Podcast Transcript: The Legal Impact of Driverless Car Technology with Akerman’s Gail Gottehrer (Part 2)

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Hello and welcome to the Legal Executive Institute podcast. Today we’re presenting the second in our series of podcasts on driverless car technology. Speaking with us again is Joe Racyznski, a legal technologist and futurist for Thompson Reuters Legal. Joe will be speaking with Gail Gottehrer, a partner at the Akerman law firm. Today Joe and Gail will be speaking about the benefits for law firms in the driverless cars technology area and how firms can seek opportunities in this field.

Joseph Raczynski:      Now, as you start looking at legal. How is this going to benefit law firms going forward?

Gail Gottehrer:           Yeah. I think it’s a fascinating area, and it’s going to change a lot of industries and create a lot opportunities for lawyers in terms of how we practice, how we get around. I think everybody who’s had to travel to court and gotten stuck in traffic would appreciate being able to work in the car or prep in the car on the way to court rather than have to drive. But in terms of our clients, a lot of different industries and companies that we represent are going to change and be effected by this and are already being effected by it.

A chief example there is insurance. You’ve probably seen a lot of articles saying that this kind of technology is going to be the death of personal auto insurance, because kind of as we alluded to, arguably, the person is not driving so any accidents or damage to the car would arguably be caused by a defect or a problem with the vehicle. And therefore, be covered by product liability insurance rather than by the driver or the person, the operator let’s call them, because you’re not driving, the operator’s personal auto insurance.

We’ve already started to see a shift, and we’re going to continue to see a shift of more focus on personal auto and more focus on product liability insurance. It’s not the death of personal auto, that’s really kind of overstated. And we won’t see that for a while for the reasons we’ve talked about, but it’s definitely a shift that’s taking place. Along with things like Uber, with Ride Share, like we talked about where fewer people, the studies show, want to own cars. If you could just get an Uber or get a Zipcar, there’s so many other options for transportation other than the traditional ownership model. That’s also a concern for insurance. Now you can get Ride Share insurance, they’re all sorts of programs for that. There’s a leading program by Farmers out there. We’ve seen a tremendous shift in innovation opportunity for insurers and that’s going to continue.

Another dimple too is state and local governments. For example, as we talked about, roads will need to upgraded to address these vehicles and to deal with this technology. And as we move closer to smart cities where we’ll have traffic lights communicating with vehicles and parking lots potentially communicating with your car. You’ll know exactly what parking lot is near, where your destination is, and it can guide you specifically to a spot so you won’t have to drive around a parking lot. You can only imagine the amount of technology and infrastructure that has to go into making that work. And that’s something that local and state governments will need advice from lawyers about.

Akerman’s Gail Gottehrer

Another thing that will be relevant to governments… and that’s part of its vision, is that public transportation will also become autonomous. For example, the bus that you now use and other kinds of vehicles that transport elderly people, things like that through government programs could also become autonomous. But a lot of advice on which vehicles to select, how to work that in, regulations around that will be something that local and state governments will look to their attorneys for.

And another issue for governments too are what factors to weigh in deciding whether to allow testing. And we’ve seen different approaches to testing. Some states have limited where vehicles can be tested, not near schools, for example, or whether a person has to be in the drivers seat at all times, or if you need State Troopers to be present for the testing, which is part of the scheme that’s in New York right now. And also what these vehicle operators have to report. What kind of data? If there’s and accident during testing, what do you have to report? Within how much time do you have to report it? What gets done with that data? There’s a significant role for people who advise state and local governments on these kind of issues as well.

The most obvious, I guess, is the automotive industry. People who represent car manufacturers or people who make the components that go into these vehicles. These industries are going to see a shift obviously continuing because there will be this question about will fewer cars be owned? Will there be more car sharing or ride sharing? What is your product liability coverage need to look like? What is litigation relating to these vehicles going to look like? And how do you position yourself for that? Those are definitely issues that law firms that represent the auto industry are thinking about and are going to continue to think about.

Another area is rental car companies, which were not obvious that how they would be impacted or that there would be a positive impact for them. But we’ve seen partnerships where to do this testing companies have teamed up with rental car companies to use their vehicles as fleets for testing. That’s another example of where there’s an opportunity for certain kinds of companies.

Finally, I think for law firms that represent parking lot owners or garage owners… when this all comes into place they’ll be less need for parking lots and garages. Because the vision again will be that autonomous vehicle will drive you to work, drop you off, go do your errands, go to the grocery store, take your kids to soccer, go back to your house, wait in your driveway, and then come pick you up at work and take you home. You won’t have to park at your office or near your office. And, obviously, that’s going to have a significant impact on parking lots and revenue for garages. Lawyers that advise those kinds of companies have to help them think about what they may need to rezone, other uses for those properties and just looking forward to the future, which is going to be a different business model for them.

Joseph Raczynski:      Wow. It seems like it’s going to affect almost every industry. You’re talking about the automotive industry, obviously, state and local governments, insurance, in rental cars, everything, even parking garages. That’s hard to imagine. If we start to think about the scope of this, is this going to affect humans, people, and jobs, and things like that?

Gail Gottehrer:           Absolutely. There will be certain jobs that will be lost, but there will be tremendous opportunities that will be created. For example, traditional trucking jobs will be lost, will need to evolve into something different, because the types of vehicles will change. You’re not going to need a human truck driver driving each truck, because we’ve seen the technology now exists to essentially telecom trucks. You could have seven 18-wheelers going in succession, essentially linked to each other, not physically, but through technology. And you could have a human in the first vehicle, the first truck, and every time that person made an adjustment as they drove the other six trucks would react. And the technology is so advanced that they can react much quicker than a human who is driving could so they can follow much more closely in a safe way than human drivers could. And think about that in terms of fuel efficiency and savings for companies.

You combine that with the fact that the trucking industry has seen a decline in drivers over time, and it’s having trouble recruiting drivers. While this may eliminate some of those more traditional jobs that might not be so desirable, at the same time it may interesting to a different kind of driver who would like to essentially be the operator of this huge amount of technology and this really sophisticated system.

Again, we’re going to just see things become so much more technology based. They’ll just be different skills needed for these jobs, because operating a car is going to be less parallel parking and K turns and things that we probably learned when we took drivers ed and passed our road test. And more like operating a computer or some sort of technology that you’re used to operating either in your workplace or that kids are used to doing their homework on for school now. It’s going to be more of that kind of and experience rather than hands on the wheel, flipping up the turn signal, things like that.

Joseph Raczynski:      I think about, I guess, practice areas and how this might affect data and privacy and things like that. How is that going to impact law firms?

Thomson Reuters’ Joe Raczynski

Gail Gottehrer:           It’s a tremendous opportunity again for law firms and lawyers who focus in areas like data privacy, data ownership, data security, cyber security, which really becomes huge issues over the last few years and really have impacted just about every industry. We hear about data breaches all the time and cyber issues. The auto industry hasn’t been immune from lawsuits relating to this already and it will only continue as this technology gets out there. But there are issues about who owns this data. If the car is collecting this data and if it’s being transmitted through either vehicle to vehicle or vehicle to infrastructure, who owns it, who has the right to say where it goes, who has the right to say you the auto maker shouldn’t resale it or maybe you can only resale it to certain people. And to the extent that you’re giving consent or arguably giving consent by purchasing the vehicle and in the disclosure that you sign or that you agree to when you turn on the car or when you buy the vehicle, are those adequate? Those are discussions that we frequently have about, you know, have you consented through the small print even if you didn’t read it? We won’t be immune from that either.

What’s kind of unique with these situations and the data here is that it’s geo-location information. It’s information about where you are, where you go all the time, where you’re driving to, how much time you’re spending at a given place, which is extremely personal. And we’ve seen it now just through insurance companies with usage based insurance where people put dongles in their car… you may have seen with Flo with Progressive, those kind of things that you plug into your car to get an insurance discount. It tracks your driving to see if you’re a good driver and grades you on being a good driver. But it essentially records if you stop hard at a stop sign or if you take that right hand turn a little too wide, something like that. That’s all being recorded so it’s a question of where that goes because that says a lot about you, and insurance companies have gotten subpoenas for this information in all kinds of cases like divorce cases where people want to know where the person they’re potentially divorcing may be in the car answers that question, child custody cases, all sorts of things.

It even goes beyond the amount of information our phones collect about where we are, but these cars really tell a lot of personal information about you. Do you own that? Do you control how it gets used? If the auto manufacturer or the vehicle manufacturer owns that information, has the right to resale it arguably along with that goes the right to protect it. If that information is hacked and somehow used and put on the dark web the black market things like that, can they be sued for that? Did they have an obligation? What duty did they have to you? What rights do you have against them? That raises issues.

Another big issue that’s gotten a lot of publicity around these kinds of vehicles is hacking. The concern that if the vehicle can be hacked, you can envision somebody sending a false signal to one car and then if they’re all communicating with each other, all sorts of things can go wrong and you could have potentially catastrophic accident. There’s a lot of focus by the auto industry through the Auto ISAC, which is a group that focuses on these issues and does a great job anticipating these cyber problems, things that could happen and how to build vehicles with as much protection as possible, to give updates, to keep them prepared for evolving threats. It’s definitely an area of focus and will see increased focus. But it’s certainly something that lawyers will want to be aware of, because it’s going to be an issue for all the types of industries that we identify where clients are going to be embracing or reacting to this technology and the security issues that come along with it.

Joseph Raczynski:      When I hear you talking about data ownership, data privacy, the whole cyber security piece and security in general, it makes me wonder about potentially a tidal wave of litigation coming in some form or function. Do you think that might be possible?

Gail Gottehrer:           Yeah. I think we will see litigation, obviously if there’s a hack or some sort of breach and this kind of data is released. We’ll see in with the invasion of privacy or breach of security kind of class actions that we’ve seen already, and regulatory investigations things along those lines. Those will be similar.

I think the other issues we’ll see and we’ve already seen this a little bit is if you’re in an accident and the police want the information that your car has collected that’s in your car to possibly determine if you caused the accident or what happened. Do they need a warrant? And there have a been a mix of decisions on that. But, do they need a warrant? How much time do they have to request that warrant before either you delete the data or whoever you take your car to potentially deletes the data. And it’s a question of how long do you have to keep this in anticipation of a subpoena or a warrant, which raises issues in terms of spoliation.

Some states have specific regulations saying, they have laws saying you have to keep it this many days. The police have that many days to get a warrant to obtain it. But in the absence of that kind of specificity could you be found to have important information? Essentially, where we’re going to be is the data in the car is going to be the witness, it’s going to describe the accident. It’s going to be able to say was the car driving, were you driving, how were you driving, were you driving erratically? All that information is going to come from the data so essentially your car could be the witness against you.

Those are just a few examples of what we could see and some of the complications that come up in terms of privacy and adjustments that need to made to find that balance so that we can you use this data in a beneficial way to improve efficiency. But at the same time protecting the rights of people and privacy, recognizing that your car really is an extension of the decisions you make about what to do during your day.

Joseph Raczynski:      Wow. So much great information. Really appreciate it. I think that’s all the time we have today. Gail, this was excellent. No question it’s going to be a wild ride ahead, probably an autonomous one going forward. Thank you so much, honestly, for sharing your talents and your time today.

Gail Gottehrer:           Thanks, Joe. Always great to talk to you.

You’ve been listening to the Legal Executive Institute podcast. This was the second in our series of podcasts about driverless car technology. You can see the first part on our website at www.legalexecutiveinstitute.com.