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LA Can Track E-Scooter Movements, 9th Circuit Says

By Joseph Fawbush, Esq. | Last updated on

If I was trying to go incognito, my first thought probably wouldn't be to rent an electric scooter and zoom around downtown Los Angeles with it. They are not particularly inconspicuous.

Yet a recent Ninth U.S. Circuit Court of Appeals opinion dealt with the "reasonable expectation of privacy" LA residents and visitors might have when renting e-scooters, which are more popular than ever due to their mobility, ease of use, and low cost.

Los Angeles Tracks E-Scooter Movements

In response to an influx of e-scooter rentals, LA enacted an ordinance several years ago that requires all private e-scooter rental companies to obtain a permit from the Los Angeles Department of Transportation.

To obtain this permit, LADOT requires these private companies to provide the start and end points of each ride taken on their e-scooters. The stated goal is to track and limit pedestrian congestion.

While scooter-rental companies do not include information on the scooter users, it is possible the city could combine certain data sets to pinpoint to within centimeters the location of many people using e-scooters in the city. At least, that was the allegation made by LA resident Justin Sanchez, who claimed the city's policy is a violation of his Fourth Amendment right against unreasonable search and seizure.

So: Is e-scooter tracking a violation of the right against unreasonable search provided in the Fourth Amendment?

A Quick Reminder About Government Searches

Typically, we think of Fourth Amendment protections in the context of law enforcement investigations that involve a suspect's home, car, or person. Yet, for Fourth Amendment purposes, a "search" is much more expansive.

In Katz v. United States (1967), the U.S. Supreme Court noted that the Fourth Amendment protects "people, not places" and held that placing an eavesdropping device into a public phone booth constituted a search. From Katz and subsequent cases, courts now ask in Fourth Amendment search cases whether a person has a reasonable expectation of privacy at the time the government gathered information.

The most recent significant opinion to deal with the issue of tracking a suspect's movements involved U.S. v. Carpenter, a 2018 Supreme Court case. In that decision, SCOTUS held that tracking the location of a cell phone is a search under the Fourth Amendment because GPS technology is such that access to a person's smartphone is equivalent to accessing all the places that person has been.

Giving Information Away

Courts have created an exception to the Fourth Amendment protection against unreasonable searches called "voluntary exposure." Under this doctrine, a person does not have a reasonable expectation of privacy when they knowingly provide information to a third party that a reasonable person would understand isn't private. This doctrine is what the Ninth Circuit relied on when dismissing Sanchez's case.

Judge Andrew Hurwitz, who authored the unanimous opinion, distinguished collecting information from a cell phone, which automatically collects information in the background simply by powering up the device, to e-scooters, where users must give their location every time they rent. Because Sanchez voluntarily gave this information to a third party, he did not have a reasonable expectation that his information would stay private.

The decision means that LA can continue to track the movements of e-scooters. This means you should probably find a different mode of transportation to go on the lam in.

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