Legal

The Robots Are Coming: How Cities Can Plan for Autonomous Vehicles

Crista M. Cuccaro, Assistant City Attorney, Durham, North Carolina

Imagine this: you need to get to the autonomous by 2029.5 And the public is Google began testing its self-driving airport and catch your flight to the probably right. cars and by end of 2018, the company upcoming IMLA Conference. Instead of had logged more than two million miles paying exorbitant airport parking fees, you Currently, automotive and tech companies of autonomous driving.11 In December hail a ride through an app on your phone. are in an expensive race to the top. In 2018, Waymo, owned by the same parent 2016, GM spent $581 million to acquire After a short wait, a ride share vehicle 6 company that owns Google, launched pulls up to the curb. The trunk opens and AV start-up, Cruise Automation. Next an “autonomous” ride-hailing service in you load your luggage. When you climb year, GM will likely release a fleet of Chandler, Arizona; however, that service into the back seat, you’re alone in the car. electric AVs with its affiliate, Lyft, in is yet to be fully autonomous, in part which GM purchased a share for $500 No one is driving; instead, the ride share is 7 because tests have revealed that self- an autonomous vehicle (AV). million. Honda has committed $2.75 driving technology still has significant billion as part of an exclusive agreement shortcomings.12 Apprehensive about this scenario? You’re with GM to develop and produce a new not alone. According to a recent Reuters kind of AV.8 Ford has partnered with During the past several years, minor and poll, half of adults in the United States Argo AI and plans to introduce Level 4 major incidents have shaken industry and think AVs1 are more dangerous than AVs vehicles in 2021 as part of a ride- public confidence in automated driving cars operated by people.2 A majority of hailing service.9 Last year, Volvo and systems. In February 2016, a Google Americans also believe that self-driving Uber entered into a $300 million joint research car “made contact” with a public cars should be held to higher safety venture with the goal of having its fully bus.13 The car and test driver predicted standards than traditional vehicles.3 The autonomous vehicle on the road in 2021.10 that the bus would yield as the Google Reuters poll may underestimate public vehicle attempted to merge into traffic, unease. A 2019 AAA survey found that Other companies have plans underway but it didn’t.14 Following the crash, Google nearly 75% of Americans are afraid to to create fully autonomous vehicles, updated its software to “more deeply ride in fully autonomous cars.4 Despite including freight trucks, within the next understand that buses and other large this, the majority of the public also five years. Some of these firms have tested vehicles are less likely to yield” to its cars believes that most vehicles will be fully their AVs on public roadways. In 2009, than other types of vehicles.15 ▶p.22 The Municipality | February 2020 21 Legal

Later in 2016, the driver of a Tesla Model more. Nevada was the first state to Illinois’ General Assembly. In 2018, the S died in an accident while the Autopilot authorize the AV operation.27 Florida state passed a law prohibiting localities was activated.16 According to Tesla, the and Arizona were also at the forefront from banning AVs. Not all opposition vehicle’s camera couldn’t detect a trailer as in AV testing. In 2012, Florida passed occurs within City Hall: in Chandler, an obstacle because of the trailer’s “white a bill allowing AV testing after meeting Arizona, where Waymo has been testing color against a brightly lit sky” and its “high certain requirements including proof of its vehicles, the company’s driverless test ride height,” and the car’s radar classified it insurance.28 In 2015, Arizona’s Governor vehicles have weathered nearly two dozen as an overhead road sign.17 And in March signed an Executive Order enabling pilot attacks from irate locals over the past two 2018, a Volvo SUV owned by Uber and programs.29 More cautious states have years, including tire slashings and being outfitted with Uber’s self-driving system adopted laws restricting AV testing to pelted by rocks.39 struck and killed a pedestrian.18 platooning (electronically pairing two or more vehicles to allow smaller distances This patchwork approach has spurred The number of incidents involving between them), although some of these industry advocates to call for federal AVs pales in comparison to the tens of have later loosened the restrictions.30 regulation of AVs. Volvo Cars President thousands of Americans who die every Currently, the District of Columbia Håkan Samuelsson argued that the year in accidents involving traditional United States risks losing its leading 19 and the following states allow AVs vehicles. The National Highway Traffic on public roadways31 in testing with a global position in the development of Safety Administration (NHTSA) projects driver, without a driver, or in a platoon: self-driving cars if federal legislation is that 36,570 people died last year in not passed.40 The next section explains the 20 Arkansas, Arizona, California, Colorado, traffic fatalities in the United States. Connecticut, Florida, Georgia, Illinois, current status of federal guidance on AVs. Remarkably, an estimated 90 percent of Indiana, Iowa, Louisiana, Massachusetts, motor vehicle crashes are caused at least in B. Federal Regulation of AVs: Tapping the 21 Michigan, Minnesota, Nebraska, Nevada, Brakes part by human error. While juxtaposing New York, North Carolina, Ohio, Oregon, human drivers and AVs may not be a Despite the industry’s urging, the federal 22 Pennsylvania, South Carolina, Tennessee, fair comparison, advocates insist that Texas, Utah, Vermont, Virginia, government has left regulation of AVs to AVs will make roadways much safer. Washington, Wisconsin, and Wyoming.32 the states – for now. This failure is not Regardless of the specifics, the arrival of for lack of trying. In 2017, The Safely AVs is imminent, as is cities’ need to plan State-level regulation of AVs does not Ensuring Lives Future Deployment for and regulate them.23 necessarily confer municipal authority to do and Research In Vehicle Evolution so. As cities know all too well, some states This article explains the current legal Act, also known by its clever acronym preempt local authority over emerging 41 framework for AV regulation in Part I SELF DRIVE, was introduced in the businesses and technologies.33 One House. The Act would have preempted and the policy implications for cities to jurisdiction that has not been preempted is consider in Part II.24 states from enacting laws regarding the Boston, which created a graduated system design, construction, or performance of I. The Legal Framework of AV testing.34 In the first phase, Boston’s AVs unless such laws were identical to model allows AV companies to test only federal standards. In its report, the House The United States ranks highly in the in a limited geographical area during Committee on Energy and Commerce technology and innovation needed to 35 good weather and daylight hours. Once highlighted the need for uniformity support AVs, but lags in policy and a company reaches certain milestones, by pointing out conflicts between legislation and infrastructure.25 These permission is expanded to allow testing proposed laws in North Carolina and latter two pillars of the AV Readiness in other areas of the city, at night and New York.42 The SELF DRIVE Act Index are squarely within the realm of 36 during inclement weather. Additionally, passed the House in September 2017. federal, state, and local governments. Boston requires companies to enter A companion bill was introduced in the This section explores state and federal into a Memorandum of Understanding, Senate, with an equally clever acronym regulation of AVs to date. covering issues such as accident reporting, of AV START Act, standing for the A. State Regulation of AVs: A Mixed Bag minimum safety standards, and, of course, American Vision for Safer Transportation indemnification.37 through Advancement of Revolutionary As would be expected, states have varied Not all cities have been as friendly to Technologies Act. However, the AV approaches to regulating AVs. Broadly, START Act never made it to the floor of state legislation covers: vehicle testing,26 AVs as Boston, however. Chicago’s Board of Aldermen stalled a proposal to allow the Senate in part because of objections infrastructure requirements, licensing from several key senators.43 and registration, operation on public AVs in the city, citing concerns about 38 roads, task forces, operator requirements, cybersecurity and loss of jobs. This Congress has renewed its efforts to privacy of collected vehicle data, and local resistance did not evade the eye of regulate AVs and in August 2019, a ▶p.23 22 The Municipality | February 2020 Legal

new version of the AV START Act agency released Preparing for the Future II. Policy Considerations was circulated for comments from of Transportation: Automated Vehicles While safety occupies a significant portion stakeholders. The current legislation 3.0, which builds upon – but does not of the discussions about AVs, many more preempts local regulation of AVs, creates replace – the voluntary guidance provided issues arise for cities: traffic impacts, a Highly Automated Vehicles Advisory in the earlier version. The current 80-page shifts in the workforce, effects on transit Council, directs the Comptroller General document provides best practices for systems, privacy and data concerns, land to evaluate the feasibility of removing states for the training and licensing of use modifications, infrastructure support, personally identifiable information from test drivers. It also offers guidance for equity in access, liability and insurance, AVs, proposes a rulemaking process – and testing entities about driver engagement and last, but absolutely not least, impacts more. With a bicameral effort behind methods during testing. In May 2019, to municipal budgets. And although AVs the legislation, there is optimism that NHTSA and the Federal Motor Carrier may seem relevant only to major cities, the Congress will act on AVs during its Safety Administration (FMCSA), issued International City/County Management current session. advance notice of proposed rulemaking to Association (ICMA) advises that seek public comment on the challenges of suburban and rural residents, because they While progress has been slow on the testing and verifying compliance of AVs often commute into larger cities, are the Hill, the United States Department of with existing Federal Motor Vehicle Safety ones who are most likely to take advantage Transportation (USDOT) has been Standards.46 Clearly, AVs are a priority for of self-driving technologies, and to pressing forward. In September 2016, federal agencies, but there is no definitive 44 participate in first mile or last mile AV the NHTSA and the USDOT issued timeline for comprehensive laws. Thus, ride-sharing from public transit hubs.47 a Federal Automated Vehicles Policy where they have not yet been preempted, that set forth a proactive approach to cities are left to contend with AVs on their The impact of AVs on cities depends providing safety assurance and facilitating own. The next section examines the myriad largely on whether the dominant model innovation.45 One year later, the NHTSA issues to anticipate and contemplate as AVs is shared fleets or individual vehicle issued Automated Driving Systems: A arrive in municipalities. ownership.48 A fleet model means that Vision for Safety 2.0. Most recently, the communities will have less need for ▶p.24

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commercial car dealerships and service overall budget and its largest single way with traffic control.66 As vehicles stations, thereby freeing up significant revenue source.58 become able to navigate without human tracts of land. Additionally, AV fleets intervention or assistance – including that will likely be electric, and cities will need Not all of the news about AVs and cities’ of law enforcement – cities will need to to allow for a more expansive electric budgets is negative. Using San Francisco reallocate police or possibly reduce the charging infrastructure. Experts anticipate as its model, scholars at the Sustainable size of their forces.67 On the other hand, that the shared fleet model will prevail; Cities Initiative have projected that cities may need to hire more employees in one authority states that AV companies alongside a decrease in parking revenues, other sectors. For example, transportation cities should expect to see an increase in “don’t actually want to sell people these 59 planners will be needed to conceptualize a cars – they want to rent us these services. property tax revenues. With a shared new physical infrastructure for AVs. They want us to pay every month, every fleet model, cities will no longer need as trip.”49 Moreover, given the cost of sensor many parking spaces and that land can The largest workforce effects of technology and computing power needed be put to more productive uses that will AVs will be felt in industries such as to deploy AVs,50 individual ownership will generate property tax revenue. transportation, and particularly the initially be too expensive. The remainder freight sector. A 2016 White House In order to mitigate some of these shifts, report estimated a potential displacement of this article largely assumes a shared AV states are enacting a robot tax.60 Floated fleet model. of 3.7 million drivers of trucks, taxis, and by Bill Gates, the tax would be paid by buses.68 The consequences are likely to be A. Impacts to Cities’ Bottom Lines companies for every robot or automated most significant for men of color.69 These system that replaces a human worker, lost jobs will be replaced with lower-wage Last year, a headline in Wired magazine whether in a factory, a mine, or on the jobs with few benefits, or jobs requiring read “Autonomous vehicles might drive roadway. The revenue could help fund 51 additional technology-related knowledge cities to financial ruin.” While the reality training and incentives to move people to and skills. As AV use increases, workforce may not be so dire, cities would be wise occupations less vulnerable to automation, shifts will challenge cities’ commitment to plan for AVs in their budgets. State as discussed in the next section. Some to equity. and municipal revenue from metered states have already made this move. parking and tickets, traffic violations, Tennessee recently enacted a law that One way that cities can influence these vehicle registration and licensing fees, will establish a one-penny-per-mile tax outcomes is workforce development. AVs and gas taxes will clearly be affected.52 on AVs.61 In Massachusetts, proposed will expand job growth in a number of key The Sustainable Cities Initiative legislation would impose a 2.5 cent per industries. Electrical engineers, computer characterizes the budgetary impact of AVs mile tax on AVs, increasing when there are scientists, and software developers will be as a “secondary impact.” However, upon no passengers riding.62 needed to develop vehicle control systems analyzing the numbers, this should be a – and the telecommunication networks if not the – primary concern to cities.53 Even where cities cannot enact taxes, required for AV functionality.70 To train there are creative ways to generate revenue displaced employees, cities can support One useful benchmark is fuel tax. In 2017, that influences AV use. Seattle proposed apprenticeships, combining on-the-job Delaware collected $123 million in fuel a tiered road-pricing mechanism, which training with classroom instruction, and tax revenue.54 While that is considerable, incentivizes AVs with three or more 63 AV sector-specific training – especially in Texas collected a massive $3.7 billion in occupants. Other mechanisms might higher education.71 motor fuel taxes in the 2018 fiscal year.55 include variable congestion pricing, These figures are significant because AVs Vehicle Miles Traveled (VMT) fees, and A silver lining, perhaps, is that the lower will likely be electric, and are expected to curbside use fees for pickup and drop- cost and increased efficiency of AV travel consume less fuel than standard vehicles off.64 Regardless of the approach, building may enable people to commute farther, even if gas-powered.56 Additionally, pricing into AV use can partially offset increasing access to job opportunities.72 parking revenue from meters and fines will revenue losses.65 Cities are not alone in But throngs of people traveling to work decrease because AVs will not necessarily feeling a financial squeeze with the arrival in AVs could also create more congestion need to park for short periods of time, or of AVs; certain sectors of the workforce and cripple public transit, as discussed in may be sent to free spaces outside of pay- are also at risk, as discussed next. the following sections. for-parking areas.57 A sharp decrease in parking fees could cripple a municipality B. Shifts in Cities’ Workforces C. Traffic Impacts: Utopian or Dystopian? like the tourist town of Rehoboth Beach, As cities adjust their budgets for AVs, they It’s obvious that AVs have the potential to Delaware, which is predicted to generate should also examine their workforces. An significantly affect traffic flows, but there $6 million in parking fees in fiscal year estimated 80 percent of the typical city is not yet a consensus about how.73 There 2019 – constituting 28% of the city’s police department is involved in some ▶p.25

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are two competing perspectives on the already mentioned, cities could impose a vehicular travel. A particularly creative subject.74 VMT fee. Some challenge these on the solution is to provide comprehensive trip- basis that sharing vehicles will increase planning information, so the public has In the utopian vision, often touted by demand.80 Instead, policies may need the ability to evaluate their travel options AV manufacturers, AV fleets consist of to make driving less rather than more with information on travel time, cost, and shared vehicles, leading to fewer cars and attractive relative to other transportation environmental impact.87 fewer accidents and fatalities, reduced modes.81 Accordingly, it is necessary to congestion, lower carbon emissions Another option for public transit is to explore the effect of AVs on public transit, 88 and improved air quality, and compact which is covered in the become autonomous. Buses on fixed development patterns in which walking, next section. routes are easiest to transition to AV use. biking, and transit thrive. In the dystopian Vehicles and transit schedules can be version, however, the AV fleet consists D. The Transit System: A Possible Victim “right-sized” so fleets are used effectively, of privately- owned vehicles, while of Convenience reducing empty buses.89 Additionally, zombie cars – those with zero occupancy autonomous buses could potentially free up – roam the streets, resulting in greatly Public transportation advocates are public funds because transit operating costs increased traffic, severe reductions in other worried that AVs may result in curtailing are mostly labor. A driverless model could transportation modes, increased pollution investment in more communal transit radically increase public transit frequency, and greenhouse gas emissions, and more options – and with good reason. While the single most important factor in transit sprawl as people live farther from work. services such as Uber and Lyft are ridership. Ultimately, “people need to see marketed as complements to public ways autonomous public transit, and see that it With such disparate predictions, it’s of getting around, these services actually gets them where they need to go just as difficult to know how to proceed as a city. compete with public transit. Although efficiently, in order for them to choose that Clearly, it is imperative to account for economic growth is usually accompanied 75 over their own car, a ride provided by Uber AVs. Many current municipal planning by an uptick in public transit use, this or Lyft, or, someday in the future, their processes rely on assumptions about pattern has been disrupted by ride-sharing own driverless car.”90 the nature of travel – including models and ride-hailing services. Public transit of vehicle ownership, route choice, and ridership is down in San Francisco, E. AV Infrastructure Support in Technology residence and work locations – that may where half the residents use Uber or Lyft. and the Built Environment not be true for AVs.76 While not always Nationally, ride-hailing services have Simply put, smart cars (and buses!) popular with the public or industry, it reduced public transit ridership by an 91 may be prudent for cities to approach AV average of 12 percent.82 need smart cities. For now, most AV regulation conservatively and plan for applications depend on vehicles with added traffic congestion. The Center for AVs may accelerate this trend, and limited connectivity needs. Higher speed Transportation Research at the University where public transit ridership falls, uses, such as platooning trucks, rely levels of investment in public transit will on vehicle-to-vehicle communications of Texas predicts that AVs will increase 83 vehicle miles traveled (VMT) because decline. Equity remains a vital part of and higher levels of connectivity. drivers will experience fewer travel the conversation, because the rise of AVs These applications demand increasing 77 will put struggling sections of cities at a bandwidth on existing wireless networks, inconveniences. People using AVs will 84 be more comfortable heading to more particular disadvantage. Unemployment but are currently constrained by the tends to be lowest in isolated, majority- absence of sensor and communication distant locations and those unable to drive 85 themselves will be able to travel safely. minority neighborhoods, where the technology embedded in infrastructure. main barrier to employment is access to Self-driving cars, and especially connected With that in mind, there are measures transport.86 vehicles, will need significant support to that cities can take to influence AV use. work properly.92 This means providing As already mentioned, a tiered road- Improved transit systems may persuade radio transmitters to replace traffic lights, pricing mechanism can incentivize users to maintain or increase ridership. higher-capacity mobile and wireless data ridesharing in AVs.78 Cities could also Theoretically, one way to do this is networks to handle vehicle-to-vehicle and require AVs to be electric, which would to increase the frequency of service. vehicle-to-infrastructure communication, minimize emissions.79 There may be ways Practically speaking, as dollars for public and roadside units to relay real-time for cities to promote small or micro-sized transit dwindle, this option is probably not data about weather, traffic, and other AVs for personal use. Cities could create viable on its own. Another option, already conditions.93 Atlanta, as an example, designated AV lanes, which would have used in many larger cities, is to provide “may need 50,000 environmental sensors, the added benefit of reducing conflict with transit-only lanes. In-vehicle travel time 20,000 pedestrian and mobility sensors other modes of transportation. And, as on buses has to be faster to compete with ▶p.26

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and 10,000 cameras” to support its plan to If shared AVs are the standard, access to and use of locational and other move ahead with AVs.94 municipalities probably will be able to personal data, and the private, primarily reduce their required parking spaces. commercial, use of the personal data.”107 Some states are already building this And the dimensions, location and design The Bloomberg Aspen Initiative on infrastructure. Colorado’s Department of AV parking structures will likely not Cities & Autonomous Vehicles speculates of Transportation is installing road- side need to take humans into consideration, that AVs could be the most important units along Interstate 70, which are resulting in reduced space requirements. opportunity in history for a city to expand expected to communicate with driverless Additionally, fewer parking garages may the scope and quality of data about its cars by sharing information about be needed in urban areas, which may goings-on.108 Municipal lawyers know upcoming road hazards and current 95 lead to conversion into micro-housing that collection of data about residents driving conditions. Virginia has launched unit communities, elevated parks, luxury is particularly sensitive and raises SmarterRoads, a cloud-based portal that homes, apartments, and offices.101 Of constitutional concerns.109 The potential will provide raw data pertaining to road course, when they are not being used, benefits of AV data are compelling, given conditions, incidents, work zones, multi- AVs will have to go somewhere. Cities that automated systems could capture modal transportation, and road signs to should think about the best locations for individualized information such as vehicle the AV industry, third-party enterprises, 96 AV storage, recharging, and maintenance. speed, position, arrival rates, and rates of and the public. And Wisconsin is using Municipal lawyers may want to assess acceleration and deceleration.110 This data road widening as an opportunity to install 97 whether their jurisdictions’ current zoning could allow for a greater optimization infrastructure for AV communication. definitions are adequate for new uses of traffic patterns; for example, through Not all improvements to support AVs such as AV staging, support services, and manipulation of traffic signals. The data demand as much effort and money. AVs electric recharging. Additionally, land use could also provide insights for street need clear lane markings and signage in regulations should incorporate guidance and curb space management, and even order to operate effectively. An AV at a for locating and designing on-street drop- for noise pollution.111 Ultimately, users’ 2016 Los Angeles Auto Show behaved off and pickup areas.102 Providing safe privacy will be critical.112 In crafting AV erratically due to poor road markings, and easy access for riders of hailed AVs regulations, cities will need to approach indicating that local governments can may require changes to curb access and data privacy thoughtfully. This section ease AV integration by attending to basic traffic flows.103 In tackling the AV parking explores privacy issues and touches on roadway maintenance, such as striping.98 puzzle, Chandler, Arizona is poised to cybersecurity risks involving AVs. Moreover, the APA advocates that when the be the first city to adjust its zoning laws to incentivize AVs through parking Regarding AV data and privacy, cities cities are reimagining streets with AVs, have a chance to address a void in they should design roadways for mixed reductions and creating standards for AV 113 loading zones.104 existing United States law. The traffic – not just AVs and conventional federal Drivers’ Privacy Protection Act114 vehicles, but also pedestrians and cyclists AVs will likely change the retail landscape, protects motor vehicle records from – so as to avoid conflicts between different particularly for e-commerce businesses. disclosure only by state motor vehicle modes. Cities should look to recapture Truck drivers are limited to driving no departments. Moreover, the Electronic this right-of-way and repurpose streets for 115 99 more than 11 hours in one sitting, and Communications Privacy Act does not bikers and pedestrians. The next section their wages accounts for 75% of shipping necessarily prevent a service provider, such is a more comprehensive discussion of costs.105 AVs in delivery (and at distribution as a shared AV owner, from capturing how to handle this newly available land. centers) could reduce costs for e-commerce and using a vehicle’s electronic or stored F. Land Use: Sprawl or Density for All? retailers. This means that brick and mortar communications. There have been several retail stores may dwindle, as they are attempts to address this gap. The Security Undoubtedly, AVs will disrupt city land undercut by online shopping.106 On the and Privacy in Your Car Act (SPY Act)116 use patterns. Self-driving vehicles could other hand, the convenience of AVs could instructed NHTSA to develop privacy encourage unnecessary driving and lead to more discretionary vehicle trips for standards that would force manufacturers exacerbate sprawl, or, conversely, a network shopping, and could expand the customer to be more transparent in how vehicle of predominantly shared AVs could reduce base of large and regional shopping centers. data are collected, stored, and used.117 the need for parking and road expansion, AVs will also bring with them an enormous However, the SPY Act never made it out creating the potential to repurpose amount of data, with which cities will have of Committee. Like federal law, state law space.100 The outcome depends, in part, to contend, as detailed in the next section. has generally failed to address the privacy on parking-related zoning regulations, problems with AVs. including the conversion of parking lots G. Dealing with All the Data and decks, curbside management, and The lack of federal and state oversight Generally, privacy concerns around AVs does not mean cities can avoid privacy placement of infrastructure such as electric fall into two categories: “government charging stations. concerns. AVs will create many of the ▶ p.27 26 The Municipality | February 2020  Legal

same legal questions as cellular data, signed a voluntary set of automotive This section describes how the legal GPS technology, and internet usage. privacy principles, effective with 2017 system may eventually apportion fault in Courts have already begun to answer models, agreeing to ask permission before AV accidents. some of these questions through the lens using or sharing sensitive information of the Fourth Amendment.118 In U.S. about occupants, and to limit what Much of the complexity about liability v. Jones, the Supreme Court confronted they share with government and law lurks in autonomy Levels 3 and 4, during the acquisition of information without enforcement. While there may be some the handover from vehicular control to a warrant that generated “a precise, justifications that AV consumer privacy human control. Experiments have found comprehensive record of a person’s public laws should develop at the state level, it is time lags in drivers retaking control and other delays with humans returning to movements that reflects a wealth of detail doubtful that these laws would be broad 129 about her familial, political, professional, and comprehensive enough to regulate baseline driving performance. This has religious, and sexual associations.”119 AVs.124 Due to the interstate qualities of led companies such as Waymo and Ford In Jones, the government placed a GPS AVs, a federal approach – such as the one to advocate for fully autonomous cars that device directly on a vehicle, prompting currently underway at the NHTSA and avoid the need for handovers – the process the Court to find that the government’s the Federal Trade Commission – makes through which control shifts to the action was a search. However, the Court more sense.125 vehicle. As the Harvard Business Journal did not rule on the reasonableness of the points out, this may be too large of a leap. search, and as Justice Scalia opined, what Finally, there is a very specific threat With no driver as backup, there is a risk to data privacy: cyber-attackers. AVs that AVs will be thrust into environments is considered a reasonable intrusion into 130 privacy may shift as technology advances. and their supporting infrastructure will that they can’t yet navigate. The inevitably hold personal data which will best route is for regulators to establish For now, the “third-party” privacy doctrine be of interest to cyber-criminals.126 Many standards that define an effective appears to be solid ground, in terms experts believe that the installation of handover, and reasonable time periods for of AV privacy; it affords a loophole in ransomware could pose a considerable a driver to retake control.131 Fourth Amendment constraints where threat to connected cars. Undoubtedly, the government can ostensibly obtain AVs will be vulnerable to malicious Despite this dilemma, legal scholars are AV locational data from private, third- attacks, which implicates AV technology confident existing tort and contract legal frameworks are sufficient to address party sources to whom the vehicle users producers from a liability standpoint, but 132 have granted access. Some argue, though, also presents significant safety concerns liability questions surrounding AVs. that this loophole could be eliminated by for consumers as well as cities, which From a legal perspective, AV liability expanding the definition of “papers” under enforce traffic and criminal laws and should shift from the compensation the Fourth Amendment to include data respond to emergencies. regime applied to conventional driving, held by third parties.120 While consumer protection and cyber- largely premised on vehicular negligence, to a compensation regime that Ultimately, lawyers cannot be certain security protection are not the bailiwicks 133 how courts will treat governmental use of local government, municipalities should increasingly implicates product liability. of location data from AVs, especially if still press AV operators to under- stand As technology enables increasing the government is not involved in the how data about their residents will be automation of vehicles, AV manufacturers installation of tracking technology.121 collected, used, and protected. will increasingly bear the burden for liability.134 While more general theories of When accessing or making use of AV 135 data, local governments should proceed H. Not Boilerplate: Liability and Insurance tort liability are viable, products liability has emerged as the dominant theory for cautiously to ensure they are within Who is to blame if a self-driving car gets constitutional parameters. AV litigation. Thus, the remainder of this in a wreck? The answer, not surprisingly, section focuses on manufacturer liability. One of the largest privacy concerns is is complicated. In order to resolve the the capability for (and likelihood of) AV question of fault, the courts will indeed In a products liability case, liability companies to monetize the information. need to consider “novel and in some usually depends on defects, of which there cases challenging questions.”127 For now, are three types: manufacturing defect, As with smartphones, AVs will generate a 136 tremendous amount of tracking data that responsibility for AV accidents will fall design defect, and failure to warn. A will prove valuable for advertising and on the human driver, the AV technology manufacturer’s liability for manufacturing marketing purposes.122 One think tank providers, the car manufacturer (which defects in AVs will be largely limited estimates that car data monetization will could be the same entity as the AV to quality-control problems with the technology provider), and, in some hardware of the operating system, generate a whopping $450-750 billion by 128 2030.123 For now, the industry has agreed instances, cities. including the cameras, lasers, radars, and to regulate itself. In 2014, 20 automakers other physical components of the system ▶p.28 The Municipality | February 2020 27 Legal

or vehicle.137 Experts predict, though, that functionalities.142 This guidance from the AV action items: developing a fact much of the AV product liability litigation NHTSA is instructive for cities, as cities sheet on autonomous technology; will not involve manufacturing defects.138 will need to align their municipal codes forming an internal working group with with trends in state and federal law. stakeholders from critical departments, In contrast, AV software is considered such as IT, transportation, and economic part of the AV’s operating system, and Besides manufacturers, insurance development; and identifying internal defects in software implicate design companies possibly stand to lose the barriers for regulation or adoption, such as defects claims. AV users will probably most when it comes to AV liability. budgets or legacy technology contracts.148 argue that manufacturers did not design AV technology could shrink the auto The APA resource also recommends how the AV adequately to protect its occupants insurance sector by $137 billion by 143 to engage city residents and community during a crash. Under the “risk-utility” 2050. The number of total claims stakeholders about AV technology. analysis more commonly applied by courts submitted to insurance companies is in design defect claims, manufacturers expected to decline, but the cost per Undoubtedly, law and policy will play will stress the extraordinary safety benefits claim is anticipated to increase due to the a critical role in shaping the trajectory of AVs, while consumers will allege that expensive components integrated into of AV development and deployment on designs can be improved.139 AVs.144 Additionally, while AVs have the municipal streets, and local government potential to increase safety and reduce lawyers will have a significant role in Finally, when AV litigation arises based accidents, the severity of those accidents paving the way. on failure to warn claims, manufacturers will be much greater if AV systems fail.145 will argue that they cannot warn for Transportation 1 every imaginable scenario. Yet, the State Farm, the nation’s largest automobile enormous amounts of data available to insurer, notes that the industry will need to Editor’s Note: This article was published manufacturers could lead to enhanced overhaul the way it measures risk for auto in the September-October 2019 obligations. Practically speaking, as insurance, which could significantly impact Municipal Lawyer by the International regulators craft legislation to clarify insurance rates.146 Likely, as a condition Municipal Lawyers Association the legality of operating AVs on public of providing insurance for drivers of AVs, (IMLA) and is reprinted with IMLA’s roads, it is impossible to answer all of the insurers may require greater access to permission. The full article, with associated liability questions that need to data that could be used to reconstruct the endnotes, is available on be addressed. Luckily, products liability actions of the “driver” – whether human or the League’s website here: law has proven to be remarkably adaptive automated – before an accident. https://lwm-info.org/191/Legal-Articles to new technologies.140 For cities, insurance impacts are relevant The Brookings Institute has proposed for two reasons. First, cities may specify several guiding principles as governments insurance requirements for AVs in their About the Author: at the federal, state, and local level grapple jurisdiction, and need to understand 141 Crista M. Cuccaro is an Assistant City with liability issues. First, Congress the demands by the insurance industry. Attorney in Durham, North Carolina, should not preempt state tort AV remedies, Second, cities may employ their own where she focuses on community except that liability of commercial AVs AVs, as part of solid waste management development, municipal finance, and should be addressed federally. Second, or public transit, and will need to budget economic development. Prior to joining manufacturers of non-AVs should not accordingly for changes in insurance rates. the City of Durham, Crista was a Staff be liable for alleged defects introduced Conclusion Attorney in Knoxville, Tennessee. In through third party conversions in an Tennessee, her practice included land AV. Additionally, while clarification Cities need to start planning now for use and redevelopment, and she served of liability will take time to sort out, AVs, which clearly create a litany of as Vice-President of the Tennessee NHTSA’s guidance document offers a issues: impacts to municipal budgets, Municipal Attorneys Association. first-step recommendation: states should shifts in the workforce, traffic impacts, Crista earned her B.A. degree from the explicitly define what is meant by “drivers” effects on transit systems, equity in University of North Carolina and her J.D. of AV for the purpose of traffic laws and access, infrastructure support, land use degree from the University of Tennessee enforcement. NHTSA recommends that modifications, privacy and data concerns, College of Law, but she is a Duke when the AV systems are monitoring the and liability and insurance. basketball fan. Contact Crista at roadway, the surrounding environment, and [email protected] executing driving tasks (Levels 3 through The American Planning Association 5), the vehicle itself should be classified as (APA) urges that localities not take a 147 the driver, and licensed human operators “wait and see” approach. The APA classified as drivers for Levels 1 and 2 has numerous checklists that identify

28 The Municipality | February 2020 Notes 9. Walker, supra note 1. For Internet And Society At Stanford 1. There are five levels of vehicle auto- 10. Id. Law School (Dec. 18, 2013), http://cyber- mation, which are the industry standards 11. Luke Dormehl & Stephen Edelstein, law.stanford.edu/blog/2013/12/human-er- established by the Society of Automotive Sit back, relax, and enjoy a ride through ror-cause-vehicle-crashes. Engineers (SAE). Detailed descriptions of the history of self-driving cars, Digital 22. See Peter Hancock, Are Autonomous these levels are published in the Taxono- Trends (Feb. 3, 2019) https://www.digi- Cars Really Safer Than Human Drivers?, my and Definitions for Terms Related to taltrends.com/cars/history-of-self-driving- Scientific American, available at https:// Driving Automation Systems for On-Road cars-milestones/. www.scientificamerican.com/article/are-au- Motor Vehicles, SAE Recommended Prac- 12. Alex Davies, Waymo’s So-Called tonomous-cars-really-safer-than-human- tice J3016. The guide is available online Robo-Taxi Launch Reveals a Brutal Truth, drivers/. at https://www.sae.org/standards/content/ WIRED (Dec. 5, 2018), available at https:// 23. According to a 2018 report from the j3016_201806/. www.wired.com/story/waymo-self-driv- Autonomous Vehicle Pilots Across America, The SAE levels are as follows: Level 1 au- ing-taxi-service-launch-chandler-arizona/. more than 50 percent of US cities are cur- tomation allows small steering or accelera- 13. See Cal. Dmv, Report Of Traffic rently preparing for self-driving vehicles, up tion tasks to be performed by the car with- Accident Involving An Autonomous from less than ten percent in 2015. See Teena out human intervention, but everything Vehicle (Feb. 23, 2016), Maddox, Self-driving stories: How 6 US else is fully under human control; Level 2 http://docs.dpaq.de/10437-googleau- cities are planning for autonomous vehicles, is like advanced cruise control or original tocrashreportfeb2016.pdf. Techrepublic (Oct. 17, 2018), https://www. autopilot systems on some Tesla vehicles, 14. Associated Press, Google self-driving techrepublic.com/article/self-driving-sto- so the car can automatically take safety car caught on video colliding with bus, ries- how-6-us-cities-successfully-integrat- actions, but the driver must stay alert at The Guardian (Mar. 9, 2016), available ed-autonomous-vehicles/. The Bloomberg the wheel; Level 3 requires a human driver, at https://www.theguardian.com/technol- Philanthropies and The Aspen Institute have but the human is able to assign some ogy/2016/mar/09/google-self-driving-car- created a real-time database of the cities safety-critical functions to the vehicle; crash-video-accident-bus. across the globe that are preparing for AVs. Level 4 is a car that can drive itself almost 15. Id. As of June 2019, the database is tracking all the time without any human input, 16. Fred Lambert, Understanding the fatal 126 cities, including 45 in the United States but might be programmed not to drive in Tesla accident on Autopilot and the NHT- and eight in Canada. See Initiative on Cities unmapped areas or during severe weather; SA probe, Electrek (Jul. 1 2016), https:// and Autonomous Vehicles, https://avsincities. and Level 5 means full automation in all electrek.co/2016/07/01/understanding-fa- bloomberg.org/global-atlas/ (last visited June conditions. See Jon Walker, The Self-Driv- tal-tesla-accident-autopilot-nhtsa-probe/. 24, 2019). ing Car Timeline–Predictions from the Top 17. Id. 24. This paper cannot possibly cover every 11 Global Automakers, EMERJ (May 14, 18. Laurel Wamsley, Uber Not Crim- facet of autonomous vehicles and cities; it 2019), https://emerj.com/ai-adoption-time- inally Liable in Death of Woman Hit is intended to give municipal lawyers an lines/self-driving-car-timeline-themselves- by Self-Driving Car, Prosecutor Says, overview of the legal and policy issues most top-11-automakers/. NPR (Mar. 6, 2019) https://www.npr. relevant for their clients. A comprehensive 2. Paul Lienert & Maria Caspani, Amer- org/2019/03/06/700801945/uber-not- resource providing a foundation for this icans still don’t trust self-driving cars, criminally-liable-in-death-of-woman-hit- paper is Autonomous Vehicle Technology, Reuters/Ipsos poll finds, REUTERS (Apr. by-self-driving-car-says- prosec. infra note 124, and other municipal lawyers 1, 2019), https://www.reuters.com/article/ 19. The State of California Department would likely find it useful. us-autos-selfdriving-poll/americans-still- of Motor Vehicles collects reports on 25. See Automated Vehicle Readiness Index, dont-trust-self-driving-cars-reuters-ipsos- accidents involving autonomous vehicles KPMG International, https://assets.kpmg/ poll-finds- idUSKCN1RD2QS. regardless of fault. This year, there have content/dam/kpmg/nl/pdf/2018/sector/auto- 3. Id. been thirty-three accidents. See State Of motive/autonomous-vehicles-readiness-in- 4. Ellen Edmonds, Three in Four Amer- California Department Of Motor Vehicles, dex.pdf (last visited June 24, 2019). Canada icans Remain Afraid of Fully Self-Driv- Report Of Traffic Collision Involving An ranks behind the United States in all aspects ing Vehicles, AAA NEWSROOM Autonomous Vehicle (OL 316), of AV readiness. (Mar. 14, 2019), https://newsroom.aaa. https://www.dmv.ca.gov/portal/dmv/detail/ 26. Consumer Watchdog has recommended com/2019/03/americans-fear-self-driving- vr/autonomous/testing last visited (June several safeguards for cities that want to cars-survey/. 24, 2019). allow AV testing—including that the AV 5. Id. 20. U.S. department of transportation must have a trained test driver, behind a 6. Walker, supra note 1. national highway traffic safety administra- steering wheel and brake pedal capable of 7. Id. tion traffic safety facts crash stats, dot hs assuming control. See Consumer Watchdog 8. Kristen Korosec, Honda commits $2.75 812 749 a brief statistical summary (June Backs Banning Robot Cars in Chicago Until billion to build autonomous vehicles with 2019), available at Feds Act on Safety Regulations, Consumer GM’s Cruise, TECHCRUNCH, https:// https://crashstats.nhtsa.dot.gov/Api/Public/ Watchdog, https://consumerwatchdog.org/ techcrunch.com/2018/10/03/honda-com- ViewPublication/812749. privacy-technology/consumer-watchdog- mits-2-75-billion-in-partnership-with-gms- 21. Bryant Walker Smith, Human Error as backs-banning-robot-cars-chicago-until-feds- cruise/. a Cause of Vehicle Crashes, The Center Continued on page 32

September-October 2019 / Vol. 60 No. 5 | 31 Autonomous Vehicles cont’d from page 31 For Autonomous Vehicle Testing In setting and enforcing safety performance Boston, standards for motor vehicles and motor act-safety (last visited June 24, 2019). https://www.boston.gov/sites/default/files/ vehicle equipment, and through grants 27. See Autonomous Vehicles | Self-Driving document-file-01-2017/template-mou-for- to state and local governments to enable Vehicles Enacted Legislation, National av-testing.pdf (last visited June 24, 2019). them to conduct effective local highway Conference Of State Legislatures 38. John Byrne, Aldermen consider tough safety programs. A search of NHTSA’s (Mar. 19, 2019), http://www.ncsl.org/ regulations for self-driving cars, The Chi- website for “autonomous vehicle” returns research/transportation/autonomous-ve- cago Tribune (Aug. 22, 2017), available at 775 results. hicles-self-driving-vehicles-enacted-legisla- https://www.chicagotribune.com/pol- 45. U.S. Department of transporta- tion.aspx. itics/ct-chicago-driverless-cars-regula- tion national highway traffic safety 28. H.B. 1207, 2012 Leg. (Fla. 2012), Ch. tions-met-20170821-story.html. administration, AV 3.0, available at 2012-111 (2012). Florida has continued to 39. Simon Romero, Wielding Rocks and https://www.nhtsa.gov/vehicle-manufactur- advance its AV program. On July 1 of this Knives, Arizonans Attack Self-Driving Cars, ers/automated-driving-systems. year, driverless self-driving vehicles were N.y. Times (Dec. 31, 2018), available at 46. Specifically, Automated Driving Sys- allowed on Florida roads. See Sebastian https://www.nytimes.com/2018/12/31/us/ tem-Dedicated Vehicles (ADS-DVs) may Blanco, Florida Will Allow Autonomous waymo-self-driving-cars-arizona-attacks. lack traditional manual controls necessary Cars with No Safety Drivers on Public html?login=email&auth=login-email. to facilitate operation of a vehicle by a Roads Starting July 1, Car And Driver 40. Volvo Car Usa, US urged to establish human driver. See Press Release, United (June 18, 2019), https://www.caranddriver. nationwide Federal guidelines for autono- States Department of Transportation com/news/a28073922/florida-autono- mous driving (Oct. 7, 2015), https://www. National Highway Traffic Safety Admin- mous-cars-driverless/. media.volvocars.com/us/en-us/media/press- istration (May 22, 2019), available at 29. Governor Douglas A. Ducey, Executive releases/167975/us-urged-to-establish-na- https://www.nhtsa.gov/press-releases/us-de- Order 2015-09, Self-Driving Vehicle Test- tionwide-federal-guidelines- for-autono- partment-transportation-seeks-input-test- ing and Piloting in the State of Arizona; mous-driving. ing-vehicles-automated- driving-systems. Self- Driving Vehicle Oversight Commit- 41. See Diana Stancy Correll, Safety advo- 47. Dale Neef, Preparing for Autono- tee, available at https://apps.azdot.gov/files/ cates try to hit the brakes on driverless cars, mous Vehicles Is a Local Government sitefinity-files/Executive-Order-2015-09. Washington Examiner (Oct. 23, 2018), Reality, medium (Sept. 4, 2018), https:// pdf (last visited June 24, 2019). available at https://www.washingtonexam- medium.com/@webanalytics_31234/ 30. Automated driving systems in a iner.com/news/safety-advocates-try-to-hit- preparing-for-autonomous-vehicles-is-a-lo- platoon use vehicle-to-vehicle (V2V) the-brakes-on-driverless-cars. cal-government-reality-a81a2b10f0a9. communications device that receives and 42. North Carolina requires the steering 48. There could also be a hybrid, where transmits data from one car to another. See wheel, brakes, and other equipment used those who own an AV can ride to work, How an Automated Car Platoon Works, to operate a vehicle be stowed away so then profit off of their otherwise unused U.S. Department Of Transportation that an occupant cannot assume control AV by renting it to a ride-sharing company Volpe Center (July 31, 2017), https:// while the vehicle is in self-driving mode, during working hours. www.volpe.dot.gov/news/how-automat- and New York law requires a driver to keep 49. See Lienert & Caspani, supra note 2. ed-car-platoon-works (last visited June 24, one hand on the steering wheel at all times; 50. Nicholas Stecher, Mercedes-Benz’s Plan 2019). therefore, a car designed to comply with for Surviving the Auto Revolution, Wired 31. For a full list of state legislation as of North Carolina’s law cannot also comply (Apr. 30, 2018), available at 2018, see Brian S. Haney et al., The Auton- with New York law. See H.R. REP. NO. https://www.wired.com/story/daimler-mer- omous Vehicle Legislative Survey, Eckert 115-294, at 12 (2017), available at https:// cedes-case-wilko-stark-interview/?m- Seamans, https://www.eckertseamans.com/ www.congress.gov/115/crpt/hrpt294/CRPT- bid=GuidesLearnMore. app/uploads/PLAC_Eckert_Seamans_AV_ 115hrpt294.pdf. 51. Susan Crawford, Autonomous vehi- Survey-1.pdf (last visited June 24, 2019). 43. Letter from United States Senator Diane cles might drive cities to financial ruin, Several states, including Iowa and Louisi- Feinstein et al., to Senator John Thune, Wired (June 20, 2018), available at ana, have subsequently adopted legislation. Chairman of the Senate Committee on https://www.wired.com/story/autono- 32. See id. Commerce, Science, and Transportation and mous-vehicles-might-drive-cities-to-fi- 33. Several states, including Tennessee, Senator Gary Peters, Committee Member, nancial-ruin/. Illinois, and Oklahoma have already exer- (March 14, 2018), available at https://www. 52. Philip Barnes & Brett Swan, Fiscal cised such preemption. feinstein.senate.gov/public/_cache/files/f/1/ Impacts of Connected and Automated 34. See City Of Boston, Autonomous f168c367-bec0-48cc-9220- 6a13cbd9dd27/ Vehicles in Delaware, University Of Vehicles: Boston’s Approach, https:// D00752809320841613B5F03BB- Delaware Institute For Public Ad- www.boston.gov/departments/new-ur- 8517FC2.03.14.2018-av-start-act-letter.pdf. ministration (Oct. 2018), http://udspace. ban- mechanics/autonomous-vehicles-bos- 44. The NHTSA is an agency of the udel.edu/bitstream/handle/19716/23894/ tons-approach (last visited June 24, 2019). USDOT. According to its website, it is CAV-Fiscal- Impacts-2018.pdf. 35. Id. responsible for reducing deaths, injuries 53. After safety, of course! 36. Id. and economic losses resulting from motor 54. Barnes, supra note 52, at 1. Delaware’s 37. See City Of Boston, Template vehicle crashes, which it accomplishes by state gas tax rate is 23 cents per gallon.

32 | Municipal Lawyer 55. Texas’s gas tax rate is 20 cents per ylab.uw.edu/wp-content/uploads/2017/10/ 76. See Tech Policy Lab, supra note 67, at gallon. Texas Comptroller Of Public Ac- TPL_Driverless- Seattle_2017.pdf. 10. counts, Revenue By Source For Fiscal Year 68. Turner & Rogers, supra note 60. 77. Kara Kockelman, et al., An Assessment 2018, https://comptroller.texas.gov/trans- 69. Rouse, supra note 63, at 11 (describing of Autonomous Vehicles: Traffic Impacts parency/reports/revenue-by-source/. remarks by Laurie Schintler of George and Infrastructure Needs—Final Report, 56. Barnes, supra note 52, at 1. Mason University at a symposium con- The University Of Texas At Austin Center 57. Id. vened by the American Planning Associ- For Transportation Research (Mar. 2017), 58. Id. This is atypical, though, as park- ation (APA), NLC, Mobility e3, George available at https://library.ctr.utexas.edu/ ing related revenues usually are not large Mason University, Mobility Lab, the Eno ctr-publications/0-6847-1.pdf. portion of most cities’ revenue streams. See Center for Transportation, and the Brook- 78. Rouse, supra note 63. Benjamin J. Clark et al., The Impacts of ings Institution). 79. Milam & Riggs, supra note 65. Autonomous Vehicles and E-Commerce 70. Philip Barnes et al., Economic Impacts 80. Sergey Naumov, et al., The Impact on Local Government Budgeting and Fi- of Connected and Automated Vehicles of Autonomous Vehicles on Demand for nance 6, Sustainable Cities Initiative (Aug. in Delaware, University Of Delaware Driving: Is Pooling the Solution to Avoid- 2017), Institute For Public Administration (May ing Traffic Gridlock?, International System https://www.researchgate.net/ 2018), http://udspace.udel.edu/bitstream/ Dynamics Conference (Aug. 2018), https:// publication/324665812_The_Im- handle/19716/23152/CAV-Econom- www.industrystudiesconference.org/confer- pacts_of_Autonomous_Vehicles_ ics-2018.pdf. ence/papers/download/136. and_E- Commerce_on_Local_Govern- 71. Richard Ezike, Transitioning the Work- 81. Id. ment_Budgeting_and_Finance. force in the Era of Autonomous Vehicles: 82. Neef, supra note 47. 59. See Clark, supra note 58. Meet Dr. Algernon Austin, Union Of 83. See Milam & Riggs, supra note 65. 60. While tax creation is not usually within Concerned Scientists (Aug. 28, 2018), 84. See Crawford, supra note 51. At the the authority of cities, they can advocate https://blog.ucsusa.org/richard-ezike/ same time, and not without its own merit, for it at the state level. This effort would be transitioning-the-workforce-in-the-era- AVs will be transformative for individuals worthwhile, as the numbers are stagger- of- autonomous-vehicles-meet-dr-alger- who are physically unable to drive, such as ing. Due to displacement of humans in non-austin. elderly individuals who have “retired” from occupations vulnerable to automation— 72. Some advocates take this a step driving, disabled individuals, and adults such as truck drivers, bus drivers, and taxi further. Securing America’s Future Energy without drivers’ licenses. drivers—the federal income tax shortfall (SAFE), a group of industry and automo- 85. Id. could exceed $13 billion annually. See tive leaders, argues that AVs will generate 86. Policy analysts stress that AVs will exac- Stanford Turner & Greg Rogers, A Robot productivity gains in the employment erbate disparity, even for those not depen- Tax Would Help or Harm the Transporta- sector: A one percent improvement in dent on public transit. Early on, AVs will tion Sector– Maybe Both, Eno Center For accessibility to a region’s central business be financially unfeasible for low-income Transportation (Apr. 14, 2017), https:// district improves regional productivity individuals. Consequently, affluent drivers www.enotrans.org/article/robot-tax-help- by 1.1 percent. Similarly, a 10 percent who can afford to purchase AVs will receive harm- transportation-sector-maybe/. increase in average speed, leads to a 15- the full benefit of enhanced speed and safety 61. See id. 18 percent increase in the labor market in dedicated lanes, while the less affluent are 62. Id. size., This, in turn, leads to a 2.9 percent left with slower, more dangerous condi- 63. David C. Rouse et al., Preparing increase in productivity. See Amitai Bin- tions. Some AVs will pay a smaller share of Communities for Autonomous Vehicles, Nun, et al., America’s Workforce and gas tax revenue even as they travel greater American Planning Association 30 (2018), the Self- Driving Future, Securing Amer- miles compared to conventional vehicles. https://planning-org-uploaded-media. ica’s Future Energy (June 2018), https:// Under the the current pay-at-the-pump s3.amazonaws.com/document/Autono- avworkforce.secureenergy.org/wp- content/ model, traditional vehicles will effectively mous-Vehicles-Symposium-Report.pdf. uploads/2018/06/Americas-Workforce- be subsidizing AV users. See Philip Barnes 64. Id. and-the-Self-Driving-Future_Realizing-Pro- & Eli Turkel, Autonomous Vehicles in Del- 65. Ronald T. Milam & William Riggs, ductivity-Gains-and-Spurring- Econom- aware: Analyzing the Impact and Readiness The Future of Transportation Disrup- ic-Growth.pdf. for the First State 23, University Of Dela- tion and How Public Agencies Can 73. See Tech Policy Lab, supra note 67. ware Institute For Public Administration Respond, Meeting Of The Minds (Sept. 74. These two visions were described by (April 2017), https://www.bidenschool.udel. 5, 2018), https://meetingoftheminds. Creighton Randall of the Shared-Use Mo- edu/ipa/content-sub-site/Documents/auton- org/the-future-of-transportation-disrup- bility Center at the symposium convened omous-vehicles-2017.pdf. tion-and-how-public-agencies- can-re- by the American Planning Association 87. Lauren Isaac, Driverless vehicles and spond-28098. (APA) and other stakeholders. See David the future of public transit, Metro For 66. Neef, supra note 47. C. Rouse, supra note 63, at 21. Transit & Motorcoach Business (Dec. 28, 67. At the very least, cities should devel- 75. For a detailed discussion of incor- 2017), https://www.metro-magazine.com/ op specific training procedures for police porating AVs into comprehensive plans, mobility/article/724770/driverless-vehi- interactions with AVs. See Tech Policy Lab, functional plans, and subarea plans, see Driverless Seattle (2017), https://techpolic- Rouse, supra note 63, at 22. Continued on page 34

September-October 2019 / Vol. 60 No. 5 | 33 Autonomous Vehicles cont’d from page 33 at https://www.jsonline.com/story/news/ Legal Issues Pertaining to Automated, local/wisconsin/2018/09/24/autono- Autonomous and Connected Vehicles, cles-and-the-future-of-public-transit. mous-vehicle-upgrades- foxconn-part- 31 Santa Clara High Tech. L.J. 99 88. Milam & Riggs, supra note 65. 94-widening-plans/1361547002/. (2014), available at https://digitalcom- 89. Isaac, supra note 87. 98. Fagan, supra note 94. mons.law.scu.edu/chtlj/vol31/iss1/3/. 90. Andrew Zaleski, The future 99. See Barnes & Turkel, supra note 86, 108. Taming the Autonomous Vehicle, is coming—at 11 miles per hour, at 19 (The assistant secretary of Flori- A Primer for Cities, Bloomberg Aspen Curbed (Apr. 17, 2019), https://www. da’s DOT suggested that 12-foot lanes Initiative on Cities & Autonomous curbed.com/2019/4/17/18410988/ could be reduced, and it may be possible Vehicles, https://www.bbhub.io/dotorg/ autonomous-vehicle-local-motors-na- to “get by with 9 ½- or 10-foot lanes. sites/2/2017/05/TamingtheAutonomous- vya-may-mobility. We could turn that four-lane express VehicleSpreadsPDF.pdf (last visited June 91. Mapanauta, How Will Autonomous highway into a six- lane express high- 26, 2019) (hereinafter, Bloomberg Aspen Vehicles Impact the Public Transport way with literally the same right-of-way Initiative). Sector, Medium (Jul. 12, 2018), https:// footprint.”). 109. One creative solution is being em- medium.com/@mapanauta/how-will-au- 100. Richard Ezike, Explaining Land ployed in Ontario, where Waze has made tonomous-vehicles-impact-the-pub- Use Implications of Autonomous an agreement with the City of Toronto lic-transport-sector-2cb62cc67660. Vehicles: Meet Dr. Jonathan Levine, to trade data for mutual benefit. See De- 92. Not all AV innovators take this Union Of Concerned Scientists loitte LLP, Connected and autonomous stance, however. British startup Wayve, (July 9, 2018), https://blog.ucsusa.org/ vehicles in Ontario: Implications for for example, has indicated its vehicles richard-ezike/explaining-land-use-impli- data access, ownership, privacy and secu- will rely only on a camera, GPS, and cations-of-autonomous-vehicles- meet- rity, (2018), https://www2.deloitte.com/ its computer system. See Sasha Lekach, dr-jonathan-levine. content/dam/Deloitte/ca/Documents/ Wayve says self-driving cars don’t need 101. G. Evan Pritchard, Autonomous consulting/ca-consulting-CVAV-Re- sensors. Experts aren’t so sure., Mash- Vehicles: Zoning, Land Use, and Infra- search-Final-Data- Privacy-Security-Re- able (Apr. 8, 2019), https://mashable. structure Issues to Consider Right Now, port-20180412-AODA.pdf (hereinafter com/article/self-driving-cars-lidar-radar- Envirostructure (Oct. 23, 2017), https:// Deloitte). Waze will have access to city wayve-sensors-perception/. However, the www.envirostructure.com/2017/10/au- data such as road and lane closures and overwhelming opinion in the industry tonomous-vehicles-zoning-land-use-and- areas of heavy and light traffic, and is that AVs will operate better if they infrastructure-issues-to-consid- the city will get anonymized data from receive additional data and operate as er-right-now/. more than 560,000 local Waze users, connected vehicles. 102. Rouse, supra note 63, at 26. which will help transportation staff ease 93. Nick Oliver, et al., To Make 103. Neef, supra note 47. congestion. Id. Anonymization may not Self-Driving Cars Safe, We Also Need 104. Paul Maryniak, Chandler, Ariz., be foolproof, though. See Dorothy J. Better Roads and Infrastructure, Har- May Be the First City to Adjust Zoning Glancy, Privacy in Autonomous Vehicles, vard Business Review (Aug. 14, 2018), Laws for AVs, Government Technology 52 Santa Clara L. Rev. 1171 (2012), available at https://hbr.org/2018/08/ (May 9, 2018), https://www.govtech. available at https://digitalcommons. to-make-self-driving-cars-safe-we-also- com/fs/infrastructure/Chandler-Ariz- law.scu.edu/cgi/viewcontent.cgi?arti- need-better-roads-and- infrastructure. May-Be-the-First-City-to-Adjust-Zon- cle=2728&context=lawreview. 94. Dan Fagan, How States Can Shore ing-Laws-for- AVs.html. 110. See Bloomberg Aspen Initiative, Up Infrastructure for the Autonomous 105. Jack D’Errico, What will Auto- supra note 108, at 19. Vehicle Boom, Statetech (Feb. 27, 2018), mated Cars Mean for the Future of 111. Id https://statetechmagazine.com/arti- eCommerce?, The Trellis Blog (Sept. 6, 112. See Glancy, supra note 109, at cle/2018/02/how-states-can-shore-infra- 2018), https://trellis.co/blog/what-will- 1172. structure-autonomous-vehicle-boom. automated-cars-mean-for-the-future-of- 113. See The Privacy Implications of 95. Travis Khachatoorian, Colorado ecommerce/. Autonomous Vehicles, Norton Rose Ful- among the leaders for driverless ve- 106. Another consideration for auton- bright (July 17, 2017), https://www.data- hicle testing, 9NEWS.COM (July 18, omous delivery vehicles is added traffic protectionreport.com/2017/07/the-priva- 2018), https://www.9news.com/article/ congestion. Los Angeles contemplates cy-implications-of-autonomous-vehicles/ news/travel/colorado-among-the-lead- that data shared among vehicles and (hereinafter Norton Rose Fulbright). ers-for-driverless-vehicle-test- infrastructure could provide real-time 114. 18 U.S.C. § 2721, et seq. ing/73-572788284. pricing information for automated 115. 18 U.S.C. § 2510, et seq. 96. Virginia Department Of Transporta- parcel delivery across the city. See Jaclyn 116. Kristen Hall-Geisler, Senators tion, Smarterroads, https://smarterroads. Trop, How Self-Driving Cars Can Help reintroduce a bill to improve cyberse- org/login. Make Cities Better, Fortune (Feb. curity in cars, Techcrunch, https:// 97. Lee Bergquist, Tech upgrades for 22, 2019), available at http://fortune. techcrunch.com/2017/03/23/senators-re- autonomous vehicles to aid Foxconn are com/2019/02/22/self-driving-cars-cities/. introduce-a-bill-to-improve-cybersecuri- part of widening plans for I-94, Jour- 107. See William J. Kohler & Alex Col- ty-in-cars/ (last visited June 26, 2019). nal Sentinel (Sept. 25, 2018), available bert-Taylor, Current Law and Potential 117. Id

34 | Municipal Lawyer 118. Nonetheless, some significant in the intelligent infrastructure that will 3dfa-4c60-b1ba-7e596819ef43/dc- questions remain following Riley v. Cal- aid AV navigation. 656837-v1- torts_of_the_future_autono- ifornia, 573 U.S. 373 (2014), where the 129. Are we ready to ‘handover’ to mous_emailable.pdf. The U.S. Chamber Court decided that a warrantless search driverless technology? Venturer In- Institute for Legal Reform additionally of a cellphone as part of an arrest was surance and Legal Report, Venturer suggests no-fault insurance and a victim unconstitutional, but did not establish (2017/18), https://www.venturer-cars. compensation fund as options in lieu of a clear standard for what warrant is com/wp- content/uploads/2018/04/ tort liability altogether. See id. at 6. necessary to search a cellphone. Lower J419144_Venturer_Insurance_and_Le- 136. James M. Anderson, et al., Auton- courts are split between the “container” gal_Report_2018_V08_Cover_V434.pdf omous Vehicle Technology: A Guide for analysis (a smartphone is a “contain- (hereinafter Venturer) (last visited June Policymakers, RAND CORP. (2014), er” and a warrant essentially need only 24, 2019). available at describe the phone and the probable 130. Oliver, supra note 93. http://www.rand.org/pubs/ research_re- cause) and the “computer” analysis 131. Venturer, supra note 129. ports/RR443-1.html. (smartphones are computers with tens 132. See John Villasenor, Products 137. Mark A. Geistfeld, A Roadmap for of thousands of files; thus, to satisfy the Liability and Driverless Cars: Issues Autonomous Vehicles: State Tort Liabil- Fourth Amendment, a warrant must and Guiding Principles for Legisla- ity, Automobile Insurance, and Federal describe the phone and files sought, as tion, Brookings (April 2014), https:// Safety Regulation, 105 Calif. L. Rev. well as explain the probable cause). This www.brookings.edu/wp-content/up- 1611 (2018), available at https://schol- is important because the Fourth Amend- loads/2016/06/Products_Liability_and_ arship.law.berkeley.edu/cgi/viewcontent. ment law developing now will shape Driverless_Cars.pdf; see also, Smith, cgi?article=4381&context=californialaw- how AVs are eventually treated under supra note 127. Some scholars have review. the law. approached the problem from other 138. See Anderson, supra note 136, at 119. 565 U.S. 400, 416(2012). angles. For example, Ryan Calo, Di- 123. 120. Michael W. Price, Rethinking Priva- rector of the Consumer Privacy Project 139. See Andrew P. Garza, Look Ma, No cy: Fourth Amendment “Papers” and the and the Center for Internet and Society Hands!: Wrinkles and Wrecks in the Age Third Party Doctrine, 8 J. Nat’l Securi- at Stanford Law School, suggests that of Autonomous Vehicles, 46 New Eng. ty L. & Pol’y 247, 271 (2015). manufacturers of autonomous technol- L. Rev. 581 (2012), available at https:// 121. Norton Rose Fulbright, supra note ogy should receive selective immunity newenglrev.com/volume-46-issue-3/v46b- 113. like the immunity enjoyed under feder- 3garza/. 122. Barnes & Turkel, supra note 86, at 14. al law by firearms manufacturers and 140. See Villasenor, supra note 132. 123. Gareth Watson, Infographic: Data websites. See Ryan Calo, Open Robot- 141. Id. Privacy and Connected Cars, 2025AD ics, 7 Md. L. Rev. 101 (2011), available 142. 158 U.s. Dept. Of Transpor- (Oct. 17, 2018), https://www.2025ad. at https://ssrn.com/abstract=1706293. tation National Highway Safety com/updates/driverless-cars-data-priva- 133. Smith, supra note 127. Administration, Federal Automated cy-infographic/. 134. Gary E. Marchant & Rachel A. Vehicles Policy 39 124. Anthony Jones, Autonomous Cars: Lindor, The Coming Collision Between (Sept. 2016), https://www.hsdl. Navigating the Patchwork of Data Priva- Autonomous Vehicles and the Liability org/?view&did=795644. cy Laws That Could Impact the Indus- System, 52 Santa Clara L. Rev. 1321 143. David Zetoony, Autonomous Vehi- try, 25 Cath. U. J. L. & Tech (2017), (2012), available at http://digitalcom- cles–Data Privacy Issue, JDSUPRA (June available at https://scholarship.law.edu/ mons.law.scu.edu/lawreview/vol52/ 14, 2018), https://www.jdsupra.com/ cgi/viewcontent.cgi?article=1024&con- iss4/6/. legalnews/autonomous-vehicles-data-pri- text=jlt. 135. For example, self-driving cars vacy-issues-68232/. 125. See id. could be viewed by courts as unreason- 144. Barnes & Turkel, supra note 86, at 126. Nigel Parker, et al., Autonomous ably dangerous activities, and manu- 13. and connected vehicles: navigating the facturers or owners could therefore be 145. Peter Hancock, Kansas lawmakers legal issues 12, ALLEN & OVERY held strictly liable. Another claim theory preparing for fully autonomous vehi- LLP (2017), http://www.allenovery. could be breach of warranty, if AVs fail cles—and all the issues that come with com/SiteCollectionDocuments/Autono- to perform as they should. Negligence them, Lawrence Journal World (Jan. mous-and-connected-vehicles.pdf. may still remain relevant, too; a negli- 16, 2018), available at https://www2. 127. Bryant Walker Smith, Automated gence claim would “focus on whether ljworld.com/news/2018/jan/16/kan- Driving and Product Liability, 2017 the car’s decision or act showed a lack sas-lawmakers- preparing-fully-autono- Mich. St. L. Rev. 1, 2 (2017), available of reasonable care under the circum- mous-vehicl/. at https://digitalcommons.law.msu.edu/ stances, not whether the computer could 146. One change auto insurers are cgi/viewcontent.cgi?article=1187&con- have been better designed.” See Torts making is basing policies on the number text=lr. of the Future: Autonomous Vehicles, of miles driven. See James M. Anderson, 128. Some local governments are fortu- U.S. Chamber Institute For Legal supra note 136, at 18, fn 8. nate enough to have statutory tort im- Reform (May 2018), https://www.ali. 147. Rouse, supra note 63, at 18. munity and may not be liable for defects org/media/filer_public/6a/26/6a26ebc5- 148. Id. at 35-36.

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