Amicus Open Mobility Foundation Weighs in on Rider’s Data Privacy Appeal Against Los Angeles

An amicus filing submitted late last week backs defendant-appellees the City of Los Angeles and the Los Angeles Department of Transportation in a lawsuit filed by scooter riders who assert that device location data maintained by the city violates their constitutional rights. The Open Mobility Foundation (OMF), a non-profit consisting of transportation department, mobility company, and software vendor members, uses its page space to explain how Mobility Data Specification (MDS) software works and why it is legal and legitimate.

Los Angeles was reportedly faced with an onslaught of dockless electric scooters that littered sidewalks and other places they should not have been when “micromobility” companies like Santa Monica-based Bird put them on the streets for civilians to ride at their own expense. Instead of banning the scooters, as some cities have done in part or whole, Los Angeles began to regulate the industry, the appellees said in their answering brief

As part of its regulation, Los Angeles allegedly began to work with MDS, “software that facilitates the exchange of anonymized data between private mobility operators and municipalities.” Los Angeles claims that far from invading riders’ privacy, it enables the city to fulfill its duty to regulate the public right-of-way, decide infrastructure needs, and make other public policy decisions.

Two men sued Los Angeles alleging that with MDS, companies and the city could track their precise ride history. They argued that collecting device location data from micromobility companies violates their right to be free from unreasonable search and seizure under the Fourth Amendment to the United States Constitution, article I, section 13 of the California Constitution, and California’s Electronic Communications Privacy Act. They further contended that the data collection is unreasonable and unconnected to any legitimate government interest. 

The trial court dismissed the case, finding that Los Angeles’ receipt of scooter location data does not constitute a search under either constitution. Alternatively, the court held that if Los Angeles’ conduct is a search, then it is a “reasonable, administrative one.” One rider appealed and briefing is underway before the Ninth Circuit Court of Appeals. 

OMF opened its brief by stating “[a]ppellant and his supporting amici’s portrayals of MDS as an Orwellian tool for mass surveillance rest upon errors of fact and far-fetched speculation.”

The non-profit argued that MDS is focused on scooter location and does not collect any information from or about riders.

It also stressed that limitations on the type of data collected reflects that MDS is an administrative tool rather than an investigatory one. “Neither Appellant nor any of his supporting amici have identified any law enforcement use of MDS, and OMF is not aware of any either,” the filing further argued.

OMF also contended that cities use MDS as a legitimate planning tool to, among other things, identify inequality. OMF provided several examples, in one instance showing how Chicago used MDS to determine that, “in the afternoon, Black residents had access to micromobility vehicles 13% of the time while white residents had access 57% of the time.”

The appellant’s reply brief is due in late December. He is represented by ACLU Foundation of Southern California and Northern California, the Electronic Frontier Foundation, and Greenberg Glusker Fields Claman & Machtinger LLP.

Los Angeles is represented by its City Attorney, and OMF by Greines, Martin, Stein & Richland LLP.