A Light Touch When It Comes to Federal Regulation of Self-Driving Cars

Technology tends to explode out of the box at warp speed, with laws addressing new technology trying to catch up at a comparative glacial pace. There are various reasons for the slow pace of legal regulation. Often the impacts and ultimate consequences of new technology are not immediately known. In addition, it takes time for lawmakers to truly understand new technology before they can even contemplate how to go about regulation. And in certain instances, lawmakers want certain technologies to have the opportunity to grow and flourish unfettered by legal restrictions.

With respect to the last reason, in the mid-1990s, Congress wanted the emerging commercial internet to grow exponentially to the perceived benefit of the U.S. economy. Accordingly, in Section 230 of the Communications Decency Act, Congress provided immunity to internet service providers with respect to third-party content posted on their sites. This enabled social media companies like Facebook to become some of the most valuable companies in the world.

Fast-forward to now. Self-driving cars are a new and advancing technology. Are self-driving cars facing imminent federal regulation? While the concept of self-driving cars is relatively easy to understand and the impacts of self-driving cars are not impossible to imagine, tremendous legal regulation, at least at the federal level, appears not to be immediately forthcoming.

Elaine Chao, the U.S. Transportation secretary, was a keynote speaker at CES 2020. At CES, Secretary Chao outlined the AV 4.0 Plan of the Department of Transportation and the National Highway Traffic Safety Administration. The plan is quite light in terms of regulating self-driving cars.

The position of the federal government appears to be that rigorous regulation of the self-driving car industry would thwart development in an area where the U.S. wants to be a world leader. Therefore, self-driving car developers should be permitted a great degree of freedom.

But not so fast. This plan is in contravention of recommendations made by the National Transportation Safety Board. And, of course, the NTSB is the investigating body when it comes to self-driving test car crashes. The NTSB has condemned the Trump administration and various state governments for not investigating self-driving cars more thoroughly. Indeed, the NTSB reportedly said that the development of self-driving cars is being prioritized over human life. Yet, it is not evident yet whether there currently is a significant threat to human life.

Self-driving cars are being developed and tested in several states, including California, Florida, Arizona and Pennsylvania. Thus, to the extent the federal government does not act to regulate self-driving cars, it will be worth watching whether and to what extent these states and perhaps others jump in.

Patents Created by Artificial Intelligence?

Machine learning is increasing exponentially. As a result, artificial intelligence (AI) now is powering many aspects of our lives. If you ask Siri or Alexa, they will tell you that AI computers are performing surgeries, flying planes, driving cars and winning at games. What’s next?

What’s next might include inventions created by AI. Indeed, several months ago, the Director of the United States Patent and Trademark Office (PTO) sought public comments on this topic.

Continue reading Patents Created by Artificial Intelligence?

Potential Amendments To CDA Section 230 Relating to Immunity Provided To Internet Intermediaries

In 1996, Congress enacted Section 230 of the Communications Decency Act (CDA) to provide Internet service intermediaries with general immunity from liability with respect to third-party content posted on their sites. Congress wanted the commercial Internet to flourish, with great benefits to the U.S. economy, and therefore did not want Internet intermediaries to be burdened with the phenomenally costly task of having to monitor and referee third-party content.

Calls for Section 230 Reform

Of course, as we know, the commercial Internet has flourished since 1996 to the advantage of the U.S. economy, and some of the biggest and most valuable U.S. companies are Internet intermediaries that host third-party content. But there have been some complaints about the immunity provided by virtue of Section 230. For example, there have been complaints that some Internet intermediaries should have been and should be more active in monitoring and removing false information posted on their sites that is designed to influence political elections. In the wake of these complaints, there have been suggestions that Section 230 is ripe for potential amendments.

Continue reading Potential Amendments To CDA Section 230 Relating to Immunity Provided To Internet Intermediaries

Oregon Senator Proposes Robust Federal Privacy Legislation

Frustrated by privacy lapses by US companies, Democrat Senator Ron Wyden of Oregon has introduced proposed federal legislation referred to as the Mind Your Own Business Act (the Act). If enacted, this law could put serious teeth into efforts to protect consumer data.

Serious Penalties for Noncompliance

Indeed, the Act could cause certain executives to find themselves in prison for as many as twenty years if their companies are found to have lied to legal authorities about improper use of consumers’ personal information. On top of that, the Act could lead to such companies incurring special tax penalties corresponding to executives’ salaries.

If this were not enough, the Act would empower the Federal Trade Commission with the ability to fine companies for violating this law up to four percent of corporate annual revenues. For some companies, this could amount to fines in the billions of dollars. Continue reading Oregon Senator Proposes Robust Federal Privacy Legislation

CCPA Update: Proposed Regulations Published by Attorney General

The Office of the Attorney General has released the long-anticipated proposed CCPA regulations. The proposed regulations outline procedures intended to facilitate consumers’ new rights under the CCPA and provide compliance guidance to businesses regarding:

  1. Notices businesses must provide to consumers under the CCPA;
  2. Handling consumer requests made pursuant to the CCPA;
  3. Verifying the identity of the consumer making those requests;
  4. Personal information of minors; and
  5. Nondiscrimination and offering of financial incentives.

Please see our Alert for a detailed discussion of the proposed regulations.

CCPA Amendments Signed by Gov. Newsom

Governor Gavin Newsom signed five CCPA amendment bills into law on Friday, October 11, 2019.  He also signed an amendment broadening the California breach notification law and a new law which creates a data broker registry for the sale of certain personal information.  The event marked the culmination of the California Legislature’s efforts this year to clarify the terms and scope of the CCPA, which takes effect on January 1, 2020.

A summary of these laws and their impact may be found in our previous Alert.

Stay tuned to the Duane Morris TechLaw Blog for developments regarding the CCPA and its implementation.

Supreme Court Passes on Challenge to Extension of Title III to Websites and Mobile Apps

On October 7, 2019, the Supreme Court of the United States issued an order denying certiorari in Domino’s Pizza, LLC v. Robles, a case that would have required the Supreme Court to determine the application of Title III of the Americans with Disabilities Act (ADA) to websites and mobile applications. The Supreme Court’s order means a Ninth Circuit decision applying Title III to websites and mobile apps will stand, even in the absence of Department of Justice-promulgated regulations outlining applicable compliance standards.

On September 1, 2016, Guillermo Robles, who is visually impaired, filed suit in the U.S. District Court for the Central District of California. He alleged that Domino’s website and mobile app were incompatible with his chosen screen-reading software, and thus violated Title III of the ADA, among other statutes. Domino’s moved for summary judgment, in part on the basis that Title III of the ADA does not extend to its website or mobile app. The District Court found that Title III did apply to Domino’s website and app, but granted summary judgment on the grounds that imposing liability on Domino’s without clear standards for satisfying Title III obligations would violate the company’s due process rights. Robles then appealed.

View the full Alert on the Duane Morris LLP website.

Nevada Privacy Law Takes Effect October 1: Is Your Company Compliant?

The newest Nevada privacy law, SB 220, is about to become operative on October 1, 2019, and will require website operators to provide consumers with the right to opt out of the sale of their personal information. The definition of what constitutes a “sale” is fairly narrow and includes several broad exclusions. Therefore, this opt-out provision is likely to apply only in narrow circumstances. However, businesses that may be covered by this new law will need to complete the following items prior to October 1:

  1. Determine whether the law applies to your business.
  2. Confirm compliance with existing consumer notice requirements.
  3. Establish a designated request address where consumers may submit a verified request to opt out of the sale of their covered information.
  4. Develop policies, procedures and processes for verifying and responding to requests within 60 days.

Please see our Alert for a detailed discussion of this law and when it applies.

Amendments to the CCPA Ready for Governor’s Signature

By:  Michelle Hon Donovan, Brandi Taylor and Angelica Zabanal

Last Friday, September 13, 2019, marked the final day for the California Legislature to vote to pass amendments intended to clarify the terms and scope of the California Consumer Privacy Act (CCPA), which takes effect on January 1, 2020. The bills are now on Governor Gavin Newsom’s desk for approval, and the Governor will have until October 13, 2019, to sign or veto them.

Of the CCPA amendment bills that were in consideration, the following were passed:

  • AB 25, regarding employee exemption
  • AB 874, regarding the definition of PI (personal information)
  • AB 1146, regarding warranty and vehicle repairs
  • AB 1355, regarding the B2B exemption and other clarifying amendments
  • AB 1564, regarding toll-free telephone number exception

Also of note, AB 1130 – a bill that does not specifically amend CCPA – also passed. This bill expands the categories of PI covered by California’s data breach notification laws, which will now include tax identification numbers, passport numbers, military identification numbers and unique identification numbers issued on a government document, as well as certain types of specified unique biometric data. This expansion is anticipated to impact liability under the CCPA’s private right of action

While not an exhaustive list of the bills that stalled during the legislative process, the following bills of note failed to be passed by the legislature:

  • AB 873, regarding the definition of de-identified
  • AB 846, regarding customer loyalty programs
  • AB 981, regarding exemption for certain insurance transactions

While the approved amendments did not significantly overhaul the CCPA, several notable changes were made. Please see our Alert for a detailed discussion of these changes.

Your Smartphone: Friend or Foe?

Wherever we go these days, whether at work, at home, in restaurants, outside, or practically anywhere else, people reflexively go to their smartphones constantly.

Why? Because those little handheld devices can accomplish so much. We can send communications across various platforms, conduct business tasks, check on the news, shop, participate in social media, listen to music, watch videos, and the list goes on and on. Continue reading Your Smartphone: Friend or Foe?