Public Eyes, They’re Watching You

, , , News, The Cullen Law Firm, PLLC

 

      A lawsuit filed in late March by JUMP—Uber’s dockless shared electric scooter and bike service—against the City of Los Angeles serves as a timely reminder that just because you travel on public roadways does not mean the government can engage in unbridled surveillance. JUMP’s challenge to Los Angeles’s data collection policy is just the latest example of the growing opposition to government collection and use of GPS data. Owner-operator truck drivers have been fighting against unnecessary, warrantless GPS tracking for years.

L.A.’s Data Policy: Every breath you take and every move you make . . . I’ll be watching you.

      JUMP is challenging Los Angeles’s data collection policy for dockless micro-mobility transportation devices (i.e., e-bikes and e-scooters) because it presents “profound privacy risks.” In 2018, the Los Angeles Department of Transportation (“LADOT”) began implementing a permitting process that required micro-mobility transportation companies, like JUMP, to comply with its “mobility data specification” program (“MDS”). MDS requires JUMP, and similar companies, to automatically transmit data, in real-time, to LADOT about the use of its devices. The data collected includes: (1) the micro-mobility company’s ID (e.g., JUMP’s ID); (2) the unique ID of the vehicle; (3) the distance and duration of the trip; (4) the cost of the trip; (5) the precise, time-stamped start and endpoints of the trip; and (6) time-stamped GPS “breadcrumbs” showing the precise route traveled by the rider. Failure to comply with MDS authorizes LADOT to terminate the offending company’s operating permit.

      JUMP alleges that LA’s extensive, data collection policy threatens JUMP’s and its users’ privacy rights. Individual geolocation data can reveal a striking amount of personal information about a user. According to JUMP, “the combination of LADOT’s collection of historical trip data with the mandatory production of trip data in real-time permits LADOT unprecedented capability to surveil and monitor citizens.” This ability enables L.A. to “surveil, track, and investigate millions of people completely outside the constitutionally mandated warrant and subpoena process” in violation of the Fourth Amendment and Article I, Section 13 of the California Constitution.

I Always Feel Like, Somebody’s Watching Me: Adapting Constitutional Privacy Protections for Today’s Technology

      Concerns about the privacy implications of government GPS tracking, like those raised by JUMP, have recently resonated with the United States Supreme Court. Society’s expectation of privacy “has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual[ ]” because in “the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical.” U.S v. Jones, 565 U.S. 400, 429–30 (2012) (Alito, J., concurring). GPS monitoring, on the other hand, “generates a precise, comprehensive record of a person’s public movement that reflects a wealth of detail about [their] familial, political, professional, religious, and sexual associations” with a “net result” that “may alter the relationship between citizen and government in a way that is inimical to democratic society.” Id. at 415–16 (Sotomayor, J., concurring).

      Even more recently, the Court affirmed the fundamental principle that “[a] person does not surrender all Fourth Amendment protection by venturing into the public sphere.” Carpenter v. U.S., 138 S. Ct. 2206, 2217 (2018). Time-stamped GPS data “provides an intimate window into a person’s life” and “[w]ith just a click of a button the Government can access each [business’] deep repository of historical location information at practically no expense.” Id. at 2217. Moreover, the “retrospective quality of the data” allows government to “reconstruct a person’s movement”—information that was previously unknowable. Id. at 2218.

Take a Bow For the New Revolution: Owner-Operators Challenge Similar Government GPS Data Tracking

      The privacy rights implicated by new technology are not limited to individuals. See City of Los Angeles v. Patel, 135 S. Ct. 2443, 2452, 2454–55 (2015). Businesses, too, enjoy protection from warrantless government searches, id. at 2454-55, and owner-operator truck drivers have been fighting against GPS data collection policies, like the policy JUMP is challenging, for years.

      In 2015, the Federal Motor Carrier Safety Administration (“FMCSA”) issued a rule requiring motor carriers to install electronic logging devices (“ELDs”) in their vehicles in order to track drivers. These ELDs automatically and constantly, 24-hours a day, record the GPS location of a commercial motor vehicle regardless of whether the driver is on or off duty. FMCSA requires that this data only be used to enforce hours-of-service limits, which restrict the amount of time a driver is permitted to be on duty. Incentivized by a federal grant program, states have been incorporating the FMCSA’s ELD requirement into state law and mandating that drivers regularly turn over their data to government officials. Adopting states, however, have failed to enact policies to ensure that ELD data is not misused. Like LADOT’s data collection policy, failure to comply with these ELD requirements results in truck drivers being placed out of service.

      ELD data collection, however, raises serious privacy concerns for truck drivers. For many drivers, their truck is not simply a vehicle—it is also an office and their home. For more than a few drivers, their truck is their only home. In particular, long haul drivers engage in a wide variety of personal conduct when crisscrossing the country because their trucks become vehicles of personal conveyance when they are off duty.  

      The Cullen Law Firm is currently representing the Owner-Operator Independent Drivers Association (“OOIDA”) and several owner-operator truck drivers in a challenge to New York’s ELD requirement. The lawsuit alleges that New York’s ELD requirement violates Article I, Section 12 of the New York Constitution, which provides even greater protection against warrantless government searches than the Fourth Amendment to the United States Constitution, and that New York has failed to enact any policies to safeguard the privacy of drivers in the collection of ELD data. The Cullen Law Firm expects to receive a ruling later this year and hopes that New York’s courts will stop these warrantless intrusions into drivers’ privacy.

      For more information about OOIDA’s challenge to New York’s ELD requirement, how state constitutions can provide vital privacy protections, or how governments are utilizing new technology at the expense of your constitutional right to privacy, please contact:

Gregory R. Reed         (202) 298-4767           grr@cullenlaw.com

Paul D. Cullen, Jr.      (202) 944-8600           pxc@cullenlaw.com

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