Consent: A VMT Fee Program’s Best Friend

Consent: A VMT Fee Program’s Best Friend

January 19, 2015  | Carter Templeton

BY PATRICK BRADY

Much to the relief of Vehicle Mile Traveled (VMT) fee opponents, Chairman of the House Transportation Committee Bill Shuster recently proclaimed that a VMT fee at the federal level is not in the cards as a way to fund the upcoming highway bill. Shuster cited “technical concerns of the government tracking mileage” as the reason for excluding the funding option. Such proclamation underscores the truth known by many in the industry that for VMT fees to be the funding method of the future, the programs will have to be implemented at the state level first. Not only is the federal government simply not prepared for the challenges such a program presents, the federal government has shown no interest in confronting such challenges. States, however, have shown a willingness to confront the challenges such a program presents and, in Oregon’s case, have shown an aptitude for addressing the challenges. One little known but very difficult challenge is the restriction the Fourth Amendment places on governments to collect protected sensitive information. Oregon’s handling of this challenge could be a model for states to follow.

The Fourth Amendment secures the right of people “to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures” and no government search or seizure into such protected area may occur without a warrant supported by probable cause. This provision, made applicable to the states by way of the Fourteenth Amendment, encompasses more than just the physical things a person owns or occupies; the definition also encompasses large deal of personal information. However, not all personal information is protected under the Fourth Amendment. The issue, then, is whether the information that the government would need to collect in a “fully optimized” VMT Fee Program is protected under the Fourth Amendment. A “fully optimized system,” as envisioned here, is one that utilizes congestion pricing. Congestion pricing will require users to report not only their mileage but their location and timestamps as well.

So, is time, location, and distance information protected by the Fourth Amendment?

Courts have consistently upheld the notion that a person traveling on public thoroughfares has no reasonable expectation of privacy. When a person travels over public streets, he or she voluntarily conveys to anyone who wants to look the fact that he or she is traveling on a particular road in a particular direction, at a particular time, his or her ultimate destination, and any stops along the way. Thus, because there is no reasonable expectation of privacy in one’s movements, information concerning an individual’s movements is not protected by the Fourth Amendment. And because movement information is not protected by the Fourth Amendment, there is no Fourth Amendment restraint on what information, and how much information, the government can force a taxpayer to record and disclose pursuant to its legislative taxing power. This was true until the Supreme Court of the United States decided the case United States v. Jones.

In Jones, a defendant suspected of drug dealing challenged the actions of the FBI after the FBI attached a GPS tracking device to the underside of the defendant’s Jeep and subsequently tracked the defendant’s movements for approximately four weeks. The Jones concurrences stated that, although there is no reasonable expectation of privacy in movements over public thoroughfares, there is likely a reasonable expectation of privacy in the information about a person’s long-term movements. The reason that there is a reasonable expectation of privacy in information concerning an individual’s movements is because such information can create a very detailed picture of things people do have a right of privacy in such as civic, professional, religious, and sexual associations.

Assuming that the above formulation becomes good law (it is not good law yet because it was in the concurrence, not the majority), it would seem that information the government will need to collect in order to accurately assess a fee in an optimized VMT Fee Program is sufficiently invasive and illuminating into the private details of an individual’s associations to justify Fourth Amendment protection. Therefore, because the information is protected by the Fourth Amendment, the government should be forced to obtain a warrant to collect such information. This would unworkable. There is a chance that courts could find that the government’s need to collect revenue outweighs Fourth Amendment concerns, as they have with regards to the IRS, but the thought of giving state DOTs authority to compel users to mandatorily track and report their time and location is hard to imagine, let alone be politically acceptable. So, then, how can the government legally collect the information needed to operate a VMT Fee Program? The answer is, as Oregon has demonstrated, consent.

Rather than mandating that users report information, Oregon has instead required users to subscribe to a flat fee service and should they be comfortable, choose to enroll in a (yet to be) optimized VMT Fee Program. By opting out of the flat fee option, users essentially consent to the government collecting location data on them. This solution is both politically palatable and avoids the aforementioned Fourth Amendment question. However, such solution raises an additional concern.

Under the Fourth Amendment, when an individual consents to releasing information, the individual waives his or her right to privacy in such information. This could have chilling effects on the success of a VMT Fee Program. Although users who consent to the government obtaining their information likely intend for the DOT to be the only agency that uses the information, in the eyes of the law, that information is free to be used by any government branch, including law enforcement, because it was voluntarily transmitted by the user. It is obvious that this result will not be politically desirable and therefore such statutes limiting other agencies’ reaches into the information collected by the DOT will need to be enacted. Oregon has done just that.

Oregon has explicitly prevented law enforcement, among others, from accessing the information transmitted to the DOT without a warrant supported by probable cause by writing in such prohibition directly into the law. The effect of this is that when a user consents to the DOT using their information, they do not completely waive their right to privacy of the information; Oregon has made it such that the right of privacy in the information stays intact. The notion of consent and waiver-limiting language are simple but astute solutions that pay homage to the Fourth Amendment, avoid complicated legal questions of whether the government’s need to pay for roads and bridges is paramount to the Fourth Amendment, and are politically acceptable. Further, they are solutions that other states, in order to maintain user confidence and ensure the continued viability of VMT Fee programs, will likely need to adopt.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of The Eno Center for Transportation.

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