DAUS LECTURES AT COLUMBIA UNIVERSITY ON PRIVACY LAWS AND TAXI GPS TECHNOLOGY

I was privileged and honored to deliver a speech to transportation scholars, technology professionals and students at the 2011 BIT City Conference held at Columbia University on Transportation, Data and Technology in Cities. My lecture was entitled Taxi GPS Data - Legal, Privacy and Policy Issues. I congratulate my colleague Professor David King of Columbia for a remarkably successful and informative event. This and other presentations can be viewed along with information about the BIT City conference at http://bitcityconference.org/ and https://bpb.opendns.com/a/www.livestream.com/GSAPP.

Of course, with all the benefits of technology, including GPS, certain individuals and groups raise privacy issues – sometimes in the media and sometimes in court. This has been the case in New York City when we instituted the Taxi Passenger Enhancement Program (T-PEP) and in other cities around the U.S. who have followed suit in using similar systems and GPS data from taxicabs for a variety of purposes.

T-PEP includes the installation of an integrated system of credit and debit card readers with rear seat video screens, an information screen for drivers, and GPS devices. These systems led to significant credit card usage of over 50% and increased tips for drivers well in excess of 20-25%. T-PEP data collection includes replacing handwritten driver trip logs with an “electronic trip sheet” which includes passenger pick-up and drop-off times, locations and fare amounts that can be used for policymaking, enforcement, and for traffic and mobility management purposes.

Customers enjoy rear seat media, news and information. Taxicab drivers realize increased revenue. The GPS systems have been instrumental in the return of lost passenger property, alerting drivers without fares to business opportunities in under served areas, and using “breadcrumb” data to ping taxis throughout on-duty trips to estimate vehicle speed and assess the viability of traffic policies such as NYC’s pedestrian plaza initiatives.

Despite the use of such information for these and many other legitimate government objectives, drivers, industry and civil liberties groups have raised objections and commenced lawsuits. All of those efforts have failed, however, and the law recognizes that privacy rights in public taxicabs are minimal.

The 4th and 5th Amendments of the U.S. Constitution are the source of interpretation by the courts in the institution of such actions involving unlawful searches and takings of private property. The roots of the case law tree stretch back to a decision involving police officers attaching a tracking beeper to a chloroform container following an automobile’s movement across state lines in U.S. v. Knotts.1 In this 1983 criminal case, the U.S. Supreme Court held there was “no reasonable expectation of privacy in [an] automobile on public thoroughfares.”2

Matt Daus, Partner and Chair of the Transportation Practice Group at Windels, Marx (left), views the Nissan Taxi of Tomorrow exhibit in Manhattan with Windels, Marx client Ben Bailey (right), the host of Discovery Channel's popular "Cash Cab" television show.

I recall needing to return home from an IATR conference in Atlanta when I was Commissioner of the NYC Taxi and Limousine Commission (TLC). At that time, we were just starting to install T-PEP units in NYC taxicabs. There was a large inflatable “rat” waiting for me outside my office that was placed there by taxi driver groups and other union leaders standing in solidarity as they called for a taxi strike alleging the GPS aspect invaded their privacy rights. When the drivers were unsuccessful in pulling off a strike they then turned to the courts to sue me and the TLC, and lost decisively in Alexandre v. NYC TLC.3

In an ironic twist to current Occupy Wall Street terminology, less than 1% of medallion owners refused to install GPS systems, and the litigants claimed privacy rights violations due to a “limitless ability to track whereabouts.4 The court found the TLC’s contracts with its vendors limited the release of data so no person (including the TLC) could use GPS data to determine the location of an “off-duty” taxicab.5

Applying 4th Amendment case law, the federal court held there was “no legitimate expectation of privacy” when information was readily available for public scrutiny.6 The court reasoned, based on Knotts, that there is no “reasonable expectation of privacy of a motor vehicle traveling on a public roadway,” and applied an “intermediate level of scrutiny.7 The court concluded that TLC’s substantial interest in requiring GPS outweighed privacy rights in that the government was promoting taxi customer service, rider ship, and passenger and driver safety.8

The 5th Amendment’s “takings’ clause” provides that private property shall not be taken for public use without “just compensation.”9 There are two types of “takings” under the law:

2. A “regulatory” action completely depriving the owner of “economically beneficial use of property”.10

In addition to NYC’s program, a similar program initiated in Philadelphia also led to litigation. In 2005, the Philadelphia Parking Authority (PPA) implemented its Hospitality Initiative Program (HIP) which used a central GPS facilitated dispatch system to pre-arrange service for taxicabs.

In a federal lawsuit commenced in the Eastern District of Pennsylvania, MCQ’s Enterprises v. PPA, Plaintiff Yellow Cab argued displacement of their company’s own private dispatch system was both a physical taking (alteration of a cab) and a regulatory taking (displacement of its customer base).11 The court denied a preliminary injunction as PPA rules were promulgated “for the public good…to promote hospitality and tourism….”.12 Likewise, NYC TLC rules were enacted to “protect the public interest.”13

In response to the Plaintiffs’ 5th Amendment argument, the court in Alexandre ruled that medallion owners who choose to engage in a “publicly regulated business,” surrender their rights to unfettered discretion.14

The state of the law on privacy rights is settled in some ways, but untested on other issues. Clearly, regulatory bodies stand on firm legal privacy grounds as compared to criminal law enforcement and employee monitoring. Government regulators need to clearly define the use of any data derived from GPS tracking systems or electronic trip sheets by both specifying the public purposes and interests protected, and restricting the use of such data to those purposes - via agency regulations, contracts and/or some other tangible way.

While existing case law generally supports the rights of regulators to use electronic trip sheet data, the courts have not yet specifically tested other scenarios, including the use of data obtained while taxicabs are “off duty” and the use of such data for criminal law enforcement investigations.

1 460 U.S. 276 (1983).
2 Id. at 281.
3 No. 07 Civ. 8175 (RMB), 2007 WL 2826952 (S.D.N.Y. Sept. 28, 2007).
4 Id. at *9.
5 Id
6 Id.
7 Id. (quoting O’Connor v. Pierson, 426 F.3d 187, 202-03 (2d Cir. 2005)).
8 Alexandre, 2007 WL 2826952 at *10.
9 U.S. Const. amend. V.
10 Lingle v. Chevron U.S.A, Inc., 544 U.S. 528, 538-39 (2005
11 No. 07-0067, 2007 WL 127728 at *4 (E.D.Pa. 2007).
12 Id.
13 Alexandre, 2007 WL 2826952 at *8.
14 MCQ’s Enterprises, Inc., 2007 WL 127728 at *8 (quoting Scherr v. City of New York, 284 N.Y.S.2d 775, 776 (N.Y. Sup. Ct. 1967)).