Self-Driving Cars And Your Private Data

Self-Driving Cars And Your Private Data

Self-driving cars are the swiftly-approaching future of transportation.  From Uber’s rollout of self-driving ride share vehicles in Pittsburgh, to the State of California’s recent issue of a license to Chinese tech giant Baidu to test its automated vehicles in the state, companies and state governments alike have begun to prepare for a world where computers are taking the wheel.  This process has met its bumps in the road, with a number of accidents involving automated cars occurring this year, such as this fatal crash in Florida in May.  As automated vehicles continue to enter more and more states, the Federal government will inevitably respond with regulations and policies.  The United States Department of Transportation has now done so in its most comprehensive statement on automated vehicles yet: the Federal Automated Vehicles Policy.

The 112-page Policy takes a cautiously optimistic view on the automated car—endorsing continued development of the technology with the hope for safer roads in the future, while providing a wide range of policies intended to protect the public as the technology suffers through inevitable growing pains.  Policies range from ensuring that automated vehicles meet current crashworthiness standards, to providing an ethical framework that the automated vehicles should follow when faced with real-world decisions, such as choosing between the safety of the vehicle’s occupants or the safety of another vehicle’s occupants in an unavoidable crash.

The Department of Transportation’s policies also focus on a key emerging issue:  the vast amount of data these automated vehicles will collect and share, and balancing the need to collect data to ensure the efficacy and safety of automated vehicles with protecting the individual right to privacy.  The Department of Transportation’s new policies require manufacturers and other entities to share the data they collect concerning positive and negative results with both government entities and other manufacturers.  The goal is improving public safety by sharing positive outcomes to enable all manufacturers to replicate the results, and by allowing government entities access to the data to determine what went wrong to make improvements.

But the sheer volume of data automated vehicles will be required to collect and share with the government and rival competitors presents serious privacy concerns.  While the Department of Transportation requires manufacturers to disclose to consumers what data is being collected and shared about them, minimize exposure of personal identification data, and protect this data from cybersecurity threats, these policies do not fully relieve the legitimate privacy concerns presented by automated vehicles.

For example, the data could be used to reveal the prior whereabouts and actions of individuals accused of crimes, just as a person’s cell phone can be used track their location.  Whether the government will need a warrant to access such data — and the extent to which it is private — remains unsettled.  A government entity without the express authority to access an automated vehicle’s data could be tempted to demand access to this information from the manufacturer, leading to a standoff similar to the one experienced when the FBI sought a backdoor into Apple’s iPhone to access a suspected terrorist’s private information contained on his phone.  Cars are central to American life, and the power to track exactly where we drive is often the power to track our social, political, and work activities closely.  The Department of Transportation does not purport to address these concerns.

The new policies also fail to address the privacy concerns of the manufacturers when it comes to protecting their intellectual property.  While sharing data collected by automated vehicles with all manufacturers could improve the efficacy and ultimate safety of automated vehicles, data sharing could expose a manufacturer to revealing unique safety features and a manufacturer’s competitive advantage to its competitors.  This risk will not be taken lightly by manufacturers, and is bound to be met with resistance and attempts to skirt around the Department of Transportation’s data sharing requirements.

The technology of automated vehicles may be in its infancy, but is rapidly approaching widespread use across the United States.  The Department of Transportation has taken a big step in providing a foundational Policy to legislate automated vehicles, but much is still in question as the technology continues to develop, particularly as it comes to balancing the need to improve the technology through the data collected and stored and the individual’s right to privacy to the data collected on them.  These issues will need to be resolved through legislation or litigation in order to achieve the ultimate goal of automated vehicles: improving public safety.


Scott Menger

Scott Menger, an associate at Brown White & Osborn LLP, focuses on state and federal civil litigation.

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