Episode 62: Does the Pentagon (or the Cops) Know What Side of the Bed You Sleep On?
In the wake of 9/11, a massive surveillance system quietly made its way onto our smartphones. The data of millions of Americans is for sale to the highest bidder — and it’s not always clear who’s buying. Here’s how information about everything from where you got a drink last night (and maybe even with whom) to where you sleep, might be available for purchase by the national security apparatus—or even your own local police department. And they don’t need a warrant.
Please note: Our show is produced for the ear and made to be heard. Transcripts are generated using a combination of speech recognition software and human transcribers, and may contain errors. Please check the audio before quoting in print.
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Peter Bergen: Let's say I was in a hostile dispute with one of my neighbors, if I wanted to find out everything about him or her, what could I obtain about them and how much would it cost me?
Byron Tau: I actually found a private investigator willing to run queries on people's mobile phone movement for $2,500 a pop.
Peter Bergen: So you're saying that a private investigator can find out pretty much anything they want rather quickly for 2,500 bucks?
Byron Tau: Yeah.
Byron Tau is a journalist I met recently who just published a fascinating book about the vast surveillance network that has quietly come to entangle you and me and pretty much everyone else we know.
Byron Tau: It's probably the most complicated technological surveillance system ever constructed.
And that surveillance system is built around a device that you probably have in your pocket right now. Maybe it’s even playing this show for you. Whether you’re an Apple devotee or Android’s more your style, your smartphone feeds a system that generates meticulous records of where you've been, what you've bought, who you've been talking to and much, much more.
Byron Tau: These systems that we're increasingly relying on for everything. They’re all leaching some sort of information about us into the world. And we don't always know who listens.
So—who is listening? And why does it matter?
Byron Tau: It's not just governments. It can be private investigators. It can be nosy journalists.
Today, we’re going to take a close look at your privacy – or what remains of it – in the digital age … and the huge, unseen marketplace where companies, individuals, and even the U.S. government can buy up your personal information in bulk. And you’ll hear just how personal some of that data can be.
Byron Tau: He zoomed in on his house and he could see that the location was possibly precise enough to show which side of the bed he was keeping his phone on.
You’re probably already pretty aware that, on some level, your cell phone location data isn’t truly private.
Eric Grabski: If you have service with a major provider, you're not hiding.
But you might not realize how easy it is for anyone to get ahold of that data. That includes your local police department. And while that means police can access information that can help solve crimes, it also means they don’t necessarily have to go through the courts to get permission to spy on your private life.
Davin Hall: What makes it different is that it doesn't require a warrant, police can access it whenever they want without any kind of oversight at all.
I’m Peter Bergen. Welcome back to In the Room.
(Theme Music)
Peter Bergen: You open the book with this amazing anecdote about Grindr. What is Grindr and why did the Pentagon suddenly realize they had a Grindr problem?
Byron Tau: Grindr is an LGBTQ-themed hookup or dating app. It's largely used by gay men. And, like almost every app that relies on location services, because Grindr connects people who are nearby, it's mostly free, and it serves ads to its users. Grindr users are leaching a ton of information into this bizarre online ad ecosystem, and anyone who knows how to obtain datasets from advertisers can get lots and lots of fine-grained information on Grindr users. It's not that Grindr was doing anything wrong in selling its users' data, it's that Grindr, like almost every app that relies on advertising and location, is leaching this data.
Byron Tau was a reporter for the Wall Street Journal when he started researching the topic that became the focus of his new book, Means of Control. One of the early tips he got involved a US government contractor who specialized in selling digital advertising data. In 2019, this contractor had put together a cautionary presentation for national security officials in Washington. The presentation was both a demonstration … and a kind of warning about this data's power.
Byron Tau: What this government contractor did was purchase a lot of data that included Grindr and showed that you could see people who were using Grindr at or near government facilities and see where they were going, see what they did after they left government facilities. In some cases, you could follow them home. In some cases, you could see what other Grindr user they were in proximity to. In some cases, they were lingering at highway rest stops. There were all sorts of invasive things you could do with this data set. And again, it wasn't meant to shame anyone or get them in trouble. It was just a demonstration that even government employees, even ones that work at sensitive facilities or in sensitive jobs, are leaching this kind of data. And it's something that any American adversary could take advantage of if they wanted to.
Peter Bergen: And this is true of other apps, like, if you allow, let's say, we're here in Washington, if I check in at the Washington weather and I allow the app to know where I am?
Byron Tau: Yep. This is true of almost every app that both has advertising and asks for your location. The information technology systems underlying the delivery of ads—targeted advertising—to people around the world—it’s probably the most complicated technological surveillance system ever constructed.
And it certainly wasn't built by the government, it was built by the nation's largest corporations in order to deliver people free content on the internet and free services, all because people don't want to pay $0.99 or $1.99 for software or for services.
Let's say you're just installing a free, ad-supported weather app on your phone. Before that app starts working, you check a little box to let it track your location because, otherwise, it wouldn’t know if it should give you the forecast for Tokyo or London or the place you actually live. And before you can see the chances of rain tomorrow, you'll probably also have to scroll through some really long user agreement and check a box that says you agree to all the terms you zipped past without reading. And buried somewhere in those terms will likely be some kind of sentence saying that you've consented to the app sharing your data with third parties for marketing, advertising, or "other purposes."
Byron Tau: Well, other purposes can be a lot of stuff, entire surveillance programs lurk behind the terms other purposes.
Your phone spies on you first and foremost for the purpose of serving you ads. Every Android or iPhone has a unique and supposedly anonymous advertising ID number assigned to it. Companies can use this number to track what apps you have installed, what web pages your device has browsed, and where your phone has physically been. Ad ID numbers are one reason why you can browse an online ad for shoes or yoga pants or underwear—and then that ad will start following you all over the internet.
Weather announcer voice: “And here is your national weather forecast…”
So, when you open up your weather app, it sends a message alerting an automated online marketplace that a pair of eyeballs are currently available to see some advertising. This message could tell the marketplace information like your age, or current location or, let's say, the fact that you'd recently been browsing a particular pair of shoes online. And a company that's put in a request to sell similar shoes to a customer like you buys your ad space. And—all in an instant—this company’s ad appears before your eyes, inside that weather app on your phone.
Byron Tau: A lot of the legal justification that governments and corporations are using is consent. This idea that if you buy a piece of technology, if you start using it, that there's some long privacy policy or terms of service attached to that device, and that buried in there, there's all sorts of clauses that say this corporation that's made this device, that's collecting this data, can pretty much do whatever they want with it, the reality is that once you consent to data collection from a corporation, you cannot know what happens to it afterwards.
To the extent you were aware of this spying, maybe it doesn't seem like such a big deal. The people buying your data are just trying to sell you underwear or yoga pants or shoes. But these online marketplaces have made it possible for other people—with the right know-how—to amass huge databases tracking the locations of MILLIONS of phones over time. And some companies who've realized the surveillance potential of this information have found a new customer willing to buy all of this data.
Byron Tau: About five years ago, somebody at a party told me that the Pentagon was buying large amounts of mobile phone data, from things like ad networks and apps, stuff like weather apps and games, and that data was being repurposed into a tracking tool to do counterterrorism, to do tracking, do counterintelligence. Just through a purely commercial transaction, the government could buy access to the movements of billions of devices and see where people all over the world were going, including people in the United States, and that there were few laws and policies that were restraining this kind of surveillance.
Peter Bergen: So for each one of us, there is this giant lake of personal data that is sort of floating around, and is accessible by pretty much anybody, it sounds like.
Byron Tau: Yeah, anyone sophisticated enough to know where to look.
People in the surveillance business are interested in this data because that supposedly anonymous number associated with your particular mobile device … the ad ID number … Well, it isn't really anonymous.
Byron Tau: These data brokers make the claim that because there's no personal information attached to a device's movement, that there's no privacy harm. But that's not really true, because our patterns in the world are unique to us. I live on Capitol Hill, I go to an office in Georgetown, and I ride my bike most days. I'm the only person that does that, right? These data brokers, when they say that, they're relying on a very technical legal argument that yes, there's no name, there's no phone number, there's no personal information attached, but of course you can very easily derive an identity from the movement of a phone.
Peter Bergen: Because the phone keeps returning to—I'm making the address up, 820 13th Street North East in Capitol Hill—
Byron Tau: That’s right.
Peter Bergen: You live there, maybe there's other people who live in the building, but…
Byron Tau: Right. Once you combine it with something like a workplace or a known hobby, then you can pretty much assume identity.
Peter Bergen: Well, I was fascinated by your book because it really begins with 9/11. So much of the data scraping and selling commercially available data to the government seems to be an outgrowth of the War on Terror. How did that happen? And why?
Byron Tau: I think 9/11 changed the public safety, intelligence, and national security missions of many of these government agencies. For a long time, the military, the intelligence community, they were largely focused on trying to understand the intention of foreign states, and their leaders, and their top officials. Sometimes they were doing counterintelligence, and sometimes they were doing odious things like monitoring civil rights protestors. But by and large, these national security entities were focused on states. The mission suddenly became how to separate out people within a larger population who wanted to do harm.
And that's a very different kind of mission, right? You're suddenly being asked to track people who are operating out of apartments in Germany, or who are embedded in some sort of a larger society, and try to identify people whose behaviors, or whose communications, or whose patterns reveal something suspicious.
There's actually an amazing document from after 9/11 that the FBI compiled, which is a story of the 9/11 attacks told through, what they call transactions. And most of those transactions are actually commercial transactions. Flights that the hijackers boarded, cars that they rented, where they stayed in hotels, all of that -
Peter Bergen: ATM transactions—
Byron Tau: Exactly. Their gym memberships. All of that was categorized by the FBI as part of a way to tell the story of 9/11. And after 9/11, all sorts of smart researchers began asking themselves, well, if we could get bulk amounts of data up front and start scanning for patterns like the ones the terrorists showed, would it be possible to potentially prevent attacks?
Peter Bergen: It seems that there's some traps there because—let's use some hypotheticals—you know, you're a Muslim male, aged 25 who attends mosque relatively frequently. You happen to go to a deli where at one point one of the 9/11 hijackers also went to that deli. I mean, I presume, you're getting, just tsunamis of false positives. I mean as far as I can recall, having studied the 9/11 attacks pretty carefully, there was only one real sleeper cell in the United States. His name was al-Marri. He arrived the day before 9/11, and he clearly was part of Al Qaeda. He pled to that in 2009. I think it was just old-fashioned police work that found him. I mean it wasn't like he was found through some massive trawl through data.
Byron Tau: True. And if you look at some of the early data-broker efforts to try to identify suspicious people, they ended up sweeping up hundreds of thousands of people, and most of those people were of Middle Eastern origin or Middle Eastern descent. And so a lot of it, especially early on, was quite ham-fisted.
Tau has a fascinating example of ham-fisted post-9/11 surveillance that focuses on a prayer app used by Muslims all over the world.
Byron Tau: As part of researching this book, I stumbled upon a bit of malware that seemed to be in predominantly Muslim-themed apps in many cases. One of them was called Al-Moazin. It was an app that helped determine what time you should do the daily Islamic prayer, and it had this very strange piece of software in it that was doing things like scanning the WiFi network around the phone. It was collecting all sorts of information about the phone that wasn't really necessary.
Tau says the prayer app has been downloaded more than 10 million times. The app pointed its customers in the exact direction of Mecca and indicated precisely correct times of day to pray. The app also contained a piece of malicious code that was spying on whoever used it. This bit of code hoovered up information about a customer’s location, identity, and social connections.
Byron Tau: The researchers suspected that this bit of computer code was in millions of phones. We traced it back to a Panamanian-based company that had gone around the world and told developers that, Hey, we have this little piece of software. We're doing sort of network measurement on behalf of you know, big telecom companies or whatever. And if you just put this computer code in your app, we will send you money and you will send us data. As we traced back who owned this Panamanian company, it seemed to resolve back to some defense contractors in the United States.
Peter Bergen: You know, in the 20th century, George Orwell wrote 1984 with the idea that the state wanted to surveille everything about you. There's that wonderful film about the Stasi called The Lives of Others set in East Germany when it was communist and essentially, the Stasi knew everything about you because they had a network of informants everywhere.
But, that model is basically not at all what has happened. I mean, what has happened is that we have just voluntarily given up the right to privacy either because we're too lazy to look into it or because we just don't care or life is too convenient.
Byron Tau: It is a very interesting development that in our free societies we have traded away so much of our privacy for convenience.
None of our technology, none of these systems that we're increasingly relying on for everything are designed with privacy in mind, right? They're all leaching some sort of information about us into the world. And, we don't always know who listens. It's not just governments. It can be private investigators. It can be nosy journalists.
Peter Bergen: So this hypothetical neighbor I'm having a dispute with, if I wanted to find out everything about him or her, that might be either, you know, positive or negative, how would I go about it and what would I find out? Let’s assume I have an unlimited checkbook because I’m in a dispute that is getting pretty serious.
Byron Tau: If you had an unlimited budget, you could probably hire somebody who had access to all sorts of weird and esoteric data sets to dig through every aspect of someone's life and uncover every scrap of information that's ever been recorded about them in a digital data bank.
That’s right. Tau is saying that with the right know-how, someone with hundreds of thousands of dollars to spend could probably just buy up most of the digital footprints you’ve ever left in the world. And that’s because BILLIONS of dollars have been spent by advertisers and tech companies setting up this surveillance network which few people outside of this obscure industry understand. But a small and shadowy group of security companies have started selling this data to spy agencies and—sometimes—private investigators.
Byron Tau: Yeah, I hired one as part of doing the research for my book. You know, $2,500 is for access to location. So, we're talking about location data brokers in this book a lot. And those are brokers who collect information about the movement of things. Usually phones, but often sometimes cars at this point now.
So, This is where we get into some weird stuff. Like if your neighbor goes to a psychiatrist's office every Wednesday, or they go to a sexual health clinic that specializes in treating erectile dysfunction, or if their daughter is at an eating disorder camp, or whatever. Once you start talking about people's physical movements in the world, that's when you can really start to see some interesting stuff. Are they cheating on their spouse? Do they go home every night? Do they go to a motel at the middle of the day and stay for two hours and then go back to the office? All sorts of possibilities when you get that kind of data.
Just to give you an idea of how invasive the possibilities can be. Tau told me about a U.S. Department of Homeland Security official that he met who was trying out a new commercial location data tool and decided to test it on himself.
Byron Tau: What he told me is that, he looked himself up at one point when he got access to this tool, which had the location of phones, and he zoomed in on his house
And then he zoomed in closer, to his bedroom. And then specifically to his bed.
Byron Tau: And he could see that there was one phone to the right and one phone to the left overnight, and he realized that one of those phones was his wife and one of those phones was his, and that the location was possibly precise enough to show which side of the bed he was keeping his phone on. That is what the data showed when he looked himself up. And, you know, this is the same data set that law enforcement is relying on, to try to solve crimes and to do all sorts of other things.
When Tau is talking about law enforcement, he doesn't mean the feds. He's talking about local cops, maybe in your town, tapping location data from cell phones to solve crimes. Some of this is the commercial advertising data bought on the open market that you just heard about. And you'll hear some MORE about that in a few minutes. But first... I want to talk about a far more common way that local police are using location data from phones like yours. And to do that I need you to meet a guy named Eric Grabski.
Eric Grabski: I help attorneys figure out where people are (laughs).
Grabski is a private investigator with a company called Envista Forensics. Law firms often hire him to defend people accused of crimes. But in a previous life, Grabski used to work for the cops.
Eric Grabski: If you ask some of my old partners from when I was in law enforcement, I went to the dark side.
Over the three years he worked for the state of South Carolina’s Law Enforcement Division, Grasbski spent most of his time tracking people via their cell phone data.
Eric Grabski: We were people finders. That was the long and short of it right there. My particular job was specifically to take a look at the digital evidence that had location information in order to help pinpoint exactly where someone was.
Every seven seconds or so, your mobile phone pings a signal to the cell towers nearby. Phone companies keep records of all these contacts and police have realized they could review these records to find out if someone was present at the time and place where a crime happened. Cell towers can cover large geographical areas, so the location data isn't nearly as precise as that blue dot on Google Maps. But this form of tracking is much harder to opt out of.
Eric Grabski: If you are paying for cell service, your cell phone is going to be communicating with cell towers, period. Because what you're doing when you pay your bill is you're saying, yes, I want to use your service. If you have service with a major provider, you're not hiding.
These records can show what part of town you were in, and who you’ve been communicating with. Police need to go to court before they can dig into this kind of information. The same is true for the location data held by Google.
Eric Grabski: It depends on the jurisdiction, but that could either be a court order or a search warrant, so they'll sign up, write up an affidavit. Someone will write up an affidavit to say this is the reason why we want to go and track Peter's phone. He's wanted for these crimes or these are the reasons, these are the exigent circumstances, whatever it is, that allows then a judge to say, okay, yep, we'll allow it.
And once a judge allows it, there's an impressive amount that police can learn about a suspect.
Eric Grabski: What I'm going to be able to tell is basically, what I call a pattern of life. I conduct this analysis all the time.So we can go back, and see if, hey, looks like he, checked in at the airport right around this time, made a call to his wife. It looks like he's traveling. to, uh, you know Las Vegas. Okay, that coincides with the conference that we know he attended. All right, good to go. So we can essentially trace back your comings and goings where you went and who you were calling, who you were talking to.
And Grabski says this information becomes evidence in all kinds of criminal court cases.
Eric Grabski: Anything from a theft, robbery, all the way up to murder.
Grabski used to be in the business of finding certainty with this data for the prosecution. Nowadays, more often than not, he's working for the defense...You might say now that Grabski's in the business of doubt. And he says his experience has taught him that cell tower data isn't always as precise as a layperson might think.
Eric Grabski: There are some records that we know that aren't as reliable as other types of records. There are times where there is some doubt, right? And so it's very important for the court to understand that while this can be used in live investigations and it can be helpful certainly for locating potentially where a phone was historically. It's not necessarily completely foolproof because we still can't say that, you know, the phone wasn't next door.
Grabski says he's seen prosecutions overstate the precision of cell tower data in lots of ways. But maybe the most common one is prosecutors exaggerating the coverage area of a cell tower to include an unrealistically distant crime scene.
Eric Grabski: I've seen it where we had a crime scene on the north side of Atlanta, and a tower was being used on the south side of Atlanta. I'm talking miles and miles apart. One tower isn't going to cover all of Atlanta. So folks like me come in to say, hang on a second. This isn't the way that these networks operate. It's impossible actually for that to occur. And here's why. From cell tower location information, yeah, it's not quite as cool as CSI makes it out to be.
Grabski's not saying that police shouldn't use cell phone tracking data to catch criminals. He thinks it's a necessary tool for anyone trying to police an increasingly digital world. Grabski just thinks it's important that police don't act like SECRET police. He thinks local investigators rightly need to get a judge's permission before delving into your cell phone records. And he thinks the accused should be given a chance to challenge those records in court.
Eric Grabski: People are in prison because of this stuff. It is used very frequently in our court system and there's a lot of weight being put on it, obviously because we all have cell phones. If your cell phone records are being used against you, definitely make sure that you've got the right person in your corner to either say “Yeah, this doesn't look too great for you” or “Hey, hang on a second, we got an issue here and we need to raise this issue.” It can be easily misrepresented, and it's often enough that it should raise a concern.
We've been fortunate enough to get a few cases where we had some charges dismissed or not prosecuted because we were able to show, Hey, look, actually, if you analyze these records properly, that phone could not have been at the crime scene. And sometimes those are on murder cases where this defendant's been sitting in jail for years.
(Music)
I mentioned before that I was going to come back to the other kind of cell phone data. The stuff that’s for sale on the open market, where no one needs a judge's permission to buy or use it. Like the data that showed a Homeland Security official what side of bed he slept on.
This is the data at the heart of our story about US intelligence agencies tapping into this new form of surveillance in the wake of 9/11. And I want to come back to it because of the next turn this story took. That's when local police started tapping into this commercial location data, too. And so I want you to meet another veteran of local policing. His name is Davin Hall, and he isn’t the kind of guy who craves the spotlight.
Davin Hall: I work in front of a computer screen, and I'm happy to do so. Don't like cameras, don't like, uh, being recorded. I'm very uncomfortable right now.
Hall worked for the police department in Greensboro, North Carolina for six years—three years as a crime analyst, and another three as the supervisor for the crime analysis unit.
Davin Hall: Our primary task was identifying crime trends that were going on in the city. basically just trying to interrupt those crime patterns for the overall purpose of crime reduction.
Hall says his attraction to the work was simple. He wanted to help people. To protect and to serve. But while he was a police officer, he says he saw some things that disturbed him. And so he stepped out of his comfort zone to talk to us about one of those things—an app, marketed to local police departments, with the wonderful name of Fog Reveal.
Davin Hall: It was described as kind of a data-gathering tool that would collect cell phone information for the purposes of identifying suspects in a crime.
Hall says higher ups at the police department asked his team, the crime analysis unit, to take charge of using Fog Reveal in investigations. The idea was to find and identify people - using commercial ad data. Remember ad ID numbers?
Davin Hall: That's a long string of numbers and characters and looks kind of just like random gibberish.
Those numbers assigned to a person’s phone that help businesses track where you've been, what you’re buying—or thinking about buying—they're part of why that ad for shoes or yoga pants or underwear keeps following you all over the internet. This new tool was taking that technology to help local cops follow you all around town.
Davin Hall: Fog Reveal captures that ad ID number and the location and time of those pings and then provides that to their customers, primarily law enforcement.
Hall said when he saw the Fog Reveal interface up and running, it looked a little bit like Google Maps.
Davin Hall: It's just like a map on your screen, and you can pan around, zoom in and zoom out, sort of like a map that you use to find directions for where you're gonna go to the restaurant or wherever, except in this case you're putting in information on tracking people.
And he said you tracked people by first drawing boxes around a location of interest. Like, say the scene of a couple of robberies that you’re investigating—to see whose cell phones showed up there.
Davin Hall: It's called geofencing. So then if you had a burglary over here, and you had a burglary over there, and you thought that they were the same person. Draw a circle around one, get all the mobile devices that were in that area. Draw a circle around the other one, get all the mobile device numbers that were in that area, and then take those two lists and overlay them to see if there was a unique number that shows up.
Once you've found a unique cell phone that shows up at both crime scenes at the right time, you've got a potential suspect. And next, Hall said, you could take that suspect's ad ID number and run it through a different tool offered by Fog Reveal.
Davin Hall: You input a single ad ID number and then it returns all the data associated with that ad ID number. And it connects all the points where that device pinged. And then it draws a line connecting all those points so you can see kind of a path that this device has taken over the past 30 days. It's very zig-zaggy. But from that you will still start to see patterns emerge. And you will start to see where these points are clustering. And that's how you kind of get the sense of where somebody lives or works.
This is what former police officer, Eric Grabski, would call a person's "pattern of life." But in this case, no detective had to show cause or ask a judge for permission to burrow into this person's life. The investigator simply bought the information from Fog Reveal, who bought it on the digital advertising market.
Davin Hall: What makes it different is that it doesn't require a warrant. Police can access it whenever they want and can perform as many searches as they want without any kind of oversight at all.
And once Hall realized that—he started to get concerned.
Davin Hall: What made me the most uncomfortable was that it was very clearly a workaround to violate Fourth Amendment rights.
The Fourth Amendment of the US Constitution is the one that protects against unreasonable searches by the government. Hall started looking up court cases and then took his concerns to the police attorneys at the Greensboro PD. They told him the ad ID numbers weren’t personally identifiable information because no names were attached. Because the data was technically anonymous, and they said no warrants were needed. Hall wasn’t buying it.
Davin Hall: It’s absolutely not anonymous. I think that's absurd, if it was anonymous, it wouldn't be of any use to the police at all. Uh, we wouldn't be having this conversation.
Hall's point is that once you know where someone works all day, where they hang out for fun, and where they lay their head at night, you know who they are. In one way or another, the journalist Byron Tau, and our police veterans Eric Grabski and Davin Hall have all pointed to the same basic truth: assemble enough points of data over time, and location IS identity. And to Hall, using Fog Reveal in Greensboro seemed like a cheat sheet for making an end run around the Fourth Amendment.
Davin Hall: There really wasn't any gray area in looking at it for me. If police are there to serve and protect, part of what they are protecting is our constitutional rights. And this was the opposite of that.
Fog Reveal is owned by a company called Fog Data Science. When we contacted them for comment, Fog noted that they’re just one small operator among many companies… all selling this type of data to law enforcement, intelligence and other agencies. They correctly pointed out their service is perfectly legal under existing law. They said their data has been useful in catching criminals, finding missing people and has quote, “helped rescue and protect hundreds of children around the world.” They also said their data is, quote, “non-personally identifiable.”
Davin Hall: If that were true, it wouldn't be of any use to law enforcement at all because you wouldn't be able to identify anybody with it. The entire point of the software is to use it to identify individuals.
In marketing materials, Fog claims to process information from more than 250 million digital devices per month in the United States. That sales pitch is hard to independently verify. But at least some local law enforcement agencies seem to be buying it. In 2022, a digital privacy group called the Electronic Frontier Foundation found that more than a dozen local police agencies across the United States had past or ongoing contracts with Fog Reveal.
Davin Hall: It allows the police to conduct searches in ways that they would not be able to otherwise. Using technology to peer deeply into the lives of any member of the public without any kind of judicial oversight, no outside agencies looking at what's going on. No watchdog groups.
Hall says to his understanding, the Greensboro department has let their Fog Reveal subscription lapse. It could be that not enough suspects have installed location-tracking apps to make Fog Reveal as powerful as advertised. But Hall says that’s really besides the point. It’s what comes next that worries him.
Davin Hall: The tools that are being developed to sift through and analyze that data are becoming more and more powerful. Honestly, there's almost too many ways in which we are surveilled at this point. It's kind of a losing battle. The police have not demonstrated that they can be trusted with this kind of technology.
Hall has a particular and personal perspective on all this. In his years with the police department, he said he became more broadly disenchanted with policing in general. He came to believe that the system policed communities unequally and failed in the service-and-protection mission that he’d signed up for. Hall quit the department in 2020. His concerns about Fog Reveal and location tracking weren't the reason for his leaving, but he saw the program as a symptom of the larger issues that spurred his departure.
Davin Hall: I look like a white man. I don't draw the attention of the police in ways that are discriminatory. Black people are policed differently than white people in this country. Hispanic people are policed differently. And, what these tools do is, it directs their efforts more intensely on these marginalized populations.
And Hall's worries about warrantless location tracking go beyond legal concerns about the Fourth Amendment. He worries about people who might be targeted with tech like this - whether they’re committing crimes or not.
Davin Hall: There's a lot of work that the government does to identify who people are who are doing things that they don't like that aren't necessarily illegal.
Those geofences that you heard about—police can draw them around crime scenes. But if they don’t need warrants, they could also draw them around other locations, too.
Davin Hall: You could draw that geofence around abortion clinics, and you would get all the ad ID numbers that are coming back from there. For something like a protest, they're often, kind of localized in an area, draw that around the area where you know protesters are congregating, and now you have a whole list of these device numbers.
The problem isn't the data. The problem isn't all this information.
The problem is who's looking at that information .... and what they might do with it down the road.
Davin Hall: I heard somewhere that in East Germany, before the collapse of the Berlin Wall, that one in six people were informants to the Stasi. And there were, you know, miles of filing cabinets, basically, with records. You know, that amount of data, it's a small fraction of the digital data that we are producing on a daily basis. You know, there's not really much of a comparison right now, to any other point in history.
The Stasi were some of the most feared secret police in modern history. And even if the ratio was closer to one informant for every 60 citizens—I take his point. It was a hell of a lot of surveillance. In its four-decade existence, the Stasi managed to generate a volume of records that roughly equaled everything Germany had produced to that point since the Middle Ages.
And in today's digital fishbowl, you and I and everyone we know are probably generating a much bigger record of surveillance than that.
(Pause)
Maybe you’re hearing all this and saying, look "I'm a law-abiding citizen. What's the big deal?
And you know, I'm a law-abiding citizen, too. At least right now. But that has as much to do with the state of the law as it does the state of my behavior. Because laws can change. A protest you attended could be declared an illegal riot. A doctor visit to help jumpstart a pregnancy—or to end one—could suddenly become a crime.
ARCHIVAL Newscaster 1: Many fertility clinics have paused treatments over fears they could be prosecuted.
ARCHIVAL Newscaster 2: What happens if somebody leaves Missouri and goes to Illinois for an abortion? To what extent will they be surveilled or criminalized?
ARCHIVAL Newscaster 3: New warnings for women who use fertility apps. Could that data be used to surveil pregnant women?
(Music)
Fog Data Science told us that the data aggregators that supply Fog’s services have implemented policies to avoid collecting phone signals from quote “sensitive” locations, like medical facilities. Without independent oversight, we’re left taking Fog’s word for it about how that would work, or even if it’s technically feasible. Some US tech companies ARE taking small steps to limit how much location data they track. Apple's recent iPhone updates have started disabling location tracking in many apps by default. Google says it intends to stop storing users’ location history data on its servers by the end of 2024. But that can’t change the fact that anyone with a smartphone long ago surrendered to a situation where—to borrow a line from Thomas Pynchon—all the cats are jumping out of all the bags and even beginning to mingle.
Byron Tau: I would say the trends are a bit alarming, right? Like, in general, we are trending towards more government access to private information. And we're also trending towards putting more and more of our private information in the hands of corporations. And once we do that, we lose some control over what happens to it.
Peter Bergen: There's a famous quote from Henry Stimson when he was U. S. Secretary of State in the 1920s, which is “Gentlemen don't open each other's mail.” Seems like we're kind of a long way from that.
Byron Tau: We are a long way from that.
(Music)
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If you’re interested in learning more about the issues and stories in this episode, we recommend Means of Control: How the Hidden Alliance of Tech and Government Is Creating a New American Surveillance State by Byron Tau. We also recommend Stasiland: Stories from Behind the Berlin Wall by Anna Funder. Both are available on Audible. And there’s also a great German film about the Stasi, The Lives of Others.
And a quick note about the show. For the next few weeks you won’t be hearing from us. We’ll be busy working on a bunch of new episodes and returning to our regular weekly schedule in mid-August.
And that's also when we will be moving exclusively to Audible—where you'll still be able to hear the show for free—and to the SiriusXM app. I hope you will stay with us.
CREDITS:
IN THE ROOM WITH PETER BERGEN is an Audible Original.
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Sound recording copyright 2024 by Audible Originals, LLC
