This blog is the forth in a series about facial recognition software in various forms of public and private means of transportation, as well as the greater public policy concerns of facial recognition tools. More posts about the relationship between transportation technology, FRS, and fundamental rights will follow.

As we wrote on October 27th, one of the primary dangers of facial recognition software (FRS) is its impact on the freedom of assembly guaranteed by the First Amendment. FRS is another example of the importance of mobility and surveillance to democratic freedom. Scholars have long emphasized that increased mobility via greater transport options provides an ex ante boost to personal freedom, whereas the electronic or physical marks left by transport can give rise to surveillance and control, which provides an ex post decline in freedom. Thus, while greater mobility can be a boon to democratic liberty, the consequent greater potential surveillance of movement using that transport can counteract that by suppressing the freedom of assembly and association. Therefore, it is crucial to the future of democracy and our constitutional rights that leaders in the mobility space remain aware of potential chilling effects on protected First Amendment activity.

At its zenith, FRS can fuel a surveillance state where the government can locate and identify its citizens, and use those tools to shape every aspect of public life. For years, the Chinese government has used this technology to track and surveille nearly all of its 1.4 billion citizens. If that is not scary enough, the regime has utilized the technology in its genocidal campaign to control, incarcerate, and destroy the Uighurs.

Of course, it’s difficult to imagine this type of situation in the US. However, surveillance  during transportation and in public places is already a fact of life for many Americans; FRS is already a tool used by the Detroit, Chicago, and Pittsburgh police departments. 

A stone’s throw from us at the Law & Mobility Program, Project Green Light Detroit (PGL) is a public-private program by which local businesses set up cameras with video-feeds viewable in real-time by the DPD. The goal is to improve neighborhood safety by speeding up police response times to at-risk locations (inside and outside liquor stores, gas stations, restaurants, medical clinics, and houses of worship). Some of these video cameras may also be connected to a face surveillance system, enabling them to record not only what is happening at a given location, but who is at that location at any given moment. Touting the program’s effectiveness, DPD reports that violent crime has been reduced 23% year-to-date at all sites and 48% at the original 8 sites compared to 2015. However, some commentators cast doubt on the program’s promise, citing research that mass surveillance programs like this generally have only mixed impact if increased in scale.

Moreover, the existence of this capacity to monitor people while they travel through their days may also chill legitimate and valuable speech, running afoul of the First Amendment. Surveillance enables the state to see who citizens associate with and the speech they make or even plan to make. The Supreme Court has found that such requirements to disclose speech and assembly may create an unnecessary risk of discouraging speech, and thus are often unconstitutionally vague and overbroad. Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2388 (2021). Such state actions that can indirectly chill speech trigger exacting scrutiny, which requires the policy be narrowly tailored to a sufficiently important governmental interest, although the policy need not necessarily be the least restrictive means of promoting that interest. Id. at 2383-84. In Bonta, the Supreme Court found that California compelling charitable organizations’ disclosure of their Schedule Bs in order to investigate charitable misconduct was facially unconstitutional. Id. at 2378. The court found that the law was essentially “a dragnet for sensitive donor information from tens of thousands of charities each year, even though that information will become relevant in only a small number of cases,” there were alternative ways to investigate fraud, and thus the program mostly just made fraud investigations easier and more convenient by keeping the Schedule B information close at hand. Id. at 2387.

In a constitutional challenge, PGL may run into similar problems to California’s disclosure requirements. The program can be characterized as indiscriminate surveillance not narrowly tailored to the interest of crime prevention, since there are many alternative ways to report or show incidents of crime without real-time video-feeds. The interest in faster police response times may even be characterized as administrative in nature, and that argument may become stronger if the aforementioned concerns about effectiveness of the program as it scales up come true. Such a constitutional challenge is becoming more likely, as FRS receives more scrutiny for its impact on civil rights from commentators and activists. For instance, a Michigan man recently filed a federal lawsuit against the DPD for wrongfully arresting and jailing him based on flawed and racially biased FRS, and civil rights organizations have petitioned the government to prevent using FRS. PGL has already been put to use on disfavored speech; in summer 2020, the media reported allegations that PGL was used on crowds of Black Lives Matter protestors to identify people not social distancing and fine them for violating the governor’s health order, and to identify those with questionable immigration status.

Besides the legal issues, FRS programs like PGL may face resistance from the communities they are supposed to serve. FRS does not just identify criminals; it identifies all people. Thus, PGL not only allows the DPD to identify a mugger outside a liquor store, it also allows the government to watch people in deeply personal moments where they expect privacy, such as going to pray at a house of worship, obtain an abortion at a medical clinic, or receive counseling at a drug rehabilitation center. Protests have been mounted against PGL, and surveys of 130 residents of three cities(Detroit, Los Angeles, and Charlotte) indicated that these people want to be seen but not watched, and expressed discomfort with FRS due to intrusion on their privacy. Therefore, installing FRS in our transportation networks may contribute to making our daily lives safer, but also provides great power that may not only run afoul of constitutional freedoms but also disquiet people’s notions of privacy.

Among the institutions and industries that took a big hit during the pandemic was mass transit, both financially and reputationally aspects. IFinancially, income sources for mass transit have plunged, since state and local income tax revenue has decreased due to uncertain market conditions, and fare revenue has dropped precipitously because transit ridership fell by 79% nationally as a result of the pandemic and lockdowns. Transit programs have also lost valuable social capital; the belief that mass transit is unsafe and unsanitary has skyrocketed since March 2020 (as evidenced by public surveys in the US and New Zealand), and experts project that these beliefs may be durable and outlast the pandemic. Thus, this drain on mass transit’s resources may be long-lasting, and poses a serious danger to mass transit’s future. 

In choosing how to proceed, leaders in the transportation space may have to prioritize which values are most important to them: public health, technological advancement, or political prowessdimensions. Evidence regarding the impact of lockdowns of mass transit on people’s daily lives, focusing on urban and suburban communities, emphasizes that the pandemic’s impacts have fallen most heavily on socioeconomically disadvantaged populations. Therefore, the political considerations of social justice and equity should have a central place in the planning of mass transit in cities and suburbs going forward, since these are the primary populations affected.

Although ridership of mass transit declined across the board, it declined the least in areas with more “essential” jobs and lower percentages of white, educated, and high-income individuals. Thus, public transit remains most relevant to the lives of people with lower socioeconomic status and with jobs that were deemed “essential” during lockdowns. As researchers have written, this research suggests that the inevitable adjustments to public transit should be based on socioeconomic qualities, and keep a higher level of services in areas with higher concentrations of vulnerable people. This policy implication is further bolstered by research finding that women and disabled people’s access to essential services (grocery shopping, commuting to work, and taking care of or supporting family) were disproportionately affected by the pandemic’s impact on mass transit. Furthermore, somewhat ironically, the public health measures of the pandemic resulted in many people deferring or forgoing essential services like healthcare because of difficulties traveling to the location of healthcare, especially if they are non-white, disabled or low-income. 

The research seems to clearly show that the pandemic had its greatest impacts on people already dealing with transport disadvantage: people of color, disabled people, poor people, and service workers. Therefore, in planning for the future of mass transit, leaders should prioritize the needs and concerns of these populations over and above economic and technological considerations. This only makes sense as a matter of political economy, because these are the people using these resources.

2020-21 Has Revealed Problems in Supply Chains and Distribution

The various crises of the past year have disrupted many industries, and transportation logistics is no exception. The pandemic has demonstrated the fragility of our supply chains, as logistics providers have been overwhelmed and overworked and businesses have been faced with long delays and uneven availability of important products. Further, we have grown increasingly aware of the importance of supply chains to consumers’ everyday lives, perhaps most memorably when we were all desperate to find toilet paper a year ago. More seriously, the integrity of our supply chains is having literally life-or-death consequences for hundreds of thousands of people in the realm of medical supplies. Since the beginning stages of the pandemic, we were confronted with our supply chains’ inability to deliver adequate amounts of testing kits, PPE, and pharmaceuticals. Recently, the government invoked the Defense Production Act (DPA) to put higher priority on the Covid-19 vaccine in the supply chain. Even after the pandemic’s impacts are no longer felt so strongly in our supply chains, extreme weather events will likely continue to disrupt distribution, as just happened in Texas.

The Promise of AVs to Remedy Transportation Logistics’ Woes

While government actions like the DPA may be positive developments in our present moment, the recently revealed defects in our supply chains will require more than temporary band-aids enacted in reaction to crises. Amidst the disorder in our current supply chains, entrepreneurs and industry professionals see an opportunity for emerging technologies to make our supply chains more reliable, efficient, and better able to foresee and cope with future disruptions. Industry commentators especially highlight the potential of autonomous vehicles for their potential to remove the human factor that has proven so vulnerable in the pandemic. In contrast to people, AV systems can run 24/7, are not subject to 14-day quarantines, and will never exacerbate the already worrisome long-standing driver shortage due to illness. Thus, AV systems could provide the transportation logistics industry the efficiency and reliability that consumers so badly need during emergencies like the coronavirus crisis. Experts in government and industry have long  recognized that increasing automation in the trucking industry would have these advantages, as well as the added benefits of cost savings, reduced congestion, increased energy efficiency, and improved road safety.

Obstacles to AV Implementation: Disparate Regulations

While companies like TuSimple, Aurora and Waymo are already making progress on autonomous freight routes in the US and elsewhere, they are charging ahead without much coordinated help on the governmental level. One of the main challenges for these companies are the conflicting standards they face when traveling between states, since no preempting federal legislation has been passed and state regulations remain a disparate patchwork. Analysts have noted the “sheer divergence of law” between state and local governments, and leaders in government and industry have been discussing the need to harmonize the AV regulatory regime for years.

Some key areas of variance in state laws are: whether or not AVs are exempted from follow-too-closely statutes (which effectively prohibit automated platooning), definitions of automation, and whether or not a human operator is required. For instance, during TuSimple’s planned AV route from Phoenix to Houston, the company would have to pass through New Mexico, which lags behind neighboring states in terms of AV-enabling legislation (their state legislature is currently working on a bill that would authorize AV testing and platooning, while Arizona and Texas have authorized driverless testing for years).

This patchwork poses an obvious problem for long-haul trucking across state lines, thus hindering  AV technology’s potential as a solution to the aforementioned supply chain issues.

Removing Roadblocks

If the federal government wants to be proactive in helping the private sector resolve supply chain problems with innovation in the AV space, it should set about harmonizing local regulations. Government leaders have repeatedly stated that they aim to “promote regulatory consistency among State, local, tribal and territorial, and international laws and regulations so that AVs can operate seamlessly nationwide and internationally.” Continuing to dialogue with industry leaders and utilizing the resources of the Department of Transportation and the National Highway Traffic Safety Administration to coordinate between state and local governments will be crucial to fostering innovation with smart regulation. Another avenue is federal preemption, which could be targeted at specific areas of conflicting regulations which stifle innovation in and implementation of AV tech, like follow-too-closely statutes. Of course, new regulations should be designed in concert with industry leaders and with plenty of time for public comment, the same way rulemaking and research have been conducted to this point.

If the federal government remains inactive and allows the conflicting patchwork of state regulations to persist, industry commentators have suggested that AV stakeholders in the private sector have an alternative method to harmonize regulations: legal challenges under the Commerce Clause. Dormant Commerce Clause doctrine holds that because Congress has the power to regulate interstate commerce, states are constitutionally barred from actions that discriminate against or unduly burden foreign commerce, even in the absence of federal regulation. The foundational case of Hunt v. Washington State Apple Advertising Commission provided the relevant test for facially neutral laws that have discriminatory impact: the state law is unconstitutional if it either (a) has a hidden protectionist purpose or (b) the burden on foreign commerce outweighs the local benefits. AV stakeholders may have a workable argument that conflicting regulations between states put an undue burden on interstate commerce that outweighs any local benefits.

These kinds of litigations have occurred in the commercial trucking industry before. Legal professionals have compared potential challenges by AV stakeholders to Consolidated Freightways Corporation’s successful challenge to Iowa’s statutory prohibition on the use of 65-foot double-trailer trucks, even though these trucks were permitted in surrounding states and studies showed that the illegal vehicles were no less safe than the legal ones. The burden on the trucking company’s ability to engage in interstate commerce was large enough and the local safety benefits were small and unsubstantiated enough to overcome the strong presumption of validity imputed to local safety measures.

Applying this legal doctrine to conflicting AV regulations seems like a logical extension. For instance, follow-too-closely statutes in states like Kansas could be held invalid as applied to AV commercial trucks if courts are satisfied that they unduly burden the flow of commerce by preventing platooning (which researchers say should reduce congestion, increase energy efficiency, and provide more efficient business models) and insufficiently serve the local interests of highway safety that they are designed to further (studies show that platooning actually improves road safety). Some legal observers even suggest that states’ omissions to act on AV-enabling legislation should be scrutinized for burdening innovation and commerce with regulatory uncertainty.

Therefore, while the current legislative patchwork poses an obstacle to technological innovation and the promise it holds for commercial freighting, AV leaders have multiple ways in which to pursue a more hospitable regulatory environment. Working together with lawmakers to coordinate across jurisdictions rather than working against them in litigation may be a more efficient way forward, and more enticing to an industry that would rather not provoke legislators’ ire. However, the legal doctrine seems to be on the side of promoting AV innovation here, and is a tool ready to be picked up if necessary. Regulators would be wise to start paying closer attention to the need to harmonize regulations, as the last year has made unmistakably clear that our supply chains need improvement, and technological disruption looks to be a promising solution.