Case: 21-55285, 05/23/2022, ID: 12453318, DktEntry: 70-1, Page 1 of 26
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`JUSTIN SANCHEZ,
`
`
`
`Plaintiff-Appellant,
`
`v.
`
` No. 21-55285
`
`D.C. No.
`2:20-cv-05044-
`DMG-AFM
`
`
`OPINION
`
`
`LOS ANGELES DEPARTMENT OF
`TRANSPORTATION; CITY OF LOS
`ANGELES,
`
`Defendants-Appellees.
`
`Appeal from the United States District Court
`for the Central District of California
`Dolly M. Gee, District Judge, Presiding
`
`Argued and Submitted March 8, 2022
`Pasadena, California
`
`Filed May 23, 2022
`
`Before: Kim McLane Wardlaw and Andrew D. Hurwitz,
`Circuit Judges, and Lee H. Rosenthal,* District Judge.
`
`Opinion by Judge Hurwitz
`
`
`
`
`
`* The Honorable Lee H. Rosenthal, Chief United States District
`Judge for the Southern District of Texas, sitting by designation.
`
`
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`JUSTIN SANCHEZ,
`
`
`
`Plaintiff-Appellant,
`
`v.
`
` No. 21-55285
`
`D.C. No.
`2:20-cv-05044-
`DMG-AFM
`
`
`OPINION
`
`
`LOS ANGELES DEPARTMENT OF
`TRANSPORTATION; CITY OF LOS
`ANGELES,
`
`Defendants-Appellees.
`
`Appeal from the United States District Court
`for the Central District of California
`Dolly M. Gee, District Judge, Presiding
`
`Argued and Submitted March 8, 2022
`Pasadena, California
`
`Filed May 23, 2022
`
`Before: Kim McLane Wardlaw and Andrew D. Hurwitz,
`Circuit Judges, and Lee H. Rosenthal,* District Judge.
`
`Opinion by Judge Hurwitz
`
`
`
`
`
`* The Honorable Lee H. Rosenthal, Chief United States District
`Judge for the Southern District of Texas, sitting by designation.
`
`
`
`Case: 21-55285, 05/23/2022, ID: 12453318, DktEntry: 70-1, Page 2 of 26
`
`2
`
`
`SANCHEZ V. LADOT
`
`SUMMARY**
`
`Civil Rights
`
`
`
`
`The panel affirmed the district court’s order dismissing,
`
`for failure to state a claim, an action brought by an e-scooter
`user alleging that the City of Los Angeles’ e-scooter
`permitting program, which requires e-scooter companies to
`disclose real-time location data for every device, violates the
`Fourth Amendment and California law.
`
` As a condition of getting a permit, the Los Angeles
`Department of Transportation (“LADOT”) required e-
`scooter operators to provide vehicle location data through an
`application programming interface called Mobility Data
`Specification (“MDS”). Used in conjunction with the
`operators’ smartphone applications, MDS automatically
`compiles real-time data on each e-scooter’s location by
`collecting the start and end points and times of each ride
`taken.
`
`The complaint alleged that the MDS protocols provide
`
`the location of e-scooters with Orwellian precision. A City
`therefore allegedly could easily use MDS data in conjunction
`with other information to identify trips by individuals to
`sensitive locations. Because the location data could be
`preserved
`in accordance with LADOT data-retention
`policies, plaintiff alleged that the City could travel back in
`time to retrace a rider’s whereabouts.
`
`
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`
`
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`3
`
`SANCHEZ V. LADOT
`
`
`
`The panel first held that plaintiff’s complaint alleged
`
`facts giving rise to Article III standing and therefore the
`panel rejected LADOT’s assertion that the complaint was
`beyond the panel’s constitutional purview because it was
`premised on a hypothetical invasion of privacy that might
`never occur. Drawing all reasonable inferences in favor of
`plaintiff as it was required to do at the Fed. R. Civ. P.
`12(b)(6) stage, the proper reading of the complaint was that
`plaintiff alleged that the collection of the MDS location data
`itself—without more—violated his constitutional rights.
`
`The panel concluded that the third-party doctrine, which
`
`provides that a person has no legitimate expectation of
`privacy in information he voluntarily turns over to third
`parties, foreclosed plaintiff’s claim of a reasonable
`expectation of privacy over the MDS data.
`
`Focusing first on “voluntary exposure,” the panel had
`
`little difficulty finding
`that plaintiff knowingly and
`voluntarily disclosed location data to the e-scooter operators.
`Unlike a cell phone user, whose device provides location
`information by dint of its operation, without any affirmative
`act on the part of the user, plaintiff affirmatively chose to
`disclose location data to e-scooter operators each time he
`rented a device. Having voluntarily conveyed his location
`to the operator in the ordinary course of business, plaintiff
`could not assert a reasonable expectation of privacy.
`
`The panel next determined that the nature of MDS
`
`location data indicated a diminished expectation of privacy.
`The data only discloses the location of an e-scooter owned
`by the operator and typically rerented to a new user after
`each individual trip. It was thus quite different than the
`information generated by a cell phone, which identifies the
`location of a particular user virtually continuously. The
`
`
`
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`
`SANCHEZ V. LADOT
`
`4
`
`panel declined the invitation to conclude that LADOT’s
`collection of anonymous data about traffic movements was
`somehow rendered a search because it may be used in the
`future (in connection with other non-private material) to
`reveal an individual’s previous locations. Because the third-
`party doctrine squarely applied to plaintiff’s voluntary
`agreement to provide location data to the e-scooter
`operators, the collection of that data by LADOT was not a
`search and did not violate the Fourth Amendment or the
`California Constitution.
`
`The panel affirmed the district court’s dismissal of
`
`plaintiff’s
`claim under
`the California Electronic
`Communications Privacy Act (“CalECPA”) on the grounds
`that the statute did not provide plaintiff with authorization to
`bring an independent action to enforce its provisions.
`
`Finally, the panel held that the district court did not err
`
`in dismissing the complaint without leave to amend.
`Because plaintiff had no reasonable expectation of privacy
`over the MDS location data, no additional facts could
`possibly have cured the deficiency with his constitutional
`claims. And, because the court rightly found that the
`CalECPA did not create a private right of action, dismissal
`of the statutory claim was also not error.
`
`
`
`COUNSEL
`
`
`Mohammad Tajsar (argued), ACLU Foundation of Southern
`California, Los Angeles, California; Jacob A. Snow, ACLU
`Foundation of Northern California, San Francisco,
`California; Jennifer Lynch and Hannah Zhao, Electronic
`Frontier Foundation, San Francisco, California; Douglas E.
`Mirell and Timothy J. Toohey, Greenberg Glusker Fields
`
`
`
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`5
`
`SANCHEZ V. LADOT
`
`
`
`Claman & Machtinger LLP, Los Angeles, California; for
`Plaintiff-Appellant.
`
`Jonathan H. Eisenman (argued) and Jeffrey L. Goss, Deputy
`City Attorneys; Blithe S. Bock, Managing Assistant City
`Attorney; Scott Marcus, Chief Assistant City Attorney;
`Kathleen A. Kenealy, Chief Deputy City Attorney; Michael
`N. Feuer, City Attorney; Office of the City Attorney, Los
`Angeles, California; for Defendants-Appellees.
`
`Kendra K. Albert and Mason A. Kortz, Cyberlaw Clinic,
`Harvard Law School, Cambridge, Massachusetts, for Amici
`Curiae Seven Data Privacy and Urban Planning Experts.
`
`Brian E. Klein and Melissa A. Meister, Waymaker LLP, Los
`Angeles, California; Samir Jain and Gregory T. Nojeim,
`Center for Democracy & Technology, Washington, D.C.;
`Alan Buter, Megan Iorio, and Melodi Dincer, Electronic
`Privacy and Information Center; for Amici Curiae Center for
`Democracy & Technology, and Electronic Privacy
`Information Center.
`
`Jordan R. Jaffe, Quinn Emanuel Urquhart & Sullivan LLP,
`San Francisco, California, for Amicus Curiae Kevin Webb.
`
`Alana H. Rotter and Nadia A. Sarkis, Greines Martin Stein
`& Richland LLP, Los Angeles, California, for Amicus
`Curiae Open Mobility Foundation.
`
`
`
`
`
`
`
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`6
`
`
`SANCHEZ V. LADOT
`
`OPINION
`
`HURWITZ, Circuit Judge:
`
`Faced with a near-overnight invasion of motorized
`electric scooters (“e-scooters”), which cluttered sidewalks
`and interfered with street access, the City of Los Angeles
`adopted a permitting program and required e-scooter
`companies to disclose real-time location data for every
`device.1 In this action, an e-scooter user claims that the
`location disclosure
`requirement violates
`the Fourth
`Amendment and California law. The district court dismissed
`the complaint for failure to state a claim. We affirm.
`
`I.
`
`Companies such as Bird, Lime, and Lyft began offering
`e-scooters for rent to the public in Los Angeles in 2017. The
`e-scooters are dockless, meaning they can be left anywhere
`after use and picked up by the next rider. They are also
`internet-connected, and are rented through the companies’
`smartphone applications, which charge riders based on the
`distance and duration of the trip taken.
`
`In 2018, Los Angeles enacted a “Shared Mobility Device
`Pilot Program” to regulate the fledgling industry. L.A. Ord.
`185,785 (Sept. 13, 2018). The program required companies
`to obtain a permit from the Los Angeles Department of
`Transportation (“LADOT”) to offer e-scooters for rent and
`mandated that permittees “comply with all Department
`permit rules, regulations, indemnification, insurance and fee
`requirements.” Id. As a condition of getting a permit,
`
`1 We use the term “e-scooter” to refer to the panoply of so-called
`micro-mobility devices offered for rent by permittees. See L.A. Ord.
`185,785 (Sept. 13, 2018).
`
`
`
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`
`7
`
`SANCHEZ V. LADOT
`
`
`
`LADOT required e-scooter operators to provide vehicle
`location data through an application programming interface
`(“API”)2 called Mobility Data Specification (“MDS”). Used
`in conjunction with the operators’ smartphone applications,
`MDS automatically compiles real-time data on each e-
`scooter’s location by collecting the start and end points and
`times of each ride taken.3 Because LADOT obtains data
`directly from the companies in real time, it can manage the
`public right-of-way actively and “communicate directly with
`product companies in real time using code.”4
`
`Plaintiff Justin Sanchez uses e-scooters to travel from his
`home to work, visit friends, frequent local businesses, and
`access places of leisure. His complaint asserts that the
`collection of MDS location data by LADOT violates the
`Fourth Amendment to the United States Constitution;
`Article I, Section 13 of the California Constitution; and the
`California Electronic Communications Privacy Act
`(“CalECPA”), Cal. Penal Code § 1546 et seq.
`
`The complaint alleges that the MDS protocols provide
`the location of e-scooters with Orwellian precision, to within
`1.11 centimeters of their exact location. It acknowledges
`that “MDS does not collect any information directly
`
`
`2 An API “acts as an intermediary between two other programs . . .
`to exchange information.” Dave Johnson, A guide to APIs, software that
`helps different apps work together, Bus. Insider (May 13, 2021),
`https://www.businessinsider.com/what-is-an-api.
`
`3 LADOT also requires the submission of data on the specific route
`taken between those points within twenty-four hours of the trip.
`
`4 See “Mobility Data Specification: Information Briefing,” L.A.
`Dep’t
`of
`Transp.
`(Oct.
`31,
`2018),
`https://ladot.io/wp-
`content/uploads/2018/12/What-is-MDS-Cities.pdf.
`
`
`
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`SANCHEZ V. LADOT
`
`8
`
`identifying the rider of a particular vehicle.” But, Sanchez
`alleges that government actors could subsequently “match
`users’ trajectories in anonymized data from one dataset, with
`deanonymized data in another,” and research indicates
`programmers “could identify 50% of people from only two
`randomly chosen data points in a dataset that contained only
`time and location data.” The City therefore can “easily,” he
`alleges, use MDS data in conjunction with other information
`to identify trips by individuals to sensitive locations. And,
`because the location data may be preserved in accordance
`with LADOT data-retention policies, Sanchez alleges that
`the City can travel back in time to retrace a rider’s
`whereabouts.
`
`The district court granted LADOT’s motion to dismiss
`the complaint without leave to amend. Sanchez v. L.A. Dep’t
`of Transp., No. CV-20-5044-DMG, 2021 WL 1220690
`(C.D. Cal. Feb. 23, 2021). It found that the LADOT program
`is not a search under the Fourth Amendment because
`Sanchez has no reasonable expectation of privacy over
`anonymous MDS location data. Id. at *4. It alternatively
`concluded that, even if the collection of MDS data were a
`search, it is a reasonable administrative one and thus
`constitutional. Id. at *5–6. Because “the right to be free
`from unreasonable searches under Art. I § 13 of the
`California Constitution parallels the Fourth Amendment
`inquiry,” Sanchez v. Cnty. of San Diego, 464 F.3d 916, 928–
`29 (9th Cir. 2006), the district court also dismissed
`Sanchez’s state constitutional claim. Id. at *2. And it
`rejected the CalECPA claim, finding that the statute did not
`provide Sanchez a private right of action. Id. at *6.
`
`the district court
`Finding any amendment futile,
`dismissed the complaint with prejudice. Id. This timely
`appeal followed.
`
`
`
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`
`
`
`
`SANCHEZ V. LADOT
`
`9
`
`II.
`
`LADOT first argues that we must dismiss Sanchez’s
`claims because he lacks Article III standing. See In re Apple
`iPhone Antitrust Litig., 846 F.3d 313, 319 (9th Cir. 2017)
`(noting
`that Article III standing
`is a
`jurisdictional
`requirement that may be raised “at any time”). LADOT
`argues that this complaint is beyond our constitutional
`purview because it is premised on a hypothetical future
`invasion of privacy that may never occur.
`
`To establish Article III standing, “a plaintiff must show
`(i) that he suffered an injury in fact that is concrete,
`particularized, and actual or imminent; (ii) that the injury
`was likely caused by the defendant; and (iii) that the injury
`would likely be redressed by judicial relief.” TransUnion
`LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). We must
`“assess whether the alleged injury to the plaintiff has a ‘close
`relationship’
`to a harm ‘traditionally’ recognized as
`providing a basis for a lawsuit in American courts.” Id.
`at 2204 (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341
`(2016)). “[T]hose traditional harms may also include harms
`specified by the Constitution itself.” Id. (citing Spokeo, 578
`U.S. at 340; Pleasant Grove City v. Summum, 555 U.S. 460
`(2009) (abridgment of free speech); Church of Lukumi
`Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)
`(infringement of free exercise)). And, although “traditional
`tangible harms, such as physical harms and monetary
`harms,” most “readily qualify as concrete
`injuries,”
`“intangible harms can also be concrete.” Id.
`
`that
`this settled doctrine, we conclude
`Applying
`Sanchez’s complaint alleges facts giving rise to Article III
`standing. The harm alleged is one “specified by the
`Constitution itself,” id.—the violation of the Fourth
`Amendment guarantee against unreasonable searches and
`
`
`
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`SANCHEZ V. LADOT
`
`10
`
`seizures. Moreover, the alleged injury has a close nexus to
`those traditionally providing a “basis for a lawsuit in English
`or American courts,” Spokeo, 578 U.S. at 341, such as
`“disclosure of private information” and “intrusion upon
`seclusion.” TransUnion, 141 S. Ct. at 2204.
`
`Drawing all “reasonable inferences” in favor of Sanchez
`as we are required to do at the Rule 12(b)(6) stage, the proper
`reading of this complaint is not, as LADOT asserts, that
`someone someday “might perform an analysis of device
`location data, which might disclose Sanchez’s scooter-borne
`peregrinations.” Rather, Sanchez alleges that the collection
`of the MDS location data itself—without more—violates his
`constitutional rights today.
`
`It makes no difference for the purposes of determining
`Article III standing whether Sanchez’s complaint states a
`valid Fourth Amendment claim. That “confuses the
`jurisdictional
`inquiry
`. . . with
`the merits
`inquiry.”
`Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d
`1141, 1151 (9th Cir. 2000). We therefore turn to the merits.
`
`III.
`
`The Fourth Amendment prohibits “unreasonable
`searches and seizures.” U.S. Const. amend. IV. The initial
`issue for decision is whether LADOT’s collection of MDS
`location data is a search for Fourth Amendment purposes.5
`Only if collection of the data is a search do we need to
`address the separate question of whether that search is
`
`
`5 Sanchez does not raise any independent arguments about the
`illegality of the data collection under the California Constitution,
`acknowledging that that inquiry is “functionally coterminous” with
`Fourth Amendment review.
`
`
`
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`SANCHEZ V. LADOT
`
`
`
`unreasonable. See Florida v. Jimeno, 500 U.S. 248, 250
`(1991).
`
`11
`
`For much of our Nation’s history, the definition of a
`search under the Fourth Amendment was “tied to common-
`law trespass,” focusing on whether government actors had
`obtained “information by physically
`intruding on a
`constitutionally protected area.” United States v. Jones, 565
`U.S. 400, 405, 406 n.3 (2012). In Olmstead v. United States,
`for example, the Supreme Court found that wiretaps attached
`to telephone wires on public streets did not constitute a
`search because “[t]here was no entry of the houses or offices
`of the defendants.” 277 U.S. 438, 464 (1928).
`
`The Court significantly expanded the doctrinal scope of
`the analysis in Katz v. United States, finding that the
`attachment of an eavesdropping device to a public telephone
`booth was a search, memorably stating that “the Fourth
`Amendment protects people, not places.” 389 U.S. 347, 351
`(1967). Its subsequent decisions have framed the inquiry as
`whether the challenged government action violates a
`person’s “reasonable expectation of privacy,” citing Justice
`Harlan’s seminal Katz concurrence. Id. at 360. Thus, when
`an individual “seeks to preserve something as private,” and
`that expectation of privacy is “one that society is prepared to
`recognize as reasonable,” government intrusion into that
`private sphere generally qualifies as a search requiring a
`warrant supported by probable cause. Smith v. Maryland,
`442 U.S. 735, 740 (1979) (cleaned up).
`
`A.
`
`Thus, the essential inquiry is whether collection of MDS
`location data “violates a subjective expectation of privacy
`that society recognizes as reasonable.” Kyllo v. United
`States, 533 U.S. 27, 33 (2001). Answering that question
`
`
`
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`SANCHEZ V. LADOT
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`12
`
`implicates “the intersection of two lines of cases, both of
`which inform [an] understanding of the privacy interests at
`stake.” Carpenter v. United States, 138 S. Ct. 2206, 2214–
`15 (2018). The first line “addresses a person’s expectations
`of privacy in his physical location and movements.” Id. at
`2215. The second concerns the “line between what a person
`keeps to himself and what he shares with others,”
`implicating the so-called third-party doctrine. Id. at 2216.
`That doctrine teaches that a person “has no legitimate
`expectation of privacy in information he voluntarily turns
`over to third parties.” Smith, 442 U.S. at 743–44.
`
`1.
`
`In the first line of cases, Supreme Court decisions after
`Katz have considered a person’s reasonable expectation of
`privacy with respect to his physical location and movements.
`In United States v. Knotts, the Court addressed police
`officers’ use of a GPS “beeper” planted in a container to
`track an automobile to a remote cabin. See 460 U.S. 276,
`281–82 (1983). Reasoning that a “person traveling in an
`automobile on public thoroughfares has no reasonable
`expectation of privacy in his movements from one place to
`another,” the Court held that Knotts had no privacy interest
`in the information obtained through use of the beeper. Id.
`Knotts stressed the “limited use which the government made
`of the signals from [a] particular beeper” during a discrete
`“automotive journey.” Id. at 284–85. But, the Court left for
`another day whether “different constitutional principles may
`be applicable” if “twenty-four-hour surveillance of any
`citizen of this country” were involved. Id. at 283–84.
`
`Subsequently, the Court considered installation of a GPS
`tracking device on the defendant’s vehicle and continuous
`remote monitoring of its movement for 28 days. See Jones,
`565 U.S. at 402–03. Although the Court’s opinion
`
`
`
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`13
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`SANCHEZ V. LADOT
`
`
`
`ultimately turned on the physical trespass of the vehicle
`when the device was planted, see id. at 404–05, five Justices
`suggested in concurrences that reasonable privacy concerns
`would also be raised by “surreptitiously activating a stolen
`vehicle detection system” in Jones’s car to track him or
`conducting GPS tracking of his cell phone, id. at 426 (Alito,
`J., joined by Ginsburg, Breyer, and Kagan, JJ., concurring in
`the judgment); see also id. at 415 (Sotomayor, J.,
`concurring). They suggested that “longer term GPS
`monitoring in investigations of most offenses impinges on
`expectations of privacy.” Id. at 430 (Alito, J., concurring);
`see also id. (“[S]ociety’s expectation 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’s car for a very long
`period.”); id. at 415 (“GPS monitoring generates a precise,
`comprehensive record of a person’s public movements that
`reflects a wealth of detail about her familial, political,
`professional,
`religious,
`and
`sexual
`associations.”)
`(Sotomayor, J., concurring).
`
`Most recently, in Carpenter, the Court held that
`government collection of historical cell site location
`information (“CSLI”) violated a reasonable expectation of
`privacy. Because “[m]apping a cell phone’s location over
`the course of 127 days provides an all-encompassing record
`of the holder’s whereabouts,” 138 S. Ct. at 2217, the Court
`concluded that “historical cell-site records present even
`greater privacy concerns than the GPS monitoring of a
`vehicle . . . in Jones,” id. at 2218. Acting as “almost a
`‘feature of human anatomy,’” the Court noted, a cell phone
`“faithfully follows its owner beyond public thoroughfares
`and into private residences, doctor’s offices, political
`headquarters, and other potentially revealing locales.” Id.
`(quoting Riley v. California, 573 U.S. 373, 385 (2014)).
`
`
`
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`SANCHEZ V. LADOT
`
`14
`
`“Accordingly, when the Government tracks the location of a
`cell phone it achieves near perfect surveillance, as if it had
`attached an ankle monitor to the phone’s user.” Id.
`
`Carpenter also stressed the “retrospective quality of the
`data.” Id. “In the past, attempts to reconstruct a person’s
`movements were limited by a dearth of records and the
`frailties of recollection.” Id. But, with historical CSLI, the
`government can “travel back in time to retrace a person’s
`whereabouts, subject only to the retention policies of the
`wireless carriers,” which kept those records for “up to five
`years.” Id. “Unlike with the GPS device in Jones, police
`need not even know in advance whether they want to follow
`a particular individual, or when”—resulting in a “tireless and
`absolute surveillance” for anyone with a cell phone. Id.
`Accordingly, when the government acquired Carpenter’s
`CSLI from wireless carriers, it violated his “reasonable
`expectation of privacy in the whole of his physical
`movements.” Id. at 2219.
`
`The Court repeatedly stated that the unique nature of cell
`phones raises Fourth Amendment concerns. See id. at 2218
`(“While individuals regularly leave their vehicles, they
`compulsively carry cell phones with them all the time.”); see
`also Riley, 573 U.S. at 395 (observing “nearly three-
`quarters” of cell phone users spend “most of the time” living
`“within five feet” of their phone). But it carefully
`underscored that the decision was “a narrow one,” noting,
`“[w]e do not express a view on matters not before us: real-
`time CSLI or ‘tower dumps.’” Carpenter, 138 S. Ct. at 2220.
`And, critically, the decision concluded: “We do not disturb
`the application of Smith and Miller.” Id. It is this second
`line of cases—concerning a person’s expectation of privacy
`with respect to information he voluntarily turns over to
`others—to which we next turn.
`
`
`
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`
`
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`SANCHEZ V. LADOT
`
`15
`
`2.
`
`The third-party doctrine teaches that “a person has no
`legitimate expectation of privacy
`in
`information he
`voluntarily turns over to third parties.” Smith, 442 U.S. at
`743–44; see also United States v. Mohamud, 843 F.3d 420,
`442 (9th Cir. 2016) (noting that the “third-party doctrine”
`instructs “that a person’s privacy interest is diminished
`where he or she reveals information to a third party, even in
`confidence”). This is true “even if the information is
`revealed on the assumption that it will be used only for a
`limited purpose.” United States v. Miller, 425 U.S. 435, 443
`(1976). “As a result, the Government is typically free to
`obtain such
`information from
`the recipient without
`triggering Fourth Amendment protections.” Carpenter, 138
`S. Ct. at 2216.
`
`In Miller, investigating tax evasion, the government
`subpoenaed the defendant’s banks, seeking cancelled
`checks, deposit slips, and monthly statements. See 425 U.S.
`at 438–39. The Court rejected Miller’s Fourth Amendment
`challenge because he could “assert neither ownership nor
`possession” of these “business records of the banks.” Id. at
`440. Moreover, the Court found that the nature of the
`records confirmed Miller’s limited expectation of privacy
`with respect to them. See id. at 442. The checks were “not
`confidential communications but negotiable instruments to
`be used in commercial transactions”; and the bank
`statements were “exposed to [bank] employees in the
`ordinary course of business.” Id. Having “take[n] the risk,
`in revealing his affairs to another, that the information
`[would] be conveyed by that person to the Government,”
`Miller’s purported expectations of privacy were unavailing.
`Id. at 443.
`
`
`
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`16
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`SANCHEZ V. LADOT
`
`Smith applied these principles to information conveyed
`to a telephone company. See 442 U.S. at 737–46. The Court
`held that the government’s use of a “pen register”—which
`records the phone number dialed on a landline—was not a
`“search.” Id. at 745–46. In so ruling, the Court noted its
`“doubt
`that people
`in general entertain any actual
`expectation of privacy in the numbers they dial.” Id. at 742.
`Telephone users know, the Court reasoned, that the numbers
`are used “for a variety of legitimate business purposes” by
`the telephone company, including routing calls. Id. at 743.
`Thus, when Smith placed a call, he “voluntarily conveyed”
`the dialed numbers to the phone company by “expos[ing]
`that information to its equipment in the ordinary course of
`business.” Id. at 744. He also “assumed the risk” that the
`company’s records “would be divulged to police.” Id. at
`745. Thus, any subjective expectation Smith had that the
`numbers he dialed would be kept private “is not one that
`society is prepared to recognize as reasonable.” Id. at 743
`(cleaned up).
`
`We have applied the “voluntary exposure” concept
`underpinning the third-party doctrine to find that a person
`has no reasonable expectation of privacy in the fact that he
`has booked a hotel room. See United States v. Cormier, 220
`F.3d 1103, 1108 (9th Cir. 2000). So too, we have found that
`a person has no reasonable expectation of privacy in who
`comes and goes from the hotel room. See Patel v. City of
`Montclair, 798 F.3d 895, 900 (9th Cir. 2015); see also
`United States v. Rosenow, No. 20-50052, 2022 WL
`1233236, at *13 (9th Cir. Apr. 27, 2022) (observing that a
`person has no expectation of privacy in information
`knowingly “provided to and used by internet service
`providers for the specific purpose of directing the routing of
`information”). The familiar proposition that an individual
`has no expectation of privacy over items left in “plain view”
`
`
`
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`17
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`SANCHEZ V. LADOT
`
`
`
`of others derives from the same general principle. See, e.g.,
`Horton v. California, 496 U.S. 128, 133–34 (1990) (“If an
`article is already in plain view, neither its observation nor its
`seizure would involve any invasion of privacy.”). The third-
`party doctrine has also been cited to explain why “neither the
`taxicab drivers nor passengers have a reasonable expectation
`of privacy in the pick-up and drop-off data collected by the
`GPS tracking aspect” of taxicab meters. Azam v. D.C.
`Taxicab Comm’n, 46 F. Supp. 3d 38, 50 (D.D.C. 2014).6
`
`Nevertheless, as we recently observed, “commentators
`and two Supreme Court Justices have questioned the
`continuing viability of the third-party doctrine under current
`societal realities.” United States v. Moalin, 973 F.3d 977,
`992 (9th Cir. 2020).7 Justice Sotomayor, for instance, has
`noted that the assumption-of-risk rationale underlying the
`doctrine is “ill suited to the digital age, in which people
`reveal a great deal of information about themselves to third
`parties in the course of carrying out mundane tasks.” Jones,
`565 U.S. at 417 (Sotomayor, J., concurring). And, in
`Carpenter, Justice Gorsuch remarked:
`
`Even our most private documents—those
`that, in other eras, we would have locked
`
`
`6 See also Orin S. Kerr, Implementing Carpenter (Dec. 14, 2018),
`THE DIGITAL FOURTH AMENDMENT (Oxford University Press),
`Forthcoming,
` USC Law Legal Studies Paper No. 18–29,
`https://ssrn.com/abstract=3301257 (suggesting that the “basic kind of
`record [at issue]—where a person was picked up, what path a person
`took, and where they were dropped off—is not new”); Orin Kerr, The
`Case for the Third-Party Doctrine, 107 MICH. L. REV. 561 (2009).
`
`7 See, e.g., Evan Frohman, 23PolicemenAndMe: Analyzing the
`Constitutional Implications of Police Use of Commercial DNA
`Databases, 22 U. PA. J. CONST. L. 1495 (2020).
`
`
`
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`18
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`SANCHEZ V. LADOT
`
`safely in a desk drawer or destroyed—now
`reside on third party servers. Smith . . .
`teach[es] that the police can review all of this
`material, on the theory that no one reasonably
`expects any of it will be kept private. But no
`one believes that, if they ever did.
`
`138 S. Ct. at 2262 (Gorsuch, J., dissenting).
`
`And, of course, Carpenter itself rejected application of
`third-party doctrine
`to government collection of
`the
`historical CSLI. See id. at 2220. In so doing, the Court
`observed that it has “shown special solicitude for location
`information
`in
`the
`third-party context,” citing
`the
`concurrences in Jones, id. at 2219–20, and concluded that
`the “detailed chronicle of a person’s physical presence”
`presented by historical CSLI “implicates privacy concerns
`far beyond those considered in Smith and Miller,” id. at
`2220.
`
`But, notably, Carpenter did not overrule Smith and
`Miller, despite Justice Gorsuch’s invitation to do so. See id.
`at 2262 (dissenting opinion). Rather, it simply found the
`third-party doctrine inapplicable in the case before it, while
`expressly declining to “disturb the application of Smith and
`Miller” in other contexts. Id. at 2220. Specifically, the
`Court found that collection of historical CSLI fell outside the
`doctrine by focusing on its two underlying rationales—first,
`whether the nature of the material revealed to third-parties
`indicates a “reduced expectation of privacy,” and, second,
`whether there was “voluntary exposure” of the information
`to others. Id. at 2219–20.
`
`Addressing the first rationale, the Court noted that
`although one normally does not have an expectation of
`privacy in his movement on public streets, the “pervasive”
`
`
`
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`
`19
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`SANCHEZ V. LADOT
`
`
`
`tracking of movements revealed by historical CSLI was
`different because it provided “a detailed chronicle of a
`person's physical presence compiled every day, every
`moment, over several years.” Id. at 2220. The Court
`rejected the government’s reliance on Knotts
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