• by Wendy Davis  @wendyndavis, September 19, 2022

California lawmaker Rep. Anna Eshoo, who recently introduced a bill to outlaw most forms of behavioral targeting, is now urging the Federal Trade Commission to investigate Fog Data Science for allegedly selling consumers' location data to law enforcement.

“I'm writing to voice deep concerns over recent reporting that Fog ... offers law enforcement the ability to conduct mass surveillance by providing data obtained through surveillance advertising, allowing them to track cell phone locations without a warrant,” Eshoo, a Democrat, said in a letter sent last week to the FTC.

She is asking the FTC to investigate Fog for “unfair and deceptive acts or practices that result in severe invasions of privacy and potentially skirt Fourth Amendment protections.”

Eshoo also praises the agency's recent move toward crafting privacy rules that could affect online data collection, writing that she hopes the rulemaking process “informs the FTC of the harms associated with surveillance advertising and that whatever benefits they provide are nowhere near outweighed by the substantial costs they impose on individuals and our society as a democratically free country that champions individual freedoms like privacy.”

Eshoo's letter comes around two weeks after the digital rights group Electronic Frontier Foundation reported that Fog obtains location data originally collected by mobile apps, then sells that data to law enforcement.

Fog says in documents that it has data from 250 million devices in the U.S. The company, which offers annual subscriptions to police for less than $10,000 a year, doesn't require police departments to obtain warrants before purchasing its location data.

Fog contends it is “100% opt-in,” and doesn't collect personally identifiable information.

The Electronic Frontier Foundation disputed both claims, arguing that people who download apps don't know they are also providing geolocation data to the police, and that location data in itself can reveal people's identities.

Eshoo writes that in a post-Roe world, where a number of states are moving to pass new prohibitions on abortion, “it’s more important than ever to be highly mindful” of how tools like Fog's may threaten consumers.

“Consumers do not realize that they are potentially nullifying their Fourth Amendment rights when they download and use free apps on their phones,” she writes.

The Supreme Court ruled in 2018 that the Fourth Amendment generally requires law enforcement authorities to obtain a warrant before acquiring cell tower records that reveal people's locations over time.