Law Street Media

9th Cir: No Constitutional Privacy Violation in LA Dept. of Transportation Location Tracking Suit

Dockless electric scooters on a street corner.

A precedential ruling from the Ninth Circuit Court of Appeals affirmed a district court decision upholding the Los Angeles Department of Transportation’s (LADOT) practice of tracking rentable e-scooters’ locations. Monday’s opinion concluded that the rider, who claimed the practice overstepped his constitutional privacy rights, had no reasonable expectation of privacy over the location data and that the California Electronic Communications Privacy Act (CalECPA) did not afford him a private right of action.

The rider sued LADOT after the city passed a law to manage a “near-overnight invasion” of dockless electric scooters, which cluttered sidewalks and interfered with street access, the opinion said. Part of the law required that companies such as Bird, Lime, and Lyft provide vehicle location data through an application programming interface (API) called Mobility Data Specification (MDS), which “automatically compiles real-time data on each e-scooter’s location by collecting the start and end points and times of each ride taken.”

The rider, who uses scooters to commute around Los Angeles, argued that LADOT’s collection of MDS location data violates the Fourth Amendment to the United States Constitution, the California Constitution, and the CalECPA.

The district court dismissed the case, ruling that the local agency’s receipt of scooter location data does not constitute a search under either constitution, and alternatively, if the conduct is a search, then it is a reasonable, administrative one. On appeal, the panel considered the parties’ arguments as well as those submitted by amici, including the Open Mobility Foundation (OMF), a non-profit who argued that MDS software is a necessary, legal, and legitimate transportation management tool.

As a threshold matter, the court found that the plaintiff had Article III standing to bring the suit, ruling that the harm asserted was more than a hypothetical invasion of privacy.

Next, the panel determined that the third-party doctrine, providing that a person has no legitimate expectation of privacy in information he voluntarily hands over to third parties, precluded the rider’s claim of a reasonable expectation of privacy over the MDS data. In so finding, the opinion made multiple comparisons to Supreme Court cases finding violations of privacy when the government tracks someone via their cell phone.

The court opined that unlike a cell phone user, the rider agreed to the scooter operator’s terms of service, which in order to comply with Los Angeles’ law, turned over location data. By contrast, a cell phone “provides location information by dint of its operation, without any affirmative act on the part of the user,” the opinion said. Conveying the rider’s agreement as a voluntary choice, the court said that he could not plausibly assert a reasonable expectation of privacy over the information he gave away.

Similarly, the nature of the MDS data, giving up only the location of a company-owned e-scooter, which is typically re-rented to a new user after each individual trip, was insufficient to trigger constitutional protection. The panel once again contrasted MDS data with the information generated by a cell phone, which identifies the location of a particular user virtually continuously. 

The rider is represented by the ACLU, the Electronic Frontier Foundation, and Greenberg Glusker Fields Claman & Machtinger LLP. Los Angeles is represented by its City Attorney.

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