Dec 09 2024

Public/private partnerships for financial surveillance

[Email from the Financial Crimes Enforcement Network (FinCEN) of the US Department of the Treasury to some of its banking industry partners forwarding list prepared by Mitsubishi United Financial Group (MUFG) of vendors at DMV (DC, Maryland, and Virginia) airports, train stations, and bus stops, to target reporting of purchases at these locations as “suspicious” .]

The House Committee on the Judiciary and its Select Subcommittee on the Weaponization of the Federal Government have released a ground-breaking report on their investigation of what they describe — accurately, we think — as “the coordination between Big Banks and Big Government” in financial surveillance.

The Judiciary Committee and Subcommittee’s latest report on financial surveillance as well as their earlier interim report on the same issue are part of their broader inquiry into the investigative tactics used in the aftermath of the storming of the US Capitol  on January 6, 2021.

Partisan criticism of the Weaponization Subcommittee may lead to some skepticism or dismissal of its report and recommendations. But that would be a mistake, regardless of what anyone thinks about the Weaponization Subcommittee in general. The report is thoroughly researched and its sources are well documented. It’s based on interviews with witnesses from goverment agencies and the banking industry and tens of thousands of documents provided in response to Congressional subpoenas.

The report on financial surveillance uses the post-January 6th investigation only as a case study. The practices it reports on could have been, and still could be, used against any of us, regardless of party or affiliation (if any). They shouldn’t be used against anyone, even the most stigmatized individuals and groups. What we allow to be done to our enemies, or anyone’s enemies, could be done to any of  us. The report deserves bipartisan public attention and calls for bipartisan action by Congress.

As we’ve noted in surveying what’s likely to lie ahead in demands for ID and ID-based surveillance and control of our real-world and virtual movements and activities, it’s all too easy and all too common for otherwise-principled civil libertarians to allow their distaste for particularly reviled individuals to blind them to the bad precedents being set by the investigative and prosecutorial tactics used against those stigmatized defendants.

We can’t afford to be sanguine about violations of anyone’s rights. The government’s response to the events of January 6, 2021, was a textbook example of the way that unsympathetic defendants are exploited to expand the norms of permissible and publicly-tolerated investigative and prosecutorial practices that can later used more widely.

After January 6th there were misguided calls to add everyone involved in the storming of the Capitol (and perhaps also anyone suspected of possibly having been involved) to the million-and-a-half names already on the US government’s no-fly list — by summary, secret, extrajudical administrative action. It’s unclear whether, or to what extent, that was done. That remains an open question, as does the larger question of how no-fly decisions are made. We hope that the  Weaponization Subcommittee and the Subcommittee on the Administrative State will look into these questions during the next session of Congress.

Suspects were targeted for prosecution after January 6th based on what may have been the most extensive use to date in any single investigation of geofence warrants for cellphone location data. Those general warrants were used not to obtain evidence pertaining to individuals who there was already probable cause to suppect of crimes, but to trawl through records of hundreds of millions of innocent cellphone users to find individuals to place under suspicion based on where their cellphones were logged by Google as having been on that day. Challenges to the Constitutionality of these general warrants for dragnet searchess were all — so far as we can tell — dismissed by the judges hearing these cases.

But that’s not all. The latest Judiciary Committee report shows how logs of routine, entirely legal, financial transactions were subjected to warrantless scrutiny and data mining by banks and financial services providers collaborating with government investigators, and used as the basis for placing individuals under suspicion.

The FBI encouraged banking companies to “voluntarily” submit Suspicious Activity Reports (SARSs) to  the Financial Crimes Enforcement Network (FinCEN), the police division of the Department of the Treasury. These SARs were used to finger to FinCEN as “suspicious” anyone who had engaged in such mundane activities as taking money out of an ATM, buying a meal at an airport, or paying for a hotel or AirBNB anywhere in the DMV (DC, Maryland, and Virginia) area on January 6th or the days before or after:

To be clear: these transactions were, in and of themselves, entirely legal, and weren’t in and of themselves in any way suspicious. They didn’t create probable cause to believe that each such individual was likely to have committed any crime, and they wouldn’t have provided sufficient basis for the issuance of a search warrant. These SARs were used not to investigate people who were already suspected of crimes, but to identify new individuals to be extrajudically placed under suspicion and investigated without probable cause.

Once submitted to FinCEN, these SARs are available for individual search and retrieval by tens of thousands of government agents, without the need to apply for a warrant. SAR data is also exported in bulk by FinCen for import into other agencies’ data mining systems.

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Dec 04 2024

CBP facial recognition is a service for the airline industry

After five years of foot-dragging in responding to our Freedom Of Information Act (FOIA) request, US Customs and Border Protection (CBP) has finally released the pitch it made to the Future Travel Experience airline industry conference in 2019 on why airlines and airport operators should “partner” with CBP on automated facial recognition of airline passengers.

CBP claims in its presentation that “THIS IS *NOT* A SURVEILLANCE PROGRAM”. Its vision, however, is for CBP’s Traveler Verification Service (TVS) facial recognition system to provide automated identification of travelers at every stage of their journeys.

Airlines and airport operators won’t need to operate their own facial recognition software or databases. CBP will do that for them, allowing them to use TVS (which “integrates into airport infrastructure”, CBP boasts) for any of their business process automation, traveler profiling, personalized pricing, etc. purposes. Airlines and airport operators won’t need to store mug shots, since CBP will re-identify travelers for them as often as they want.

And that’s not all. The TVS facial recognition service will also be made available to cruise lines, bus companies, etc., to automatically identify travelers using all modes of transportation:

CBP will use a traveler’s face as the primary way of identifying the traveler…. This will create the opportunity for CBP to transform air travel by enabling all parties in the travel system to match travelers to their data via biometrics, thus unlocking benefits that… enhances the entire traveler experience.

The CBP “Biometric Pathway” will utilize biometrics to streamline passenger processes throughout the air travel continuum, and will provide airport and airline entities with the opportunity to validate identities against DHS information systems using the data available. CBP will partner with airlines, airports, and TSA to build a device independent, vendor neutral back­end system called the Traveler Verification Service (TVS) that allows for private sector investment in front end infrastructure, such as self­service baggage drop off kiosks, facial recognition self­boarding gates, and other equipment; this service will ultimately enable a biometric­ based entry/exit system to provide significant benefits to air travel partners…. The TVS will also be able to support future biometric deployments in the land and sea environments and throughout the traveler continuum. Figure 4 shows the different environments and touchpoints that will interact with the TVS.

Let’s make a deal”, CBP says to airlines and airport operators. “You provide the camera infrastructure embedded in passenger terminals at airports, and we’ll provide the facial recognition service.” It’s a Faustian bargain in which travelers are the losers, but already by 2019 many airlines and airports had taken CBP up on its offer. In the five years since, many more airlines and airports have joined CBP as collaborators in traveler identification, surveillance, and tracking.

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Nov 05 2024

What will the future bring for ID demands?

There are elections today in  the USA. But we don’t need to know their outcome to predict many of the issues that the Identity Project and our supporters and allies will continue to face in the coming years. For what it’s worth, everything that was on our agenda for the first Obama Administration, following the 2008 elections, remains on our agenda today.

At least since September, 11, 2001, throughout both Republican and Democratic administrations in the White House, demands for “Your papers, please!” have been supported by (1) a bipartisan consensus in Congress, (2) the lobbying power of an ever-growing homeland security-industrial complex, and (3) the malign convergence of interest between governments that want to identify us in order to track, profile, and control us for political purposes and corporations that want to identify us (or get the government to force us to identify ourselves) in order to track and profile us for commercial purposes.

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Sep 06 2024

Planned new European travel restrictions follow US precedents and pressure

Citizens of the USA and some other most-favored nations have long been able to travel to many European countries for tourism or business without visas or prearrangements and with minimal border formalities, as long as they didn’t stay too long or seek local residence or employment.

This is scheduled to change with the imposition of new controls on foreigners — including US citizens — visiting Europe starting in November 2024. This is to be followed by a further ratcheting up of control and surveillance of  foreign travelers to Europe scheduled for some time in 2025.

Some US citizens are likely to be shocked and humiliated — as any traveler anywhere in the world should be, regardless of their citizenship — to be subjected to fingerprinting and mug shots and additional questionning on arrival in Europe and, starting next year, a de facto visa by another name that they will have to apply and pay for and have approved before they can board a flight (or international ferry or train) to any European destination.

European citizens can and should object to the imposition by their governments of these new restrictions on foreigners, including foreign tourists and business visitors and foreign citizens who reside in Europe. Europe could, and should, set a better example of respect for freedom of movement as a human right that shouldn’t depend on citizenship.

But US citizens who object to these new European measures should direct their objections and, more importantly, their agitation for changes in travel rules to the US government.

These impending new European travel control and surveillance measures are modeled on systems developed in, already in use in, and actively promoted to European and other governments around the world by the US government.

By its precedents and international pressure, the US government is making travel more difficult for everyone, including US citizens, everywhere in the world including in Europe.

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Sep 03 2024

Congress asks more questions about TSA blacklists

The “No-Fly” and “Selectee” lists managed by Federal agencies through the joint Watch List Advisory Council (WLAC) aren’t the only blacklists and watchlists that are used to determine who is given US government permission to board an airline flight, and how they are treated when they fly.

Senior members of relevant House and Senate Committees are asking overdue questions about the blacklists created and used by the Transportation Security Administration (TSA) to target selected travelers for special scrutiny, surveillance, and searches when they fly.

The TSA’s Secure Flight program is used to determine, on the basis of identifying and itinerary information from ID documents and airline reservations, what Boarding Pass Printing Result (BPPR) to send to the airline for each would-be passenger. The ruleset included in the Secure Flight algorithm includes list-based and profile-based Quiet Skies rules created by the TSA itself, independent of the interagency No-Fly and Selectee travel blacklists.

These Quiet Skies rules are used to flag certain airline passengers as “Selectees” to be searched more intrusively at TSA checkpoints (even if they aren’t on the interagency Selectee list), and to assign Federal Air Marshals (FAMs) to follow, watch, and file reports on their activities in airports and on flights. A secret alert is sent to FAMs, based on airline reservations, 72 hours before each planned flight by a person on the Quiet Skies list.

The Quiet Skies program was implemented secretly in 2012. “In March 2018,” according to a later report on the Quiet Skies program by the DHS Office of Inspector General (OIG), “in addition to enhanced checkpoint screening, TSA began surveillance (observation and collection of data) of Quiet Skies passengers beyond security checkpoints, as part of its Federal Air Marshal Service’s (FAMS) Special Mission Coverage flights.

The No-Fly list and profile-based no-fly rules are used in the Secure Flight travel control  and surveillance algorithm to determine who is allowed to fly. The Selectee and Quiet Skies lists and rules are used to  determine who to search and surveil when they fly.

The Quiet Skies program came to light later in 2018 when FAM whistleblowers went to the Boston Globe with their complaints that the wrong travelers were being targeted, mis-prioritizing which flights FAMs were being assigned to. These FAM whistleblowers complained, that, for example, anyone identitied from airline reservations as having traveled to Turkey was put on the Quiet Skies list and had a FAM assigned to each US flight they took for the next several months, including domestic flights. Travelers’ reports of being followed through airports (presumably by FAMs) and subjected to more intusive searches at TSA checkpoints after trips to Turkey supported these allegations.

The TSA initially declined to confirm the existence of the Quiet Skies program. But in response to questions from Congress and follow-up reprting by the Globe, the TSA released a belated Privacy Impact Assessement (PIA) for Quiet Skies in 2019. However, that PIA specified none of the Quiet Skies rules and gave no demographic or other information about who those rules had targeted.

Additional descriptions of the program, including the flowchart above, but still not including any of the Quiet Skies rules, were included in a critical DHS OIG report on the program in 2020.

Since January 6, 2021, there has been a new round of complaints by travelers and disgruntled FAMs that participants in the activities that day at the US Capital have been put on the No-Fly, Selectee, and/or Quiet Skies lists.

This month a redacted version was made public of a formal complaint to the DHS OIG by a FAM who says his wife was put on the Quiet Skies list and “targeted for FAMS ‘Special Mission Coverage’ simply because she attended President Trump’s January 6, 2021 speech at the ellipse in Washington, D.C.” FAMs also said that former US Representative and Presidential candidate Tulsi Gabbard has been put on the Quiet Skies list because of her role in the January 6, 2021 events. When she read those reports, Gabbard said that, “The whistleblowers’ account matches my experience” of disprate treatment at TSA checkpoints.

We’ve been unable to confirm or disprove these reports. But we find them plausible and — whether or not they are true — indicative of fundamental problems in these arbitrary, secret, extrajudicial schemes for making decisions about the exercise of our right to travel by common carrier and to be free from unreasonable searches and seizures.

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Aug 01 2024

Customs officers need a warrant to search your cellphone at JFK

Judge Nina Morrison of the US District Court for the Eastern District of New York (Brooklyn, Queens, Staten Island, and Long Island) has ruled that police, including officers of U.S. Customs and Border Protection (CBP), need a warrant to search your cellphone at JFK International Airport, even when you are entering or leaving the US.

This ruling is certainly a positive development. It’s a break with a line of judicial decisions that have made US borders and international airports a Fourth Amendment-free zone, even for US citizens. It’s likely to influence other judges and other courts, even though — as a ruling from a District Court rather than an appellate court — it doesn’t set a precedent that’s binding even on other judges in the same Federal judicial district.

But there are important issues that weren’t addressed in this case, and important things you need to know to exercise your rights at JFK or other airports — even if judges in future cases in the same or other judicial districts are persuaded by the ruling in this case.
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Jul 23 2024

What “consent” really looks like for the DEA and TSA

The Drug Enforcement Agency (DEA) and the Transportation Security Administration (TSA) have been working together for years to steal travelers’ money.

The DEA pays informers to finger people who might be flying with large amounts of cash, and gets the TSA to identify these people when they go through TSA checkpoints at airports, claim that they “consent” to be searched, and then find any money they are carrying and seize it through “civil forfeiture”.

The DEA carries out similar cash-seizure operations on Amtrak trains — mostly domestic trains that don’t cross the US border — in collaboration with US Customs and Border Protection (CBP).

A new video released by the Institute for Justice shows how this “consent” works in practice.

In the video, a DEA agent won’t take “I don’t consent to a search” for an answer. The agent follows an airline passenger onto their plane (without objection by airline staff), snatches the passenger’s carry-on bag, carries it off the plane, and refuses to return it. The agent claims the right to keep the passenger’s bag as long as it takes to get a warrant (although they don’t have that right, and don’t actually get a warrant).

This is not meaningful “consent”, and it’s not a valid legal basis for a search.

An ongoing class-action lawsuit by the Institute for Justice on behalf  of air travelers who have been searched without probable cause on the pretextual claim of “consent” in order to find, seize, and “forfeit” their cash has shown just how common this pattern of illegal search and seizure is.

We reported on the filing  of this lawsuit in 2020, and on the first substantive ruling in the case, in favor of the plaintiffs and allowing the case to move forward, in 2021.

Since then, the case has bogged down in foot-dragging by the DEA and TSA, resisting discovery of their records of  searches and seizures of cash from travelers at airports.

The DEA and TSA continue to claim — despite the initial ruling against them on this point —  that they don’t have an actionable “policy” of targeting travelers with cash for searches because they haven’t put this policy in writing. But the latest status report on discovery to date indicates that the DEA and TSA have made thousands of seizures of “bulk currency” from air travelers in recent years. This is clearly a routine and officially sanctioned agency practice, whether or not anyone has put it in writing.

The DEA and TSA claim that the volume of records of these searches and seizures would make producing them unduly burdensome. But the volume of these records is symptomatic of the scale and systemic nature of the problem — which is what the plaintiffs are trying to prove. The plaintiffs have suggested examining a statistical sample of the records of airport searches and seizures, but the DEA and TSA are resisting even that.

We wish the plaintiffs in this case and their lawyers success in their pursuit of justice for travelers.

Jul 12 2024

Opting out of facial recognition at airports

 

Next week the Algorithmic Justice League will be launching an awareness and  sousveillance campaign focused on the use of facial recognition in airports by the Transportation Security Administration (TSA) and its airport and airline partners.

The #freedomflyers campaign includes efforts to make travelers aware that the TSA claims that submitting to facial recognition is “optional”. The campaign also includes a free online Freedom Flyers Summit on “Resisting Airport Face Scans” on July 19th and — perhaps most importantly — a scorecard for travelers to report what actually happens when they try to opt out of facial recognition at airports.

In many cases, staff or contractors of airlines, airport operators, or the TSA tell travelers that facial recognition is required. In other cases, facial recognition turnstiles are unattended by any staff, leaving no apparent way to opt opt. Some facial recognition turnstiles are attended only by “line-minders” or security guards or subcontractors with no authority to allow travelers to pass through without submitting to mug shots.

Asking “Did the tech work?” is, of course, a trick question.

The purpose of facial recognition in airports is to enable tracking of travelers, without our being able to tell when, where, or by whom we are being tracked. If “Did it work?” means, “Did it enable those who want to track you to track you, without your knowledge?”, than by definition, if it “worked”, you won’t know.

You may know that your face was scanned once, perhaps when you entered the terminal or checked in or checked your luggage, but you may not know how many other times it was scanned, where, when, by whom, or for what purposes. The goal of public-private partnerships in airport surveillance is seamless multi-purpose data sharing and “curb to curb” traveler tracking through common-use embedded facial recognition infrastructure.

One thing you can do to mitigate the risk of hidden cameras is to wear a face mask in the airport, except when you are ordered to remove it by someone who has identified themselves as an authorized agent of the TSA and has told you that removing your mask is required as a condition of travel. If you have to remove your mask so that a human TSA agent can compare your face to the picture on your ID, make sure that you stand out of the line of of any visible cameras. If they try to point a camera at your face while you have your mask down, hold up your hand to block the camera and tell them you don’t consent to having your face photographed.

The TSA claims that removing your mask for a human check is required, but that being photographed is not. To date, no court has ruled on whether the TSA can require travelers to remove face masks or submit to mug shots or automated facial recognition. Nor has any court ruled on whether a common carrier could require removal of masks or submission to mug shots or automated facial recognition as a condition of carriage.

We welcome the AJL campaign to educate travelers about facial recognition in airports and to encourage them to opt out. Merely opting out won’t put an end to the practice, but it’s an important step. We look forward with interest to the responses to the AJL survey.

May 01 2024

Combining radio and visual tracking of road vehicles

[Jenoptik “Trafficatch” wireless detection device and the data it collects ]

In the latest escalation of surveillance of travelers, data from automated license plate readers (APLRs) is being merged with data from devices that record the unique identifiers of passing WiFi, Bluetooth, and Bluetooth Low Energy (BLE) devices, including always-on devices intended for in-vehicle communications, entertainment, and network access.

Most new cars, SUVs, and light trucks have built-in WiFi access points and Bluetooth and/or BLE connectivity. Each of these wireless access points transmits a unique identifier — usually fixed or not readily changeable by the vehicle owner or operator — to enable devices in the vehicle — cellphones, wireless earbuds, etc. — to establish and maintain connections. Each of those devices broadcasts its own unique and often fixed identifier.

Once the unique identifying numbers of the in-vehicle wireless access points are linked to a vehicle and the vehicle’s registration record and owner by matching the time and location of device detection with an ALPR scan of the vehicle’s license plate, they can be used to track those devices and log their movements in a permanent file associated with the registered owner, even when those devices leave the vehicle.

So if you use your Bluetooth or BLE earbuds to listen to music or make a phone call in a car, even as a passenger, police can and possibly will continue to track your earbuds’ movements and associate them with that car.

According to a report by Byron Tau for NOTUS  (a new nonprofit newsroom founded and funded by Robert Allbritton, the former publisher of POLITICO), wireless “device detectors” and the back-end systems to link ALPR and wireless device tracking data have been purchased by local police departments in border communities in Texas using grant money from the US Department of Homeland Security (DHS) and the  state of Texas.

According to responses to requests for information about bids for government contracts from Jenoptik, the supplier of this system of detectors and databases:

Jenoptik’s Trafficatch wireless device detection is a value add addition to its Vector fixed ALPR solution. Trafficatch records wireless device Wifi, Bluetooth, and Bluetooth Low Energy (BLE) signal identifiers that come within range of the device to record gathered information coupled with plate recognition in the area. This can provide additional information to investigators trying to locate persons of interest related to recorded
crimes in the area.

This should be illegal without a warrant, but current case law leaves enough uncertainty that police may feel that they can get away with this sort of tracking without a warrant.

According to the report by NOTUS, this vehicle and device tracking data is being shared through NLETS (the National Law Enforcement Telecommunications Network). The unusual status of NLETS makes it almost impossible to tell how this data is being used. It could be used to track people and vehicles across state lines or other jurisdictional boundaries, including to identify and track people traveling to obtain abortions.

Like AAMVA, NLETS is nominally a nongovernmental nonprofit organizations, but its members are government agencies.  AAMVA members are the heads of state driver and motor vehicle licensing agencies; NLETS members are Federal, state, and local law enforcement agencies for which NLETS has long served as a private police network in parallel with public communications networks. Once the operator of a dedicated police telex network (like the parallel special-purpose networks operated for airlines and banks)  NLETS is today the hub of the “police Internet“, providing both communications and database hosting services. Because NLETS is nominally “private” and nongovernmental, it itsn’t directly subject to any Federal, state, or local FOIA, public records,  or open meeting laws.

Apr 01 2024

Tracking vehicles across state lines

As the number of women traveling across state lines to obtain abortions continues to grow (analysis of trends, statistics and map), recent reports have confirmed the reality of some of the ways we feared that motorists traveling for these or other purposes can be identified and tracked.

The ACLU of Northern California and Bob Egelko of the San Francisco Chronicle have reported that, despite a directive from the California Attorney General forbidding California state and local government agencies from sharing automated license plate recognition (ALPR) data with out-of-state entities, police in some California cities are continuing to share this location data with out-of-state police and/or interstate data brokers.

The order from the Attorney General was specifically intended to prevent other states from using ALPR data from California to identity or take action against abortion travelers.

Even if California police bring their practices into compliance with state law and the state Attorney General’s directive, that won’t stop police in other states from buying ALPR data collected by private entities in California — the owner or operator of a parking garage across from an abortion clinic, for example — and aggregated and resold by commercial data brokerages.

Meanwhile, in the New York Times, Kashmir Hill reveals that automobile manufacturers have been selling motor vehicle telemetry information, collected by onboard sensors and control systems and transmitted by cellular data transceivers embedded in euphemistically-named “infotainment” systems, to data brokers including Lexis-Nexis.

While the focus of Hill’s article is on the use of this data by auto insurance companies, law enforcement agencies including the TSA are customers of Lexis-Nexis.

Hill says the data sold in bulk by vehicle manufacturers and disclosed to vehicle owners by Lexis-Nexis in response to requests pursuant to the Fair Credit Reporting Act didn’t explicitly include vehicle location data.  But that doesn’t mean that location data isn’t available to vehicle manufacturers or police.

Most vehicles with embedded cellular data transceivers also have embedded GPS receivers. Enabling those systems to send GPS location pings to the manufacturer, if that isn’t being done already, would require only a remote software “upgrade”. As long as the manufacturer has the ability to push out software turning on location reporting, the manufactuerer could be compelled to do so by a court order such as has been used to force other companies to spy on and report travelers’ movements.

The only way to prevent this is not to build this capability into vehicles. But most vehicle purchasers or drivers don’t know that their car has a built-in self-surveillance system with its own wireless data transmitter that “phones home” to the manufacturer, much less what data it transmits or could be silently and remotely enabled to transmit.

That’s not the only threat model inherent in having an embedded SIM  and wireless data connectivity built into your vehicle. Because the telemetry system connects to the Internet over the wireless cellular data network, the network operator knows which cell tower the unique SIM in the vehicle is registered with whenever the telemetry system is active, which is generally whenever the vehicle is in operation — and could be switched to be always on.

Law enforcement agencies already use fishing-expedition “geofence” warrants to identify all cellphones in the vicinity of times and places of interest. As the percentage of new vehicles with embedded SIMs and always-on cellular modems continues to increase, they are likely to use similar warrants directed to wireless network operators to identify all the “connected cards”  that were registered on those networks in specific locations and times.

We’d welcome reports from anyone who has obtained a complete report of the data collected by either (a) the manufacturer of their vehicle or (b) the  operator of the mobile network uses by the vehicle telemetry system. (It may be easier for vehicle owners in Canada than in the USA to obtain this data through access requests under the Canadian PIPEDA law, which has no US counterpart.) We’d also welcome reports from anyone who has tried to opt your vehicle out of manufacturer telemetry or have the telemetry system removed, disabled, or placed under driver control.