Legal Issues and Emerging Technologies (2022)

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4 TCRP LRD 59 LEGAL ISSUES AND EMERGING TECHNOLOGIES Matthew Daus, Windels, Marx, Lane & Mittendorf LLP, New York, NY INTRODUCTION Many benefits could be realized by U.S. public transporta- tion agencies from implementing advanced and emerging tech- nologies, such as autonomous and connected vehicles, electric vehicles, mobility on-demand, route planning and optimization software, and positive train control. Some of these technologies have significant implications for service delivery models and have the potential to radically change how public transportation systems are used in the future. Technology is rapidly changing public transportation and challenging the relevancy of the current structure of public transportation systems. Transportation attorneys need to exer- cise due diligence when considering adopting new and emerg- ing technologies. Transit attorneys are faced with questions re- lated to the process by which due diligence is conducted and the legal issues that need be addressed within the existing regula- tory and legislative framework. Technological advancements have brought about significant changes in the past decade and will most likely radically change transportation within the next ten years. However, government procurement moves very slowly, existing regulations may be in- adequate or ill-suited, and funding for innovative projects may be insufficient. Without proper planning, policies, and project oversight, transit agencies could struggle to meet their objec- tives and policy goals. The objective of this digest is to provide transportation at- torneys with guidance and resources to assist with these legal changes, including regulatory challenges, risk management, cybersecurity, privacy, handling confidential and proprietary information, intellectual property rights, civil rights and en- vironmental justice compliance, labor and employment law, and procurement issues. This digest is intended to provide transit agencies with the necessary legal context to conduct jurisdiction-specific research and to analyze the legal implica- tions of a variety of new and emerging technologies. Technological advancements could reduce costs, improve safety, enhance mobility, and promote greater efficiency. Even so, emerging technologies present legal challenges and issues that must be addressed. Many legal themes cut across technolo- gies. For example, nearly all technologies raise concerns about cybersecurity, data privacy, and protecting confidential and proprietary information, and require compliance with federal and state accessibility requirements, such as the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973, as well as consideration of Title VI and environmental justice issues in federally funded projects. This digest includes a matrix of the legal topics and emerging technologies (Appendix A). Section I of this digest discusses liability and risk manage- ment, which involves the threat of the transportation agency having to bear the consequences of damages or of breaching standards due to operations, a product, an act, or neglect. As emerging technologies in transportation advance, transporta- tion attorneys, risk managers, and insurers will need to evalu- ate how these emerging technologies will impact the mobility ecosystem and affect and change different avenues of liability with a necessary awareness of risk issues. Technologies that may be particularly impacted include automated vehicles (AVs) and connected vehicles (CVs), micromobility, and shared use mobility. Section II discusses privacy laws and regulations that deal with the storage and use of personally identifiable information, personal healthcare information, and financial information of individuals, which can be collected by governments, public or private organizations, or other individuals. Nearly all emerging technologies raise issues of protecting private data. The Federal Freedom of Information Act and state open re- cords laws are discussed in Section III. This includes exemptions to protect the interests of both the government and submitters of information. Any transportation technology could impli- cate sensitive proprietary data being submitted to government agencies—the disclosure of which may harm the submitters’ commercial interests. Section IV then examines explains trade secrets and privi- leged or confidential commercial or financial information that may be submitted to a government agency and how that may be protected. Section V discusses cybersecurity, which is the protection of computer systems and networks from the theft of, or damage to, hardware, software, or electronic data, as well as the protection from the disruption or misdirection of the services they pro- vide. Any technologies that gather and store massive amount of customers’ personally identifiable information, travel data, or other personal information that must be protected will have cyber security implications. Section VI covers the implications of the ADA and state accessibility laws on public and private ground transportation providers. This section also discusses the specific requirements for public transportation systems pertaining to rider informa- tion (e.g., information in large print, braille, or alternative and electronic format), assistance equipment and accessible features of vehicles, among others.