We generate droves of personal data every time we use the apps on our phones, make a call, make an online purchase. We all hope that data is kept private, hidden away from people or entities that might want to surveil us, but sometimes it isn’t.

In November, news reports revealed that the federal government had purchased location data mined from apps used by Muslims. One of those apps is a prayer app called Muslim Pro, which has been downloaded by millions. We don’t yet know exactly how the data is being used, but many users of the app have already reported deleting it to avoid being surveilled.

Aliya Karim, a journalist at NowThis, and Tarek Ismail, a senior staff attorney at the CUNY School of Law’s Creating Law Enforcement Accountability and Responsibility Project, join us to discuss.

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MOLLY KAPLAN
[00:00:01] From the ACLU, this is At Liberty. I’m Molly Kaplan, your host.

We generate droves of personal data every single time we use the apps on our phones, make a call, make an online purchase. We all hope that data is kept private, hidden away from people or entities that might want to surveil us, but sometimes it isn’t.

In November, news reports revealed that the federal government had purchased location data mined from apps used by Muslims. One of those apps is a prayer app called Muslim Pro, which has been downloaded by millions. We don’t yet know exactly how the data is being used, but many users of the app have already reported deleting it to avoid being surveilled.

Aliya Karim, a journalist at NowThis, remembers the moment she heard the news story and decided to delete the app.

ALIYA KARIM
[00:01:03] I was a user of the Muslim Pro app until this whole controversy unfolded and then I immediately deleted it from my phone. I was sitting at home, I've been at home with my family, and I was sitting on the couch and I was scrolling through social media. And I think I first came across the news on Instagram, all of my Muslim friends were sharing it on the app. And I quickly turned to my sister and I said, did you hear about this? And I think I was both shocked and not surprised at the same time. Shocked because something as personal as a prayer app kind of felt like it should have been safe from this type of intrusion. But then on the other hand, I wasn't surprised because it feels like we Muslims are being watched by the government all the time anyway. So I just quickly went and deleted it from my phone. I got up and checked to make sure that my mom didn't have it on hers or on her tablet and just continued reading the news.

Muslims in the US have been criminalized for decades. And for those of us who did grow up in a post-9/11 America, we know this all too well. We've been targets of airport screening, stop and frisk, women having their hijabs forcibly removed. And we're just constantly treated as an other. And I think in the real world, there have been plenty of cases, for example, the NYPD sending, you know, informants to mosques and small businesses and community organizations to spy on and keep tabs on the Muslim community. This is law enforcement having done this for years and years. But now the fact that we can’t even use a simple app to figure out our prayer times, because there's a chance that we're being watched just using this phone in our hands, that's really scary. And it's really scary for us kind of feeling like we always have to look over our shoulders and make sure that we're OK and we're safe.

MOLLY
[00:03:15] It is scary. And at the ACLU, we believe it’s also a violation of your constitutional rights. That’s why we’ve joined with partners to file a Freedom of Information Act request to learn how the government is using the data from Muslim Pro and the other apps involved. One of those partners is Tarek Ismail, a senior staff attorney at the CUNY School of Law’s Creating Law Enforcement Accountability and Responsibility Project, otherwise known as CLEAR. We spoke with Tarek to learn more about how the government got this data and why it matters.

TAREK ISMAIL
[00:03:52] So VICE broke this story in November that the federal government was buying data from these kind of shady companies that are set up to collect information on app users, a couple of companies, and they do their work in different ways. But Motherboard released this story that among those apps was Muslim Pro, which to myself and many of my clients was almost sort of amusing in its familiarity. A lot of Muslims download Muslim Pro throughout the year to sort of keep track of prayer times. Many Muslims use it, especially during Ramadan, to know when it's time to break their fast. But it's an app that people use it for sort of Islamic reminders and verses from the Koran to sort of have it at hand all the time, because it's not every moment that you can be near a mosque and know when it's time to pray.

MOLLY
[00:04:47] And just to give us a sense of the scale, this is something that internationally the app was downloaded over 50 million times on Android and over 98 million times in total across other platforms, including iOS. A lot of people use this app.

TAREK
[00:05:02] Yeah, so we're talking about sort of 10 percent of the Muslim population globally is downloading this app to to sort of just remind them of when to pray or when to break their fast. And so when the story broke, it was something that was a shock to Muslim communities across the country and across the world to the extent that this is something so familiar that's in their pockets and in their homes that reminds them of the most intimate thing out there, which is, okay, it's time to get up and pray. And it turns out that this thing that they're using to remind them of that of that intimate moment is actually working against them, right, is actually sort of keeping tabs on where they are and when they're doing the thing that they're doing.

And so to many Muslims, it was no secret when the stories broke in 2011 or 2012 from the Associated Press that the NYPD was spying on them. It's no secret that the FBI has been sending informants into mosques and community centers as well for the now two decades since September 11th. And of course, that's the continuation of a long tradition and history of the FBI spying on people who are practicing things that they believe or organizing for things that they believe in. But it was no secret when the story broke in 2012 that the NYPD was spying on Muslims. But this story, I think, really hit folks in the gut because even though there's a sense that sort of your phone is kind of always watching you, the idea that this app was being used and that the data from this app was being used and sold to the military in addition to other government agencies, was something really, really shocking to a lot of the folks that we work with at the Creating Law Enforcement Accountability and Responsibility, CLEAR, project at CUNY. It was shocking to a lot of people we work with at CLEAR. And it was shocking to us. And when I say shocking, I don't mean surprising necessarily, because I think at this point we've come to hope for the best and expect the worst. But when I say shocking, I just mean it was confirmation that, yet again, Muslims aren't safe to practice their most sacred of duties anywhere.

MOLLY
[00:07:22] And can you describe how the information got from this app to the hands of certain government agencies?

TAREK
[00:07:31] So with respect to this, with respect to Muslim Pro, Muslim Pro was encouraged by a company called X Mode to upload something called a software development kit, or an SDK, into their software uploads, maybe not the right word to incorporate or embed a few lines of code into their software that pulled out data of where people are, which wi-fi network they're connected to, at what time they're using the app, and so on. And that information was packaged through the software development kit, which was provided by this company called X Mode, was packaged by X Mode and then sold off to private data companies who made use of that information and continue to make use of that information. Some of those companies were military contractors, and the military contractors then passed that information along to the military special operations command, among other parts of the military.

And you can imagine that in this path, everyone is sort of passing the buck and saying, well I didn't know it was going to the next guy, I didn't know it was going to the next guy. But it sort of really underlines the importance of asking rather than expecting someone to tell you. If you're a software company like the company that owns Muslim Pro, it's incumbent on you when you sign up to give away the data of your users to ask who exactly it's going to and what they're using it for and to disclose that information in bold letters to your users when you know that your users are especially vulnerable to the agencies who are using it and especially vulnerable for the information that's being used.

[00:09:18] So, for example, if the federal government, if you look at the way that the FBI, for example, thinks about radicalization and has thought about radicalization, it thinks about radicalization along a pretty simplistic line, which is to say if someone is more religious and practices their religion in a more orthodox way, let's say, and this I mean with respect to Muslims in particular. If someone is a Muslim and practices their religion in a more Orthodox way, that's a sign that that person is likely to more likely than not to radicalize. So someone who checks the Muslim Pro app at the morning prayer, Fajr prayer at 5 a.m., as far as the government is concerned, is more likely than to be a more practicing, more devout Muslim than someone who is waiting until noon or whatever to check Muslim Pro, right? And so the very purpose of the act is something that could serve the government's warped view of what radicalization looks like, or who needs to be targeted. That's what makes it so nefarious.

MOLLY
[00:10:25] And do you have a sense of besides just the fact of people having downloaded this app, how the government is using some of the other information? Because it wasn't just that someone downloaded the app, there was more information that was disclosed to the government that could potentially be used against people. Do you have a sense of how that information is being used?

TAREK
[00:10:45] Well, I mean, we don't know. And so that's the whole purpose of the Freedom of Information Act too, right? The question really is how are you guys using this information? We can conceive of any number of ways, including the way that I just described to you, right, that if someone's checking the app at a certain time, it means something about that person that someone has just downloaded it and is only checking it at Maghrib time during Ramadan to break their fast, as opposed to someone in that space. So what I mean to say is that the government may draw its own conclusions about the data that they're picking up -- all sorts of metadata: where the people are, which wi-fi networks they're connected to, when they're checking the app, those sorts of questions. The government may be using it for any number of purposes, and we need to know what they're using it for. And that's why we filed the Freedom of Information Act suit with the ACLU.

MOLLY
[00:11:35] You touched on it a little bit, but I want to go deeper. It seems like surveillance is a hydra, and this is one of its many heads. And you alluded to some of the examples of the US government surveillance of Muslim communities domestically and abroad has this deeper history. So while it feels like an invasion and is surprising on one level, on another level, it doesn't, it feels par for the course. Can you talk a little bit more about how this instance of surveillance falls into this much larger context, which by the way you also alluded to, predates 9/11. It was given this sort of state sponsored infrastructure after 9/11, but I recently heard that there was a New York Times headline in January 1996, the Red Scare was coming to an end ad this headline said, “Seeing Green, the Red Menace is Gone, but Here is Islam.” So this is not a new thing post-9/11. And the surveillance that we're seeing now is also not a new thing. So can you give us that broader context that you're seeing this in?

TAREK
[00:12:37] Totally. So, we can go back as far as slave patrols when we think about sort of how police surveil communities that are meant to be distrusted in this country. And we can trace it through COINTELPRO, when the FBI was being used to spy on civil rights leaders and eventually Black power leaders. And we can trace it through the Red Scare and backwards and then forwards again through the Red Scare, and then to a convenient new target, muslims. And the 1996, the material support laws are also passed at the federal level, criminalizing material support for terrorism. Those laws aren't used until they have the imprimatur of sort of 9/11 furver. They're not used nearly as much as they are after September 11th, but they're there sort of like waiting in the wings to be picked up. And so we see that sort of surveillance continuing over and over and over again. And we see it with state and federal officials spying on Muslim communities. But the thing that they tend to hide behind when they're spying on Muslim communities in the way that they do is that they're sending informants into places that the public would otherwise have access to, right? So any person could walk into a mosque and ask, hey brother, what do you think about X, Y or Z? Or listen to what the imam is saying on Friday, I could walk into a church, you could walk into a synagogue, we could walk into any sort of meeting space and ask these questions and just sit there because they're open spaces, right? As far as the law is concerned, and as far as the Supreme Court has decided.

[00:14:12] What feels different about this is that like, okay well, and there's this narrative in the Muslim community, which I think is not an accurate that for a whole host of reasons, including surveillance after September 11th, the mosque became a place that people stopped wanting to go because they were kind of afraid of the panopticon that was operating in this sort of most protected of spaces. And so they retreated often to their homes to do their prayers. And this app makes even that space feel not safe, or the use I should say, the use of this app by the federal government to collect data makes even the practice of Islam in your own home feel like something that's going to provide a lead for the government, if they see you waking up every morning to pray, well we can kind of keep those people in the group and those who don't wake up every morning, for example, we’ll knock them out of the group that we're concerned about. And the government will then use that as a subset -- I mean, I'm speculating here because we have no idea as to how this data is being used.

MOLLY
[00:15:14] But as you mentioned you have seen data of this nature being used in the past, and that is informative of what might be going on now.

TAREK
[00:15:22] We know that those are indicators that the government has said that they are looking at, right. And so we can only surmise that if those are indicators that they're paying attention to in other contexts, why wouldn't they do so here? And again, like, that's why we asked.

MOLLY
[00:15:38] I'm curious, you know the ACLU, we often have a sort of myopic focus on domestic, and obviously this involves US government agencies. But it feels really important in trying to understand the broader context, to also make note that there are global anti-Muslim actions taking place across the world, and that had only ramped up since the Trump administration. And just to name a few: You have India's prime minister Modi, the campaigns that he's overseen in Assam and Kashmir against Muslims. You have the Uighurs in China, you have persecution by Myanmar government against the Rohingya people. You could keep going. But this is, I think the fact that the app has as many downloads as it is this is not just a US issue, even though the actions with the FOIA are US-based. And it seems like we need almost a broader sensitivity, that we have an obligation to take this broader view of the kind of surveillance and also persecution that Muslims are facing right now in understanding what's going on with this app, that this app feels like one instance of something much bigger that's going on in the world.

TAREK
[00:16:45] There's no way to think about this without thinking of the military industrial and settler colonial projects that we're up against on a global scale. When metadata has been used, for example, as a tool to target individuals by drone strikes, you can't help but think that the metadata collected from this app by the American military may not play a similar role, and in fact the director of Special Operations Command nearly said as much in his comments to Motherboard that this sort of data is used. And what ends up happening, Molly, is that you see the term terrorism used and abused, the meaning of the term just completely -- I mean, it's what's so dangerous about the language that's used in this era is that the words are meaningless.

MOLLY
[00:17:32] Right.

TAREK
[00:17:33] And so the words are infused --

MOLLY
[00:17:35] Or they can mean anything.

TAREK
[00:17:36] Exactly, right. Because they're meaningless they can mean anything. And so they're infused with both meaning and emotion in such a way that they're used to validate whatever policies the government decides makes sense.

MOLLY
[00:17:50] Most emblematic was maybe the war on terror, which was the Bush-era contribution to the conversation was to give the slogan.

TAREK
[00:17:58] Sure, but I agree that the war on terror gives like a slogan and a banner --

MOLLY
[00:18:02] And a legitimacy.

TAREK
[00:18:03] Certainly, legitimacy. The thing I would add to that is that the notion that what we're talking about when we fight terrorism is something that everyone can agree on is this notion that if you were to if we're to stand up and say, no, you should not use this app to fight terrorism, right, you're put in a position where you have to talk about it from a rights perspective, a law perspective as compared to some other perspective, which is the sociopolitical dynamic that's actually happening here with a more powerful country exerting its control over either a minority community in its midst or disliked communities abroad. And so the framing of whatever is happening as terrorism is then used as a tool to sort of get away with whatever it is that they decide that they want to get away with.

And so you'll see some of the disclaimers for incorporation of X Mode or Locate X, which were talked about in Motherboards story, as sort of saying, look, we will only use the information collected for civic research, right? Or we will only use the information collected for counterterrorism, right? What do these words even mean? They don't mean anything. But to the user, the user thinks, okay well, we're using them for specific research? Well, I mean, okay. We're using them for counterterror -- I mean, who's reading them first and foremost? But if you were to read them, these words don't mean anything. And so to the extent that you're made to choose, there's a with us or against us dichotomy that's set up. This is so emblematic in the way that you say of the world that we are now in where -- I've said it now enough times to emphasize the point, I hope, but it really is shocking. And so when you see efforts to say, well, the proud boys, that's white supremacist terrorism. Or what happened in South Carolina, that's white supremacist terrorism. Or in Charlottesville, that's white supremacist terrorism. I mean, the effort to my mind, shouldn't be to expand the use of the word terrorism, but to eliminate it because it's too dangerous, it's too potent of a tool.

MOLLY
[00:20:14] It's very hard, it doesn't feel tactile. It doesn't feel real, it's sort of this thing that you know is happening in the ether. And I'm curious if you can speak to the impact of the psychological impact of knowing that there are these different forms of surveillance from all these different agencies in the government. And I think it's also worth noting that it's surveillance on top of a lot of other methods of control. I mean, I think you've worked on ways that people who are traveling are stopped and questioned. Innocent travelers who have done nothing wrong, nothing to warn and off and on hunches by CBP agents. Or there’s the no-fly list where you somehow end up on a list. You're never confirmed that you're on the list and your traveling suddenly becomes a nightmare for you. There are all these control mechanisms that you may or may not face. You often have no idea in advance. And it seems like over time, just living your life that there's a cloud following you. Do you have a sense of what that impact is?

TAREK
[00:21:14] I'll tell you a quick story. I grew up in Ohio, and I grew up going to a mosque that was sort of the center of the community where I grew up. And after 9/11, I remember the kids in the mosque started to joke about how the sprinklers in the ceilings were microphones and that the FBI -- or they said the CIA, because they're not sure about jurisdictional bounds, and I guess I'm not either at this point -- but that the CIA was listening in on them. That psychic toll, whether it's in a mosque, in a community center, in your own home now, is damaging. It -- you're not able to know when you're alone. And that feels extremely destabilizing. I mean, the ACLU won the Carpenter case in 2018, and the Carpenter case effectively said, look, if the government wants to get third party information from cell towers, someone makes a phone call, that phone call sends a signal to a cell phone company. That cell phone company can't just hand over the government the information. They have to get a warrant, right? And so the reason that's important, tie it back to what we were talking about, the reason it's important is because you want to have a sense as a person of what information the government of yours, the government has access to, what you're putting out there that they legally can access. And so the reason, at least a reason, that the Supreme Court said this is not fair game is because you're not consenting to even giving that over.

And so here what the government's trying to do is they're trying to use their checkbook to get around Carpenter and say, okay well you can't hand it over to us through a subpoena? Well, we’ll just contract with this company and have them hand it to us because they paid someone to get it. Again, you have no sense of what's yours and what's not yours. You have no sense of when you're alone. You have no sense of what's private and what's not. And it's pervasive. That joke of the sprinkler system being the CIA becomes more and more true as we move along. And now maybe it's not the sprinkler, but it's your phone that the government has access to and can tap into to find out where you were and what you're doing.

MOLLY
[00:23:36] I'm curious when the kids said that about the sprinkler system, did you change your behavior, did you change what you said at all?

TAREK
[00:23:43] I mean, in my mosque, sure, I think people did. I mean, we know that in New York, CLEAR brought the lawsuit along with the ACLU, against the NYPD for spying on Muslim communities. We know that there were signs up in Muslim Student Associations saying don't discuss politics here. And I can tell you that in my mosque, that's certainly happened, that those sorts of conversations were had deciding who the imam would be. In a variety of different contexts that I found myself had a lot to do with deciding how critical they were going to be of the government for fear of these sorts of things. Certainly, I mean, it does have that impact, no question.

MOLLY
[00:24:21] So, CLEAR and the ACLU are seeking information from 10 government agencies as far back as three years. What exactly are you hoping to find and why 2017? Why those 10 agencies?

TAREK
[00:24:46] Well, we first know that Locate X, which was one of the companies reported on by the Motherboard report, was being used by a variety of different agencies as far back as then. There has been some previous reporting on this before the Motherboard report, I think in Protocol on that front. And we know then that a variety of different agencies use Locate X, some have been privy to X Mode's data as well.

What we're trying to find out is, like we were talking about before, what this information is being used for, guidelines that the government has to limit itself when it uses this data, what rules they've set for themselves in terms of what is meant to be kept and what's not, and a whole bunch of other information about sharing information. What legal basis they've concocted for themselves to get around the Carpenter ruling and other rulings. And I don't have the FOIA memorized off the top of my head, but those are the broad strokes. Really, what we're asking is who is using this? What are they using it for? How have they excused themselves to use it? How have they validated to themselves that it's okay to use? And when did it start? And all that information we're hoping to get through this FOI lawsuit, and we're sure the government's just going to hand it all over.

MOLLY
[00:26:00] And I'm curious, how do you make the argument that everybody, even those who haven't used these apps -- and I should say it wasn't just Muslim Pro, also Muslim Mingle, which is a sort of singles connecting point, and there was another app that makes Craigslist easier to search. But for those who haven't used those apps, why should everybody care about this? And why care even as we go into administration that we hope ostensibly will be better on these issues?

TAREK
[00:26:31] Yeah, so in the first order, I would say that everyone who took to the streets in the women's march, who sent money to the ACLU, the fewer people who sent money to CLEAR, people who donated to organizations, people who found themselves at the airport during the Muslim ban, people who found themselves at the border because of children being locked up in cages, people who found themselves in the streets over the summer. The themes that resonate across all of those gatherings don't simply disappear when you have a new, old white man sitting behind the resolute desk in the Oval Office. Those themes persist and potentially, they become more palpable to many people who went to their first protests in 2017 or 2018 or 2020. And I urge people to not fall prey to this idea that the steady hand at the machine and therefore we can back off. It's still a machine that's directed in a particular direction and there's no special button which shoots the opposite way. And so the organizing and presence is all the more important now by virtue of the fact that there's cover. We saw this with the Obama administration and how many deportations Obama was responsible for, how many--

MOLLY
[00:28:03] And drone strikes.

TAREK
[00:28:03] -- drone strikes. Exactly. The development and further legitimization of the drone strike program under Obama. The TCRTs, as I said, were formed under Obama. There's no sense that the machinery is going anywhere anytime soon. So yeah, I think is just as important, if not more.

MOLLY
[00:28:26] It seems like one form of action that people can take is demanding that the government is accountable and transparent. But it feels like there is another form of action and that is the power of being a consumer, you know, and that the government is culpable in this but not the only culpable party that, as you mentioned earlier, the apps have an obligation to know where they're selling the data and to be transparent about that. And I'm curious if you think that that is another avenue where we can demand change? I mean at first, am I getting this right, that they were not completely upfront about their use of X Mode or X Mode buying their data, but it's something that they revealed later on? And they've come around and they've actually canceled their contract with X Mode, if I'm not mistaken.

TAREK
[00:29:12] That's right. And I think I read a story just a couple of days ago that Apple and Google both decided to not allow apps on their App Store that sell their data to X Mode. Apple and Google are banning X Mode from collecting location information drawn from mobile devices running their OS. And that's as a result of not just like Ron Wyden telling Apple and Google, but because a lot of people got pissed about it and a lot of people organized to tell Apple and Google how pissed they were. And that's important. It doesn't mean -- it's like this sort of desire to collect information and sell it, it's like a balloon. You poke it on one end it's going to come out the other. It's not like it ends just by discontinuing this collection of data. But at the very least, you kick the can down the road a little bit and you put some pressure.

MOLLY
[00:30:07] Regardless of these positive actions, for now, Aliya is choosing to stay off this application, and others like it.

ALIYA
[00:30:14] After we deleted it, my Muslim coworkers and I actually were asking each other if we have alternative ideas, and to be honest, I think we all came to the conclusion that we would rather be wary of other apps for the time being. I think there were quite a few apps that came out on social media saying that, oh, we don't you should feel safe with us. We're not going to do anything with your user data, but I would still be wary about it. So for now, I'm not using an app. I'm just looking at prayer times online through the local mosque. And that's how I'm going about everything in my day to day now.

I think when all of this came up, I kind of asked myself, do I laugh or do I cry? It was, it's just again, it's another example of how our community is profiled and traumatized on a regular basis. And even when you look at all the coverage that this has received or not received from various news organizations, I mean, for now, this it made sense for us to cover it. It really kind of cuts to the heart of our mission to illuminate injustices for marginalized communities. And I saw some great coverage from the L.A. Times and Middle East Eye and Business Insider. But if you look closely, a lot of that coverage came from Muslim writers and reporters. And it says a lot that we kind of have to shoulder the burden of bringing that story to light. I haven't seen The New York Times or The Washington Post or CNN talking about it. I haven't seen major tech and business publications talking about it. And I think that's a shame. It's important to highlight what's happening, to talk about how the government might be implicated, to talk about the impact it has not just on Muslim communities when you think about religious freedoms, but also on Americans at large when you consider data and privacy concerns. And we shouldn't have to deal with it at all.

MOLLY
[00:32:36] Thanks so much for listening. If you enjoyed this conversation, please be sure to subscribe to At Liberty wherever you get your podcasts and rate and review the show. We really appreciate the feedback. Until next week, stay strong.