Case: 21-55285, 11/05/2021, ID: 12280471, DktEntry: 39, Page 1 of 77
`
`No. 21-55285
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`_________
`
`JUSTIN SANCHEZ,
`Plaintiff and Appellant,
`
`v.
`
`LOS ANGELES DEPARTMENT OF TRANSPORTATION, et al.,
`Defendants and Appellees.
`____________________________________
`Appeal from the United States District Court
`for the Central District of California
`Case No. 2:20-cv-05044-DMG-AFM
`Hon. Dolly M. Gee
`____________________________________
`ANSWERING BRIEF
`____________________________________
`MICHAEL N. FEUER, City Attorney (SBN 111529)
`KATHLEEN A. KENEALY, Chief Deputy City Attorney (SBN 212289)
`SCOTT MARCUS, Chief Assistant City Attorney (SBN 184980)
`BLITHE S. BOCK, Managing Assistant City Attorney (SBN 163567)
`JONATHAN H. EISENMAN, Deputy City Attorney (SBN 279291)
`JEFFREY L. GOSS, Deputy City Attorney (SBN 178597)
`200 North Spring Street, City Hall 14th Floor
`Los Angeles, California 90012
`(213) 978-2212 | Jonathan.Eisenman@lacity.org
`Attorneys for Defendants and Appellees
`LOS ANGELES DEPARTMENT OF TRANSPORTATION
`and the CITY OF LOS ANGELES
`
`
`
`No. 21-55285
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`_________
`
`JUSTIN SANCHEZ,
`Plaintiff and Appellant,
`
`v.
`
`LOS ANGELES DEPARTMENT OF TRANSPORTATION, et al.,
`Defendants and Appellees.
`____________________________________
`Appeal from the United States District Court
`for the Central District of California
`Case No. 2:20-cv-05044-DMG-AFM
`Hon. Dolly M. Gee
`____________________________________
`ANSWERING BRIEF
`____________________________________
`MICHAEL N. FEUER, City Attorney (SBN 111529)
`KATHLEEN A. KENEALY, Chief Deputy City Attorney (SBN 212289)
`SCOTT MARCUS, Chief Assistant City Attorney (SBN 184980)
`BLITHE S. BOCK, Managing Assistant City Attorney (SBN 163567)
`JONATHAN H. EISENMAN, Deputy City Attorney (SBN 279291)
`JEFFREY L. GOSS, Deputy City Attorney (SBN 178597)
`200 North Spring Street, City Hall 14th Floor
`Los Angeles, California 90012
`(213) 978-2212 | Jonathan.Eisenman@lacity.org
`Attorneys for Defendants and Appellees
`LOS ANGELES DEPARTMENT OF TRANSPORTATION
`and the CITY OF LOS ANGELES
`
`
`
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`
`TABLE OF CONTENTS
`TABLE OF CONTENTS ........................................................................... 2
`TABLE OF AUTHORITIES ...................................................................... 4
`INTRODUCTION .................................................................................... 10
`JURISDICTIONAL STATEMENT ......................................................... 14
`ISSUES ON APPEAL ............................................................................. 15
`STATEMENT OF THE CASE ................................................................ 16
`SUMMARY OF ARGUMENT ................................................................. 21
`ARGUMENT ........................................................................................... 23
`I.
`The district court properly dismissed Sanchez’s constitutional
`claims. ............................................................................................. 23
`A. Review of the dismissal of Sanchez’s constitutional claims is
`de novo. .................................................................................. 23
`There can be no Fourth Amendment search unless the
`Department violated Sanchez’s reasonable expectation of
`privacy. .................................................................................. 24
`Sanchez has no reasonable expectation of privacy in the
`whereabouts of a third party’s device on public rights-of-
`way. ........................................................................................ 25
`1.
`Sanchez doesn’t have a reasonable expectation of
`privacy in the results of a hypothetical analysis of
`location data if he lacks a reasonable expectation of
`privacy in the data itself. ............................................. 25
`In any event, Sanchez lacks Article III standing to sue
`over an allegedly privacy-invading analysis that has
`never taken place. ........................................................ 32
`
`B.
`
`C.
`
`2.
`
`2
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`3. Nor does Sanchez have a reasonable expectation of
`privacy in the underlying location data itself. ............ 34
`D. Even if Sanchez had an expectation of privacy in the location
`data generated while he rides a scooter, by willingly
`providing that data to the device’s owner, he cannot
`reasonably expect it to remain private. ................................ 40
`E. And even if the collection of a third party’s data about the
`location of its device amounts to a search of Sanchez, the
`search is a reasonable one. .................................................... 53
`II. The district court properly dismissed Sanchez’s California
`Electronic Communications Privacy Act claim. ............................. 60
`A. Review of the dismissal of Sanchez’s CalECPA claim is also
`de novo. ................................................................................... 60
`B. Remedies under CalECPA are prescribed by the statute, and
`a private right of action against a government entity is not
`one of the enumerated remedies. .......................................... 60
`III. No amendment can revive Sanchez’s claims. The district court
`correctly dismissed them with prejudice. ....................................... 65
`CONCLUSION ......................................................................................... 68
`CERTIFICATE OF COMPLIANCE ........................................................ 69
`ADDENDUM (Los Angeles Ordinance 186,955) ..................................... 70
`
`
`
`
`
`
`3
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`
`TABLE OF AUTHORITIES
`
`Cases
`
` Page(s)
`
`Airbnb, Inc. v. City of N.Y.,
`373 F. Supp. 3d 467 (S.D.N.Y. 2019) .................................................. 46
`Azam v. D.C. Taxicab Comm’n,
`46 F. Supp. 3d 38 (D.D.C. 2014) ................................................... 22, 36
`Bassett v. ABM Parking Servs.,
`883 F.3d 776 (9th Cir. 2018) ................................................... 24, 36, 37
`Bd. of Educ. v. Earls,
`536 U.S. 822 (2002) ................................................................. 22, 53, 58
`Bond v. United States,
`529 U.S. 334 (2000) ....................................................................... 24, 35
`Byrd v. United States,
`138 S. Ct. 1518 (2018) ................................................................. passim
`Carpenter v. United States,
`138 S. Ct. 2206 (2018) ................................................................. passim
`City of L.A. v. Patel,
`576 U.S. 409 (2015) ............................................................................. 59
`Clapper v. Amnesty Int’l USA,
`568 U.S. 398 (2013) ............................................................................. 33
`First Fed. Sav. Bank v. Key Markets, Inc.,
`559 N.E.2d 600 (Ind. 1990) ................................................................. 49
`Freeman v. DirecTV, Inc.,
`457 F.3d 1001 (9th Cir. 2006) ....................................................... 60, 64
`
`
`
`4
`
`
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`Gikas v. Zolin,
`863 P.2d 745 (Cal. 1993) ..................................................................... 65
`Gould v. Bowyer,
`11 F.3d 82 (7th Cir. 1993) ................................................................... 48
`Herrera v. Zumiez, Inc.,
`953 F.3d 1063 (9th Cir. 2020) ............................................................. 63
`Katz v. United States,
`389 U.S. 347 (1967) ............................................................................. 52
`Kilgore v. City of S. El Monte,
`3 F.4th 1186 (9th Cir. 2021) ............................................................... 23
`Kroessler v. CVS Health Corp.,
`977 F.3d 803 (9th Cir. 2020) ............................................................... 65
`Kyllo v. United States,
`533 U.S. 27 (2001) ....................................................... 21, 29, 30, 31, 54
`Laird v. Tatum,
`408 U.S. 1 (1972) ................................................................................. 33
`Larkin v. Workers’ Comp. Appeals Bd.,
`358 P.3d 552 (Cal. 2015) ..................................................................... 63
`Leaders of a Beautiful Struggle v. Baltimore Police Department,
`2 F.4th 330 (4th Cir. 2021) (en banc) ........................................... 39, 40
`Lyall v. City of Los Angeles,
`807 F.3d 1178 (9th Cir. 2015) ............................................................. 26
`Meland v. Weber,
`2 F.4th 838 (9th Cir. 2021) ................................................................. 60
`Mich. Dep’t of State Police v. Sitz,
`496 U.S. 444 (1990) ............................................................................. 59
`Miller v. Gammie,
`335 F.3d 889 (9th Cir. 2003) (en banc) ............................................... 58
`
`5
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`Naperville Smart Meter Awareness v. City of Naperville,
`900 F.3d 521 (7th Cir. 2018) ............................................. 54, 55, 56, 67
`Nichols v. Brown,
`859 F. Supp. 2d 1118 (C.D. Cal. 2012) ............................................... 20
`Norcia v. Samsung Telecomms. Am., LLC,
`845 F.3d 1279 (9th Cir. 2017) ............................................................. 50
`Patel v. City of Montclair,
`798 F.3d 895 (9th Cir. 2015) ............................................................... 36
`Riley v. California,
`573 U.S. 373 (2014) ..................................................... 28, 38, 39, 44, 45
`S.F. Herring Ass’n v. U.S. Dep’t of the Interior,
`946 F.3d 564 (9th Cir. 2019) ............................................................... 65
`Smith v. Maryland,
`442 U.S. 735 (1979) ..................................................... 22, 41, 45, 46, 47
`Sonner v. Premier Nutrition Corp.,
`971 F.3d 834 (9th Cir. 2020) ............................................................... 23
`Spokeo, Inc. v. Robins,
`136 S. Ct. 1540 (2016) ................................................................... 32, 33
`Summers v. Earth Island Inst.,
`555 U.S. 488 (2009) ............................................................................. 32
`United States v. Bulacan,
`156 F.3d 963 (9th Cir. 1998) ............................................................... 58
`United States v. Cormier,
`220 F.3d 1103 (9th Cir. 2000) ............................................................. 36
`United States v. Davis,
`482 F.2d 893 (9th Cir. 1973) ......................................................... 58, 59
`United States v. Diggs,
`385 F. Supp. 3d 648 (N.D. Ill. 2019) ....................................... 47, 48, 50
`
`6
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`United States v. Jones,
`565 U.S. 400 (2012) ....................................................................... 24, 27
`United States v. Karo,
`468 U.S. 705 (1984) ....................................................................... 21, 33
`United States v. Knotts,
`460 U.S. 276 (1983) ............................................................................. 35
`United States v. Maynard,
`615 F.3d 544 (D.C. Cir. 2010) ............................................................. 26
`United States v. Miller,
`425 U.S. 435 (1976) ....................................................................... 41, 45
`United States v. Moalin,
`973 F.3d 977 (9th Cir. 2020) ............................................................... 34
`United States v. Moffett,
`84 F.3d 1291 (10th Cir. 1996) ............................................................. 36
`United States v. Nosal,
`676 F.3d 854 (9th Cir. 2012) (en banc) ......................................... 50, 51
`United States v. Perea,
`986 F.2d 633 (2d Cir. 1993) ................................................................ 37
`United States v. Ritchie,
`342 F.3d 903 (9th Cir. 2003) ............................................................... 42
`United States v. Tuggle,
`4 F.4th 505 (7th Cir. 2021) ........................................................... 27, 36
`United States v. Weaver,
`No. 96-1068, 1996 U.S. App. LEXIS 25708 (2d Cir. 1996)................. 35
`United States v. Wise,
`877 F.3d 209 (5th Cir. 2017) ............................................................... 52
`United States v. Yang,
`958 F.3d 851 (9th Cir. 2020) ......................................................... 46, 50
`
`7
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`United States v. Young,
`573 F.3d 711 (9th Cir. 2009) ............................................................... 36
`
`Statutes, Rules, and Ordinances
`18 U.S.C. § 1028 ................................................................................ 63, 64
`18 U.S.C. § 1030 ...................................................................................... 51
`18 U.S.C. § 2520 ...................................................................................... 64
`28 U.S.C. § 1291 ...................................................................................... 14
`28 U.S.C. § 1343 ...................................................................................... 14
`28 U.S.C. § 1367 ...................................................................................... 14
`42 U.S.C. § 1983 ................................................................................ 14, 20
`Fed. R. App. P. 4 ...................................................................................... 14
`Fed. R. Civ. P. 12 ..................................................................................... 60
`Cal. Penal Code § 1546.1 ......................................................................... 60
`Cal. Penal Code § 1546.4 ................................................................... 61, 65
`L.A. Ord. 186,955 .................................................................................... 16
`
`Other Authorities
`On-Demand Mobility Rules and Guidelines
`https://ladot.lacity.org/sites/default/files/documents/on-demand-
`mobility-rules-and-guidelines-2021.pdf ....................................... 16, 57
`Orin S. Kerr, Implementing Carpenter
`(USC Law Legal Studies Paper No. 18-29, 2018),
`http://ssrn.com/abstract=3301257 ...................................................... 38
`
`8
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`Orin S. Kerr, The Mosaic Theory of the Fourth Amendment,
`111 Mich. L. Rev. 311, 331–32 (2012) .......................................... 26, 27
`Ryan Fonseca, When People Rage Against The Scooter Machines, This
`LA Instagram Shares The Destruction, LAist (Jun. 13, 2019),
`https://laist.com/news/bird-graveyard-scooter-instagram-q-and-a .... 39
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`
`INTRODUCTION
`It is hard to imagine that anyone who lived in a city over the last
`
`few years missed the proliferation of electric scooters and bicycles on its
`
`streets and sidewalks. The companies that own those dockless mobility
`
`devices leave them in public places. People who want to use them
`
`locate and rent them with a smartphone app, get on, and ride away.
`
`When they reach their destinations, the users hop off, leave the devices
`
`wherever they stopped—there’s no “dock” for them—and then end their
`
`trips with the same smartphone app. Riders are charged for the
`
`distance that they travel between unlocking and locking the devices.
`
`This business model presents at least two problems. First, as
`
`experience demonstrates, it overwhelms public places and
`
`infrastructure with scooters and bicycles. (This is probably true for
`
`several reasons, but it’s enough to say that a company can achieve an
`
`advantage over its competitors by ensuring that more of its devices are
`
`available to potential riders.) Second, the companies that own the
`
`devices need to know where they’re located for billing purposes. Or to
`
`maintain them. Or to recover them from places that they shouldn’t be.
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`One way to overcome both of these problems is for companies to
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`put tracking devices on their scooters and bicycles—so they know where
`
`the devices are—and then to make the data that they collect available
`
`to municipalities—so the municipalities know, and can limit, things like
`
`how many devices are in a given place at a time.
`
`The question in this appeal is whether that kind of regulatory
`
`framework violates the privacy rights of every person who borrows and
`
`rides one of the devices.
`
`Justin Sanchez sued the City of Los Angeles and the Los Angeles
`
`Department of Transportation, alleging that by requiring dockless
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`mobility providers to tell the Department where their devices are, the
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`Department is collecting data that could then be analyzed to determine
`
`who is riding those devices—and why. Sanchez, who uses the devices
`
`regularly, claimed the Department’s requirement thereby violated his
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`privacy rights under (1) the Fourth Amendment to the United States
`
`Constitution; (2) article I, section 13 of the California Constitution; and
`
`(3) California’s Electronic Communications Privacy Act, Cal. Penal Code
`
`§§ 1546–1546.4.
`
`
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`11
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`The district court properly dismissed Sanchez’s claims without
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`leave to amend, for several reasons.
`
`It doesn’t matter that the Department could determine who was
`
`riding a scooter (for example) by analyzing the location data that it
`
`collects about the scooter from the company that owns it. A rider has no
`
`reasonable expectation of privacy in a business’s data about where its
`
`scooter is located, and the process of analyzing that data—assuming
`
`that someone does analyze it—is not a search as a matter of law.
`
`(Indeed, with no allegation that anyone has crunched the data even to
`
`identify Sanchez, let alone to track him, it’s unclear that he has suffered
`
`any injury at all over which to sue the City or Department.)
`
`But assume for argument’s sake that the location of third parties’
`
`devices is information in which their riders have some kind of privacy
`
`interest. The riders relinquish that interest to the devices’ owners both
`
`as a matter of contract and a matter of practicality. Unlike, e.g., cell
`
`phones, the devices aren’t always tethered to a person and tracked
`
`incidentally while providing other services. People might be surprised
`
`to learn that a phone—a tool meant, quaint as it seems, to make phone
`
`calls—is constantly keeping track of their whereabouts. It blinks
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`reality to say that someone who rents a dockless mobility device would
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`be surprised to learn that the device generates location data and
`
`transmits it to the company that owns the device. That is both inherent
`
`in the devices’ use and obvious to riders who themselves must access
`
`the devices’ location data, via the third-party device owners’
`
`smartphone apps, to find and unlock a device to ride.
`
`Bereft of an expectation of privacy in the device location data,
`
`riders like Sanchez can’t claim to have been searched when the
`
`Department collects it. Even if the Department’s collection of location
`
`data did amount to a search, though, it’s a search that is reasonable as
`
`a matter of law. The example cited by the district court to support this
`
`proposition is a good one: The Seventh Circuit held that a program by
`
`which a municipal electric utility attached “smart” meters to houses,
`
`allowing it to monitor residents’ electricity use with enough precision to
`
`know what people were doing in their own homes, was a search for
`
`constitutional purposes. It was a constitutionally reasonable search,
`
`though, given the municipality’s protection of the collected data and the
`
`non-law-enforcement use to which it was being put. If a program that
`
`requires people to accept the placement of monitoring devices on their
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`own homes—or else to give up electricity—amounts to a reasonable
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`search, then it’s hard to see how a program that tracks the whereabouts
`
`of rental devices strewn all over public rights-of-way is an unreasonable
`
`search. (If it’s a search at all.)
`
`Lastly, there’s Sanchez’s California Electronic Communications
`
`Privacy Act claim. That statute contains an exclusive list of remedies,
`
`and the list does not include a private right of action against the City.
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`There is no amending around any of these problems. This Court
`
`should affirm the district court’s judgment of dismissal.
`
`JURISDICTIONAL STATEMENT
`Sanchez alleged a violation of the Fourth Amendment under
`
`42 U.S.C. § 1983. (3-ER-14–15.) The district court had subject-matter
`
`jurisdiction pursuant to 28 U.S.C. § 1343(a). Sanchez also alleged
`
`violations of California state law (3-ER-15–17), which the district court
`
`had subject-matter jurisdiction to hear under 28 U.S.C. § 1367(a). The
`
`district court dismissed Sanchez’s complaint, with prejudice, on
`
`February 23, 2021. (1-ER-13.) Sanchez appealed (3-ER-327–33) on
`
`March 24. Fed. R. App. P. 4(a)(1)(A). This Court has subject-matter
`
`jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
`
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`ISSUES ON APPEAL
`If a person lacks a reasonable expectation of privacy in data
`
`1.
`
`about a dockless mobility device, can he claim a Fourth Amendment
`
`violation on the assumption that analyzing the data would allow the
`
`government to deduce private facts about him?
`
`2.
`
`Assuming that an analysis of device data would allow the
`
`government to deduce private facts about the device’s rider, has the
`
`rider suffered an injury-in-fact without even an allegation that the
`
`analysis has been performed?
`
`3. Does someone who rents a dockless mobility device have a
`
`reasonable expectation of privacy in the device’s whereabouts?
`
`4.
`
`If someone who rents a dockless mobility device could have a
`
`reasonable expectation of privacy in its whereabouts, would the third-
`
`party doctrine forfeit that expectation?
`
`5.
`
`If collecting data from dockless mobility devices constitutes a
`
`Fourth Amendment search, is the search reasonable when the data is
`
`used for transportation planning and management purposes?
`
`6. Does the California Electronic Communications Privacy Act
`
`create a private right of action against a government entity?
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`STATEMENT OF THE CASE
`The relevant facts are straightforward: Faced with “a near-
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`overnight invasion of motorized electric scooters,” that “cluttered city
`
`sidewalks, lacked safety features, and interfered with disabled access to
`
`city streets,” the City of Los Angeles took measures to protect its
`
`residents and the public spaces it holds in their trust. (2-ER-117,
`
`3-ER-310.) Rather than banning the mobility devices outright, the City
`
`opted to regulate them to “ensure safe and equitable access,
`
`maintenance and operations.” (2-ER-117.) The City Council enacted
`
`the “Shared Mobility Pilot Program,” authorizing the Los Angeles
`
`Department of Transportation “to issue permits to an operator of shared
`
`mobility devices, and to enforce rules and regulations developed by the
`
`Department regarding the use of the devices on City public rights-of-
`
`way.” (2-ER-118.)1
`
`
`1 The City Council has since replaced the pilot program with a
`permanent program. L.A. Ord. 186,955 (Apr. 6, 2021). The Department
`has also since updated its On-Demand Mobility Rules and Guidelines,
`https://ladot.lacity.org/sites/default/files/documents/on-demand-
`mobility-rules-and-guidelines-2021.pdf.
`
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`Part of regulating the use of devices in the public right-of-way is
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`knowing whether and where those devices are in the public right-of-
`
`way. The companies that own the devices already collect data about
`
`where the devices are located: The owners use “precise GPS
`
`coordinates” in order “to track rides and charge customers accordingly.”
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`(3-ER-314.) The Department requires device owners to provide that
`
`data as a condition of receiving a permit to place the devices in the City.
`
`When someone uses a device, the Department receives the device’s
`
`starting location and the time at which it departed that location, and
`
`the location and time at which the device is left for the next user. (3-
`
`ER-317.) After 24 hours, the Department receives the route that the
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`device took between the beginning and end of a trip. (Id.) The data is
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`transmitted to the Department through an open-source tool called the
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`Mobility Data Specification, which is managed by the Open Mobility
`
`Foundation (3-ER-316)—a non-profit organization comprising
`
`municipalities around the world and various private entities (including
`
`Bird, the owner of a fleet of scooters).
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`All of this is information about the device itself; none of it is
`
`information about the person using the device. (3-ER-317.)
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`Still, Justin Sanchez—who uses dockless mobility devices and
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`“intends to continue riding these dockless vehicles within Los Angeles
`
`in the future”—claimed that “a simple analysis” of data about the
`
`devices “will likely identify the precise trips” he has taken, and that he
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`“never agreed to share” that data with the Department. (3-ER-313,
`
`320.)2
`
`Sanchez sued the City and the Department, alleging that
`
`collecting device location data from the companies operating those
`
`devices violates his “right to be free from unreasonable search and
`
`seizure as protected by the Fourth Amendment to the United States
`
`Constitution,” because collection of the “data is unreasonable,
`
`unconnected to any legitimate government interest, and occurs without
`
`any opportunity for administrative or judicial review pre-collection.” (3-
`
`ER-323.) Per Sanchez, the practice of receiving device data from the
`
`devices’ owners “unreasonably conditions” his own “ability to ride
`
`dockless mobility vehicles upon the disgorgement” of his “otherwise
`
`
`2 Eric Alejo, previously a plaintiff in this litigation, abandoned his
`appeal. (Doc. No. 19.) Since they were positioned identically in the
`district court, this brief continues to refer only to Sanchez rather than
`using a generic collective noun.
`
`18
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`Case: 21-55285, 11/05/2021, ID: 12280471, DktEntry: 39, Page 19 of 77
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`protected location information.” (Id.) Sanchez then duplicated that
`
`claim, substituting article I, section 13 of the California Constitution as
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`the source of the allegedly infringed right. (3-ER-323–24.)
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`Finally, Sanchez alleged that the Department’s collection of device
`
`location data violates the California Electronic Communications Privacy
`
`Act (“CalECPA”), Cal. Penal Code §§ 1546–1546.4, because “a California
`
`government entity may only compel the production of electronic
`
`information through the execution of a probable-cause warrant or
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`analogous order, or under a narrowly circumscribed set of exceptional
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`circumstances.” (3-ER-325.)
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`For these alleged violations, Sanchez sought relief including an
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`injunction ordering the City and Department “to destroy all precise
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`location records associated with” his rides; to stop collecting, storing,
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`and preserving that data; to prohibit the Department from requiring
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`companies to provide that data as a requisite for having a permit to put
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`their devices in Los Angeles; and for damages for violations of his
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`constitutional rights. (3-ER-326.)
`
`19
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`
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`Case: 21-55285, 11/05/2021, ID: 12280471, DktEntry: 39, Page 20 of 77
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`The City moved to dismiss.3
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`The district court granted the City’s motion, notwithstanding
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`Sanchez’s opposition. (1-ER-5.) Accepting Sanchez’s agreement that
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`the relevant analysis is the same under both the United States and
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`California constitutions (2-ER-62 n.1), it found that the Department’s
`
`receipt of device location data doesn’t constitute a search under either
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`charter. (1-ER-7–11.) The district court refused, however, to consider
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`the devices’ user agreements—in which Sanchez had agreed to share
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`location data with governments (contra 3-ER-320)—in reaching its
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`conclusion. (1-ER-9 n.7.)
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`Alternately, the court found that if the Department is conducting
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`a search, then it is a reasonable, administrative one. (1-ER-11–12.)
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`Finally, reviewing the text of CalECPA, the district court found that the
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`plain text of the law doesn’t afford Sanchez the opportunity to bring a
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`civil claim against the City under the statute. (1-ER-12–13.) Finding
`
`
`3 Municipal departments aren’t ordinarily proper defendants in § 1983
`actions. E.g., Nichols v. Brown, 859 F. Supp. 2d 1118, 1136–37 (C.D.
`Cal. 2012). Although for some reason Sanchez insists that the
`Department remain named as a defendant specifically (2-ER-85), this
`brief refers only to “the City” for ease of reference when describing
`actions taken in the litigation.
`
`20
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`
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`Case: 21-55285, 11/05/2021, ID: 12280471, DktEntry: 39, Page 21 of 77
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`“that amendment to add more facts would be futile,” the court
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`dismissed the action with prejudice. (1-ER-13.)
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`Sanchez timely appealed. (3-ER-327–33.)
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`SUMMARY OF ARGUMENT
`Sanchez claims that because an analysis of location data from
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`dockless mobility devices could reveal private facts about him, then the
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`Department’s collection of that data constitutes a Fourth Amendment
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`search. But if Sanchez lacks a reasonable expectation of privacy in data
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`about a device, the fact that analyzing the data might yield information
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`about him does not a Fourth Amendment violation make: “[A]n
`
`inference is not a search.” Kyllo v. United States, 533 U.S. 27, 37 n.4
`
`(2001).
`
`And even if one assumes that analyzing device data could
`
`constitute a Fourth Amendment violation if it revealed private facts
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`about Sanchez, there is no allegation that anyone has ever done the
`
`analysis. Potential invasions of privacy are not Fourth Amendment
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`searches. United States v. Karo, 468 U.S. 705, 712 (1984). Nor are they
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`injuries sufficient to confer Article III standing. Bassett v. ABM
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`Parking Servs., 883 F.3d 776, 783 (9th Cir. 2018).
`
`21
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`
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`Case: 21-55285, 11/05/2021, ID: 12280471, DktEntry: 39, Page 22 of 77
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`Putting aside the question of what an analysis of device location
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`data might reveal, if the question is whether Sanchez has a reasonable
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`expectation of privacy in the data itself, the answer is still “no.” The
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`rider of an app-rented scooter has no more a reasonable expectation of
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`privacy in where his ride begins and ends than does the passenger in a
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`taxicab. Which is to say: none. Azam v. D.C. Taxicab Comm’n, 46 F.
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`Supp. 3d 38, 50 (D.D.C. 2014).
`
`Still further, if one assumes that Sanchez could have a reasonable
`
`expectation of privacy in the whereabouts of a dockless mobility device,
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`then he would forfeit that expectation by sharing the location
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`information voluntarily with the third party that owns the device.
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`Smith v. Maryland, 442 U.S. 735, 743–44 (1979).
`
`But assume for argument’s sake that the Department’s collection
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`of device location data does amount to a Fourth Amendment search of
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`the devices’ riders. “[B]alancing the nature of the intrusion on the
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`individual’s privacy against the promotion of legitimate governmental
`
`interests,” Bd. of Educ. v. Earls, 536 U.S. 822, 829 (2002), the search is
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`a reasonable one.
`
`22
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`
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`Case: 21-55285, 11/05/2021, ID: 12280471, DktEntry: 39, Page 23 of 77
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`Finally, as to the California Electronic Communications Privacy
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`Act: It straightforwardly lacks a private right of action. That much is
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`evident from its plain text.
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`None of these issues can be corrected with the additional facts
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`Sanchez proposes to plead. The district court correctly dismissed his
`
`complaint without leave to amend.
`
`ARGUMENT
`I. The district court properly dismissed Sanchez’s
`constitutional claims.
`A. Review of the dismissal of Sanchez’s constitutional
`claims is de novo.
`This Court reviews the dismissal of Sanchez’s Fourth Amendment
`
`claim—and his similar California Constitutional claim—de novo.
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`Kilgore v. City of S. El Monte, 3 F.4th 1186, 1189 (9th Cir. 2021). The
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`Court must affirm the judgment dismissing the claims if it is correct on
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`any ground supported by the record. Sonner v. Premier Nutrition Corp.,
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`971 F.3d 834, 839 (9th Cir. 2020).
`
`23
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`
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`Case: 21-55285, 11/05/2021, ID: 12280471, DktEntry: 39, Page 24 of 77
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`B. There can be no Fourth Amendment search unless the
`Department violated Sanchez’s reasonable
`expectation of privacy.
`The Fourth Amendment protects people against unreasonable
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`searches. Before asking whether a search was reasonable, one must
`
`ask whether a se
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