San Francisco—The Electronic Frontier Foundation and the ACLU of Northern and Southern California today asked a federal appeals court to reinstate a lawsuit they filed on behalf of electric scooter riders challenging the constitutionality of Los Angeles’ highly privacy-invasive collection of detailed trip data and real-time locations and routes of scooters used by thousands of residents each day.
The Los Angeles Department of Transportation (LADOT) collects from operators of dockless vehicles like Lyft, Bird, and Lime information about every single scooter trip taken within city limits. It uses software it developed to gather location data through Global Positioning System (GPS) trackers on scooters. The system doesn’t capture the identity of riders directly, but collects with precision riders’ location, routes, and destinations to within a few feet, which can easily be used to reveal the identities of riders.
A lower court erred in dismissing the case, EFF and the ACLU said in a brief filed today in the U.S. Circuit Court of Appeals for the Ninth Circuit. The court incorrectly determined that the practice, unprecedented in both its invasiveness and scope, didn’t violate the Fourth Amendment. The court also abused its discretion, failing to exercise its duty to credit the plaintiff’s allegations as true, by dismissing the case without allowing the riders to amend the lawsuit to fix defects in the original complaint, as federal rules require.
“Location data can reveal detailed, sensitive, and private information about riders, such as where they live, who they work for, who their friends are, and when they visit a doctor or attend political demonstrations,” said EFF Surveillance Litigation Director Jennifer Lynch. “The lower court turned a blind eye to Fourth Amendment principles. And it ignored Supreme Court rulings establishing that, even when location data like scooter riders’ GPS coordinates are automatically transmitted to operators, riders are still entitled to privacy over the information because of the sensitivity of location data.”
The city has never presented a justification for this dragnet collection of location data, including in this case, and has said it’s an “experiment” to develop policies for motorized scooter use. Yet the lower court decided on its own that the city needs the data and disregarded plaintiff Justin Sanchez’s statements that none of Los Angeles’ potential uses for the data necessitates collection of all riders’ granular and precise location information en masse.
“LADOT’s approach to regulating scooters is to collect as much location data as possible, and to ask questions later,” said Mohammad Tajsar, senior staff attorney at the ACLU of Southern California. “Instead of risking the civil rights of riders with this data grab, LADOT should get back to the basics: smart city planning, expanding poor and working people’s access to affordable transit, and tough regulation on the private sector.”
The lower court also incorrectly dismissed Sanchez’s claims that the data collection violates the California Electronic Communications Privacy Act (CalECPA), which prohibits the government from accessing electronic communications information without a warrant or other legal process. The court’s mangled and erroneous interpretation of CalECPA—that only courts that have issued or are in the process of issuing a warrant can decide whether the law is being violated—would, if allowed to stand, severely limit the ability of people subjected to warrantless collection of their data to ever sue the government.
“The Ninth Circuit should overturn dismissal of this case because the lower court made numerous errors in its handling of the lawsuit,” said Lynch. “The plaintiffs should be allowed to file an amended complaint and have a jury decide whether the city is violating riders’ privacy rights.”
For the brief:
https://www.eff.org/document/sanchez-v-ladot-opening-appellage-briefpdf
