June, 2020

Federal Government Warrantless
Tracking of Cellphone Locations

A recent report on governmental warrantless cellphone tracking reveals that, by using a commercially available app, authorities are increasingly able to track cellphone location histories without first having obtained court-approved warrants. Locate X, the app sold by Babel Street, allows the user to select a geographical area, pinpoint a cellphone that was in that area at a given time, and then obtain historical data about the cellphone location for months previous to the selected date. The company keeps the details of the app and sales of the app secret, and users are prohibited from disclosing the use in legal proceedings.

Government contracts indicate that multiple agencies – including U.S. Customs and Border Protection, the Secret Service, the ATF, the Justice Department, the Army, the Coast Guard, and the DEA – have in recent years expanded use of the surveillance tool. For example, in 2016, sales to federal agencies were in the amount of $64,000.00; by 2018, contracts totaling about $5.3 million were awarded.

U.S. Senator Ron Wyden was quoted as saying, “Now the government is using its checkbook to try to get around Carpenter [Carpenter v. United States, 585 U.S. ___; 138 S. Ct. 2206 (2018), holding that a search warrant is required to obtain cellphone location data]. Americans won’t stand for that kind of loophole when it comes to our Fourth Amendment rights.”

Sources: Charles Levinson, “Through apps, not warrants, ‘Locate X’ allows federal law enforcement to track phones,” protocol.com, March 5, 2020:

Employers Tracking Remote Workers

As more and more employees are working remotely – perhaps one-third of U.S. workers – more and more employers are utilizing surveillance tools, including software that tracks an employee’s mouse-movements and keystrokes on personal computers and a cellphone app that tracks the employee’s location during work hours. Another program in use, Time Doctor, downloads images of the employee’s computer screen and can photograph the employee every ten minutes by using the computer’s webcam. If a computer becomes idle, the employee receives a warning pop-up that cautions work-time will be paused unless the employee starts working again. Sales of such programs have, according to estimates, tripled following the onset of the pandemic.

“There aren’t a whole lot of legal protections for employees who are being monitored,” according to Paul Stephens, director of policy and advocacy at the Privacy Rights Clearinghouse, a nonprofit consumer advocacy group. Constitutional issues are not involved, as there is no government action. There is some concern that employer-use of the surveillance tools will continue after the pandemic. Mr. Stephens was also quoted as saying, “Once the employer has made the investment in acquiring and installing the software, it’s not likely that they’re going to remove it … it’s safe to assume that everything you’re doing is being watched and tracked by your employer."

Source: Bobby Allyn, “Your Boss Is Watching You: Work-From-Home Boom Leads To More Surveillance,” npr.org, March 13, 2020:

New Spyware Allows Law Enforcement
to Access iPhones

A new tool in use by law enforcement, Hide UI, allows law enforcement to track an iPhone user’s password as the user logs into the phone. The product, GrayKey, sold by Grayshift, is sold with non-disclosure agreements, according to a recent article. Law enforcement agents download a program onto the suspect’s phone, and then return the phone; when the suspect logs in, police can obtain the passcode. Alternative software options, for example to crack a passcode, can take much longer; for example, it has been estimated that while a four-digit PIN might be cracked in minutes, and a six-digit PIN in less than a day, it might take “weeks or years” to crack an 8-digit or 10-digit PIN.

Sources:  Olivia Solon, “iPhone spyware lets police log suspects' passcodes when cracking doesn't work,” nbcnews.com, May 18, 2020:
Thomas Brewster, “Mysterious $15,000 'GrayKey' Promises To Unlock iPhone X For The Feds,” forbes.com, March 5, 2018:

Facial Recognition Data
Surreptitiously Collected at Rose Bowl

Facial recognition technology was used at the New Year’s Day Rose Bowl Stadium. Four cameras were placed in the digital information signs by an ad agency, VSBLTY, to assess the 90,000 attendees. Data collected included 30,000 points of data relating to the attendees’ gender, age, how long the person spent viewing ads on the digital signs, and whether the individuals were on a suspicious-person list. Jay Hutton, VSBLTY’s CEO, was quoted as later saying, “Facts about fans, their habits and actions — in addition to demographic and psychographic information — will help plan audience activities as well as serve as a tool to validate the value of on-site advertising impressions to sponsors.” VSBLTY, a Philadelphia-based company, also has contracted for real-time facial recognition surveillance in Mexico City, and its software has been installed in 56 communities.

Sources:  Dave Gershgorn, “30,000 Unsuspecting Rose Bowl Attendees Were Scooped Up in a Facial Recognition Test,” onezero.com, June 11, 2020: 
VSBLTY webpage, “Video Signage at Rose Bowl Provides Key Audience & Advertising Impressions Intelligence,” vsblty.net:
Nick Givas, “Report: 30,000 college football fans unknowingly captured by facial-recognition test at Rose Bowl,” foxnews.com, June 12, 2020: 

Detroit Man Falsely Arrested Based on
Facial Recognition Algorithm and

A Detroit man has the distinction of being the first person wrongfully charged for a crime following a “flawed” identification stemming from facial recognition technology. Following the theft of $4,000.00 worth of merchandise from a store in Detroit in 2018, video images were sent to the Detroit Police, which utilized a facial-recognition program – the two-year contract for which expires next month – that “hit” on a Detroit man, Robert Williams. Detectives subsequently included a photo of Mr. Williams in a ‘six-pack’ photo-array, from which the store’s loss-prevention officer identified Mr. Williams. Mr. Williams was arrested at his home in January 2020 and was charged with first-degree retail fraud; the charge was later dismissed without prejudice.
Wayne County Prosecutor Kym Worthy, as reported in a recent article, expressed displeasure with facial-recognition technology, noting that it has been shown to be unreliable with regards to people of color. Ms. Worthy was also quoted as saying, “Any case presented to my office that has utilized this technology must be presented to a supervisor and must have corroborative evidence outside of this technology.” 

Mr. Williams’s attorney, Victoria Burton-Harris – who is running against Prosecutor Worthy – was recently quoted as saying that Mr. Williams was “one of the lucky ones,” and, “He’s a big Black man in the blackest community in America, that is over-policed and over-surveilled and that technology is just the latest layer of that … This is proof positive that they’re not only using this technology in a very dangerous way but that they shouldn’t be using it at all.”

Sources: Aaron Krolick, “Wrongfully Accused by an Algorithm,” dnyuz.com, June 24, 2020:
Sarah Rahal and Christine Ferretti, “Metro Detroiter battling 'flawed' facial recognition software,” detnews.com, June 24, 2020:
Michigan State Police webpage for the Statewide Network of Agency Photos (SNAP): 

by Neil Leithauser
Associate Editor