The COVID-19 pandemic has created both speed bumps and accelerants for connected and automated vehicle (“CAV”) developments in the United States.  In our Quarterly Update earlier this month, we covered recent legislative and regulatory activity around CAVs, both specifically targeted efforts and those impacting AI and IoT technologies generally.  Although some CAV legislative efforts have been sidelined due to the government’s focus on COVID-19, the pandemic is incentivizing policymakers at the federal and state levels to support CAV-related initiatives.

NHTSA and Congress Focus on CAVs for Pandemic Relief

In the U.S., there has been progress in applying automated vehicle technology for pandemic relief activities, with additional efforts underway.  As such efforts continue, policymakers are focused on utilizing CAVs to address novel challenges stemming from the current crisis.

The National Highway Traffic Safety Administration (“NHTSA”) and members of Congress have expressed support for CAV technology for COVID-19 relief activities.  For instance, in April, NHTSA urged stakeholders to address the challenges posed by COVID-19 by “using innovative automotive technologies” and offered its support to facilitate implementation of possible solutions.  In a May 12 letter addressed to industry groups, Senate Commerce Committee Chairman Roger Wicker (R-Miss.) and House Energy and Commerce Committee Ranking Member Greg Walden (R-Ore.) joined NHTSA in commending the automotive sector for utilizing innovative technologies to meet new challenges posed by the COVID-19 pandemic.

Senator Wicker and Representative Walden praised the industry’s evolving considerations in expanding applications of CAVs to address current needs, such as (a) transporting COVID-19 tests between testing sites and laboratories and (b) delivering essential goods, such as medical supplies, mail, and groceries.  The letter also noted the importance for the U.S. to continue leading automotive innovation, and expressed concern regarding China’s accelerated efforts that have reached as far as testing “automated vehicles on American roads.”  (For more on China’s CAV activity in connection with the pandemic, see here.)  The letter requested that the industry groups detail their plans of using new innovations to assist with pandemic recovery and requested input on how Congress may provide additional support to the automotive sector amid unforeseen circumstances.

Contact Tracing Impacts Consideration of California’s Mobility Devices Bill

COVID-19 is also affecting state-level legislative and regulatory developments pertaining to CAVs.  In California, for instance, the California Assembly Committee on Privacy and Consumer Protection (the “Committee”) has elected to focus attention on bills that “address only the most urgent issues and issues critical for an efficient recovering from the pandemic,” and asked authors of bills within its jurisdiction to provide statements about why certain bills should be prioritized (as discussed here).  One bill that appears to be accelerating following submission of an author’s pandemic-related statement is AB 3116, concerning the collection of Trip Data from Mobility Devices, including CAVs (the “Bill”).  “Trip Data” includes, without limitation, GPS data, addresses, and times of routes traveled.

The Bill would require operators of Mobility Devices to share aggregated and de-identified trip data (“Anonymized Trip Data”) with certain public agencies upon request for transportation planning and safety purposes.  Under the law, a “Mobility Device” is defined as any transportation device or vehicle, including but not limited to, a bicycle, electric bicycle, electric scooter, autonomous vehicle, vehicle utilized on an online-enabled application or platform of a transportation network company, or any other device that can be moved in any public area.  The relevant public agencies are those that issue permits to operators of Mobility Devices.

The Bill would, among other things, authorize the relevant agencies to require Mobility Device operators to periodically submit Anonymized Trip Data pertaining to those geographic areas that fall under the agency’s jurisdiction.  In limited circumstances, the agency would be permitted to share such Anonymized Trip Data with specified third parties, including to “assist the public agency in the promotion and protection of transportation planning, integration of mobility options, and road safety, including the safety of riders, operators, pedestrians, and motorists.”  At the same time, the Bill states that trip data receives protection under the California Consumer Protection Act (“CCPA”) and the California Electronic Communications Privacy Act (“CalECPA”).

The Bill’s author urged the Committee to prioritize the Bill because it “is critically important that any government use of user data during this crisis is discussed within the appropriate legal framework, to ensure our policies reflect how moments of uncertainty [and] emergency response impact our decisions and address the potential for ongoing privacy violations post-crisis.”  The Committee agreed that the issues addressed by the Bill are “timely and critical” under COVID-19 circumstances.  In the Committee’s view the “need for personal information, like health and geolocation information of private individuals, is seemingly greater than it has ever been.”

An amendment to the Bill seeks to clarify the privacy protections applicable to Trip Data collected by CAVs and other mobility devices that is not aggregated and de-identified.  The amendment seeks to ensure that local governments remain aware of their obligations under CalECPA, which generally requires a warrant before compelling Trip Data.  The Committee  found the amendment to be appropriate in light of the pandemic, given many private and public entities’ increased interest in developing contact tracing tools to monitor and contain the spread of the coronavirus, and the subsequent need to ensure such tools do not violate a person’s “right to privacy and other civil liberties.”

COVID-19 has brought to the forefront certain technological, legislative, and regulatory efforts affecting CAVs, and such efforts have continued to gain traction both despite and due to the pandemic.

This post is a part of Covington’s CAV blog series, which covers CAV developments across the world. To access prior CAV blog posts and webinars and to learn more about our team and our work, please visit Covington’s CAV website.

Photo of Jennifer Johnson Jennifer Johnson

Jennifer Johnson is a partner specializing in communications, media and technology matters who serves as Co-Chair of Covington’s Technology Industry Group and its global and multi-disciplinary Artificial Intelligence (AI) and Internet of Things (IoT) Groups. She represents and advises technology companies, content distributors…

Jennifer Johnson is a partner specializing in communications, media and technology matters who serves as Co-Chair of Covington’s Technology Industry Group and its global and multi-disciplinary Artificial Intelligence (AI) and Internet of Things (IoT) Groups. She represents and advises technology companies, content distributors, television companies, trade associations, and other entities on a wide range of media and technology matters. Jennifer has almost three decades of experience advising clients in the communications, media and technology sectors, and has held leadership roles in these practices for almost twenty years. On technology issues, she collaborates with Covington’s global, multi-disciplinary team to assist companies navigating the complex statutory and regulatory constructs surrounding this evolving area, including product counseling and technology transactions related to connected and autonomous vehicles, internet connected devices, artificial intelligence, smart ecosystems, and other IoT products and services. Jennifer serves on the Board of Editors of The Journal of Robotics, Artificial Intelligence & Law.

Jennifer assists clients in developing and pursuing strategic business and policy objectives before the Federal Communications Commission (FCC) and Congress and through transactions and other business arrangements. She regularly advises clients on FCC regulatory matters and advocates frequently before the FCC. Jennifer has extensive experience negotiating content acquisition and distribution agreements for media and technology companies, including program distribution agreements, network affiliation and other program rights agreements, and agreements providing for the aggregation and distribution of content on over-the-top app-based platforms. She also assists investment clients in structuring, evaluating, and pursuing potential investments in media and technology companies.

Photo of Nira Pandya Nira Pandya

Nira Pandya advises private and public companies on venture capital financings, mergers and acquisitions, joint ventures, strategic investments, and other corporate transactions. She also represents emerging companies in general corporate matters, including entity formation, corporate governance, and securities law compliance.