NEW YORK (AP) — Civil rights lawyers and Democratic senators are pushing for legislation that would limit U.S. law enforcement agencies’ ability to buy cellphone tracking tools to follow people’s whereabouts, including back years in time, and sometimes without a search warrant.

Concerns about police use of the tool known as “Fog Reveal” raised in an investigation by The Associated Press published earlier this month also surfaced in a Federal Trade Commission hearing three weeks ago. Police agencies have been using the platform to search hundreds of billions of records gathered from 250 million mobile devices, and hoover up people’s geolocation data to assemble so-called “patterns of life,” according to thousands of pages of records about the company.

Sold by Virginia-based Fog Data Science LLC, Fog Reveal has been used since at least 2018 in criminal investigations ranging from the murder of a nurse in Arkansas to tracing the movements of a potential participant in the Jan. 6 insurrection at the Capitol. The tool is rarely, if ever, mentioned in court records, something that defense attorneys say makes it harder for them to properly defend their clients in cases in which the technology was used.

“Americans are increasingly aware that their privacy is evaporating before their eyes, and the real-world implications can be devastating. Today, companies we’ve all heard of as well as companies we’re completely unaware of are collecting troves of data about where we go, what we do, and who we are,” said Sen. Ed Markey, a Massachusetts Democrat.

Panelists and members of the public who took part in the FTC hearing also raised concerns about how data generated by popular apps is used for surveillance purposes, or “in some cases, being used to infer identity and cause direct harm to people in the real world, in the physical world and being repurposed for, as was mentioned earlier, law enforcement and national security purposes,” said Stacey Gray, a senior director for U.S. programs for the Future of Privacy Forum.

The FTC declined to comment specifically about Fog Reveal.

Matthew Broderick, a Fog managing partner, told AP that local law enforcement was at the front lines of trafficking and missing persons cases, but often fell behind in technology adoption.

“We fill a gap for underfunded and understaffed departments,” he said in an email, adding that the company does not have access to people’s personal information, nor are search warrants required. The company refused to share information about how many police agencies it works with.

Fog Reveal was developed by two former high-ranking Department of Homeland Security officials under former President George W. Bush. It relies on advertising identification numbers, which Fog officials say are culled from popular cellphone apps such as Waze, Starbucks and hundreds of others that target ads based on a person’s movements and interests, according to police emails. That information is then sold to companies like Fog.

Federal oversight of companies like Fog is an evolving legal landscape. Last month, the Federal Trade Commission sued a data broker called Kochava that, like Fog, provides its clients with advertising IDs that authorities say can easily be used to find where a mobile device user lives, which violates rules the commission enforces. And a bill introduced by Sen. Ron Wyden that is now before Congress seeks to regulate the way government agencies can obtain data from data brokers and other private companies, at a time when privacy advocates worry location tracking could be put to other novel uses, such as keeping tabs on people who seek abortions in states where it is now illegal.

“It wasn’t long ago that it would take high-tech equipment or a dedicated group of agents to track a person’s movements around the clock. Now, it just takes a few thousand dollars and the willingness to get in bed with shady data brokers,” said Wyden, an Oregon Democrat. “It is an outrage that data brokers are selling detailed location data to law enforcement agencies around the country — including in states that have made personal reproductive health decisions into serious crimes.”

Because of the secrecy surrounding Fog, there are scant details about its use. Most law enforcement agencies won’t discuss it, raising concerns among privacy advocates that it violates the Fourth Amendment to the U.S. Constitution, which protects against unreasonable search and seizure.

Advocates on both sides of the aisle should be concerned about unrestricted government use of Fog Reveal, said former Virginia Republican Rep. Bob Goodlatte, who previously served as U.S. House Judiciary Chairman.

“Fog Reveal is easily de-anonymized tracking of Americans’ daily movements and location histories. Where we go can say a lot about who we are, who we associate with, and even what we believe or how we worship,” said Goodlatte, who now works as a senior policy advisor to the Project for Privacy and Surveillance Accountability. “The current political climate means that this technology could be used against people left, right and center. Everyone has a stake in curbing this technology.”

The New York Police Department used Fog Reveal at its Real Time Crime Center in 2018 and 2019, a previously undisclosed relationship confirmed by public records. A spokesperson said in an emailed statement that the NYPD used Fog on a trial basis, “strictly in the interest of developing leads for criminal investigations and lifesaving operations such as missing persons.” The department did not say if it was successful in either scenario.

Two nonprofits that have supported privacy rights cases in New York City said the tool exploited consumers’ personal data and was “ripe for abuse,” according to Surveillance Technology Oversight Project Executive Director Albert Fox Cahn.

“The lack of any meaningful regulation on the collection and sale of app data is both a consumer and privacy crisis,” Legal Aid Society Staff Attorney Benjamin Burger wrote in a recent post. “Both federal and state governments need to develop policies that will protect consumer data.”

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As Ahmaud Arbery fell to the ground, the sound of the gunshot that took his life echoed loudly throughout his Georgia neighborhood.

I rewound the video of his killing. Each time I viewed it, I was drawn first to the young black jogger’s seemingly carefree stride, which was halted by two white men in a white pickup truck.

Then I peered at Gregory McMichael, 64, and his son Travis, 34, who confronted Arbery in their suburban community.

I knew that the McMichaels told authorities that they suspected Arbery of robbing a nearby home in the neighborhood. They were performing a citizen’s arrest, they said.

The video shows Arbery jogging down the street and the McMichaels blocking his path with their vehicle. First, a scuffle. Then, gunshots at point-blank range from Travis McMichael’s weapon.

My eyes traveled to the towering trees onscreen, which might have been the last things that Arbery saw. How many of those same trees, I wondered, had witnessed similar lynchings? And how many of those lynchings had been photographed, to offer a final blow of humiliation to the dying?

A series of modern lynchings

It may be jarring to see that word – lynching – used to describe Arbery’s Feb. 23, 2020, killing. But many black people have shared with me that his death – followed in rapid succession by Breonna Taylor’s and now George Floyd’s officer-involved murders – hearkens back to a long tradition of killing black people without repercussion.

Perhaps even more traumatizing is the ease with which some of these deaths can be viewed online. In my new book, “Bearing Witness While Black: African Americans, Smartphones and the New Protest #Journalism,” I call for Americans to stop viewing footage of black people dying so casually.

Instead, cellphone videos of vigilante violence and fatal police encounters should be viewed like lynching photographs – with solemn reserve and careful circulation. To understand this shift in viewing context, I believe it is useful to explore how people became so comfortable viewing black people’s dying moments in the first place.

Images of black people’s deaths pervasive

Every major era of domestic terror against African Americans – slavery, lynching and police brutality – has an accompanying iconic photograph.

The most familiar image of slavery is the 1863 picture of “Whipped Peter,” whose back bears an intricate cross-section of scars.

Famous images of lynchings include the 1930 photograph of the mob who murdered Thomas Shipp and Abram Smith in Marion, Indiana. A wild-eyed white man appears at the bottom of the frame, pointing upward to the black men’s hanged bodies. The image inspired Abel Meeropol to write the poem “Strange Fruit,” which was later turned into a song that blues singer Billie Holiday sang around the world.

Twenty-five years later, the 1955 photos of Emmett Till’s maimed body became a new generation’s cultural touchstone. The 14-year-old black boy was beaten, shot and thrown into a local river by white men after a white woman accused him of whistling at her. She later admitted that she lied.

Throughout the 1900s, and until today, police brutality against black people has been immortalized by the media too. Americans have watched government officials open firehoses on young civil rights protesters, unleash German shepherds and wield billy clubs against peaceful marchers, and shoot and tase today’s black men, women and children – first on the televised evening news, and, eventually, on cellphones that could distribute the footage online.

When I conducted the interviews for my book, many black people told me that they carry this historical reel of violence against their ancestors in their heads. That’s why, for them, watching modern versions of these hate crimes is too painful to bear.

Still, there are other groups of black people who believe that the videos do serve a purpose, to educate the masses about race relations in the U.S. I believe these tragic videos can serve both purposes, but it will take effort.

Reviving the ‘shadow archive’

In the early 1900s, when the news of a lynching was fresh, some of the nation’s first civil rights organizations circulated any available images of the lynching widely, to raise awareness of the atrocity. They did this by publishing the images in black magazines and newspapers.

After that image reached peak circulation, it was typically removed from public view and placed into a “shadow archive,” within a newsroom, library or museum. Reducing the circulation of the image was intended to make the public’s gaze more somber and respectful.

The National Association for the Advancement of Colored People, known popularly as the NAACP, often used this technique. In 1916, for example, the group published a horrific photograph of Jesse Washington, a 17-year-old boy who was hanged and burned in Waco, Texas, in its flagship magazine, “The Crisis.”

Memberships in the civil rights organization skyrocketed as a result. Blacks and whites wanted to know how to help. The NAACP used the money to push for anti-lynching legislation. It purchased a series of costly full-page ads in The New York Times to lobby leading politicians.

Though the NAACP endures today, neither its website nor its Instagram page bears casual images of lynching victims. Even when the organization issued a statement about the Arbery killing, it refrained from reposting the chilling video within its missive. That restraint shows a degree of respect that not all news outlets and social media users have used.

A curious double standard

Critics of the shadow archive may argue that once a photograph reaches the internet, it is very difficult to pull back from future news reports.

This is, however, simply not true.

Images of white people’s deaths are removed from news coverage all the time.

It is difficult to find online, for example, imagery from any of the numerous mass shootings that have affected scores of white victims. Those murdered in the Sandy Hook Elementary School shooting of 2012, or at the Las Vegas music festival of 2017, are most often remembered in endearing portraits instead.

In my view, cellphone videos of black people being killed should be given this same consideration. Just as past generations of activists used these images briefly – and only in the context of social justice efforts – so, too, should today’s imagery retreat from view quickly.

The suspects in Arbery’s killing have been arrested. The Minneapolis police officers involved in Floyd’s death have been fired and placed under investigation. The videos of their deaths have served the purpose of attracting public outrage.

To me, airing the tragic footage on TV, in auto-play videos on websites and social media is no longer serving its social justice purpose, and is now simply exploitative.

Likening the fatal footage of Ahmaud Arbery and George Floyd to lynching photographs invites us to treat them more thoughtfully. We can respect these images. We can handle them with care. In the quiet, final frames, we can share their last moments with them, if we choose to. We do not let them die alone. We do not let them disappear into the hush of knowing trees.

[Insight, in your inbox each day. You can get it with The Conversation’s email newsletter.]

Allissa V. Richardson, Assistant Professor of Journalism, University of Southern California, Annenberg School for Communication and Journalism

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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