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By Anne Toomey McKenna, University of Richmond,via The Conversation

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.

Fog Reveal 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 tools 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. EFFs 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 Courts Dobbs v. Jackson Womens 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 users 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.

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 Constitutions 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 someones 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.

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 subscribers 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 phones user, they can easily be traced to homes and workplaces to help police identify the user and establish pattern-of-life analyses.

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 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 persons communications, or track a persons location.

Coupled with Fourth Amendment protections, ECPA generally requires law enforcement agencies to get a warrant based on probable cause to intercept someones communications or track someones 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.

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.

ADPPAs future is uncertain. The app industry is strongly resisting any curtailment of its data collection practices, and some states are resisting ADPPAs 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 states 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.

Anne Toomey McKennais a Visiting Professor of Law at theUniversity of Richmond. This article is republished from The Conversation under a Creative Commons license. Read the original article.

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What is Fog Reveal? Legal scholar explains app some police forces are using to track people without warrant - Study Finds

A Marion County judge gave the order releasing Caden Smith, who is charged with killing three friends on the south side last October.

INDIANAPOLIS A teenager accused of killing three people last year is at home with an ankle bracelet, instead of behind bars.

A Marion County judge gave the order releasing Caden Smith, along with throwing out key evidence in the case.

Family members of the victims call that decision dangerous and say they're frustrated with the courts. They expected to be in a courtroom Monday, watching justice begin to play out.

"He was just a really good person, great father, loyal to his family. He's just truly missed," said Michael James Jr.'s mother, Gladys Larsen.

It's been one year since Larsen was murdered, one of three young men shot multiple times and left in a field on the south side of Indianapolis.

"Surreal," said Michael James Sr. "I've experienced losses, but nothing like this."

His parents are stunned that a judge recently let his accused killer out of jail.

Smith's trial, which was originally supposed to start Monday, has been stalled. The judge in the case released the teenager with a GPS ankle monitor. He's at home and just can't leave the state.

"I'm at disbelief. Really puzzled," James said.

"I just don't understand how and why this is being allowed," Larsen added.

Smith is accused of killing James, Abdulla Mubarak and Joseph Thomas on two separate days last October.

According to court documents, IMPD detectives say they found the gun matching bullet fragments in the boys' bodies in Smith's home on West Thompson Road, along with a bulletproof vest, bags of drugs and several cell phones with internet searches like "Does freezing a gun remove DNA" and "How many deaths is considered a mass murder."

But Marion County Judge Jennifer P. Harrison recently ruled that law enforcement violated Smith's Fourth Amendment rights in the search warrant, even though the original warrant was signed and approved by another judge.

Harrison also suppressed key evidence in the case, including the alleged murder weapon.

Family members, including the mother of Michael's young children, call the decision dangerous.

"I've got kids here and now I've got to sit here and think if this kid cuts off his anklet, is someone gonna get him in time before he's gone?" she asked. "And now I have to worry about my kids."

"I think it is very dangerous," Larsen said. "You find the murder weapon in someone's home and you set them free on GPS? Who's to say this is not going to happen again? Who's to say he's not going to seek revenge on family members? There are a lot of variables here we are very concerned about. I am actually a former Chicago police officer and I do not put anything past Caden Smith."

The Marion County Prosecutor's Office objected to Smith's release and Indiana's attorney general has now filed an appeal in the case. Prosecutors also asked for, and were granted, a stay in the case until the appeal is heard.

Attorneys are set to meet again in January.

Family members of the young men killed say they just want justice.

"We have to put things in motion so we can get Caden Smith back behind bars where he belongs before he hurts someone else," Larsen said.

"I'm just in disbelief, because these three young men don't have a chance to share love and be with their families anymore," James added, "because a lot of families were affected by this heinous act."

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Accused killer sent home in Indianapolis triple murder trial; evidence thrown out - WTHR

SALT LAKE CITY The Utah Court of Appeals has reversed a sex offender's conviction after they say prosecutors failed to notify him they'd charged him or were prosecuting him.

In to a 74-page document filed by the Utah Court of Appeals on Friday, Judge Ryan Harris said the appellant, Chad Hintze, wasn't made aware of a charge against him for two years.

The charge, according to the documents, stemmed from an incident in June of 2016 in which Hintze and a teenage girl were eating and sitting on a park bench along the Jordan River Trail. Hintze and the girl were approached by three uniformed officers on bike patrol.

Hintze wasn't permitted to be there because he was convicted of attempted unlawful sexual activity with a minor in 2011. He was required to register as a sex offender following that incident.

For the 2016 incident, Hintze was ultimately charged by the state with one count of violation by a sex offender of a protected area.

Judge Harris' opinion in the documents goes on to say the state did not immediately file charges against Hintze.

In March of 2017, Hintze was charged with forcible sexual abuse, which is considered a second-degree felony. This incident happened in a separate and unrelated case. In August of 2017, Hintze was sentenced to a prison term of zero-to-five years based on that conviction.

"He should have spent separate times in jail for his two separate offenses," said Danielle Ahn, a candidate for Salt Lake County District Attorney.

Instead, Ahn says, he was punished for just the incident that took place in 2017.

It's something Ahn says is unacceptable.

"It's an injustice to the defendant, it's an injustice to the community and to the victim," she said.

FOX 13 News sat down with Salt Lake County District Attorney Sim Gill Monday afternoon. He said the 2016 case involving Hintze was filed in 2018, which is within the two-year statute of limitations.

"When this case was filed, he had apparently been gone to prison, so we filed the charges, we asked for a warrant," said Gill.

Looking back on the case, Gill said Hintze was not served that warrant until the Board of Pardons was reviewing his case, while Hintze was housed in Kane County.

As for the Utah Court of Appeals decision, Gill says another issue brought up pertaining to that 2016 case was the underlying issue of the initial police contact, and whether that violated Hintze's Fourth Amendment rights in terms of probable cause.

"There was a hearing that was done, that at that time, the state prevailed on that," Gill said. "Tthe court ruled and they overruled."

FOX 13 News asked Gill about Hintze's status and if he was a free man at the moment, but the DA said he didn't know whether Hintze was in custody or not.

Bethany Crisp is the outreach coordinator with the Utah Coalition Against Sexual Assault.

"We just help, you know, create that statewide collaboration," she said.

Crisp said that in her line of work, victims often have a difficult and traumatic time when reporting crimes against them.

"The Rape, Abuse and Incest National Network show that more than two out of every three sexual assaults go unreported," she said.

Crisp said some victims go through a lengthy trial only to then see the perpetrator walk free, which she says also makes it difficult for many of them to decide if they want to want to report that kind of crime or not.

"That's why this matter of reporting and making sure that people feel comfortable reporting is a public health concern," said Crisp.

In a split ruling, judges ruled that Hintze's Sixth Amendment right to a speedy trial was violated. On that basis, they decided to reverse the conviction and remand with instructions to dismiss the charge from 2016.

FOX 13 News also spoke with former federal judge Paul Cassell about the dismissed case.

"So this was a case in which the DA'S office had filed charges and then took no action for two years to move the case forward," said Cassell, who is now a criminal law professor at the University of Utah, "And so if we're looking for who's responsible for the delay here, the Utah Court of Appeals has said the Salt Lake DA'S Office is the one that's ultimately responsible for moving this case forward and failed to do so."

Cassell went on to say that if the charges had been filed properly, it could have prevented the other crime from taking place.

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Utah Court of Appeals reverses sex offender's conviction, claiming state failed to prosecute case for 2 years - FOX 13 News Utah

petitions of the week ByKalvis Golde on Oct 14, 2022 at 6:10 pm

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions were watching is available here.

In a case that prompted satirical news outlet The Onion to file its first-ever amicus brief in the Supreme Court, an Ohio man sued police for violating his constitutional rights when they arrested him for creating a Facebook page parodying the local police department. This week, we highlight cert petitions that ask the court to consider, among other things, whether those officers are entitled to qualified immunity.

Anthony Novak, a resident of Parma, Ohio, created a Facebook page with the same name, cover photo, and profile picture as the city police departments page. In the 12 hours Novaks page was live, it went viral thanks to six satirical posts announcing, for example, a new hiring initiative strongly encouraging minorities not to apply and a no means no fair at which residents could remove their names from the sex-offender registry by completing a series of puzzles.

After obtaining a warrant to investigate the owner of the page, police arrested Novak under an Ohio law that makes it a felony to disrupt, interrupt, or impair police operations. Novak was acquitted at trial. He then sued the officers who arrested him for violating his First Amendment right to freedom of speech and his Fourth Amendment right to freedom from unreasonable searches and seizures.

The U.S. Court of Appeals for the 6th Circuit granted the officers qualified immunity. Before taking down the page, Novak had copied a disclaimer posted on the departments real Facebook page decrying the fake account and deleted user comments that his own page was a parody. Because no court case has clearly established that those actions are protected speech, the 6th Circuit held, the officers could reasonably believe that some of Novaks Facebook activity was not parody protected under the First Amendment.

In Novak v. City of Parma, Ohio, Novak asks the justices to clarify when qualified immunity is available if the justification for probable cause relies on speech. He argues that his arrest was retaliation for his speech, and that the officers conduct was an obvious constitutional violation not entitled to qualified immunity. Novak also points out that the 6th Circuit originally sided with him at an earlier stage in the case: Imagine if The Onion, Judge Amul Thapar wrote, were required to disclaim that parodical headlines are, in reality, false.

Answering that call, The Onion filed an amicus brief in support of Novaks petition from the court of appeals subsequent ruling for the officers. In urging the court to take up the case, the magazine tells the justices that the 6th Circuits ruling threatens to disembowel a form of rhetoric that has existed for millennia, that is particularly potent in the realm of political debate, and that, purely incidentally, forms the basis of The Onions writers paychecks.

Donziger v. United States22-274Issues: (1) Whether Federal Rule of Criminal Procedure 42(a)(2) authorizes judicial appointments of inferior executive officers; and (2) if so, whether such appointments violate the appointments clause in Article II, Section 2 of the Constitution.

Pavlock v. Holcomb22-282Issues: (1) Whether a judicial taking under the Fifth and 14th Amendments is a cognizable cause of action; and (2) whether a property owner who is deprived of property under the authority of a state court decision may seek prospective injunctive relief in federal court to halt encroachment on their property by state officials acting under the authority of that decision.

Novak v. City of Parma, Ohio22-293Issues: (1) Whether an officer is entitled to qualified immunity for arresting an individual based solely on speech parodying the government, so long as no case has previously held the particular speech is protected; and (2) whether the court should reconsider the doctrine of qualified immunity.

County of Ontario, New York v. Gunsalus22-294Issue: Whether the U.S. Court of Appeals for the 2nd Circuit erred in refusing to extend the holding ofBFP v. Resolution Trust Corp.to a lawfully conducted tax foreclosure, where New York tax foreclosure law provides for ample notice, opportunity to cure and judicial oversight of the process, and where there is no evidence of a clear and manifest intent by Congress to allow11 U.S.C. 548to impinge upon the important state interests in securing real estate titles and collecting real property taxes.

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With The Onions support, satirist asks court to revive lawsuit against police who arrested him - SCOTUSblog

When Jess Alberto Guzmn Curipoma, an engineer in Ecuador, decided to escape rampant gang violence and head to the United States last fall, he did not imagine the legal dragnet that would ensnare him. Curipoma knew a bit about the asylum process in the U.S. and planned to turn himself in to federal immigration authorities at the border. But a few months before he began his journey north, Texas governor Greg Abbott launched a showy initiative, Operation Lone Star, under which Texas law enforcement agents were deployed to arrest thousands of immigrants on state trespassing charges. When Curipoma crossed the Rio Grande into rural Kinney County in September, he was arrested by state troopers, not federal agents. Then, because Kinney County was arresting so many migrants and could not handle its caseload, Curipoma spent weeks in a Frio County jail, about one hundred miles to the east, awaiting a hearing.

Curipomas family contacted Angelica Cogliano and Addy Mir, Austin-based criminal defense attorneys, who secured his release. As his hearing was delayed with no relief in sight in backlogged Kinney County courts, Cogliano filed a writ of habeas corpus in Travis County, home to Austin, arguing that the operation that had imprisoned her client had unconstitutionally violated the preemption doctrine, which holds that state laws cannot interfere with federal authority on matters of immigration or otherwise. A state district judge agreed, finding that Operation Lone Star was indeed preempting federal immigration enforcement. Even the Travis County district attorneys office, our adversary at the hearing, agreed with us, and we were all in tears after that, Cogliano said.

On the heels of the ruling, the future of Abbotts program appeared in peril. Texas RioGrande Legal Aid, a nonprofit providing legal services to those in poverty, filed more than four hundred cases in the Austin court that issued the Curipoma decision. But Kinney County appealed in February on the basis that it, not Travis County, was the proper venue for the hearing. The Curipoma case, along with the hundreds of similar ones, has been held up since then.

As their clients fates remained in limbo, many lawyers representing migrants hoped that constitutional lawyers would bring a larger challenge to Abbotts border security initiative that could offer wholesale relief. Preemption was on the radar of everyone litigating criminal cases in Operation Lone Star, Cogliano said. She reached out to S. Rafe Foreman and Susan Hutchison, Fort Worthbased attorneys, and convinced them to get involved in bringing a larger suit.

In April, Hutchison, who has spent the better part of four decades working on employment discrimination and civil rights cases, sued state officials in the U.S. District Court for the Western District of Texas. She brought claims on Fourth Amendment and equal-protection grounds, arguing that Operation Lone Star enforcement constituted an unreasonable search and seizure and targeted her clients because of their race. But, above all, Hutchison built her case on preemption. There was a widely held view among attorneys and other legal experts that Texas officials were in flagrant violation of a 2012 Supreme Court ruling that found that an Arizona show me your papers law interfered with federal immigration authority. In June of 2021, the American Civil Liberties Union argued in a letter to Kinney County officials that state and local officials had no grounds for enforcing federal immigration laws, citing the federal preemption doctrine. In the fall of 2021, more than two dozen members of Congress, including Joaquin Castro, a Democrat who represents much of San Antonio, sent a letter to U.S. attorney general Merrick Garland and Alejandro Mayorkas, head of the Department of Homeland Security, accusing Abbott of violating the Constitutions Supremacy Clause, from which the doctrine of preemption is derived.

And yet, months later, the preemption challenge has not come. Hutchison says that, from the outset, the ACLU privately urged her against bringing forward a case built on preemption, and the Department of Justice never rallied around her lawsuit. While representatives in neither organization granted requests for interviews about their rationales, some legal scholars believe the organizations feared that the federal judiciary had shifted so far to the right that itwould use the Operation Lone Star suit to overturn the Arizona precedent. Everybody and their brother, including the ACLU, was telling us to drop the preemption claim, Hutchison said. And considering the current state of the Fifth Circuit, and the Supreme Court, making a preemption argument might just be giving Texas a chance to overturn Arizona, or at least make it super narrow.

Josh Blackman, a law professor at South Texas College of Law Houston, said the refusal to sue on preemption grounds is part of a larger strategy to avoid bringing precedent-setting cases before the Supreme Court with its 63 right-wing majority. To avoid adverse precedents, sometimes you make the decisions you may not like. Thats just how litigation works, Blackman said.

Hutchison has subsequently refocused her case, dropping the preemption argument in favor of the equal-protection and Fourth Amendment ones. Regardless of how her ongoing lawsuit on those grounds resolves, experts think Texas has already won in many respects. Abbott and state leaders have designed a program that made clever use of the states existing criminal infrastructure to avoid a sweeping lawsuit for more than a year and counting. An official in Texas attorney general Ken Paxtons office, speaking on the condition of anonymity, told me that Paxton believes Arizona was incorrectly decided, but added with a dash of bravado that the precedent doesnt apply to Operation Lone Star in the first place, since the program simply relies on enforcing Texas laws already on the books, including laws against trespassing.

Cogliano acknowledged that the programs design makes it hard to challenge. Texas wants Arizona reversed, but instead of tackling it directly, and creating state laws that let us litigate them on their face, theyre hiding from it under the blanket of criminal justice, she said. Texas is a mastermind at manipulating the way the legal system is supposed to work.

Many lawyers argue, nonetheless, that Operation Lone Star does, in fact, preempt federal immigration authority, even if not by letter of the law. Geoffrey Hoffman, a former professor and director of the immigration clinic at the University of Houston Law School and a newly appointed immigration judge in Houston, said, While they are prosecuting for trespass, a state-level crime, the actual implementation has been to enforce immigration law, and that interferes with federal policies and the federal statutory scheme. He and other lawyers point to the evidence of who is being arrested on trespassing charges. In Kinney County, for example, officials say that law enforcement agents have arrested just three individuals for trespassing who were not immigrants since Operation Lone Star beganagainst the more than four thousand arrested who had just crossed the border.

Lawyers also note that Abbott speaks of Operation Lone Star as a border enforcement initiative, not one designed to stop trespassing. The governor has repeatedly referred to the program as a way to secure the border despite what he identifies as the Biden administrations refusal to do so, and hes said the policy will senda message to those south of the Rio Grande to not attempt a crossing. He also once tweeted that Lone Star was a program to arrest and jail illegal immigrants. Operation Lone Star prosecutors have spoken of the program in similar terms. When the first migrant defendant arrested under Operation Lone Star was convicted in May and sentenced to a year in jail on a misdemeanor, Tony Hackebeil, the San Antoniobased prosecutor in the case, declared the ruling had sent a message to those considering crossing the border. The trespassing prosecution, he seemed to suggest, was just a means to an end.

The Biden administration sued Texas in July of last year over a specific Lone Star directive that sought to prevent drivers from transporting migrants suspected of carrying COVID-19. And the Texas Tribune and ProPublica reported this July that Justice Department officials are investigating Operation Lone Star for alleged civil rights abuses. But Texas lawyers say the Department of Justices silence on Texass overall enforcement activities appears to acknowledge a legal disadvantage. Others say federal authorities might even be cooperating with Texas. Homeland Security and the Texas Department of Public Safety declined to comment for this story, but according to Amrutha Jindal, chief defender of migrants arrested under Lone Star at the Lubbock Private Defenders Office, the state initiative would not be possible without the support of federal immigration authorities. Were seeing the U.S. Border Patrol apprehend individuals that they later turn over to the Texas Department of Public Safety for prosecution, and then federal law enforcement picks them up after theyve posted bond or their case is complete, Jindal said. And state law enforcement relies on Border Patrol technology, and sharing information over radio dispatch channels.

Meanwhile, as the Curipoma case has been appealed, it has become effectively impossible to pursue habeas corpus relief for migrants.The high [we felt with the release] of Curipoma has been stomped on by our inability to address the real issue, Cogliano said. She added that she understands the risks of challenging Operation Lone Star more broadly, but that playing it safe offers little comfort to her clients. Since his release, Curipoma has settled in Texas and has kept busy working on his graduate dissertation in engineering, but many others like him remain imprisoned while awaiting long-delayed trials. The Biden administration doesnt have to look our clients in the face. They dont see the desperation, or what theyre enduring in prison, Cogliano said. There comes a point when you have to stop being scared.

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Some Texas Lawyers Think Greg Abbott's Border Initiative Is UnconstitutionalBut They're Afraid to Challenge It - Texas Monthly