Legalities of in-vehicle systems and cooperative infrastructures

Paul Laurenza of Dykema Gossett PLLC discusses the paths which lawmakers may go down on the route to making in-vehicle systems and cooperative infrastructures a reality

The question of whether or not to mandate in-vehicle systems for safety and other applications is a vexed one. There is a presumption on some parts that going down the road of forcing systems' fitment is somehow too domineering or restricting. Others would argue that it is the only realistic way of ensuring that systems achieve widespread deployment inside a realistic and uniform timeframe.

In fact, says Paul Laurenza, much of what is now mandatory fitment became so because it was already in widespread use.

"Quite often, the technologies have been available and in use for some time before they are required by statute or regulation. Electronic stability control, ABS, airbags - all had been developed and available before they were made compulsory. At some point the safety benefits of a technology may become clearer or system costs become more manageable and Congress, in its periodic revamping of vehicle legislation, may make them mandatory.

"There is also a lobbying aspect. For instance, the introduction of regulation governing back-over detection technology was driven by a specific statute. This followed high-visibility cases in which young children were killed in accidents involving vehicles driven by their own family members. NHTSA [the 834 National Highway Traffic Safety Administration] has been directed by Congress to issue a rule requiring the inclusion of back-over detection technology and has begun the public notice-and-comment rulemaking process to amend the current Federal Motor Vehicle Safety Standard [FMVSS] for rear-view mirrors. Note, importantly, that FMVSS are performance standards, not design standards, and generally deal only with new vehicles and equipment.

"High-visibility events such as high-profile accidents or recalls can be a significant factor and not just in the automotive sector: the federal regulation of drain entrapment protection on public pools and spas, for instance, came about in part as the result of legislation following the death of a member of a prominent public family that then took up that cause."

EDRs - a watershed?

There are also technologies and systems whose introduction then drives debate on how best to regulate their use. Electronic Data Recorders (EDRs) are an example here.

"Many if not most new vehicles already have these installed but that fact has not been very well publicised," Laurenza continues. "The information they contain is very useful for accident reconstruction - in connection with the recent 1686 Toyota recalls and NHTSA investigations of accelerator pedal issues, that company and government officials are checking 'black box' data to see whether drivers were accelerating or braking at the times that accidents occurred and, ultimately, to help ascertain whether a vehicle defect or driver error was the cause. EDRs' utility has led to pending legislation in Congress, the Motor Vehicle Safety Act of 2010, which would direct NHTSA to require them to be OEM fitment on all new vehicles by 2015.

"Currently, NHTSA's regulation effectively says to vehicle manufacturers, 'If you do install an EDR, then it must capture certain data in certain ways. That information must also be stored in certain ways and, ultimately, be recoverable in certain ways by the appropriate or permitted individuals and authorities.' There is also prescribed language which must be included in owners' manuals which discloses the presence of an EDR.

"It's interesting that other than that disclosure the federal regulation does not address the privacy issue, who owns the data, how it may be used for law enforcement or in litigation and so on, but leaves those issues to the laws of the individual states. The Motor Vehicle Safety Act of 2010, if it passes in its current form, will address some of these issues. It specifies that the data contained within the EDR is the property of the vehicle's owner or lessee and places limitations on data retrieval. It indicates that the information recorded or transmitted cannot be retrieved by other than the owner or lessee without the owner's or lessee's consent unless ordered by a court or pursuant to a governmental agency effort.

"That represents a major shift as privacy is presently governed by state law. We'd have a federal privacy restriction. Privacy has long been a major issue here in the US. There is considerable public resistance to, for example, red light running enforcement. Deployed systems typically do not photograph the driver of the offending vehicle but even then their use is contentious. One possible reaction to that mindset is that a federal rule imposing privacy restrictions might be seen as a necessity; the argument would be that if we're going to have a federal law mandating EDRs' installation and use, it ought also to encompass data disclosure and use."

Effects on cooperative systems

The coming question - more accurately, it is already here - is what effects privacy legislation will have on cooperative infrastructure systems. There are some fundamental points to note here, according to Laurenza.

"Governments have been looking at systems such as this since at least the 1990s and if you go back to the seminal VII [Vehicle-Infrastructure Integration] documents you'll find some key pieces of work. In particular, from the 2005-7 timeframe, there is the Privacy Principles Framework. This states that VII - IntelliDrive as it is now - is not intended to be used for law enforcement or national security purposes. The focus is on two-way communications between infrastructure and vehicles, and between vehicles, and on the information being exchanged being anonymised.

"For example, take icy road warnings: many vehicles might pass over a road section or bridge. If they're all transmitting information to roadside equipment about icy conditions, trailing vehicles can be warned. But there's nothing identifying a specific vehicle that need be included in that information.

"In the years since VII was first being scoped out, the initial concept of having large numbers of pieces of roadside equipment deployed has been recognised as being very costly, perhaps too costly, to the public sector. The emphasis has shifted to a concentration on Vehicle-to-Vehicle [V2V], with Vehicle-to-Infrastructure [V2I] being used for more localised applications such as intersection safety. The challenge from the policy and technical standpoints is deciding which applications you want to capture and how. Safety apps - which for instance give warnings of forward collision, lane change and crash avoidance - are paramount.

Paul Laurenza, a member of the law firm Dykema Gossett PLLC in the firm's Washington, DC office, represents clients in motor vehicle, consumer product and other safety-related regulatory matters.

Laurenza has published and lectured extensively on issues relating to US motor vehicle law and policy, including regulatory and non-regulatory issues involving deployment of intelligent vehicle technologies. He currently sits on the Board of Directors of the 1739 Connected Vehicle Trade Association."There are systems already out there on some newer models which aid the driver in avoiding collisions. But these aren't V2V, they're autonomous. A key question which remains to be answered - and which may be answered only with time - is how much will autonomous safety technologies which are being developed by the vehicle manufacturers themselves lessen the need for cooperative systems? We can logically expect expansion - trickle-down - from high-end vehicles as awareness rises and cost points fall. We'll maybe get to the point once again where Congress decides that all new vehicles should have these systems, as mandated standards, onboard."

Looking beyond

"We can definitely look at other modes of transport when it comes to the cooperative environment. In the transportation sector, there are existing or developing collision-avoidance systems in commercial aviation, maritime and rail applications. In the rail context, for example, the cost of installing train-to-infrastructure systems historically couldn't be justified and it took recent action by Congress to require adoption of Positive Train Control systems on commuter and major freight lines by a specific date. Now, federal rulemaking and numerous private-public pilot projects are under way to meet that date.

"However, commercial aviation, maritime and passenger rail are public transportation systems and the cost-benefit analyses are different when looking at private vehicles. Compare the collision of two large passenger aircraft with that between two small private vehicles, for example. There are systems in place in the case of the former and of public-sector vehicles carrying large numbers of people because there are very different risk assessment criteria. We need to rationalise technologies' use in some modes of transport but that's going to be difficult in cooperative vehicle systems when you're dealing with 15 million new vehicles entering the national fleet each year."

Summing up

"One way or another, we have to guard the principle that transmitted information cannot be used except for carefully prescribed purposes. The reality is that we already have numerous laws which do that in certain contexts. Vehicle tracking is illegal unless for law enforcement purposes, for instance.

"Another problem in regulating still-emerging systems is timing; if you go back to 2004/5, the belief - or at least optimism - was that by 2012 we'd have many of these connectivity systems in place and operating. Timelines have clearly shifted back and they'll probably continue to do so. NHTSA's regulatory decision point on safety applications is now 2013. It's a source of considerable frustration in some quarters that it is sometimes unclear what progress has been made from timeframe to timeframe, but the technological and policy challenges are substantial and in many ways unprecedented in the highway vehicle arena. Indeed, some industry analysts have called vehicle connectivity the most challenging safety area the industry has faced. To the extent that applications involve creation of public infrastructure, the current economic climate only serves to exert greater pressure on the public sector's ability to bring such infrastructural improvements to bear."