Ridesharing: The Fourth Amendment’s Ride to the Grave

-- By AndreasLeptos - 01 Mar 2024

Ridesharing apps offer users convenient alternatives for transport, providing taxi rides or short-term vehicle rentals (e.g., E-scooters or E-bikes) through smartphones, with charges based on ride duration. What most users are blissfully unaware of is that such applications unnecessarily collect and capitalize from extensive forms of data, which are often irrelevant to their provision of the services . These range from contact, financial, location information (both during and, crucially, after use of the application; user content (photos, video, audio, etc.); driver’s licenses; race; sexual orientation and even biometric data . The effect of compounding all this information is the formation of a fully spherical image of users’ whereabouts and private lives. Data is stored indefinitely , and/or sold to Third-Party advertisers . Of primary concern for this paper is that this information can then be seized by police without the need for a warrant, thus circumventing Fourth Amendment rights and enabling extensive police surveillance. This paper will utilize rideshare companies as a case study to illustrate how judicial precedent fails to adapt to modern times, rendering the Forth Amendment utterly incapable of effectively protecting US citizens from unreasonable searches and seizures.

(The Shortfalls of) Fourth Amendment Jurisprudence:

The “reasonable expectation of privacy” doctrine espoused by the case of Katz v. United States 389 U.S. 347 (1967) forms the bedrock of Fourth Amendment protections. Over the years, the Courts have reduced the two-pronged (subjective and objective) Katz test to its objective leg. Carpenter v. United States, 585 U.S. 402 (2018) at 346. This seems to be the dominant approach over the years and thus, for purposes of succinctness, will be the focus of the following analysis.

i. What forms a reasonable expectation of privacy in the eyes of the SCOTUS?

In Katz, SCOTUS considered it critical for a finding of a reasonable expectation of privacy that the Defendant had entered a “[temporary] private place” by occupying a telephone booth and shutting the door behind him. Katz, 389 U.S. at 352 and 361. By contrast, in United States v. Miller, 425 U.S. 435 (1976), SCOTUS held that the Defendant had no “reasonable expectation of privacy” in his own cancelled checks, deposits and monthly statements, reasoning that the had “neither ownership nor possession” of such documents as they were “records of… banks”. Miller at 440, 96 S.Ct. 1619. The above two cases are two of the most foundational precedents in deciding Fourth Amendment matters to this day, and are a prime example why Fourth Amendment protections are a dream of the past; surveillance capabilities have flown to new heights, yet precedent remains rooted in the past. Law enforcement can now paint three-dimensional images of suspects’ everyday lives using data obtained from rideshare companies via simple subpoenas. They can legally “justify” their actions by arguing that the collected data is not collected by intrusion to a “private place” (Katz) and is considered “company data”. It is true that this data is technically “company data”, per Miller, and is “voluntarily” shared with rideshare applications “in the ordinary course of business.” Sanchez v. LADOT, 39 F.4th 548, 553 at 559 (9th Cir. 2022). However, this argument fails to contextualize the data acquired with the level of intrusion into user’s privacy (e.g. Uber’s collection of location data even after the ride has ended).

Another argument opposing the necessity of warrants can be based on precedent relevant to traditional investigative methods, given that rideshare apps provide a transportation service. It is established law that people in public, where their location could be easily ascertained through traditional surveillance such as observation, do not have a reasonable expectation of privacy in their physical movements. See United States v. Knotts, 460 U.S. (1983) at 281-282. United States v. Jones, 565 U.S. 402, 403 (2012) at 412.

ii. Third-party Doctrine and the Carpenter exception

The third-party doctrine entails that information that is voluntarily entailed to a third party is not protected by the Fourth Amendment. Whether the information was revealed on the assumption of privacy or not is irrelevant. Miller, 425 U.S. at 443; Smith 442 U.S. at 744. Despite the incredulity that rideshare app users fully comprehend and truly consent to extensive data usage, and notwithstanding the cautious approach taken by two of nine Justices in United States v. Moalin, 973 F.3d 977, 990 (9th Cir. 2020) regarding the constitutionality of the third-party doctrine amidst modern technology and heightened data-sharing practices, the Sanchez court unequivocally affirmed the applicability of the third-party doctrine in ridesharing cases. It ruled that the Defendant affirmatively shared his data with the ride-share company by agreeing to the app conditions. Sanchez, 39 F.4th at 559.

In Carpenter, the court limited the third-party doctrine from applying to data which formed “an all-encompassing record of the holder’s whereabouts.” Carpenter, 138 S. Ct. at 2217. This last ray of hope for preservation of Fourth Amendment rights was again smothered by the Sanchez court which, in an impressive display of naiveté, ruled that E-scooters, unlike a smartphone, are “typically re-rented to a new user after each individual trip.” The data captured was found to be limited and “during discrete trips”, thus falling outside of the scope of the Carpenter exception. Sanchez, 39 F.4th at 560.

Conclusion

The judiciary’s ancient approach to what constitutes a reasonable expectation of privacy, and their (mis)understanding of the deceptive tactics embedded in rideshare companies’ Terms of Service regarding consent, undermines US citizens’ Fourth Amendment rights. The absence of a robust legal framework to safeguard the store of information that are ridesharing apps facilitates unfettered access by law enforcement, authorizing the erosion of privacy rights as originally understood. Fourth Amendment protections have been reduced to rubble by the courts of law themselves.

What is the difference between a rideshare company and a taxi company in the 20th century? Why is the Fourth Amendment failing in one case and not in the other when both are routinely engaged in providing evidence acquired in their business to assist police investigation? That a rideshare application in a smartassphone may also be collecting location data at other times hardly seems to be the relevant distinction.

I think the route to improvement here is to edit sharply out all the background that can be assumed or linked to, all the commentary on generalities about data collection under surveillance capitalism, in order to concentrate on the one analytic point that seems important here and could use precise attention.

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