality” – ensuring that the swaps lead to additional climate efforts, as opposed to covering efforts already planned or already paid for with international climate finance.

With widening gaps between the amount of adaptation assistance reaching countries and the amount they need, debt-for-climate swaps can be a meaningful source of funding. Climate Policy Initiative, a nonprofit research group, recently estimated that about 90% of the adaptation needs countries listed in their Nationally Determined Contributions – the climate change plans they submit to the U.N. – can be only met with help from development banks or other countries.

Regions experimenting with debt swaps

A few regions are testing debt-for-climate swaps.

The Economic and Social Commission for Western Africa has developed a Climate/Sustainable Development Goal Debt Swap, in which it functions as a liaison between creditors and seven pilot countries. The initiative focuses on advancing sustainable development and climate goals, such as developing more resilient agriculture.

Similarly, as part of the Caribbean Resilience Fund, the Economic Commission for Latin America and the Caribbean plans to launch a Debt for Climate Adaptation Swap. It aims to reduce the $527 million of debt in three pilot countries by issuing green bonds, similar to Belize’s debt swap. Development banks would play a crucial role by guaranteeing new bonds and reducing the credit risk.

With carefully designed debt-for-climate swaps and support from international institutions, developing countries could expand their finance for desperately needed climate mitigation and adaptation actions and remove some of their heavy debt burden.

The Conversation

Soyoung Oh does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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