Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 1 of 35
`
`No. 21-55285
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`JUSTIN SANCHEZ,
`Plaintiff – Appellant,
`
`
`
`
`
`v.
`
`LOS ANGELES DEPARTMENT OF TRANSPORTATION AND
`CITY OF LOS ANGELES
`Defendants – Appellees.
`
`
`
`
`On appeal from the United States District Court
`for the Central District of California, No. 2:20-cv-05044-DMG-AFM
`Honorable Dolly M. Gee
`OPEN MOBILITY FOUNDATION’S
`AMICUS BRIEF IN SUPPORT OF
`APPELLEES LOS ANGELES DEPARTMENT
`OF TRANSPORTATION AND
`CITY OF LOS ANGELES
`
`GREINES, MARTIN, STEIN & RICHLAND LLP
`Alana H. Rotter (SBN 236666)
`arotter@gmsr.com
`*Nadia A. Sarkis (SBN 227778)
`nsarkis@gmsr.com
`5900 Wilshire Boulevard, 12th Floor
`Los Angeles, California 90036
`(310) 859-7811 / Fax: (310) 276-5261
`
`
`
`
`
`
`
`
`Attorneys for Amicus Curiae OPEN MOBILITY FOUNDATION
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`

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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 2 of 35
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`CORPORATE DISCLOSURE STATEMENT
`
`Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amicus
`
`curiae Open Mobility Foundation hereby states as follows: Open Mobility
`
`Foundation is a nonprofit 501(c)(6) foundation organized as a series of Oasis Open
`
`Development Foundation, LLC. No publicly held corporation owns 10% or more
`
`GREINES, MARTIN, STEIN &
`RICHLAND LLP
` Alana H. Rotter
` Nadia A. Sarkis
`
`
`
`s/ Nadia A. Sarkis
`Nadia A. Sarkis
`Attorneys for Amicus Curiae
`OPEN MOBILITY FOUNDATION
`
`of its stock.
`
`Dated: November 11, 2021
`
`
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`
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`
`
`
`
`By:
`
`
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`2
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`

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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 3 of 35
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`
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`TABLE OF CONTENTS
`
`PAGE
`
`
`CORPORATE DISCLOSURE STATEMENT
`INTEREST OF AMICUS CURIAE
`INTRODUCTION AND SUMMARY OF ARGUMENT
`ARGUMENT
`I.
`MDS Is The Digital Infrastructure That Allows Cities And
`Mobility Companies To Exchange Essential Information
`Regarding Micromobility Vehicles In The Public Right-Of-Way. 12
`A. MDS’s Development.
`12
`B. MDS Is Designed To Protect The Privacy Of Micromobility
`Users.
`Appellant’s Privacy Concerns Rest On Misapprehensions
`Of Fact And Unfounded Speculation.
`Cities Effectively Use MDS To Regulate The Public Right-Of-
`Way And Benefit The Public.
`A. MDS—And The Precise, Comprehensive, And Flexible
`Data It Provides—Is At The Core Of Regulatory Models
`Developed For Micromobility.
`Cities Successfully Use Granular MDS Data To Promote
`Equity, Plan Infrastructure, Ensure Public Safety, And
`Support Public Transit.
`1.
`Increasing access and equity.
`2.
`Ensuring safety and compliance.
`3.
`Infrastructure planning.
`4.
`Supporting public transit.
`
`2
`10
`11
`12
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`14
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`17
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`21
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`21
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`25
`26
`28
`30
`31
`33
`
`II.
`
`C.
`
`B.
`
`CONCLUSION
`
`3
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`

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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 4 of 35
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`
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`TABLE OF CONTENTS
`
`
`FORM 8. CERTIFICATE OF COMPLIANCE FOR BRIEFS
`STATEMENT OF RELATED CASES
`
`
`
`PAGE
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`34
`35
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`4
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`

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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 5 of 35
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`
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`TABLE OF AUTHORITIES
`
`PAGE
`
`Other Authorities
`136 Million Trips Taken on Shared Bikes and Scooters Across the U.S. in
`2019, NACTO (Aug. 27, 2020), https://nacto.org/2020/08/27/136-million-
`trips-taken-on-shared-bikes-and-scooters-across-the-u-s-in-2019/
`2019 E-Scooter Findings Report, PBOT, 23-25 (Sept. 2020),
`https://www.portland.gov/sites/default/files/2020/pbot_e-
`scooter_report_final.pdf
`A Review of the 2019-2020 Dockless Vehicle Pilot Program, LADOT (July
`2020), https://ladot.lacity.org/sites/default/files/documents/ladot-dockless-
`year-one-report.pdf
`Ad Hoc Scooter Task Force Meeting, City of Alexandria (May 27, 2021),
`https://www.alexandriava.gov/uploadedFiles/tes/info/AdHocScooterTFPres
`entation05272021.pdf
`Administrative Rule TRN-15.01, Portland Bureau of Transportation,
`https://www.portlandoregon.gov/citycode/article/690212
`Adrian Colyer, Trajectory Recovery from Ash: User Privacy is Not Preserved
`in Aggregated Mobility Data, The Morning Paper (May 15, 2017),
`https://blog.acolyer.org/2017/05/15/trajectory-recovery-from-ash-user-
`privacy-is-not-preserved-in-aggregated-mobility-data/
`Andrew J. Hawkins, Nashville is Banning Electric Scooters after a Man Was
`Killed, The Verge (June 21, 2019),
`https://www.theverge.com/2019/6/21/18701299/nashville-electric-scooter-
`ban-man-killed
`Announcing MDS 1.2.0, Open Mobility Found. (Nov. 4, 2021),
`https://www.openmobilityfoundation.org/mds-version-1-2-0/
`Brett Simpson, Why Cars Don’t Deserve the Right of Way, The Atlantic (Oct.
`15, 2021), https://www.theatlantic.com/ideas/archive/2021/10/end-police-
`violence-get-rid-traffic-cop/620378/
`Case Study: Austin, Texas, Ride Report, 2,
`https://f.hubspotusercontent40.net/hubfs/5891093/2020-
`austin.pdf?__hstc=137334191.16475b8d0bcf9292b1cf30ac51d3a3a2.1635
`444688922.1635444688922.1635444688922.1&__hssc=137334191.3.1635
`444688922&__hsfp=4034898497
`
`29, 32
`
`23
`
`30
`
`32
`
`25
`
`19
`
`22
`
`14
`
`26
`
`23
`
`5
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`

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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 6 of 35
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`
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`TABLE OF AUTHORITIES
`
`PAGE
`
`Craig Clough, LA City Council Committee to Electric Scooter Riders: Slow
`Down!, Daily News (Aug. 9, 2018),
`https://www.dailynews.com/2018/08/09/la-city-council-committee-to-
`electric-scooter-ers-slow-down/
`Data Not in MDS, GitHub,
`https://github.com/openmobilityfoundation/mobility-data-
`specification/wiki/Understanding-the-Data-in-MDS#data-not-in-mds
`Dockless Vehicle Program Annual Evaluation Report, BCDOT (May 2020),
`https://transportation.baltimorecity.gov/sites/default/files/Year%202%20ev
`aluation%20Report%20FINAL.pdf
`27, 31, 32
`Dockless Vehicle Program Annual Evaluation Report: Equity Zone Deep
`Dive Analysis, BCDOT (May 2020),
`https://transportation.baltimorecity.gov/sites/default/files/Year%202%20ev
`aluation%20Report%20APPENDIX%201%20FINAL.pdf
`E-Scooter Pilot Evaluation, CDOT (Jan. 2020),
`https://www.chicago.gov/content/dam/city/depts/cdot/Misc/EScooters/E-
`Scooter_Pilot_Evaluation_2.17.20.pdf
`E-Scooter Pilot Evaluation, CDOT (May 2021),
`https://www.chicago.gov/content/dam/city/depts/cdot/Misc/EScooters/2021
`/2020%20Chicago%20E-scooter%20Evaluation%20-%20Final.pdf
`Global Coalition of Cities Launches the ‘Open Mobility Foundation,’ Open
`Mobility Found. (June 25, 2019),
`https://www.openmobilityfoundation.org/wp-
`content/uploads/2019/10/OpenMobilityFoundationLaunch_NewsRelease_2
`5June2019_final2-1.pdf.
`How Many Times are Americans on Camera Every Week?, Safety.com (Feb.
`17, 2021), https://perma.cc/G3AJ-WP98/
`How Portland, Oregon Used Micromobility Data to Remove Scooters during
`Protests, The Atlas, https://the-atlas.com/projects/how-portland--oregon-
`used-micromobility-data-to-remove-scooters-during-protests-3
`Introducing the MDS Privacy Guide for Cities, Open Mobility Found (Oct.
`27, 2020), https://www.openmobilityfoundation.org/introducing-the-mds-
`privacy-guide-for-cities/
`
`21
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`16
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`27
`
`27
`
`28
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`13
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`18
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`29
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`15
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`6
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`

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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 7 of 35
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`
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`TABLE OF AUTHORITIES
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`PAGE
`
`Jeremy Hsu, The Strava Heat Map and the End of Secrets, Wired (Jan. 29,
`2018), https://www.wired.com/story/strava-heat-map-military-bases-
`fitness-trackers-privacy/
`Jie Bao et al., Exploring Bikesharing Travel Patterns and Trip Purposes
`Using Smart Card Data and Online Point of Interests, EconPapers (2017),
`https://econpapers.repec.org/article/kapnetspa/v_3a17_3ay_3a2017_3ai_3a
`4_3ad_3a10.1007_5fs11067-017-9366-x.htm
`Joe Linton, Councilmember Koretz Calls E-Scooters “Anti-Vision Zero,”
`Pushes to “Get Rid of These,” StreetsBlog LA (Jun. 12, 2019),
`https://la.streetsblog.org/2019/06/12/councilmember-koretz-calls-e-
`scooters-anti-vision-zero-pushes-to-get-rid-of-these/
`LADOT Dockless Shared Mobility Program, LADOT (Mar. 4, 2020),
`https://www.ladot.lacity.org/sites/default/files/documents/ladot-mds-api-
`compliance-mobility-provider-guidelines.pdf
`Laura Alessandretti et al., The Scales of Human Mobility, Nature (Nov. 18,
`2020), https://www.nature.com/articles/s41586-020-2909-1
`Luz Lazo, Hey, You Can’t Park There! Dockless Bike-Share Bikes Ending up
`in Inappropriate Places, Wash. Post (Oct. 5, 2017),
`https://www.washingtonpost.com/news/dr-
`gridlock/wp/2017/10/05/abandoned-vandalized-and-illegally-parked-bike-
`share-bikes-now-a-d-c-problem/
`Maps and Data for Shared Bikes and Scooters in Sacramento, ArcGIS Story
`Map (Oct. 2021),
`https://storymaps.arcgis.com/stories/bc51f7b0500f4dd195d1eb0594ace24a
`Markus Schläpfer et al., The Universal Visitation Law of Human Mobility,
`Nature (May 26, 2021), https://www.nature.com/articles/s41586-021-
`03480-9
`Matt Burgess, Strava’s Data Lets Anyone See the Names (and Heart Rates) of
`People Exercising on Military Bases, Wired (Jan. 30, 2018),
`https://www.wired.co.uk/article/strava-military-bases-area-51-map-
`afghanistan-gchq-military
`
`18
`
`20
`
`21
`
`15
`
`19
`
`22
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`31
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`19
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`18
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`7
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`

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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 8 of 35
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`
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`TABLE OF AUTHORITIES
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`PAGE
`
`Matthew Prendergast, APD Identifies Bank Robbery Suspect Who Used E-
`Scooter for Getaway, KXAN (Jan. 25, 2019),
`https://www.kxan.com/news/local/austin/apd-identifies-bank-robbery-
`suspect-who-used-e-scooter-for-getaway/
`MDS Use Case Gallery, Airtable,
`https://airtable.com/shrPf4QvORkjZmHIs/tblzFfU6fxQm5Sdhm
`MDS Use Cases, GitHub,
`https://github.com/openmobilityfoundation/governance/wiki/MDS-Use-
`Cases
`MDS Working Group, GitHub,
`https://github.com/openmobilityfoundation/mobility-data-
`specification/wiki/MDS-Working-Group
`MDS: Devices, GitHub, https://github.com/openmobilityfoundation/mobility-
`data-specification/blob/main/general-information.md#devices
`MDS: Status Changes, GitHub,
`https://github.com/openmobilityfoundation/mobility-data-
`specification/tree/main/provider#status-changes
`MDS: Telemetry Data, GitHub,
`https://github.com/openmobilityfoundation/mobility-data-
`specification/tree/main/agency#telemetry-data
`MDS: Vehicle States, GitHub,
`https://github.com/openmobilityfoundation/mobility-data-
`specification/blob/main/general-information.md#vehicle-states
`Mobility Data Specification, GitHub,
`https://github.com/openmobilityfoundation/mobility-data-
`specification
`Morgan Herlocker, Citizen Privacy and City Oversight Needs Are
`Compatible, Medium (Feb. 26, 2020),
`https://medium.com/sharedstreets/citizen-privacy-and-city-oversight-needs-
`are-compatible-26fb262cc7a
`Paul Flahive, Jump is First E-Scooter Company to Leave San Antonio (June
`12, 2019), https://www.tpr.org/technology-entrepreneurship/2019-06-
`12/jump-is-first-e-scooter-company-to-leave-san-antonio
`
`17
`
`17
`
`25
`
`13
`
`15
`
`14
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`15
`
`14
`
`20
`
`22
`
`12, 13, 14, 17
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`8
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`

`

`PAGE
`Privacy Notice, Lime (Mar. 1, 2021), https://www.li.me/en-us/legal/privacy-
`policy/
`Snap to Road API, Microsoft, https://www.microsoft.com/en-us/maps/snap-
`to-road
`Stuart A. Thompson & Charlie Warzel, Twelve Million Phones, One Dataset,
`Zero Privacy, N.Y. Times (Dec. 19, 2019),
`https://www.nytimes.com/interactive/2019/12/19/opinion/location-
`tracking-cell-phone.html
`The Future of Mobility, Open Mobility Found,
`https://www.openmobilityfoundation.org/
`Tony Arnold, How Your Private Illinois Tollway Data is Shared with Cops
`and Divorce Lawyers, WBEZ Chicago (Sept. 19, 2019),
`https://www.wbez.org/stories/how-your-private-illinois-tollway-data-is-
`shared-with-cops-and-divorce-lawyers/cea68ea0-4b13-481a-80a1-
`50bf0e9db738
`Understanding the Data in MDS, Github,
`https://github.com/openmobilityfoundation/mobility-data-
`specification/wiki/Understanding-the-Data-in-MDS
`
`16
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`24
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`18
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`21
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`18
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`19
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`TABLE OF AUTHORITIES
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`
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`INTEREST OF AMICUS CURIAE1
`
`The Open Mobility Foundation (“OMF”) is a non-profit foundation whose
`
`members include cities and transportation authorities, mobility operators, and
`
`software vendors. OMF’s mission is to use open-source data standards and
`
`software to transform the ways that cities manage transportation infrastructure,
`
`making it safer, sustainable, and more equitable.
`
`In collaboration with public agencies and private sector stakeholders, OMF
`
`stewards the Mobility Data Specification (“MDS”), software that facilitates the
`
`exchange of anonymized data between private mobility operators and
`
`municipalities. OMF has deep knowledge and experience with MDS. It also has
`
`a comprehensive, evidence-based understanding of why cities, including Los
`
`Angeles, have a legitimate and substantial interest in using MDS data to fulfill
`
`their duty to regulate the public right-of-way, decide their infrastructure needs, and
`
`make other public policy decisions. OMF’s interest in helping its public and
`
`private members achieve these goals gives it a significant interest in this litigation.
`
`
`
`
`
`
`1 Both parties have consented to the filing of this brief. No counsel for any party
`authored this brief, in whole or part. Apart from amicus curiae, no person
`contributed money intended to fund this brief’s preparation and submission.
`
`10
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`
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`INTRODUCTION AND SUMMARY OF ARGUMENT
`
`New transportation technologies give cities opportunities to foster
`
`sustainable growth, address climate change, promote equity, and serve their
`
`constituents. But these new technologies also present serious challenges, including
`
`safety hazards, increased traffic congestion, and unequal access. City governments
`
`can only carry out their responsibility to protect public safety and regulate the
`
`public right-of-way if they have the data that they need to make informed
`
`decisions. MDS provides the infrastructure for obtaining that data, giving cities
`
`essential insight into how their residents navigate the public realm, and the tools to
`
`improve that experience for all. Cities around the world have successfully used
`
`MDS to incorporate electric scooters, bicycles, and other micromobility devices
`
`into infrastructure planning, ensure the equitable distribution of vehicles, promote
`
`safety, and support public transit.
`
`Appellant and his supporting amici paint a very different picture, based upon
`
`the misconception that cities are using MDS to engage in mass surveillance; they
`
`argue cities should be confined to using historic, aggregated mobility data to
`
`manage micromobility devices. Their misconception relies upon a limited
`
`understanding of MDS, and an unfounded extrapolation of academic studies
`
`regarding other data formats to predict misuse that neither Appellant nor his amici
`
`can show has ever occurred.
`
`OMF submits this brief to demonstrate that MDS is an effective, tailored
`
`administrative tool that is designed to protect micromobility users’ privacy; to
`
`11
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`
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`explain why cities need granular, real-time MDS data to achieve certain policy
`
`objectives; and to provide specific examples of how cities have successfully used
`
`such data to effectively regulate micromobility devices.
`
`ARGUMENT
`
`I. MDS Is The Digital Infrastructure That Allows Cities And
`
`Mobility Companies To Exchange Essential Information
`
`Regarding Micromobility Vehicles In The Public Right-Of-Way.
`
`A. MDS’s Development.
`
`The Los Angeles Department of Transportation (LADOT) developed MDS
`
`in 2018. The goal was two-fold: (1) to provide an open-source, standardized way
`
`for municipalities to ingest, compare, and analyze data from mobility service
`
`providers; and (2) to allow municipalities to communicate with mobility providers
`
`and ensure their adherence to governing regulations. Mobility Data Specification,
`
`GitHub (last visited Nov. 10, 2021).2
`
`A year later, as more cities adopted MDS and its potential to transform and
`
`modernize transportation infrastructure became apparent, LADOT decided that
`
`MDS could not reach its full potential unless all stakeholders—municipal,
`
`commercial, academic, and advocacy—could provide input and participate in its
`
`development.
`
`
`2 https://github.com/openmobilityfoundation/mobility-data-specification.
`
`12
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`
`
`To facilitate that collective effort, OMF was formed and became MDS’s
`
`steward. Global Coalition of Cities Launches the ‘Open Mobility Foundation,’
`
`Open Mobility Found. (June 25, 2019).3 OMF’s MDS Working Group is governed
`
`by a steering committee that is evenly split between municipalities and private
`
`members, including mobility operators and software companies. MDS Working
`
`Group, GitHub (last visited Nov. 10, 2021).4
`
`The Working Group has collaborated with OMF’s public and private
`
`members to refine MDS’s three core application programming interfaces. Those
`
`interfaces enable municipalities to express their regulations in machine-readable
`
`format and facilitate data exchange between providers and cities regarding vehicle
`
`status, trip origin, route, and destination. Mobility Data Specification, supra note
`
`2. OMF also has developed four new MDS interfaces that allow cities to (1) better
`
`define geographic areas, such as equity zones or parks; (2) coordinate
`
`communication between different levels of government; (3) share their
`
`interpretation of MDS data with mobility operators, including where it appears that
`
`mobility operators are not complying with local regulations; and (4) tailor their
`
`
`3 https://www.openmobilityfoundation.org/wp-content/uploads/2019/10/
`OpenMobilityFoundationLaunch_NewsRelease_25June2019_final2-1.pdf.
`4 https://github.com/openmobilityfoundation/mobility-data-specification/
`wiki/MDS-Working-Group.
`
`13
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`
`
`data feeds to collect the data needed to accomplish their particular policy
`
`objectives. Id.; Announcing MDS 1.2.0, Open Mobility Found. (Nov. 4, 2021).5
`
`B. MDS Is Designed To Protect The Privacy Of Micromobility
`
`Users.
`
`MDS collects only a few, limited types of data from mobility operators, all
`
`focused on vehicles, not riders. The collected data is designed to determine where
`
`devices are being used and parked. That data is:
`
`• Vehicle or Device ID
`• Vehicle Trip Origin/Destination
`• Vehicle Trip Route
`• Vehicle Parking Photographs
`• Vehicle Trip Duration/Distance
`• Vehicle Status/Properties6
`
`MDS does not require real-time location for a scooter while it’s on a trip. While
`
`real time MDS data is available regarding where micromobility vehicles are parked
`
`in the public right-of-way, trip route data is not. LADOT’s compliance guidelines
`
`
`5 https://www.openmobilityfoundation.org/mds-version-1-2-0/.
`6 This includes information such as battery levels, whether a vehicle is operational,
`or available for rent. MDS: Vehicle States, GitHub,
`https://github.com/openmobilityfoundation/mobility-data-
`specification/blob/main/general-information.md#vehicle-states (last visited Nov.
`10, 2021); MDS: Status Changes, GitHub,
`https://github.com/openmobilityfoundation/mobility-data-
`specification/tree/main/provider#status-changes (last visited Nov. 10, 2021).
`
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`
`
`are typical: Mobility operators have up to 24 hours to provide trip route data after
`
`the completion of the trip. LADOT Dockless Shared Mobility Program, LADOT
`
`(Mar. 4, 2020).7
`
`Because MDS is focused on vehicle location, not riders, it does not collect
`
`any information directly from or about riders. MDS has no mechanism to transmit
`
`rider data separately from vehicle data. MDS: Devices, GitHub (last visited Nov.
`
`10, 2021)8 (“MDS defines the device as the unit that transmits GPS or GNSS
`
`signals for a particular vehicle.”); see also MDS: Telemetry Data, GitHub (last
`
`visited Nov. 10, 2021)9 (defining vehicle telemetry data). Data regarding each ride
`
`is also disassociated from any other rides the user may have purchased.
`
`Introducing the MDS Privacy Guide for Cities, Open Mobility Found. (Oct. 27,
`
`2020).10
`
`The interfaces that comprise MDS do not—and cannot—collect any user
`
`identification information. For example, they do not collect:
`
`• First or Last Name
`• Home or Work Address
`
`7 https://www.ladot.lacity.org/sites/default/files/documents/ladot-mds-api-
`compliance-mobility-provider-guidelines.pdf.
` https://github.com/openmobilityfoundation/mobility-data-
`specification/blob/main/general-information.md#devices.
`9 https://github.com/openmobilityfoundation/mobility-data-
`specification/tree/main/agency#telemetry-data.
`10 https://www.openmobilityfoundation.org/introducing-the-mds-privacy-guide-for-
`cities/.
`
` 8
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`15
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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 16 of 35
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`• Email Address
`• Cell Phone Number
`• Social Security or Tax ID Number
`• Bank Account or Credit Card Information
`• Biometric Data
`• Driver’s License Information
`• Mobile Phone GPS
`• Rider Trip History
`• Video or Audio11
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`These limits reflect that MDS is an administrative tool, not an investigatory
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`one. By contrast, every mobility company offers law enforcement officers
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`mechanisms to access far more detailed data than MDS can provide.12 As a result,
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`if law enforcement officers are interested in obtaining micromobility data, their
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`obvious recourse is to mobility operators, not to MDS or the data cities access
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`using MDS. Neither Appellant nor any of his supporting amici have identified any
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`law enforcement use of MDS, and OMF is not aware of any either.13
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`11 Data Not in MDS, GitHub, https://github.com/openmobilityfoundation/mobility-
`data-specification/wiki/Understanding-the-Data-in-MDS#data-not-in-mds (last
`visited Nov. 10, 2021).
`12 See, e.g., Privacy Notice, Lime (Mar. 1, 2021), https://www.li.me/en-
`us/legal/privacy-policy/ (“We may share your information if we believe in good
`faith that it is reasonably necessary to do so for legal reasons, including to meet
`federal, state, regulatory or local law requirements or as part of a judicial process
`or to detect, investigate, prevent, and address fraud and other illegal activity . . . .”).
`13 The Brief for Seven Data Privacy and Urban Planning Experts as Amici Curiae
`Supporting Appellant cites to a news article involving an Austin Police Department
`subpoena to Uber to identify a bank robber who used a scooter as a getaway
`vehicle and claims “MDS data” enabled law enforcement’s actions. Id. at 11-12.
`That misrepresents the article, which makes no mention of the use of MDS data
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`16
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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 17 of 35
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`That MDS is designed to be an administrative tool is further reflected in how
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`much MDS data comes from cities: Cities communicate to mobility operators
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`rules and regulations, including vehicle caps, distribution requirements, restricted
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`areas, and no-parking zones; they set vehicle deployment fees; share information
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`with operators; and digitally validate operator compliance with their policies.
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`Mobility Data Specification, supra note 2; MDS Use Case Gallery, Airtable (last
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`visited Nov. 10, 2021).14 While such data is essential to the effective operation of
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`a city’s micromobility program, none of it implicates riders’ privacy in any way.
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`C. Appellant’s Privacy Concerns Rest On Misapprehensions
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`Of Fact And Unfounded Speculation.
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`Appellant and his supporting amici’s portrayals of MDS as an Orwellian tool
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`for mass surveillance rest upon errors of fact and far-fetched speculation. Among
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`other things:
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`MDS is not easily susceptible to re-identification. Appellant’s supporting
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`amici claim that “de-anonymization can be accomplished by almost anyone with
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`access to MDS data.” E.g., Brief for Seven Experts, supra, 14. While it is
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`and confirms that when law enforcement needs micromobility data, they go to
`mobility operators, not transportation authorities. See Matthew Prendergast, APD
`Identifies Bank Robbery Suspect Who Used E-Scooter for Getaway, KXAN (Jan.
`25, 2019), https://www.kxan.com/news/local/austin/apd-identifies-bank-robbery-
`suspect-who-used-e-scooter-for-getaway/.
`14 https://airtable.com/shrPf4QvORkjZmHIs/tblzFfU6fxQm5Sdhm.
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`17
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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 18 of 35
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`theoretically possible to identify an individual using geospatial trip data, OMF is
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`not aware of anyone successfully using an MDS data set to do so, let alone using
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`that data to identify where the individual lives, works, travels, or associates with
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`others. None of the studies cited by Appellant and supporting amici—analyzing
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`distinctly different data from mobile phones, security cameras and smart doorbells,
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`fitness trackers, and toll-road transponders—have so found.15
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`The only study identified by amici involving individuals re-identified from
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`an anonymized dataset is Twelve Million Phones, One Dataset, Zero Privacy—
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`which involved a complete history of an individual’s movements, using mobile
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`phone data over an extended period.16 MDS data is different. First and foremost,
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`mobile phone data is persistently tied to a particular individual and phones
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`15 See Stuart A. Thompson & Charlie Warzel, Twelve Million Phones, One Dataset,
`Zero Privacy, N.Y. Times (Dec. 19, 2019), https://www.nytimes.com/interactive/
`2019/12/19/opinion/location-tracking-cell-phone.html; How Many Times are
`Americans on Camera Every Week?, Safety.com (Feb. 17, 2021),
`https://perma.cc/G3AJ-WP98/; Jeremy Hsu, The Strava Heat Map and the End of
`Secrets, Wired (Jan. 29, 2018), https://www.wired.com/story/strava-heat-map-
`military-bases-fitness-trackers-privacy/; Matt Burgess, Strava’s Data Lets Anyone
`See the Names (and Heart Rates) of People Exercising on Military Bases, Wired
`(Jan. 30, 2018), https://www.wired.co.uk/article/strava-military-bases-area-51-
`map-afghanistan-gchq-military; Tony Arnold, How Your Private Illinois Tollway
`Data is Shared with Cops and Divorce Lawyers, WBEZ Chicago (Sept. 19, 2019),
`https://www.wbez.org/stories/how-your-private-illinois-tollway-data-is-shared-
`with-cops-and-divorce-lawyers/cea68ea0-4b13-481a-80a1-50bf0e9db738.
`16 Stuart A. Thompson & Charlie Warzel, Twelve Million Phones, One Dataset,
`Zero Privacy, N.Y. Times (Dec. 19, 2019), https://www.nytimes.com/interactive/
`2019/12/19/opinion/location-tracking-cell-phone.html.
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`18
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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 19 of 35
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`accompany their users everywhere. By contrast, a rental scooter only travels with
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`a rider over the course of a single point-to-point trip in the public right of way.
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`These differences, among others, decisively undercut any attempt to extrapolate
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`the use of mobile phone data to argue that re-identification is possible, let alone
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`straightforward, using MDS data.
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`An individual user’s rides cannot be easily associated with each other.
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`Because MDS does not collect any identifying information about riders, MDS data
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`regarding each ride is disassociated from any other rides a user may have
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`purchased. Understanding the Data in MDS, Github (last visited Nov. 10, 2021).17
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`Appellant’s amici nonetheless assert that it is easy to associate rides because
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`human mobility patterns are regular and predictable. Brief for Seven Experts,
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`supra, 15. None of their sources back up the assertion, or even discuss MDS data.
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`Id. at 15-16 (citing Adrian Colyer, Trajectory Recovery from Ash: User Privacy is
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`Not Preserved in Aggregated Mobility Data, The Morning Paper (May 15,
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`2017)18). To date, OMF is not aware of anyone successfully linking an
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`17 https://github.com/openmobilityfoundation/mobility-data-
`specification/wiki/Understanding-the-Data-in-MDS.
`18 https://blog.acolyer.org/2017/05/15/trajectory-recovery-from-ash-user-privacy-
`is-not-preserved-in-aggregated-mobility-data/. Abstracts for studies available at:
`Laura Alessandretti et al., The Scales of Human Mobility, Nature (Nov. 18, 2020),
`https://www.nature.com/articles/s41586-020-2909-1; Markus Schläpfer et al., The
`Universal Visitation Law of Human Mobility, Nature (May 26, 2021),
`https://www.nature.com/articles/s41586-021-03480-9; Jie Bao et al., Exploring
`Bikesharing Travel Patterns and Trip Purposes Using Smart Card Data and
`Online Point of Interests, EconPapers (2017),
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`19
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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 20 of 35
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`individual’s rides by analyzing an MDS data set, including by cross-referencing
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`other external data. The predictability of human mobility patterns also does not
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`prove the assertion: Identifying a pattern or grouping of similar trips is not the
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`same as re-identification of the individual person who took those trips. Even if
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`MDS data contained a unique mobility trace, that would not identify the individual
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`whose movement produced that trace.19
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`https://econpapers.repec.org/article/kapnetspa/v_3a17_3ay_3a2017_3ai_3a4_3ad_
`3a10.1007_5fs11067-017-9366-x.htm.
`19 For instance, the Brief for Seven Experts, supra, claims that Morgan Herlocker
`“demonstrated the severity of GIS-based de-anonymization,” combining MDS data
`with other public datasets to “identify sensitive scooter trips.” Id. at 14. The use
`of the term “identify” is misleading. Herlocker used MDS data to locate the record
`of a trip that began in an area within a one-block radius of a high school and ended
`within a similar distance from a clinic. No information about the identity of the
`rider was obtained, nor was Herlocker able to confirm whether the person travelled
`to or from the school or clinic, or if the trip was between other nearby businesses
`or addresses. Morgan Herlocker, Citizen Privacy and City Oversight Needs Are
`Compatible, Medium (Feb. 26, 2020), https://medium.com/sharedstreets/citizen-
`privacy-and-city-oversight-needs-are-compatible-26fb262cc7a.
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`20
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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 21 of 35
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`II. Cities Effectively Use MDS To Regulate The Public Right-Of-Way
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`And Benefit The Public.
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`A. MDS—And The Precise, Comprehensive, And Flexible
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`Data It Provides—Is At The Core Of Regulatory Models
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`Developed For Micromobility.
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`More than 115 cities and public agencies use MDS. The Future of Mobility,
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`Open Mobility Found. (last visited Nov. 10, 2021).20 It is at the core of regulatory
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`models developed for micromobility and is instrumental to maintaining dockless
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`scooters and electronic bicycles as sustainable modes of transportation. One only
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`need compare Los Angeles’s current transportation landscape with the pre-MDS
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`era, where there were frequent news reports of users parking vehicles in unwanted
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`and inappropriate places; driving devices on city sidewalks at high speeds; and Los
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`Angeles city leaders responding to the havoc on public streets by advocating for an
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`outright ban of micromobility devices. Craig Clough, LA City Council Committee
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`to Electric Scooter Riders: Slow Down!, Daily News (Aug. 9, 2018);21 Joe Linton,
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`Councilmember Koretz Calls E-Scooters “Anti-Vision Zero,” Pushes to “Get Rid
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`of These,” StreetsBlog LA (Jun. 12, 2019);22 see also Luz Lazo, Hey, You Can’t
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`20 https://www.openmobilityfoundation.org/.
`21 https://www.dailynews.com/2018/08/09/la-city-council-committee-to-electric-
`scooter-ers-slow-down/.
`22 https://la.streetsblog.org/2019/06/12/councilmember-koretz-calls-e-scooters-anti-
`vision-zero-pushes-to-get-rid-of-these/.
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`Case: 21-55285, 11/11/2021, ID: 12284979, DktEntry: 44, Page 22 of 35
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`Park There! Dockless Bike-Share Bikes Ending up in Inappropriate Places, Wash.
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`Post (Oct. 5, 2017).23 Some cities did in fact ban electric scooters due to public
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`safety concerns, while others drastically limited the number of vehicles allowed.
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`Andrew J. Hawkins, Nashville is Banning Electric Scooters after a Man Was
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`Killed, The Verge (June 21, 2019);24 Paul Flahive, Jump is First E-Scooter
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`Company to Leave San Antonio (June 12, 2019)25 (in response to city’s 50%
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`reduction of dockless vehicle permits).
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`High quality MDS data has vastly improved micromobility programs.
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`Cities can work toward their regulatory goals with a small staff that can monitor
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`thousands of well-regulated vehicles, rather than needing a much larger staff
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`employing manual methods to communicate and enforce rules and measure usage.
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`Scalabl