This week, the American Civil Liberties Union (ACLU) filed a lawsuit against the City of Los Angeles and the Los Angeles Department of Transportation for collecting GPS tracking data retrieved from dockless scooter rentals that allows tracking of people's movements. The lawsuit asserts a violation of the 4^th Amendment to the US Constitution and the California Electronic Communications Privacy Act, as sensitive, granular information transmitted through the GPS can identify riders the purpose of their trips.

LADOT is included in the lawsuit as the agency adopted Mobility Data Specification (MDS), a type of software that uses GPS data to track movements. Companies that operate and rent scooters and bikes in LA had to agree to use MDS and give LADOT access to the data.

Timothy Toohey of Greenberg Glusker Fields Claman & Machtinger LLP noted, "Particularly in this era when personal privacy and surveillance are top of mind, restricting the collection of sensitive geolocation information is among the most important ways of constraining potential government misconduct."

The lawsuit notes that even if driver identies are not revealed directly, it is not impossible to identify people using only location information. For example, "an agent could potentially match users trajectories in anonymized data from one dataset, with deanonymized data in another, to unmask the anonymized data." As a result, researchers have found they can "identify 50% of people from only two randomly chosen data points in a dataset that contained only time and location." Because the data is so susceptible to indentification, it "cannot reasonably be considered 'anonymized' in any real sense when collected en masse and with the precision that MDS currently demands."

This obviously poses a serious risk to individual privacy and its potential use by public agencies and law enforcement. This is a point Washington Policy Center has made with regard to the Road Usage Charge (RUC) in Washington state.

WPC published extensive research on the proposed RUC and similar problems with GPS data collection, including conflict with the 4th Amendment if the GPS transponder is mandatory. The RUC is a per-mile charge that is intended to replace the gas tax, though multiple interest groups and officials are fighting to ensure the revenue collected can be spent on programs unrelated to roads.

Unlike the case in LA, Washington officials may avoid potential consitutional conflicts with the RUC by allowing low-tech, non-GPS options for submitting mileage (like taking pictures of your odometer), but all of those options overcharge drivers for travel outside of the state. Many drivers may feel financial pressure to use the more accurate GPS option and waive their right to privacy to avoid overcharges. 

One solution that was tested during the pilot was a smartphone app that allowed drivers to submit images of their odometer and turn on GPS only when they traveled out of state to ensure they were exempt from any charges. Challenges to the app include verification that the smartphone being used is in the right vehicle, avoiding fraud, and determining miles driven if the smartphone isn't getting a signal or is not available. 

As we noted in the RUC study, the courts have ruled that when people travel on public thoroughfares, they do not have a reasonable expectation of privacy. People do, however, have a reasonable expectation of privacy regarding “long-term movements,” which mileage tax data collected by a GPS tracking device could demonstrate over time, as the ACLU explains. Anonymization of data has been a key talking point throughout the RUC Pilot and subsequent reports to provide assurance that people's privacy would be protected, but the ACLU lawsuit raises serious questions about the effectiveness of anonymization in protecting people's identities.

We will continue to track this lawsuit, as it may have wider implications than the electric scooters it targets.