Dedicated Revenue Mechanisms for Freight Transportation Investment (2012)

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D-1 Overview The proposed approaches to assessing VMT fees involve using on-board units to record, store, and transmit road use data. These proposals have raised privacy concerns regarding the government’s ability to track the movements of individuals. Whether these concerns are legitimate as a practical matter depends on the nature and specificity of the data recorded. In designing a VMT fee system, there is generally a tradeoff between privacy and auditability. If the system is designed to be highly auditable, the government will gain access to a certain degree of information regarding individuals’ movements. However, even if a high degree of auditability is sought, there is no need to design a system that provides the government with a virtual map of an individual’s movements as feared by privacy groups. Below that level of detail, it may be possible to allow each individual to choose the tradeoff between privacy and auditability that he or she thinks is optimal. As a legal matter, virtually any system design would comply with existing constitutional and statutory privacy protections. It is possible that a system that provides detailed route infor- mation regarding all of an individual’s movements could raise constitutional concerns. However, as noted, an effective VMT fee program would not require the recording or trans- mitting of this level of detail. This appendix will begin by discussing the various options for implementing a VMT fee system and the tradeoff between auditability and privacy involved with each. It will then proceed to discuss the legal issues relevant to these options. Road User Fee Design Options The option most protective of privacy (Option 1) eliminates the collection of road user data altogether. Under this option, VMT fees could be estimated based on the amount of fuel purchased and the EPA miles per gallon (mpg) estimate for the particular vehicle model. The EPA mpg data for a vehicle would be stored on a radio frequency identification (RFID) tag. RFID readers located at service station fuel dispensers would automatically read the EPA mpg data stored on the RFID tag as a vehicle is fueling. Unlike other options that are highly protective of privacy, this option allows for easy auditability. However, it only provides a rough estimate of miles traveled. Furthermore, the fees would fall disproportionately on those who do most of their driving in congested areas since mpg falls considerably under congested driving conditions. Another option, similarly protective of privacy (Option 2), would collect a limited amount of road user information and transmit only a subset of that information to the government. Under this option, often called a “thick-client” system, a GPS system would identify the jurisdiction in which the vehicle is traveling and a separate device connected to the vehicle’s speed sensor or odometer would record the miles traveled. An on-vehicle computer would combine this information and record the miles traveled in each jurisdiction and calculate the corresponding VMT fees. Thus, in Option 2, no information regarding routes traveled would be recorded or stored. Even the location information regarding the jurisdictions in which a vehicle traveled need only be stored long enough for the computer to calculate the proper fees. The only information that would be transmitted to the government would be the accumulated total of user fees owed by a given vehicle during the billing period. The government would therefore not even be able to determine the jurisdictions through which a given vehicle has traveled. While this system is highly protective of privacy, it provides a low level of auditability. If individuals receive a billing state- ment that only lists the total fees owed, users will have dif- ficulty verifying that this information is correct. A similar system that allows for more auditability, but is somewhat less protective of privacy (Option 3) would use the same technology as Option 2, but instead of only transmitting total fees owed, it would transmit total miles driven in each jurisdiction and total fees owed by jurisdiction. The state of Oregon and the University of Iowa, in conjunction with A p p e n d i x d Privacy Issues

D-2 the FHWA, have conducted pilot programs using this type of system. Depending on the mix of privacy and auditability sought, the information could be recorded by day, week, month, and so forth. In other words, at the end of a billing cycle, the system could transmit the miles accumulated in each juris- diction for each day, each week, or each month. The shorter the period of time, the easier it is for individuals to determine whether the fees are being assessed accurately. However, shorter time periods also provide the government with more detailed information regarding an individual’s movements. Another possibility for this system would be to record and transmit the amount of fuel purchased each time a user visits a gas station. The fuel volumes purchased could be compared to miles driven and used as another check on the accuracy of the system. An extension of Option 2 and Option 3 described above in a time/location VMT system would be to record not only information regarding road use by jurisdiction, but also to record use of toll roads, bridges, and tunnels. Under this scenario, the GPS component would identify when a vehicle travels on certain toll facilities. The information transmitted to the government could still be limited to the total fees owed, as under Option 2. However, if more auditability is sought, information regarding the number of times a particular toll facility was used each day, week, or month of a billing cycle could be transmitted to the government and provided to users. Of course, this increased level of detail would provide the government with some information regarding particular routes traveled by individuals. The option least protective of privacy (Option 4) is a “thin-client” time/location system based entirely on GPS data that records and transmits detailed route information. This system is highly auditable since users can review and verify each individual trip taken in their vehicles. The detailed information would also allow the user to engage in a more careful examination of the financial consequences of his or her driving behavior. However, such a system would provide the government with a highly detailed record of the movements of users that could reveal personal information such as political affiliations, medical treatments, and so forth. As discussed below, government collection of this level of data could raise constitutional issues. As the discussion above indicates, there is generally a tradeoff between privacy and auditability. The government could decide the balance for everyone by requiring that the system provide a certain level of information. Alternatively, the government could establish the minimum level of infor- mation it would require and allow each individual to choose the balance between privacy and auditability that he or she finds optimal. For example, the government could require that all users submit information regarding total fees accumu- lated during a billing cycle and allow individuals to deter- mine whether they want to provide information regarding total miles driven in each jurisdiction to allow for increased auditability. A framework involving such consumer choice could be established by allowing for an open system in which the private sector develops various products corresponding to different levels of privacy. The government would simply certify these technologies as complaint with the road user fees system. Alternatively, a single technology could be developed that enables users or certified technicians to make adjustments to the privacy settings. Third-Party Option A variation on Options 2, 3, and 4 that some may view as increasing the level of privacy protection without reducing individual auditability is to have the relevant road use data collected by a private third party. Under this scenario, the data collected by the on-vehicle system would be transmitted to a private company. The company would bill the individual and pass the fee revenue along to the government. Thus, the only information the government would receive would be the total fees paid for a given billing period. This feature could be integrated into Options 2 through 4 described above.1 Under Option 2, total user fees owed would be transmitted to the third party. The third party could then provide the fees it collects to the government without tying a particular amount of fees to a particular user. Alternatively, the third party could provide the government with the amount of fees associated with each user. However, this would not increase the level of privacy under Option 2 since, even without third- party involvement, Option 2 would provide the government with the total fees associated with each user. Under Options 3 and 4, the mileage and jurisdiction/detailed route information could be recorded and transmitted to the private third party, who would bill the individual based on this data and pass the funds collected along to the government. Again, the fees trans- mitted to the government could be associated with individual users or provided only as an aggregate amount for all users. Placing a third party between the information and the government could arguably provide some additional privacy since the government would only receive either aggregate fees for all users using a particular third party or fees associated with each individual user. This purported increase in privacy would not come at the price of individual auditability since the individual could be provided with the more detailed infor- mation collected by the third party. However, depending on how the legislation is drafted, the government may reserve the right to access the detailed information for various purposes, including audits. 1Under Option 1, a third party is already involved. Under that option, the gas station would collect the road user fees just as it currently collects the gas tax.

D-3 Further, federal statutes requiring government agencies that collect and maintain personal information to implement data security measures and to limit the use and disclosure of personal information would not necessarily apply to private third parties. Thus, private third parties might engage in acts that violate individuals’ privacy, such as selling personal information, or fail to adequately protect personal informa- tion unless the legislation establishing the system or contracts with users require these third parties to maintain the security and confidentiality of the data. Even if the government does not have regular access to the data and third parties are required to maintain the confidentiality and security of the data, those who are concerned about their privacy may not see third- party intermediaries as a substitute for limiting the amount of information actually collected or transmitted by the on- vehicle devices. After all, they will still be required to provide information regarding their movements to another party. Those who trust private corporations less than the government may actually view this alternative as less protective of privacy. Legal Issues The Fourth Amendment The Fourth Amendment prohibits unreasonable searches.2 A “search” occurs under the Fourth Amendment when the government violates a subjective expectation of privacy that society recognizes as reasonable.3 Thus, a road user fee system would involve a “search” if individuals have an expectation of privacy in the type of information transmitted by the system to the government. However, there is no reasonable expectation of privacy in the type of information that would be provided by the options described above, with the possible exception of the detailed information provided under Option 4. Option 1, in which only the amount of fuel purchased and the EPA mpg are provided to the government, does not infringe on any expectation of privacy. There can be no expec- tation of privacy in EPA mpg data since this information is publicly available. Nor can there be an expectation of privacy in the amount of fuel one purchases. The Supreme Court has held in various other contexts that there is no expectation of privacy in information voluntarily conveyed to businesses. For example, in Smith v. Maryland, the Supreme Court held that there is no expectation of privacy in the dialing information sent to a phone company when a person dials a phone.4 The Court reasoned that there can be no reasonable expectation of privacy in information voluntarily conveyed to the phone company, which was free to record the information and share it with others.5 Similarly, in California v. Greenwood, the Court held that there is no reasonable expectation of privacy in garbage left on the curb for pickup by trash collectors. Accord- ing to the court, there could be no reasonable expectation of privacy in the garbage because it was left in an area exposed to the public and put at the curb for “the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through [it] or permitted others, such as the police, to do so.”6 When one purchases fuel, the amount of fuel purchased is intentionally and voluntarily shared with the provider of the fuel and the amount purchased is exposed to the public on the display of the gas pump. Thus, there can be no reasonable expectation of privacy in that information. Under Option 2, the only information that would be pro- vided to the government would be the total road user fees owed. This information essentially provides the government with a rough estimate of the number of miles driven during a given period. There can be no reasonable expectation of privacy in such information for two reasons. First, as with dialing information sent to the phone company and garbage left on the curb, mileage information is volun- tarily conveyed to service providers on a regular basis. When an individual takes his or her car in for maintenance, the owner of the car voluntarily conveys the mileage driven since the previous visit to that service provider. Thus, according to Smith and Greenwood, there can be no reasonable expectation of privacy in this information. Second, the mileage driven by an individual is a subset of the information regarding that individual’s movements in public, in which there can be no reasonable expectation of privacy. The Supreme Court, in United States v. Knotts, established that electronic monitoring of an individual’s movements does not violate the Fourth Amendment where it reveals no information that could not have been obtained through visual surveillance.7 The court reasoned that such monitoring was analogous to following someone on public streets, where there is no expectation of privacy.8 In contrast, the Supreme Court held in United States v. Karo that electronic tracking of a device does violate the Fourth Amendment if the device is located in a private area out of view from the public, such as a home.9 The Court reasoned that tracking the device while it is in a private residence is analogous to entering a residence to verify that the device is inside the residence, 2U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”) 3See, e.g., Kyllo v. United States, 533 U.S. 27, 33 (2001). 4442 U.S. 735, 742–745 (1979). 5Id. at 745; see also United States v. Miller, 425 U.S. 435, 443 (1976) (holding that there is no reasonable expectation of privacy in information transmitted to a bank because the information was voluntarily conveyed and exposed to the banks employees in the ordinary course of business). 6California v. Greenwood, 486 U.S. 35, 41 (1988) 7United States v. Knotts, 460 U.S. 276, 282 (1983). 8Id. at 281. 9United States v. Karo, 468 U.S. 705, 715–17 (1984).

D-4 a place which the Fourth Amendment protects from govern- ment intrusion.10 Taken together, these cases establish that warrantless tracking of an individual’s movements violates the Fourth Amendment when it provides the government information regarding an individual’s location within an area, such as a private residence, where he or she has a reasonable expectation of privacy, but not when it reveals information regarding an individual’s movements in public. Since the Fourth Amendment permits monitoring an individual’s move- ments in public, it must also permit monitoring the number of miles driven by an individual in public. Put another way, since the number of miles driven by an individual could be obtained by visual surveillance, there can be no expectation of privacy in that information. Option 3 would not only provide information regarding the number of miles driven but also the jurisdictions, and possibly the toll facilities, where those miles were accumulated. With regard to the Fourth Amendment, however, this amounts to a distinction without a difference. Because there is no rea- sonable expectation of privacy in one’s movements in public, government access to information regarding which jurisdic- tions an individual traveled through and what toll facilities an individual used does not implicate the Fourth Amendment. Indeed, state governments already collect a subset of this information. Through the use of cameras and devices such as E-Z Pass at toll facilities, states collect information regard- ing the roads used by individuals and, in some instances, the distances traveled on such roads. Option 4 would provide detailed information regarding the routes traveled by individuals. Requiring individuals to provide this level of detailed location information to the government conceivably could be found to be inconsistent with the Fourth Amendment. As discussed above, the Supreme Court has held that the Fourth Amendment does not prohibit electronic monitoring of one’s movements in public. However, that decision long predates GPS devices that allow for the constant collection and recording of highly detailed infor- mation about an individual’s movements, which can reveal personal information such as political affiliations, medical treatments, personal relationships, and so forth. A court may find such a situation distinguishable from the cases where an electronic beeper provided the police with information regarding an individual’s location for a short period of time. Indeed, some state courts have found that the use of GPS devices to track an individual’s movements violates state constitutions. In finding that the use of a GPS device to track a vehicle’s movements violated the state constitution of New York, the court in People v. Weaver distinguished the use of a GPS device from the “primitive” beeper used to track individuals in Knotts. It found that, unlike the beeper in Knotts, which facilitated surveillance during a single trip, a GPS device allows the “whole of a person’s progress through the world . . . [to] be charted and recorded over lengthy periods” yielding “a highly detailed profile, not simply of where we go, but by easy inference, of our associations—political, religious, amicable and amorous, to name only a few—and of the pattern of our professional and avocational pursuits.”11 In holding that use of a GPS device to track a vehicle’s move- ments violated the state constitution of Washington, the court in State v. Jackson similarly noted the fact that GPS tracking allows for constant surveillance and “can provide a detailed picture of one’s life.”12 Because these decisions were based on state law, they would not prohibit the operation of a federal, GPS-based system (although they could limit the ability of states to collect state taxes through such systems). Federal courts that have directly addressed the issue of GPS tracking of vehicles have generally found it to be consistent with the Fourth Amendment.13 However, the Court of Appeals for the D.C. Circuit recently held that GPS tracking over an extended period of time is a search within the meaning of the Fourth Amendment and therefore requires a warrant.14 As explained above, the Supreme Court in Knotts found that there can be no reasonable expectation of privacy in one’s movements that are exposed to the public. The D.C. Circuit, however, interpreted Knotts as being limited to the tracking of someone “during a discrete journey,” and as leaving open the question of whether sustained surveillance for an extended period might cross the line and become a Fourth Amendment “search.”15 According to the court, the reasoning in Knotts is not applicable to prolonged surveillance because the aggregate amount of information that such sustained surveillance reveals about a person is, in effect, not exposed to the public even if the individual bits of information are.16 It stated, “[T]he whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil.”17 The 10Id. at 715. 11People v. Weaver, 909 N.E.2d 1195, 1199-00 (N.Y. 2009). 12State v. Jackson, 76 P.3d 217, 223 (Wash. 2003). More specifically, the court stated that GPS information “can provide a detailed record of travel to doctors’ offices, banks, gambling casinos, tanning salons, places of worship, political party meetings, bars, grocery stores, exercise gyms, places where children are dropped off for school, play, or day care, the upper scale restaurant and the fast food restaurant, the strip club, the opera, the baseball game, the “wrong” side of town, the family planning clinic, the labor rally.” Id. 13See, e.g., United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007); United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010); United States v. Burton, 2010 WL 996487 (N.D. Fla. 2010); Morton v. Nassau County Police Department, 2007 WL 4264569 (E.D.N.Y. 2007); United States v. Moran, 349 F.Supp.2d 425 (N.D.N.Y. 2005); U.S. v. Williams, 650 F.Supp.2d 633 (W.D. Ky. 2009). 14United States v. Maynard, No. 08-3030 (D.C. Cir. Aug. 6, 2010). 15Id. at 17–18. 16Id. at 22. 17Id.

D-5 court also found that the sum of a person’s movements over an extended period is not “constructively exposed” to the public by virtue of the fact that his individual movements are, because the “whole reveals far more than the individual movements it comprises.”18 According to the court, detailed GPS records indicating who a person visits and how often can reveal an intimate picture of an individual’s life, which is not revealed by observing a person for a short period of time.19 Because detailed records regarding one’s movements over an extended period can provide such an intimate picture of one’s life, the court found that individuals have a reasonable expectation of privacy in that information, which is protected by the Fourth Amendment.20 Thus, the court’s holding relied on the fact that the tracking at issue provided detailed route data to the government. The only option above that would transmit such information to the government is Option 4. The information provided by the other options, such as total miles driven or miles driven in a particular jurisdiction, hardly provides an intimate picture of one’s life. A few other federal courts of appeals have noted that con- stant, indiscriminate GPS surveillance could raise Fourth Amendment concerns. For example, in United States v. Garcia, the Seventh Circuit noted that use of the device was limited and stated, “Should government someday decide to institute programs of mass surveillance of vehicular movements, it will be time enough to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search.”21 In short, although mass GPS tracking of detailed vehic- ular movements appears to be consistent with the Fourth Amendment under existing Supreme Court precedent, some courts have indicated that they view such tracking as distin- guishable from the type of tracking approved by the Supreme Court. Thus, it is advisable to design a VMT fee system in a way that provides general information regarding the aggregate movements of individuals rather than detailed information regarding particular routes or destinations. As discussed above, VMT fee system options can be designed such that a private third party receives the data and only provides the government with the fees it collects. This feature does not change the constitutional analysis. Because the private third party will be collecting the data on behalf of the government, the third party cannot be distinguished from the government for purposes of the Fourth Amendment.22 Thus, the Fourth Amendment limits described above would be equally applicable to a third-party collecting the data. Statutory Law There are statutory provisions dealing with the installation of “tracking devices.” In particular, Section 3117 of Title 18 defines “tracking device” as “an electronic or mechanical device which permits the tracking of the movement of a person or object.”23 It also states, “[i]f a court is empowered to issue a warrant or other order for the installation of a mobile tracking device, such order may authorize the use of that device within the jurisdiction of the court, and outside that jurisdiction if the device is installed in that jurisdiction.”24 Another provi- sion, Federal Rule of Criminal Procedure Rule 41 (Rule 41), authorizes courts to issue warrants for tracking devices upon a showing of probable cause.25 These provisions, however, do not limit the ability of the government to implement a VMT fee system for several reasons. First, it is not clear that most of the VMT-compatible OBU systems described above would constitute a “tracking device.” A system that provides detailed GPS route information would clearly fit within the statutory definition. As noted elsewhere, distance/vehicle VMT systems do not require GPS capability. A system that merely informs the government of the total 18Id. at 28. 19Id. at 29–32. 20Id. at 32. 21United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007); see also United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010) (“It is imaginable that a police unit could undertake ‘wholesale surveillance’ by attaching such devices to thousands of random cars and then analyzing the volumes of data produced for suspicious patterns of activity. Such an effort, if it ever occurred, would raise different concerns than the ones present here.”); United States v. Pineda-Moreno, 591 F.3d 1212, 1216 n. 2 (9th Cir. 2010) (“We, like the Seventh Circuit, believe that ‘[s]hould [the] government someday decide to institute programs of mass surveillance of vehicu- lar movements, it will be time enough to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search.’ ”) (quoting United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007)). Viewed out of context, these statements could arguably be read to suggest that the mass collection of more general data, such as miles driven by jurisdiction, raises potential constitutional concerns. However, these statements were made in the context of decisions regarding the use of GPS devices to obtain specific route and location information and referred to the possibility of police conducting such surveillance on a widespread basis. Thus, these cases do not shed light on how the courts might view the collection of much more general information regarding vehicular movements. As noted above, states already collect a substantial amount of general movement information, such as which vehicles use which toll facilities. In any event, these cases merely suggest that the Fourth Amendment implications of widespread tracking of vehicular move- ments should be carefully considered; they say nothing about how the issue should ultimately be decided. 22See Skinner v. Railway Labor Executives Association, 489 U.S. 602, 614– 15 (1989) (holding that searches by private parties are governed by the Fourth Amendment where the search is required by law or where the government encourages, endorses, and participates in the search). 2318 U.S.C. § 3117(b). 2418 U.S.C. § 3117(a). 25More specifically, Rule 41(d)(1) states, “After receiving an affidavit or other information, a magistrate judge—or if authorized by Rule 41(b), a judge of a state court of record—must issue the warrant if there is probable cause to search for and seize a person or property or to install and use a tracking device.”

D-6 miles accumulated during a particular period cannot be said to “permit the tracking of the movements of a person” since it does not even reveal general information about the loca- tions an individual has visited or routes traveled. A system that also provides information on the jurisdictions in which an individual has traveled arguably does fit within the defini- tion since it can reveal that an individual moved between one particular jurisdiction and another particular jurisdiction. Indeed, courts have described the definition of “tracking device” as “striking for its breadth” and noted that it does not specify how precise a device must be.26 On the other hand, some courts have suggested that a device is not a “tracking device” if it merely reveals that an individual has visited certain loca- tions (e.g., a credit card is not a tracking device even though it reveals that an individual visited various stores).27 According to this theory, a device must provide information regarding how an individual moves from place to place rather than just providing a list of places he or she has been. However, as explained below, even if the VMT fee system chosen does fit within the definition of a “tracking device,” its use would not be limited by statutory provisions regarding tracking devices. Second, although several magistrate judges have held that use of a “tracking device” requires a warrant supported by probable cause in certain instances, those decisions are not applicable to the road user fee context. In those cases, the government sought information regarding the location of a cell phone subscriber from the phone company. The courts held that using cell phone data to locate a subscriber transforms the phone into a “tracking device,” as defined by 18 U.S.C. § 3117(b), and that the government must there- fore obtain a warrant pursuant to Federal Rule of Criminal Procedure 41 (Rule 41).28 However, courts that have taken this position have done so in the context of a complex web of statutory provisions that are not applicable to a VMT fee system. Specifically, these decisions have focused on a provi- sion of the Communications Assistance for Law Enforcement Act (CALEA) restricting access to “call-identifying infor- mation” about a telecommunication subscriber’s location obtained “solely pursuant” to a pen register order (a “pen register order” allows law enforcement to use a device that records the phone numbers associated with incoming and outgoing calls).29 These courts have found that the additional authority needed to obtain location-related “call-identifying information” is a warrant issued pursuant to Rule 41.30 Thus, these holdings appear to be irrelevant to a situation where the government does not seek “call-identifying information,” as would be the case in a road user fee program.31 Nonetheless, several opinions speak broadly about the use of tracking devices and suggest that a warrant supported by probable cause is necessary whenever the government seeks to use a tracking device. For example, one magistrate judge, in finding that a cell phone was being used as a track- ing device, stated that probable cause is “the standard which the Government has long been required to meet in order to obtain Court approval for the installation and use—by law enforcement agents—of a device enabling the Government to record, or ‘track,’ the movement of a person.”32 Other 26See, e.g., In re Application of the U.S. for an Order Authorizing the Installation and Use of a Pen Register Device, a Trap and Trace Device, and for Geographic Location Information, 497 F.Supp.2d 301, 310 (D.P.R. 2007) (opinion of a magistrate judge) [hereinafter D.P.R. 2007]; In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F. Supp. 2d 747, 753 (S.D. Tex. 2005) [hereinafter S.D. Tex. 2005]. 27See, e.g., S.D. Tex. 2005 at 756 (“[L]earning a credit card user’s location at the point of purchase is far different from continuously monitoring a person’s movement from place to place in real time. Section 3117(b) covers only those devices which permit the ‘tracking of the movement of a person or object.’ Cell site data allows continuous tracking of actual movement, i.e., change of location over time; the examples cited by the government do not.”); In re Application of the U.S. for an Or- der Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 534 F. Supp. 2d 585, 603 n.47 (W.D. Pa. 2008) (opinion of a magistrate judge) [hereinafter W.D. Pa. 2008] (“Location is static; movement is change in location. There is, thus, a temporal element inherent in the term “movement”; one can only “track” location over time . . . Indeed, the apparent origin of the term “track” derives from looking at the physical manifestations of the prior presence of the subject being tracked to reconstruct or trace a course of movement.”). 28See, e.g., W.D. Pa. 2008; In re Application of the U.S. for an Order (1) Authorizing the Use of Pen Register and a Trap and Trace Device and (2) Authorizing Release of Subscriber Location and/or Cell Site Information, 396 F. Supp. 2d 294 (E.D.N.Y. 2005) (opinion of a magistrate judge) [hereinafter EDNY 2005]; S.D. Tex. 2005; In re Application of the U.S. for an Order Authorizing the Installation and Use of Pen Registers and Call Identification Devices, 416 F. Supp. 2d 390 (D. Md. 2006) (opinion of a magistrate judge); In re Application of the U.S. for an Order Authorizing the Installation and Use of a Pen Register, 415 F. Supp. 2d 211 (W.D.N.Y. 2006) [hereinafter WDNY 2006]; D.P.R. 2007. 29See, e.g., W.D. Pa. 2008 at 609 (“As noted above, a significant majority of Courts have rejected the Government’s contention that real-time, or prospective, movement/location information may be obtained under a hybrid theory which purports to combine the authorities of the [Pen Register Statute] and the [Stored Communications Act] by seizing upon the term ‘solely’ in a provision of the CALEA.”); WDNY 2006 at 215 (“I share the concerns expressed by some of my Magistrate Judge colleagues as to the wisdom and logic of predicating Congress’s intent to combine statutory provisions separately enacted over a fifteen year period to create a new and independent hybrid authorization mechanism on the use of the word ‘solely’ in the exception clause.”). 30See, e.g., D.P.R. 2007 at 311; EDNY 2005 at 321; W.D. Pa. 2008 at 616. 31The term “call-identifying information” is defined as “dialing or signaling information that identifies the origin, direction, destination, or termination of each communication generated or received by a subscriber by means of any equipment, facility, or service of a tele- communications carrier.”47 U.S.C. § 1001(2). 32W.D. Pa. 2008 at 592.

D-7 judges have said, “A Rule 41 probable cause warrant was (and is) the standard procedure for authorizing the installa- tion and use of mobile tracking devices.”33 These broad pronouncements, however, seem to be based on Fourth Amendment concerns regarding the potential tracking of individuals in private areas.34 For example, one of the cases holding that cell phone tracking requires a warrant acknowl- edged that cell phone tracking would not be objectionable under the Fourth Amendment if it could be limited to an indi- vidual’s public movements.35 Nonetheless, it held that a warrant supported by probable cause was required because it would be impossible to know beforehand whether an individual would enter a private place while being tracked. This would not be an issue with the road user fee systems described above, with the possible exception of Option 4, because they would not reveal anything to the government regarding an individual’s loca- tion in a private area. The on-vehicle devices could be active while a vehicle is located in a private space, such as an enclosed garage. However, the information transmitted to the govern- ment would not allow the government to determine whether an individual is or was in such a space at a given time, which is the key to the Supreme Court’s tracking analysis.36 A system, such as Option 4, that provides detailed GPS information could, in rare instances, reveal information regarding an individual’s location in a private area. This is yet another reason not to use such a system as the basis of a road user fee program. Finally, absent Fourth Amendment concerns, the statutory provisions regarding tracking devices, 18 U.S.C. § 3117 and Rule 41, cannot serve as independent grounds for requir- ing a warrant. As courts have noted, unlike other provisions governing electronic surveillance, 18 U.S.C. § 3117 provides no standard for obtaining permission to install and monitor a tracking device.37 Furthermore, Rule 41, which authorizes courts to issue warrants for tracking devices, does not establish such a standard. As the notes to Rule 41 state, the amendment to Rule 41 regarding tracking devices “[did] not resolve this issue or hold that such warrants may issue only on a show- ing of probable cause.”38 “Instead, it simply provides that if probable cause is shown, the magistrate judge must issue the warrant. And the warrant is only needed if the device is installed . . . or monitored . . . in an area in which the person being monitored has a reasonable expectation of privacy.”39 In other words, as explained by one magistrate judge, “[t]he only limit on such devices is the Fourth Amendment.”40 Some states have enacted legislation generally prohibiting electronic tracking by anyone except when a court order is obtained or the device is lawfully used for law enforcement purposes.41 It is not clear whether most of the on-vehicle 33In re Application of the United States for an Order Authorizing the Dis- closure of Prospective Cell Site Information, 2006 U.S. Dist. LEXIS 73324, at *16 (E.D. Wis 2006) (quoting S.D. Tex. 2005 at 752). 34See, e.g., S.D. Tex. 2005 at 752 (citing Karo, a case which required a warrant for tracking in private residences but not in public spaces, for the proposition that a probable cause warrant is the standard for the use of a tracking device). 35See, e.g., W.D. Pa. 2008 at 613. 36The Supreme Court, in Karo, held that electronic tracking of a device inside a private residence was inconsistent with the Fourth Amendment because it told “the agent that a particular article [was] actually located at a particular time in the private residence and [was] in the possession of the person or persons whose residence [was] being watched.” United States v. Karo, 468 U.S. 705, 715 (1984). Put another way, it “reveal[ed] a critical fact about the interior of the premises that the Government [was] extremely interested in knowing . . .” Id. Conversely, when the beeper in Karo was tracked to a public warehouse, but could not be tracked to the defendant’s particular storage locker, a location in which the defendant had a reasonable expectation of privacy, the Court found that there was no Fourth Amendment violation. Id. at 721. Thus, the key is not whether a tracking device is active while it is in a private location but whether it reveals to the government that an individual or object is actually in a private location. To the extent that the cell phone tracking cases are based on the notion that the Fourth Amendment always requires a warrant to use a tracking device regardless of whether it is located in private or in public, they are wrongly decided. This much is clear from Knotts and Karo. Moreover, the only federal court of appeals to have considered the issue has found that using a cell phone to track an individual’s movements in public does not violate the Fourth Amendment. United States v. Forest, 355 F.3d 942 (6th Cir. 2004). See also United States v. Marquez, 605 F.3d 604 (8th Cir. 2010) (no warrant required for installation and use of tracking device); United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010) (same); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007) (same). 37See, e.g., United States v. Forest, 355 F.3d 942, 950 (6th Cir. 2004) (“[I]n contrast to other statutes governing electronic surveillance, § 3117 ‘does not prohibit the use of a tracking device in the absence of con- formity with the section . . .’ ”) (quoting United States v. Gbemisola, 225 F.3d 753, 758 (D.C.Cir.2000)); In the Matter of the Application of the United States for an Order Authorizing the Installation and Use of a Pen Register and a Caller Identification System on Telephone Numbers [Sealed] and the Production of Real Time Cell Site Information, 402 F.Supp.2d 597, 603, 604 (D. Md., 2005) (opinion of a magistrate judge) (“Unlike other provisions in the ECPA, 18 U.S.C. § 3117 articulates no standard for obtaining permission to install and monitor a tracking device.”) 38Notes to 2006 Amendments to Fed.R.Crim.P. 41. 39Id. 40See Section II.A above for a discussion of the legality of road user fee systems under the Fourth Amendment. 41See, e.g., Minn Stat §§ 626A.35 (prohibiting the use of tracking devices without a court order); Haw. Rev. Stat §§ 803-42 (same); California Penal Code § 637.7 (generally prohibiting the use of tracking devices except for the “lawful use of an electronic tracking device by a law enforcement agency”). Other states have enacted legislation specifying the standards law enforcement must meet to obtain a court order (e.g., reasonable suspicion) before using a tracking device but these statutes do not impose a general prohibition on the use of tracking devices. See, e.g., Utah Code Ann. § 77-23a-15.5; S.C. Code Ann. § 17-30-140; 18 Pa. Cons. Stat § 5761; Tex. Code Crim Proc. art. 18.21 It is not clear that these statutes even require law enforcement to obtain a court order in all instances since they do not state that a law enforcement officer must obtain a court order but state that an officer may obtain a court order or that the judge may issue a court order in certain circumstances.

D-8 road user fee systems would fit within the state definitions of “tracking device.” Even if they did, state laws would be preempted to the extent that they conflict with a federally mandated VMT system. These laws could potentially restrict states from using a VMT system to collect state road user fees if the federal legislation does not implicitly or explicitly address the use of tracking devices for state fee collection pur- poses. However, if states choose to establish a VMT system, they could simply amend these laws. California has also recently enacted a law prohibiting state transportation agencies, including contractors hired by these agencies, from sharing personally identifiable information collected from electronic toll collection systems.42 Again, to the extent that this law conflicts with a federally mandated VMT system, it would be preempted. In addition, it would not prohibit California from using a VMT system to collect fees; it merely prohibits California agencies from sharing cer- tain information with others. However, if left unamended, this law could conceivably limit data sharing between a California VMT system and a federal VMT system. Conclusion There are numerous design options for a road user fee sys- tem. In general, the more a particular design option protects privacy, the less auditability it provides. Fortunately, under existing law, virtually any design option would be consistent with constitutional and statutory privacy protections. Thus, the decision regarding how to strike the balance between pri- vacy and auditability can be based primarily on practical and political considerations. 42Cal. SB 1268 (2010). This law also prohibits providing this informa- tion to law enforcement absent a warrant unless delay in obtaining the information would cause an adverse result.