In a civil case interpreting Carpenter, the Ninth Circuit has ruled that Los Angeles did not run afoul of the Fourth Amendment by requiring e-scooter service providers to disclose historical scooter location records as part of the permitting process. However, the ruling leaves open the possibility that the Fourth Amendment does require a warrant where law enforcement seeks to compel a provider to reveal historical location tracking records about a specific customer.
In Sanchez v. Los Angeles Department of Transportation, the court affirmed an order dismissing, for failure to state a claim, an action brought by an e-scooter user against L.A. alleging that the permitting program, which requires e-scooter companies to disclose real-time location data for every scooter, violates, among other things, the Fourth Amendment. In rejecting the user’s Fourth Amendment claim, the Ninth Circuit distinguished the Supreme Court’s decision in Carpenter, in two ways. First, it concluded that unlike a cell phone user—whose device provides location information without any affirmative act on his part—an e-scooter user “affirmatively cho[oses]” to disclose his location the operator each time he rents one. Second, the court noted that unlike historical cell-site location information (“CSLI”), which permits the continuous tracking of an identified phone user’s location, the data obtained by the City includes only the locations of e-scooters during “discrete trips” and does not directly identify any scooter user.
As a condition of getting a permit, the Los Angeles Department of Transportation (“LADOT”) requires e-scooter operators, such as Bird, Lime, and Lyft, to provide vehicle location data through an application programming interface called Mobility Data Specification (“MDS”). Used in conjunction with users’ smartphone applications, MDS automatically compiles data on each e-scooter’s location, including the start and end points of each trip and the specific route in between. LADOT obtains the data in (or near) real time and uses it for traffic management.
Sanchez, an e-scooter user, alleged that although LADOT “does not collect any information directly identifying the rider of a particular vehicle,” the City could nevertheless use the compiled location data (which provides the location of e-scooters “to within 1.11 centimeters of their exact location”), together with other information, “to retrace a rider’s whereabouts” and “to identify trips by individuals to sensitive locations.” He claimed that LADOT’s collection of the location data violates the Fourth Amendment as well as California law. The district court rejected Sanchez’s claims and granted LADOT’s motion to dismiss his complaint with prejudice.
The Ninth Circuit affirmed. Rejecting Sanchez’s reliance on Carpenter, in which the Supreme Court held that a cell phone user had a reasonable expectation of privacy in historical CSLI held by wireless carriers, the court of appeals concluded that the third-party doctrine, which “teaches that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” foreclosed Sanchez’s constitutional claims.
Focusing first on “voluntary exposure,” the court concluded that unlike a cell phone user—whose device provides location information “by dint of its operation, without any affirmative act on the part of the user”—an e-scooter user accepts terms of service “expressly stat[ing] that ‘location data’ will be collected, stored by the rental company, and shared with government authorities.” Asserting that a user thereby “knowingly and voluntarily disclos[es] location data to the e-scooter operators,” the court concluded that “the voluntary exposure rationale fits far better here than in Carpenter.”
Next considering “the nature of [the] location data” at issue, the court concluded that e-scooter users have a “diminished expectation of privacy” in information that includes only the locations of e-scooters during discrete trips and that neither directly identifies any scooter user nor correlates multiple trips made by any individual. In the court’s view, MDS data about all of a provider’s scooters is thus “quite different” than CSLI, which “identifies the location of a particular user virtually continuously.”
The Ninth Circuit rejected Sanchez’s claim that LADOT’s collection of the location data must be deemed a search because “it may be used in the future (in connection with other non-private material) to reveal an individual’s previous locations,” declaring that such “an inference is not a search.” Because the collection “captur[es] only the locations of e-scooters during discrete trips,” the court concluded that it was “more like the remote monitoring of a discrete ‘automotive journey’” approved by the Supreme Court in Knotts than “the dragnet, continuous monitoring of an identified individual’s movements at issue in Carpenter.”
Finally, the court observed that “e-scooters, unlike cell phones, are simply not ‘indispensable to participation in modern society,’” because “they are but one of many different means available for short-distance travel in some urban environments.” It “therefore conclude[ed] that the considerations animating the [Supreme] Court’s ‘narrow’ decision in Carpenter declining to apply the third-party doctrine are not present here.”
The Sanchez decision continues the trend of courts treating Carpenter as a narrow exception to the third-party doctrine that is generally limited to comprehensive location information or to other similarly pervasive forms of tracking and surveillance. See here. Sanchez, though, does not necessarily foreclose the application of Carpenter’s warrant requirement to e-scooter location information on different facts. In particular, a law enforcement request to an e-scooter company itself for the location information of a specific user would present a stronger basis for requiring a warrant, especially if the request covered an extended time period rather than an individual trip. But Sanchez’s reliance on terms of service and the proposition that e-scooters are not indispensable as grounds for adhering to the third-party disclosure doctrine could make the prospect of prevailing on such a claim uncertain.