Metropolitan News-Enterprise


Tuesday, May 24, 2022


Page 1


Ninth Circuit:

Collection, Disclosure of E-Scooter Data Is Not a Search

Court Upholds City of Los Angeles Requirement That Companies Renting Out Electric Scooters Provide It With Information As to Where the Vehicles Have Traveled; Rejects Claim of Fourth Amendment Violation


By a MetNews Staff Writer


The “third party doctrine,” under which no legitimate expectation of privacy can be found where someone voluntarily turns over information to another, precludes an action under the Fourth Amendment or the California constitutional analogue based on the City of Los Angeles requirement that electric scooter companies track and disclose to the city the location of each device, the Ninth U.S. Circuit Court of Appeals held yesterday.

Through Mobility Data Specification (“MDS”) programming, a rider’s whereabouts is necessarily made known to the company that owns the “e-scooter”—“much like the route of a taxi ride is disclosed to a cab driver”—and disclosure of the data does not intrude upon privacy interests, Circuit Judge Andrew D. Hurwitz said in an opinion for a three-judge panel.

It affirms an order by District Court Judge Dolly M. Gee of the Central District of California dismissing with prejudice of an action brought by Justin Sanchez, a user of e-scooters, against the city and the Los Angeles Department of Transportation (“LADOT”).

Prospect of Identification

Represented by the ACLU Foundation of Southern California and others, Sanchez said in his complaint:

“While MDS does not collect any information directly identifying the rider of a particular vehicle, the sensitivity of movement information makes it possible to identify individual riders anyway. Coupling a rider’s precise trip data with information from just one other dataset—for instance, additional scooter rides that show a pattern of repeated trips to and from the same locations, public voting records from particular addresses, or even simple physical observation of a rider—can likely identify the individual who took the trip, hi addition, it may reveal important information about the individual’s residence, the identity of her employer, associates, or friends, the type of physicians she visits, or her favorite recreational activities. And when end points are sensitive locations—like therapists’ offices, marijuana dispensaries, or Planned Parenthood clinics—those routes may reveal why she made that trip.”

Rejecting that contention, Hurwitz said:

“We decline the invitation to conclude that LADOT’s collection of anonymous data about traffic movements is somehow rendered a search because it may be used in the future (in connection with other non-private material) to reveal an individual’s previous locations. Even accepting Sanchez’s contention that anonymous MDS data can be used in the future to draw inferences about who was using a scooter at a particular time, ‘an inference is not a search.’ ”

Supreme Court Decision

Sanchez relied on the U.S. Supreme Court’s 2018 decision in Carpenter v. United States. Writing for a 5-4 majority, Chief Justice John Roberts declared that the “Government’s acquisition of the cell site records” of a suspect “was a search within the meaning of the Fourth Amendment.”

Hurwitz noted that the court in Carpenter “simply found the third-party doctrine inapplicable in the case before it.”

He went on to say:

“[B]ecause Carpenter expressly stated that it was not disturbing the application of the third-party doctrine in contexts other than the collection of historical [cell site location information] that case only begins, rather than ends, our inquiry. Rather, as the Court did in Carpenter, we focus on whether application of the doctrine to this case would be consistent with its underlying rationales….We conclude that the doctrine does apply here, foreclosing Sanchez’s claim of a reasonable expectation of privacy over the MDS data.”

Voluntary Disclosure

The jurist provided this discussion:

“Sanchez affirmatively chose to disclose location data to e-scooter operators each time he rented a device. Indeed, his complaint concedes that, in order to charge him. an e-scooter operator necessarily must ‘track rides’ by obtaining location data on the route taken….

“When Sanchez rents an e-scooter. he plainly understands that the e-scooter company must collect location data for the scooter through its smartphone applications. Thus, the voluntary exposure rationale fits far better here than in Carpenter. Having ‘voluntarily conveyed’ his location to the operator ‘in the ordinary course of business,’ Sanchez cannot assert a reasonable expectation of privacy.”

He added that scooters, unlike cell phones, are not “indispensable” implements.

Hurwitz also agreed with Gee that Sanchez failed to state a claim under California’s Electronic Communications Privacy Act (“CalECPA”).

“CalECPA does not create a private right of action,” he said.

The case is Sanchez v. LADOT, 21-55285.


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