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Scooter privacy

May 30, 2022

How would you feel if the government could go back in time and find you on a scooter? Why am I asking this really weird question?

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

The government can time travel!

At least it can according to a guy who doesn’t want anyone to know where he’s going on scooters. I know this because this astonishing assertion was the subject of a Ninth Circuit U.S. Court of Appeals ruling last week in a case against the City of Los Angeles and its Department of Transportation.

“Sanchez,” the court explained, “alleges that the City can travel back in time to retrace a rider’s whereabouts.”

I have to pause here to express my skepticism. If the City — I’m assuming people in government rather than the entire city — can go back in time, why aren’t they preventing crimes from happening in the first place? There should be no crime at all.

But I digress (or maybe time travel). Let’s turn this complaint into a hypothetical.

A guy walks into your law office and says he does a lot of traveling on rented e-scooters. That should be a red flag right there. Scooter Guy goes on to tell you that he’s concerned that local city officials can track his movements because the city collects data on the whereabouts of rented scooters.

Should you recommend psychological counseling for paranoia or should you recommend federal litigation that will get appealed to the Ninth Circuit?

Obviously, whoever got this case went the litigation route, claiming that the plaintiff’s rights under the Fourth Amendment and California Electronic Communications Privacy Act were being violated. This is, in part, because officials would “match users’ trajectories in anonymized data from one dataset, with deanonymized data in another” and then “identify 50% of people from only two randomly chosen data points in a dataset that contained only time and location data.”

Try to imagine the full employment for government workers doing all this identifying. Imagine all the scootering criminals being thwarted.

Clearly, I’m missing something here. If you want privacy, my thought was, you shouldn’t be renting something you know is connected to the internet.

Then I looked at the rather amazing lineup of lawyers listed in this case. Check it out — the plaintiff is represented by two chapters of the ACLU, the Electronic Frontier Foundation and a major law firm. And then there’s a passel of amicus briefs from, among others, the Center for Democracy & Technology, the Electronic Privacy Information Center, the Open Mobility Foundation, and “Seven Data Privacy and Urban Planning Experts.”

The heavy hitters were out in force to defend scooter privacy. Maybe I shouldn’t be scoffing.

The Ninth Circuit, in case you haven’t read the opinion, scoffed — “When Sanchez rents an e-scooter, he plainly understands that the e-scooter company must collect location data for the scooter through its smartphone applications.”

The city can continue to time travel.

Proximate cause. You’ve got to love insurance litigation — it brings out the creativity in lawyers.

If, for example, an insurance policy doesn’t cover business losses caused by a virus, all you have to do is come up with another cause.

I recently spotted the following language in lawsuits over whether insurance policies should cover business losses during the Covid-19 lockdowns:

“Plaintiff’s … losses were not caused by a virus. The true cause of Plaintiff’s losses is the pandemic and associated fear. Pandemic and fear are not viruses …. There is no indication that any person contracted the virus while on premises.”

It wasn’t the virus — it was the pandemic.

But if the pandemic was caused by the virus….

Courts are going to have so much fun.

Categories / Op-Ed

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