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Tracking Tool Finds Loophole in Data Privacy Laws

As details emerge about dozens of government agencies' use of a web tool that enables warrantless surveillance, the tool's growing popularity highlights a loophole in American law that permits large quantities of personal data to be collected and used in ways that are not clear to most people, Governing reports. The tool, called Fog Reveal, enables government and businesses to track "patterns of life," like places visited often, from cellphone tracking data. Fog Reveal is cost-efficient and claims to have billions of data points from over 250 million U.S. mobile devices. The tool identifies and tracks people and monitors specific places and events, like rallies, protests, places of worship and health care clinics.

Fog Reveal fits inside a the gap between data privacy law and electronic surveillance law in the U.S. In the Supreme Court’s Dobbs v. Jackson Women's 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 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. The U.S. House in July passed the American Data Privacy Protection Act, which could provide meaningful notice and consent provisions. The bill's future is uncertain. The app industry is strongly resisting any curtailment of its data collection practices, and some states are resisting ADPPA’s federal preemption provision, which could minimize the protections afforded via state data privacy laws.


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