In Mollaei v. Otonomo, Inc., Judge Thompson found that a vehicle’s TCU did not constitute an “Electronic Tracking Device” because it was not “attached’ to the vehicle and tracked the location only of the vehicle, and not the ‘person’, within the meaning of Penal Code 637.7.
Penal Code 637.7 provides that
(a) No person or entity in this state shall use an electronic tracking
device to determine the location or movement of a person.
(b) This section shall not apply when the registered owner, lessor, or
lessee of a vehicle has consented to the use of the electronic tracking
device with respect to that vehicle.
(c) This section shall not apply to the lawful use of an electronic
tracking device by a law enforcement agency.
(d) As used in this section, “electronic tracking device” means any
device attached to a vehicle or other movable thing that reveals its
location or movement by the transmission of electronic signals. Cal. Penal Code § 637.7 (West 2022).
Plaintiff alleged that Otonomo is a data broker that partnered with at least sixteen car manufacturers, including the manufacturer of Plaintiff’s vehicle, “to use electronic devices in their cars to send real-time GPS location data directly to Otonomo,” allowing Otonomo to track drivers’ location in real-time. Judge Thompson dismissed the action, following Defendant’s Motion to Dismiss. Judge Thompson found, first, that the TCU was part of the vehicle itself and not “attached” to the vehicle within the meaning of the statute.
Violation of Section 637.7 requires that the location or movement of a person be determined by an “electronic tracking device.” Cal. Penal Code § 637.7(a). An “electronic tracking device” is defined as a device “attached to a vehicle . . . that reveals its location or movement.” Cal. Penal Code § 637.7(d). Although the caselaw around Section 637.7 is minimal, the Court finds two cases instructive where the statute was interpreted. In Moreno v. S.F. Bay Area Rapid Transit Dist., the plaintiff brought suit alleging that a mobile application on his phone violated Section 637.7 by tracking his movement. No. 17-cv-02911-JSC, 2017 WL 6387764 (N.D. Cal. Dec. 14, 2017). The court there dismissed the Section 637.7 claim, finding that the application was not “attached” to a “moveable thing” because “[t]he ordinary meaning of ‘to attach’ in this context is ‘to join or fasten (something) to something else.” Moreno, 2017 WL 6387764, at *5 (quoting Oxford English Dictionary Online (2017)). Moreover, the court found from the legislative history that “the statute governs electronic tracking devices placed on vehicles or other movable things.” Id. In In re Google Location Hist. Litig., the plaintiff brought suit regarding tracking by the functions of his smartphone. There, the court confirmed the interpretation in Moreno, and further found that “the bill denotes that ‘attach’ requires some affirmative act by the wrongdoer.” 428 F. Supp. 3d 185, 195 (N.D. Cal. 2019). As support, the court cited to an example from the legislative history: “this bill . . . would not allow a private investigator to place a device on the automobile of an individual he or she was trying to follow.” Id. (emphasis added). Thus, the Court finds that the “device” must be a separate device that is attached, or placed, onto an automobile by the alleged wrongdoer. This interpretation is further supported by the plain meaning of the statute. When Sections 637.7(a) and (d) are viewed together, it is apparent that the device is a separate device, owned and controlled by the wrongdoer, that is attached to another’s vehicle: “No person or entity in this state shall use an electronic tracking device, any device attached to a vehicle or other movable thing that reveals its location or movement by the transmission of electronic signals, to determine the location or movement of a person.” In addition, the legislative history reveals that the purpose of the bill was “to prohibit the placing of an electronic tracking device on an automobile by a person who is not the registered owner.” California Bill Analysis, S.B. 1667 Sen., 3/24/1998. Thus, the electronic tracking device is the California Bill Analysis, S.B. 1667 Sen., 3/24/1998. Thus, the electronic tracking device is the wrongdoer’s device that the wrongdoer places onto another’s vehicle. To the extent the parties disagree on whether the rule of lenity applies in interpreting Section 637.7, the Court finds that it does not. “The rule of lenity applies only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule.” People v. Avery, 27 Cal. 4th 49, 58 (2002) (citation omitted). As discussed above, there is no egregious ambiguity or uncertainty wherein the rule of lenity needs to be invoked. Here, the TCU falls short of an electronic tracking device under Section 637.7. As Plaintiff alleged, the TCU is a component of Plaintiff’s vehicle and not a device that was attached, or placed, onto the vehicle. See Compl. ¶ 15, ECF No. 1, Ex. A. At oral argument, Plaintiff confirmed that the TCU is a component part of Plaintiff’s vehicle that is not removable by Plaintiff, nor was the Plaintiff able to obtain his vehicle without the TCU. Thus, the TCU, as part of Plaintiff’s vehicle, is Plaintiff’s device. Plaintiff analogizes the TCU to a tire attached to the vehicle: “If a tire falls off a car, an attached part of the vehicle is no longer attached. No one would say the vehicle ceased to exist.” Opp’n at 9:2–3. The analogy, however, is only applicable if Defendant installed onto Plaintiff’s vehicle a tire in addition to those that are already part of the vehicle. The Court declines to extend the statute beyond its plain meaning or the intent of the legislature. The statute simply does not address vehicles with built-in devices that can be used to determine location, which had existed by the time the statute was enacted in 1998. See Automotive Navigation System, https://en.wikipedia.org/wiki/Automotive_navigation_system (last visited January 17, 2023). As such, the TCU is not an “electronic tracking device,” because it is not “attached to a vehicle.” See Cal. Penal Code § 637.7(d). Accordingly, Plaintiff did not plausibly allege that the TCU is an electronic tracking device within the meaning of the statute.
Judge Thompson also held that the TCU did not track the location of the “person” under the statute.
Otonomo also argues that Plaintiff failed to allege that Otonomo tracks the location of a person. Instead, “Plaintiff’s allegations show at most that Otonomo received data about the location of vehicles.” Mot. at 5:27–28. Section 637.7 prohibits the use of “an electronic tracking device to determine the location or movement of a person.” Cal Penal Code § 637.7(a). The wording of the statute explicitly prohibits tracking the location or movement of a person, not a vehicle. In Moreno, the court found that the application did not track the plaintiff because it associated locations with a unique identifier that was not associated to a person. See 2017 WL 6387764, at *4 (“But Plaintiff does not allege that she provided her contact information. Thus, there is no plausible allegation that the App tracked Plaintiff’s location as opposed to some anonymous client id that is not matched to any particular person.”). Thus, violation of Section 637.7 requires the wrongdoer to associate the location or movements of a vehicle with the identity of a person. Tracking a vehicle is not enough. Here, Plaintiff alleged that Otonomo collected the precise location of tens of thousands of California vehicles. Compl. ¶¶ 3–5, 16, 19. However, the complaint is devoid of allegations that Otonomo obtained personal information of the drivers of these vehicles, including Plaintiff, such that Otonomo tracked the location of these drivers and not merely the location of thousands of vehicles. While Plaintiff argues that Otonomo has the capability to associate vehicles with their drivers, Plaintiff did not allege that Otonomo has done so. Furthermore, Plaintiff did not allege that Otonomo received Plaintiff’s personal information from manufacturers, such as BMW, that would possess this information. Thus, similar to the situation in Moreno, Otonomo’s alleged tracking of Plaintiff is insufficient to amount to a violation of Section 637.7, because Plaintiff did not allege that Otonomo personalized the location information it received. See 2017 WL 6387764, at *4. Accordingly, Plaintiff did not plausibly plead that Otonomo tracks the location or movements of persons, including Plaintiff.