A little-understood truth about technology is that it doesn’t enable us to do new things. It merely allows us to do what we’ve always been doing, only faster and easier.

Take this column, for example. A hundred years ago, publishing this column would have required a typewriter, the post office, hand drawn proofreaders’ marks and a linotype to cast my column’s words into hot metal. Nowadays, the column publication process is considerably more straightforward — I type it on a computer and submit via email, not through postal mail. Editors can make suggested corrections that I can review in real time. Though publishing a column is slightly more complicated than simply copying and pasting what I turn in, it requires far less hot metal and ink than it did a century ago.

Even so, the work remains the same. I have opinions. I put them in writing. Someone reviews and edits them for accuracy and sanity. You read them.

One key function for government, or civil society more generally, is to manage the consequences of a previously difficult activity becoming trivially easy. Once cigarette butts, disposable containers and plastic bags were placed in everyone’s hands, for example, littering became a much more serious issue.

All of this brings me to the Nevada Supreme Court’s recent decision requiring the person who hired a private investigator to install a GPS device on vehicles belonging to Reno Mayor Hillary Schieve and former Washoe County Commissioner Vaughn Hartung to identify himself.

Though the U.S. Supreme Court could still technically weigh in, this ruling likely concludes a series of lawsuits that started after private investigators were hired to investigate local politicians in 2022. One private investigator was hired by Robert Beadles — a notorious local conspiracy theorist who contributed more than $1.1 million to several Republican campaigns — to investigate Washoe County Commissioner Mariluz Garcia (D). The person responsible for hiring David McNeely to investigate Schieve and Hartung, however, argued unsuccessfully in court that installing tracking devices on a politician’s private vehicle was constitutionally protected anonymous political conduct.

If you’re wondering about the partisan affiliation of McNeely’s customer, he was represented by Sigal Chattah — who despite being appointed interim U.S. Attorney for Nevada has still not formally resigned from her position in the Republican National Committee — when he sued the Sparks Police Department for violating his privacy rights by naming him as the person who installed the device on Schieve’s vehicle. The 9th Circuit Court of Appeals recently rejected his appeal in that case as well.

Though stalking was and remains illegal, installing a mobile tracking device in or on someone else’s vehicle without their consent remained legal until the Legislature, spurred in part by Schieve’s personal experience, passed AB356 in 2023. 

The reason legislation was necessary is because federal and state case law have historically been reluctant to recognize a right to privacy on public roads. In Osburn v. State, for example, the Nevada Supreme Court ruled that drivers have “neither a subjective nor an objective expectation of privacy in the bumper of [their] vehicle” after police attached an electronic monitoring device to the bumper of a vehicle without a warrant. Though the U.S. Supreme Court ruled a decade later in United States v. Jones that such devices required a warrant after all, the majority opinion was framed as a matter of trespass — the Fourth Amendment protects personal effects, such as automobiles, from warrantless violation by law enforcement — not privacy.

AB356’s passage, however, didn’t address a loophole. What prevents a private investigator — or anyone else — from merely buying or otherwise accessing the location data collected by your car?

In a recent lawsuit filed against General Motors, the company defended its resale of driving data by arguing that the data it collects from the vehicles it makes — including vehicle location, driving routes, braking events, and speed — are all public conduct and, as such, can be resold at the company’s convenience. Since anyone can observe a vehicle sold by General Motors as it’s driven down the street, the company argued, there’s nothing prohibiting General Motors from observing and selling data about that vehicle’s travels to other interested parties.

Though General Motors is being somewhat less subtle in its desire to monetize the data it collects from its drivers than its competitors, the company does not have a monopoly on internet-connected vehicles that collect massive amounts of data about their drivers. Many modern vehicles are connected to the internet to unlock various subscription services, such as hands-free driving systems and cameras that automatically record accident situations. These services, however, collect massive amounts of data that can be transferred from manufacturers to law enforcement — or anyone else with enough money to buy data, such as insurance companies and private investigators.

Additionally, this data isn’t always well secured, either technically or legally. In Gonzalez v. Uber Technologies, Uber was accused of creating fake Lyft customers to gather information about the number and exact locations of Lyft drivers — including the names of drivers, where they likely lived, the make and model of vehicles they drove, and more. Every claim in that lawsuit pertaining to driver privacy was ultimately dismissed; only a possible violation of California’s Unfair Competition Law survived the appeal.

Conceptually, General Motors and everyone else interested in surveilling motorists has a point. A hundred years ago, a vehicle driving down a public road would be visible to the public. If a public investigator, insurance agent or anyone else wanted to follow and observe a given car, there was nothing legally or practically stopping them from doing so as long as the vehicle stayed on public property.

Modern technology, however, now permits manufacturers to accurately and continually observe every connected vehicle on the road, not just a specific one during a specific period of time. So long as the law sees that data as public, it also permits anyone with sufficient money and connections to purchase some or all of that data for their own purposes.

In the short term, the best way to prevent your vehicle data from being sold is to reduce the amount of data your vehicle collects — the Electronic Frontier Foundation has a guide on doing just that. In the long run, however, regulators and lawmakers are ultimately responsible for writing the laws and regulations that decide how much of our privacy will be protected in court.

It’s admittedly a little late to ask the Legislature to copy the Auto Data Privacy and Autonomy Act, which was introduced during the last Congress, and paste it into state law. It is not, however, too late to ask one of Nevada’s congressional representatives to revive and reintroduce the measure in this congressional session.

Since the bill was originally introduced by a Republican, it might even have a chance of getting passed.

David Colborne ran for public office twice. He is now an IT manager, the father of two sons, and a recurring opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Bluesky @davidcolborne.bsky.social, on Threads @davidcolbornenv or email him at [email protected]. You can also message him on Signal at dcolborne.64.