Connected Cars and Automated Driving: Privacy Challenges on Wheels By: Peter J. Pizzi Peter J. Pizzi is a business litigator with over 30 years of experience in commercial litigation, class action defense, internal investigations, internet and IP litigation, and labor and employment law. A founding member of Walsh Pizzi O’Reilly Falanga LLP, Mr. Pizzi has handled matters on behalf of corporate clients in a broad array of industries, including pharmaceuticals, insurance and financial services, advertising, social media, cosmetics, chemicals, industrial equipment, food service and others. UCH has been written in cyber-criminal’s new frontier and the technology press pose privacy challenges. M regarding issues of privacy, Why should any of these the connected car, and the promise developments concern privacy? of automated driving and other After all, device manufacturers innovative mobility solutions. equip today’s smartphones with “Connected cars,” which are on the built-in geo-locating capabilities road today in one form or another, that enable numerous applications merge the driver’s digital world and to track the user’s every move, means of transport. Automated producing a rich stream of data driving, with the promise of true which implicates the user’s autonomous, self-driving vehicles, innermost thoughts. Apps added or holds the potential in the near future activated by the smartphone owner to revolutionize the way people and enable the platform – either Google goods move around. These or Apple for most devices – to developments, which challenge identify the movement of individual traditional ideas of tort and product stocks in the owner’s portfolio after liability and the insurance coverage the market closes each day or to that should apply, also loom as the inquire, “Are you at Le Pain Quotidien on 58th Street?” as lunch 2 DEFENSE COUNSEL JOURNAL | JULY 2017 is being served. Other apps collect I. Defining Terms the user’s heart rate, level of stress, steps taken each day, and a myriad Car connectivity generally of other data. A connected car may comprises the sets of functions and get the user to a shopping mall, but capabilities that digitally and smartphones know what individual wirelessly link automobiles to stores a patron visits inside the mall, drivers, services, and other the aisles in the store that are automobiles. 3 Thus, a “connected browsed, and the articles of clothing car” generally refers to a vehicle considered for purchase, so that equipped with technologies and tailored ads, discounts, or coupons services that transmit and receive may dispatched the user’s way. 1 data via wireless internet. The How, then, could autonomous concept of a connected car is related vehicles connected to networks and to concepts of automated driving, data centers via the cloud pose which includes efforts to create privacy challenges that haven’t yet autonomous driving and other been addressed, if not resolved, in innovative mobility solutions. the operation of smartphones? SAE International, the society of This article explores the subject automotive engineers, anticipates of privacy, connected cars, and connectivity and automated driving automated driving. Additionally, emerging and being deployed along this article will introduce the reader a continuum of functionality. SAE to current approaches to privacy therefore has developed a scale to advanced by constituencies having a describe that continuum, with the stake in the continued advancement fifth level representing a completely of connected vehicles and autonomous vehicle. In late 2016, automated driving.2 the National Highway Traffic Safety Administration (“NHTSA”) adopted the SAE definition, which NHTSA then presented as follows: 1 See generally David Brancaccio and Paulina invaluable suggestions in the preparation of Velasco, How some retailers are tracking you this article. as you walk down their aisles, MARKETPLACE 3 McKinsey & Company, Connected Car, January 31, 2017, http://www.market Automotive Value Chain Unbound, place.org/2017/01/31/business/stores- September 2014 (“McKinsey”), at 1.2, are-tracking-you-and-consequences-arent- available at http://www.mckinsey.com/ all-good. industries/automotive-and-assembly/our- 2 The author thanks Alma Murray, CIPP/US, insights/connected-car-automotive-value- Senior Counsel, Privacy, Hyundai Motor chain-unbound. America, Timothy H. Goodman, Esq., Squire Patton Boggs (US) LLP, and Kurt B. Gerstner, Lee International IP & Law Group, for their Connected Cars and Automated Driving 3 There are multiple conduct some parts definitions for various levels of the driving task of automation and for some and monitor the time there has been need for driving environment standardization to aid clarity in some instances, and consistency. Therefore, but the human driver this Policy adopts the [SAE] must be ready to definitions for levels of take back control automation. The SAE when the automated definitions divide vehicles system requests; into levels based on “who At SAE Level 4, an does what, when.” Generally: automated system can conduct the At SAE Level 0, the driving task and human driver does monitor the driving everything; environment, and the At SAE Level 1, an human need not take automated system on back control, but the the vehicle can automated system sometimes assist the can operate only in human driver to certain environments conduct some parts and under certain of the driving task; conditions; and At SAE Level 2, an At SAE Level 5, the automated system on automated system the vehicle can can perform all actually conduct driving tasks, under some parts of the all conditions that a driving task, while human driver could the human continues perform them.4 to monitor the driving environment Many vehicles on the road today and performs the contain SAE Level 1 and Level 2 rest of the driving capabilities. Senator Markey’s task; report titled “Tracking & Hacking: At SAE Level 3, an Security & Privacy Gaps Put automated system American Drivers at Risk” and the can both actually recent National Auto Dealers 4 At 8-9, available at https://one.nhtsa. gov/nhtsa/av/pdf/Federal_Automated_Veh icles_Policy.pdf. 4 DEFENSE COUNSEL JOURNAL | JULY 2017 Association and Future of Privacy accidents in 2015. The trend is not Form’s guide titled, “Personal Data positive. It is getting worse. NHTSA in Your Car,” 5 both conclude that also estimates that 27,875 vehicles on the road today have Americans died in accidents in just aspects of connectedness that place the first nine months of 2016 alone. them well along the SAE continuum. Globally, the World Health For example, cars at the present Organization estimates that 1.2 time have on-board diagnostic million lives are lost in crashes information, apps (e.g., Apple every year. These are numbers that CarPlay, Android Auto), location could be reduced significantly with information available through fully self-driving cars, especially navigation systems, and telematics since NHTSA estimates that 94% of services such as OnStar. With the crashes in the United States are SAE definitions in mind, an analysis attributed to human factors. 6 of the impact of motor vehicle Consider the impact of autonomous connectedness on the privacy of vehicles on the blind, the elderly, the owners and occupants may be disabled, or those living with other undertaken. conditions that make driving impossible. Infrastructure spending II. The Promise of Autonomous also could be diminished by Vehicles connected vehicles, which make more efficient use of existing Vehicle connectivity and highways through closer operating automated driving promise distance between vehicles, significant benefits as technology improved ride-sharing, and other advances along the SAE continuum benefits.7 from today’s Internet and app- While there are some differences equipped vehicles to SAE Level 5 in the precise timeline, at present autonomous vehicles. industry and technology leaders NHTSA estimates that 35,092 generally expect SAE Level 5 Americans lost their lives in traffic vehicles to arrive by 2025. 8 There 5 Future of Privacy Forum, Personal Data in 6 Testimony of Dr. Chris Urmson, Director, Your Car, available at https://fpf.org/wp- SelfDriving Cars, Google [x] Before the content/uploads/2017/01/consumerguide. Senate Committee on Commerce, Science pdf. and Technology Hearing: “Hands Off: The Future of SelfDriving Cars,” March 15, 2016 https://www.gpo.gov/fdsys/pkg/CHRG- 114shrg22428/html/CHRG- 114shrg22428.htm. 7 Id. 8 Global Automotive Industry Expects Self- Driving Cars on Sale by 2025, Says just Auto.com Survey, DIGITAL JOURNAL quoting Connected Cars and Automated Driving 5 are numerous competing platforms automotive and digital lives, while engaged in a pitched battle to at the same time appearing anxious commercialize self-navigation about that very prospect. In 2014, technology. In Singapore, a self- McKinsey surveyed consumers driving taxi service launched in about connected cars, finding that August 2016. 9 The competition 37% were “highly concerned” among Alphabet’s Waymo, Uber, about the digital safety and data Tesla, and other firms is frenzied privacy issues of connected cars and has been widely covered in the such that they would consider not business and mainstream media. 10 using a connected car because of For example, in February 2017, those concerns. 13 The survey Waymo sued Uber for theft of results appear to reflect consumers’ automated vehicle technology, and instinctive recognition that if cars in March moved for a preliminary are connected in order to operate, injunction against Uber and a literally everything that takes place former employee working for that with or in a vehicle will be captured company. 11 Waymo’s motion electronically. In the case of fully papers described what is at stake in self-driving vehicles, the data exciting terms: “Self-driving stream from the connected car will technology will revolutionize the be constant in order for the vehicle way people and goods move around, to operate. But even today, the generating untold revenues for connectedness of new vehicles is those companies that successfully considerable.