Legal Issues and Emerging Technologies (2022)

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TCRP LRD 59 65 formation apps, route optimization, and dispatch and planning software. State and local governments may have to bear the consequences of damages for breaching standards due to op- erations, a product, an act, or neglect arising from a technology adopted by a transit agency. As emerging technologies in trans- portation advance, transportation attorneys, risk man agers, and agency leaders will need to evaluate the impact these emerging technologies will have on the mobility ecosystem and be aware of the different avenues of liability that the technology presents. They may need to limit liability through insurance require- ments, indemnification through contracts, or regulations. A particularly important area of liability associated with technologies is data privacy, data protection, and systems secu- rity. Data is essential to maintaining lighter, more precise, and more flexible transportation regulatory systems. However, data can contain PII, financial information, and other confidential or otherwise sensitive information that could cause harm if made public or accessed by unauthorized parties. Data privacy laws and regulations on both the federal and state level deal with the storage and use of an individual’s PII and confidential and sensi- tive information, such as medical and financial records. To miti- gate risk, public agencies and local governments must pay close attention to the privacy and data security laws that regulate their collection, use, transfer, and disposal of PII and other sensitive information that is contained in government records. In addition to personal privacy, any transportation technol- ogy could implicate sensitive proprietary data being submitted to government agencies—the disclosure of which may harm the submitters’ commercial interests. Public agencies that use technology from third parties will necessarily be entrusted with privileged or confidential commercial or financial information and trade secrets. This includes information supplied during the procurement process. In the private sector, this information would be protected by bidding laws or nondisclosure agree- ments. In the public sector, it may be vulnerable to disclosure under open records laws. The Federal FOIA and state open records laws include exemptions to protect the interests of both the government and submitters of information. A party’s data and databases may qualify for protection under one or more categories of IP, specifically as a trade secret or possibly under copyright. Transit agencies should consult with the patent or intellectual property counsel and/or conduct jurisdiction- specific research to analyze the legal implications regarding IP protections. Separate from data privacy is data security. Transit agency IT systems collect and maintain vast amounts of PII and other sensitive information about the security, operations, facilities, critical infrastructure, and other assets or capital projects. Dis- closure of this information could be detrimental to the security of transit operations, infrastructure, employees, or customers. As new technologies emerge, cybersecurity—the protection of computer systems and networks from the theft of, or damage to, hardware, software, or electronic data, as well as the protec- tion from the disruption or misdirection of the services they provide—will be prominent concerns. The same principles and timely manner, only through the grantee.578 The request must be submitted to the Administrator through the appropriate re- gional office. FTA may waive Buy America requirements if the agency finds that: (i) application of Buy America is inconsistent with the public interest; (ii) the steel, iron, and goods produced in the U.S. are not produced in a sufficient and reasonably avail- able amount or are not of a satisfactory quality; or (iii) including domestic material will increase the cost of the overall project by more than 25 percent for rolling stock.579 FTA’s determina- tions on waiver requests are published in the Federal Register for notice and comment. Under FTA procurement regulations, a “small purchase” threshold of $150,000580 may allow purchase of one or two such vehicles without triggering the Buy America requirements. Agencies conducting a procurement over this amount would have to apply for a waiver. XII. CONCLUSION Today, there are many technologies that transit agencies may be considering. These include vehicle technologies, including clean air vehicles and automated and CVs, and the infrastruc- ture needed to support autonomous vehicles. There are also many new mobility options, including MaaS and MOD, which incorporate trip and route planning into shared use mobility to provide services such as “first and last mile” multimodal con- nections. Systems management and optimization technologies, such as EFP technology, real-time information communica- tion, route planning and optimization, and dispatch software, have been making strides, as have technologies related to safety, security, and risk management for vehicles, including telemat- ics and remote disabling. These technologies and others that are developing have the potential to radically change the future of public transportation systems for the better. Technological ad- vancements could reduce costs, improve safety, enhance mobil- ity, and promote greater efficiency. However, innovation is not without its challenges. New and emerging technologies present certain legal challenges and issues for transit agencies. From concerns about cybersecurity, data privacy, and protecting confidential and proprietary information to compliance with federal and state accessibility requirements, such as the ADA and the Rehabilitation Act of 1993, and civil rights and envi- ronmental justice issues. Some innovations may also challenge the regulatory framework and raise unique procurement issues. Transit agencies considering whether to deploy new and emerging innovations must exercise due diligence to man- age liability and risk. There is no one-size-fits-all approach to addressing liability associated with technologies, which vary from vehicle technologies—such as automated and CVs and the infra structure needed to support them—to service delivery enhance ment, and innovative solutions for systems manage- ment and optimization, such as EFP technology, real-time in- 578 49 C.F.R. § 661.9(b). 579 Id. 580 49 U.S.C. 5323(j)(13).

66 TCRP LRD 59 of new technology,” it does require that new technology be ac- cessible to all persons, including those with disabilities.584 This applies to vehicle acquisition and specification requirements and to service provision requirements, as well as the way tran- sit agencies convey information about services, websites and mobile applications, trip planning and booking systems, fare payment technology, real-time information apps, route opti- mization and dispatch and planning software, and other new technologies. While nearly all technologies are implicated by the ADA and state-equivalent requirements, they may also raise transporta- tion equity and environmental justice issues that transit agencies must address prior to implementation. Federal actions to ad- dress transportation equity started with the anti discrimination provisions of Title VI585 and subsequent environmental justice requirements of Executive Order 12898. While environ mental justice considerations have been mandatory for all federal agencies since the issuance of Executive Order 12898 in 1994, the issue has recently received renewed attention as a result of nation wide protests for racial justice. Low-income populations and minority populations may experience the benefits of inno- vative transportation technology—such as EVs, AVs, MOD, contactless payment systems, and shared micromobility— differently compared to other populations. With respect to transportation services, adverse effects may include the denial of, reduction in, or significant delay in the receipt of benefits of programs, policies, or activities. Because of the potential for both positive and negative outcomes, transit agencies must consider the effect of new and emerging technologies on low- income populations or minority populations and pursue poli- cies, program, and strategies that ensure that these populations do not experience disproportionately high and adverse human health or environmental effects from deployment of such tech- nologies. Concern for environmental justice and civil rights and compliance with the corresponding statutes and legal require- ments “should be integrated into every transportation decision from the first thought about a transportation plan to post- construction operations and maintenance.”586 With respect to labor and employment law, even though emerging technologies generally will not present novel issues for government agencies, there are possible implications under federal labor protections that may be of concern to certain tran- sit agencies. Autonomous vehicles and other technologies that may displace workers will implicate Public Transit Employee Protections, 49 U.S.C. 5333(b) (Section 13(c) of the Federal Transit Act) and a federal agency’s decision to deploy new tech- nology or methods and means of performing work may require I&I bargaining in compliance with the FSLMRS. In addition, private companies, including TNCs providing the government MOD services may face worker classification issues of which the contracting agency should be aware. 584 49 C.F.R. Part 37, App. D. 585 42 U.S.C. § 2000d. 586 Id. practices that govern securing existing technology will generally apply to innovative and untested technologies. Transit agencies must be prepared to protect the confidentiality, integrity, and availability of PII; effectively respond to data breaches and secu- rity incidents; and protect computer systems and networks from theft, damage, disruption, or misdirection of the services they provide. Similar to the private sector, state and local government agencies are subject to a patchwork of data security laws and other restrictions when collecting, storing, using, and disclosing PII. Many states have enacted general data security and breach notification statutes that typically apply equally to government and private entities. It is important for transit agency lawyers to understand the applicable state laws, regulations, and guidelines surrounding data collection and processing to help their organi- zations manage risks and safeguard their ability to provide ser- vices in the event of a cyberattack or other emergency. Emergencies may take the form of IDOs or PHEs, natural disasters, fires, floods, and explosions. Preparing for, respond- ing to, and recovering from emergencies impacts nearly every aspect of a transit agency’s operations. Emergency preparedness relates to the activities, programs, and systems developed prior to an incident, disaster, or emergency, which are used to support and enhance prevention, response, and recovery.581 Emergency preparedness may factor into public transit agencies’ consider- ations of new and emerging technologies. In the course of planning and implementing emergency preparedness activities, transit agencies must account for trans- portation equity in emergencies, such as considering accessibil- ity for compliance with the ADA, as well as the unique needs of minority, low-income, and LEP persons and households without vehicles. Of course, accessibility, civil rights, and environmental justice considerations arise outside of emergencies and have im- plications for emerging technologies used by transit agencies. Transportation agencies that employ new and emerging technologies to provide service to the public must ensure that these technologies comply with the ADA and related accessibili- ty requirements and regulations applicable to the type of service being provided.582 Under the ADA, public transit agencies gen- erally must make their systems and services readily accessible to individuals with disabilities, including individuals who use wheelchairs. There are specific requirements for public trans- portation systems pertaining to rider information, assistance equipment, and accessible features of vehicles, among others. These laws apply directly to transit agencies and when they are contracting or partnering with private companies to provide inno vative service.583 While the ADA “does not stand in the way 581 U.S. Dep’t of Transp., DOT Emergency Preparedness, Response, and Recovery Information (updated Sept. 5, 2019), https://www.transportation.gov/emergency. 582 Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. §§ 12101–12213). 583 In 2018, TCRP issued a legal digest exploring the types of ADA requirements and legal claims against transit agencies, Thomas, supra note 327.

TCRP LRD 59 67 The variety of legal issues associated with new and emerg- ing technologies shows that the future of mobility presents significant challenges for regulators, who have been grappling with some of the most disruptive changes in transportation in the past century. As TNCs have shown, innovations may not fit neatly within the existing regulatory framework—and some may try to break apart that framework. States and localities may need to amend existing laws and regulations to allow for the new services and modes to operate in a particular space. As innovative technology is further enhanced, regulators must decide how to treat it by creating and developing laws and regu- latory frameworks. There is no universal approach to addressing regulatory issues associated with new and emerging technology. Regulators will be tasked with tackling legitimate safety and pri- vacy issues while promoting innovation and entrepreneurship in the years to come. Some of the regulatory challenges that transit agencies will face when they decide to adopt a new technology will be en- countered in the procurement process. Procurement of, and contracting for, new, untested, and emerging technologies could be a challenge for public agencies given the vendor market, regulations and policies, and the need to leverage that invest- ment with existing technologies. Existing regulations may be inadequate or ill-suited to novel or complex technologies, and funding for innovative projects may be insufficient, especially in light of any funding shortfalls caused by the COVID-19 pan- demic. Without proper planning, policies, and project oversight for technology projects, transit agencies could struggle to meet their objectives and policy goals.