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Police Departments’ Purchase of Tracking Tool Collecting Location Data Without a Warrant Raises Fourth Amendment Concerns

by Jo Ellen Nott

In July 2022, the Virginia State Police paid $15,000 to purchase a subscription from Fog Data Service for its Fog Reveal tracking tool according to ABC 8 News in Richmond. Increasingly, law enforcement agencies across the county are using concealed cellphone tracking data to follow users’ movements months back in time.

Fog Data Science purchases and collects location data from software apps on smartphones.  That aggregated data is then sold to marketing firms and law enforcement agencies.  A Fog Data Science spokeswoman reminds us that when you download an app, you give the app the right to track your location and to share the information when you click “yes.” 

ACLU of Virginia Senior Staff Attorney Matt Callahan told ABC 8 News that “it is likely that very few of the end users who install these apps understand in a practical sense that their data may end up in the hands of police.  While Fog Reveal may not itself store what it considers to be ‘personally identifiable information’ about the people whose data it aggregates, the data it is selling is often enough to identify people.” 

The Virginia State Police Public Relations department claims “the app does not provide real-time location data, nor does it provide any personal identifying information.”  If the tracker reveals any evidence relevant to an ongoing criminal investigation, then a special agent of the state police must obtain a warrant to search for additional information.   

Privacy advocates are still concerned that the technology allows authorities to examine location data without a warrant.  The ACLU of Virginia calls Fog Reveal an invasive surveillance technology that raises Fourth Amendment concerns.  The civil liberties group points to the Supreme Court ruling that long-term electronic surveillance without a warrant could violate the Fourth Amendment.

Beryl Lipton, an investigative researcher at the Electronic Frontier Foundation, a digital privacy rights advocacy group, told ABC 8 News that law enforcement circumvents obtaining warrants by purchasing commercially available data. 

Lipton noted the need for policies and oversight of law enforcement agencies to protect citizens’ sensitive personal information.  The researcher also calls existing laws and regulations to address the rapid evolution of technology and its incursions into personal privacy “inadequate.”  

Because a conversation did not take place before the Virginia State Police bought the subscription to Fog Reveal, the ACLU of Virginiaencourages an open and substantial debate with the public before any new technology is adopted by the police.   

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