The Taxi Driver, the GPS Tracker and the 4th Amendment

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This post examines an opinion a federal district court recently issues in a civil case: 

On May 31, 2013, plaintiff Hassan El–Nahal filed a complaint against defendants David Yassky, Commissioner Matthew Daus, Michael Bloomberg, and the City of New York alleging that the NewYork City Taxi and Limousine Commission (TLC) has violated 42 U.S. Code §1983 and the 4th Amendment of the United States Constitution . . . by using a global positioning system (GPS) device to track [his] whereabouts without probable cause or a search warrant. 

El-Nahal v. Yassky, 2014 WL 333463 (U.S. District Court for the Southern District of New York 2014).  

Both sides rather quickly filed cross-motions for summary judgment, i.e., El-Nahal filed a motion asking the District Court judge who has the case to award summary judgment for him and the defendants did the same, asking the judge to award summary judgment to them. El-Nahal v. Yassky, supra.  As Wikipedia explains, summary judgment is a judgment a court enters “for one party and against another party summarily, i.e., without a full trial.”  As Wikipedia also notes, to grant summary judgment for a party the court has to find that

1. there are no disputes of `material’ fact requiring a trial to resolve, and
2. in applying the law to the undisputed facts, one party is clearly entitled to judgment. 

It notes that a “material” fact is “one which, depending upon what the factfinder believes "really happened," could lead to judgment in favor of one party, rather than the other.”  So, each side is trying to avoid a trial on some/all of the issues in the case.

As to how the case arose, the opinion explains that the New York Taxi and Limousine Commission (TLC) is the agency charged with regulating and supervising the

transportation of persons by licensed vehicles for hire in New York City. . . . The TLC's responsibilities include regulating taxicab safety, design and comfort; reasonable rates of fare for taxi service; and the licensing of taxi drivers. . . . The TLC has the right to inspect books and records and to require the submission of any reports that it deems necessary. . . .

Since 1992, the TLC rules have required a TLC-licensed New York City taxi driver to create and maintain a trip record. . . . Until recently, drivers were required to keep a trip record in which they entered certain information, including: (1) at the start of each trip, the date, time, specific location, and number of passengers; (2) on completion of the trip, the destination, time, amount of fare, and any tolls paid; (3) the taxi's readings at the end of the shift; and (4) any toll bridges or tunnels used by the driver, whether or not with a passenger. . . .

The TLC currently mandates that all New York City taxis must be equipped with a Taxicab Technology System (`T–PEP’ or `TT’ system), which includes a GPS, a credit-card device, and monitors for the driver and passengers, and which automatically collects certain trip information, including the taxi license number, the taxi driver's license number, the location of trip initiation, the time of trip initiation, the number of passengers, the location of trip termination, the time of trip termination, the metered fare for the trip, and the distance of the trip. . . .Taxi drivers are required to create handwritten trip records if the T–PEP system fails to operate properly. . . .

Taxis are also equipped with a meter that displays the fare, surcharges, and the rate codes. . . . There are six rate codes, including trips within the city, trips to and from airports, trips beyond the city limits and to other counties, negotiated fares, and group rides. . . . At the start of each trip, the driver sets the rate by pushing a button on the meter. . . .

Among other requirements, taxi drivers are prohibited from charging a fare above the approved rates. . . . Penalties apply to various violations of the rules, including overcharging. . . .When a taxi driver is charged with a violation of any TLC rule, the TLC may . . . impose a penalty of license revocation, license suspension of up to six months, and/or a fine. . . .

[I]n 2007, before the technology mandate took effect, the TLC issued a `Statement of Basis and Purpose,’ which stated the reasons for its technology and GPS mandate. . . . The TLC made no mention in this statement (or elsewhere) of using GPS data to investigate or prosecute taxi drivers. . . . On its website, the TLC stated it would use the T–PEP technology to provide customer service improvements, and that it was `replacing the current hand-written trip sheets with automatic electronic trip sheets which are limited to collecting pick-up, drop-off, and fare information, all of which are already required.’ . . .

On March 12, 2010, the TLC issued an e-mail press release in which it claimed that 35,558 taxi drivers had illegally overcharged at least one passenger over a 26–month period by manually switching the taxi meter from Rate Code 1 (the default setting used for trips within the city) to Rate Code 4 (the rate that applies to out-of-city trips). . . . The TLC stated that it used `GPS technology installed in taxicabs’ to make this discovery. . . On March 14, 2010, the TLC issued a revised press release that stated that 21,819 drivers had overcharged passengers. . . .

On or around January 3, 2012, the TLC sent a letter to [El-Nahal] instructing him to appear at a hearing concerning overcharges. . . . [He] was found guilty after a hearing, and the [Administrative Law Judge] imposed fines totaling $550 and revoked his license. . . . The OATH Taxi and Limousine Tribunal appeals board reversed that ruling and reinstated plaintiffs license. . . . On remand, the TLC reinstituted some charges against [El-Nahal]. . . . [He] was again found in violation and his license was again revoked. . . . On appeal, the appeals tribunal again reversed. . . . Finally, [he] was found guilty for a third time, he again appealed, his conviction was again reversed, and his license was again restored. . . .

El-Nahal v. Yassky, supra. 

As Wikipedia explains, the 4^th Amendment bars the government (and the TLC is a government agency) from conducting unreasonable “searches” and/or “seizures.”  Therefore, to have a valid 4^th Amendment claim, El-Nahal had to show he had been the victim of a search and/or seizure that was “unreasonable. 

As I have noted in earlier posts, if there is no search or seizure, there is no 4^th Amendment violation. As I have also noted, and as Wikipedia explains, for someone to have been the target of a 4^th Amendment search, the government must have engaged in conduct that violated that the person believed, subjectively, was a “private” place or thing and society must be prepared to regard that belief as objectively reasonable. 

El-Nahal had two problems with his 4^th Amendment argument:  The first, as the opinion notes, was that he directed “much of his complaint and many of his arguments not to the collection of data through the T–PEP system but to the use of the data in administrative proceedings.”  El-Nahal v. Yassky, supra (emphasis in the original).

Logically, for El-Nahal to have been the victim of an “unreasonable” search carried out by the government, government personnel would have had to have intruded into data or a place that contained data either of which was “private” for 4^th Amendment purposes.  As the court pointed out, if the collection of the data did not constitute a “search,” then there would be no cognizable 4^th Amendment, i.e., no search, and El-Nahal’s claim would fail.  (Using the data might be considered a seizure if the government had taken data that belonged to El-Nahal from him, but the data at issue here clearly did not belong to El-Nahal.  If the government did not take his property, there would be no seizure.)

Or, as the federal judge who has this case explained, a 4^th Amendment search

‘occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.’ Maryland v.Macon. 472 U.S. 463 (1985). This inquiry `embraces two discrete questions. The first is whether the individual . . .  has exhibited an actual (subjective) expectation of privacy—whether . . . the individual has shown he seeks to preserve [something] as private. The second is whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable. . . .’ U.S. v. Knotts. 460 U.S. 276 (1983). . . . 

Here, as the [U.S. Court of Appeals for the 2d Circuit] has already ruled, El-Nahal had no reasonable expectation of privacy in the T–PEP data at issue. See Buliga v. New York City Taxi & Limousine Commission, 324 Fed. Appx. 82 (2009).  Local law requires the collection of the data. . . . Prior to the installation of the T–PEP system, drivers were required to create `trip sheets’ containing the same information. . .

Furthermore, `[t]axicabs in New York City have long been subject to regulation by the TLC . . . and the TLC maintains the right to inspect books and records, including the trip sheets. . . . Accordingly, [El-Nahal] cannot show a reasonable expectation of privacy in any of the information collected under the system. . . .

El-Nahal v. Yassky, supra. 

The judge then analyzed El-Nahal’s claim and its defects:

Essentially, [he] alleges . . . he reasonably expected defendants would `not use GPS tracking as a prosecutorial tool.’ . . . That . . . is legally irrelevant to the 4th Amendment analysis here. The subsequent use of data does not create a privacy interest in the information that does not otherwise exist. See Maryland v. Macon, supra (`The mere expectation that the possibly illegal nature of a product will not come to the attention of the authorities . . . is not one society is prepared to recognize as reasonable). . . .

The only expectation that is relevant  . . . is an expectation of privacy in the data themselves. . . . For the reasons set forth above, there is no reasonable expectation of privacy in such information. . . . Regulations not only mandate use of the T–PEP system but also require taxi drivers to create handwritten trip records if the system fails to operate, and have long required drivers to keep records of their activity. . . .

[El-Nahal] had no reasonable expectation of privacy in the data collected through the T–PEP system-regardless of the ends to which defendants ultimately used such data.

El-Nahal v. Yassky, supra. 

Finally, the judge noted that “[e]ven assuming arguendo that a search occurred because [El-Nahal] had a reasonable expectation of privacy in the collected data or because defendants physically trespassed on [his] property, [his] 4th Amendment claim still must fail, because any such search was reasonable under the circumstances.“ El-Nahal v. Yassky, supra.  She pointed out that “[w]hile reasonableness generally requires obtaining a warrant, a search unsupported by probable cause and a warrant can be reasonable and thus constitutional where `special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.’” El-Nahal v. Yassky, supra (quoting Vernonia School District v. Acton, 515U.S. 646 (1995)).

El-Nahal v. Yassky, supra. 

4^th Amendment special-needs analysis requires “the examination of three factors: `(1) the nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government's needs, and the efficacy of its policy in addressing those needs’”.  El-Nahal v. Yassky, supra.  She then found that under this standard, the collection of the data at issue here was reasonable, i.e., did not violate the 4^th Amendment. El-Nahal v. Yassky, supra. 

First, [El-Nahal] had a low privacy interest in the data collected through the T–PEP system, and the governmental intrusion was of a low degree. The data relate directly to [his] work as a taxi driver, and regulations already required [him] to keep track of the information collected through the system. . . . Additionally, taxi drivers have a low privacy interest because `the taxi industry is pervasively regulated by the Commission.’ Statharos v. New York City Taxi & Limousine Comm'n, 198 F.3d 317 (U.S. Court of Appeals for the 2d Circuit 1999); see Skinner v. Railway Labor Execs. Ass'n, 489 U.S. 602 (1989) (finding a low privacy interest for employees who participate an `industry that is regulated pervasively’). . . .

El-Nahal v. Yassky, supra.  The judge also found that the government interest in

collecting the data is substantial, and the installation of the T–PEP system and collection of data through the system are an effective way to address that interest. `[T]he City of New York, acting through the TLC, “has a substantial interest in promoting taxi customer service, taxicab ridership, and passenger and driver safety.”’ Buliga v. New York City Taxi & Limousine Commission, supra (quoting (quoting Alexandre v. New York City Taxi & Limousine Commission, 2007 WL 2826952 (U.S. District Court for the Southern District of New York)).

The City's collection of T–PEP data is directly related to those goals; for example, the City can use the data to ensure taxi drivers are driving their vehicles the minimum amount required by regulations or to ensure drivers are not systematically overcharging passengers. Meanwhile, because defendants only collect information related to the locations and times of the start and end of each trip and the trip distance, and only collect information while drivers are on duty . . ., there is little likelihood [they] will obtain personal information through this system-thus rendering it an effective means of addressing the governmental need in question. . . .

El-Nahal v. Yassky, supra. 

Since the judge found (i) that there was no 4^th Amendment search or (ii) if there was, then the search was “reasonable” and so satisfied the constitutional requirements, she granted the defendants’ motion for summary judgment an denied El-Nahal’s motion. El-Nahal v. Yassky, supra.  She also ordered the Court Clerk “to terminate this action.”  El-Nahal v. Yassky, supra.