By Silvia Stuchi Cruz and Sonia Paulino

Cite as: Silvia Stuchi Cruz & Sonia Paulino, The Relationship Between Social Innovation and Active Mobility Public Services, 2020 J. L. & Mob. 60.

Abstract

This article aims to discuss the relationship between social innovation and public services on active mobility. Two active mobility initiatives are considered in the city of São Paulo, and analyzed based on 11 variables that characterize social innovation. Through the mapping of recent Brazilian regulatory frameworks for active mobility and a low-carbon economy, we can propose the following relationship: the more local (municipal) the public policy, the greater its social influence and participation. However, despite the advances indicated by both experiences of active mobility analyzed (highlighting the role of organized civil society), and by the progress in the regulatory framework, until now innovative practices in the local context have been restricted to the treatment of pedestrian spaces. Therefore, there exists a great potential for the continued introduction of innovations in the improvement and scale of public services for pedestrian mobility, following the paradigm of sustainable urban mobility, and based on social participation.

Introduction

Throughout the world’s megacities, despite discussions and attestations about urban mobility’s impacts on the environment and health, dependence on fossil fuels continues to grow; this represents a substantial risk for the future of urban transport, as well as in terms of energy security. In the case of megacities in developing countries, the central issue to be addressed is sustainable urban expansion, which requires measures to manage metropolitan development. 1 1. See Pengjun Zhao, Sustainable Urban Expansion and Transportation in a Growing Megacity: Consequences of Urban Sprawl for Mobility on the Urban Fringe of Beijing, 34 Habitat Int’l 236 (2010). × One important step in this direction is the promotion of sustainable transport. Rapid and exponential population growth, coupled with the lack of urban planning, has had negative consequences, particularly in urban mobility. In the context of megacities, it is becoming ever more necessary to possess a transport system developed with user accessibility and connecting active mobility to collective public transport.

This article proposes the incorporation of a broader innovation approach for exploring the potential of innovation in services that address sustainable urban mobility issues, including strategies such as social inclusion, and social innovation itself. This topic is a major driver of innovation and confirms that the impacts, far beyond the traditional concept of competitiveness, also include environmental and social problems. 2 2. See, e.g., Metka Stare, Seizing the Opportunities of Service Innovation: Policy Brief No. 7, in Inclusive Innovation and Service Innovation, 55 (Werner Wobbe, ed., Luxembourg: Publications Office of the European Union, 2013); Silvia S. Cruz, Sonia Paulino & Delhi Paiva, Verification of Outcomes from Carbon Market Under the Clean Development Mechanism (CDM) Projects in Landfills, 142 J. of Cleaner Production 145 (2017). × It is a complex, multiform, systemic and often conflicting issue, 3 3. See Faridah Djellal & Faïz Gallouj, How Public–Private Innovation Networks in Services (ServPPINs) Differ from Other Innovation Networks: What Lessons for Theory?, in Public–Private Innovation Networks in Services 21-58 (Faïz Gallouj, Luis Rubalcaba and Paul Windrum eds., 2013).   × which requires different actors interacting at different levels of governance to meet the needs of society. 4 4. See Anita Kon, A Inovação nos Serviços como Instrumento para a Inovação Social: uma Visão Integrativa, 38 Braz. J. Pol. Econ. 584 (2018). ×

Authors have shown that the challenges are even greater within contexts of developing and emerging economies, in a situation substantially marked by a bias towards technological innovation. 5 5. Stare, supra note 2; see Silvia Cruz, Faiz Gallouj & Sonia Paulino, Innovation in Brazilian Landfills: a ServPPIN Perspective, 2014 Econ. and Pol’y of Energy and Env’t 79 (2015). × In emerging economies, public services demand innovation not only in terms of efficiency gains, but also in terms of transparency and responsiveness to their users’ needs. 6 6. See Cruz, supra note 2; see e.g. Piere Mohnen & Metka Stare, The Notion of Inclusive Innovation: Policy Brief No. 15, in Inclusive Innovation and Service Innovation, 11 (Werner Wobbe, ed., Luxembourg: Publications Office of the European Union, 2013); Silvia Cruz & Sonia Paulino, Analysis of Access to Clean Development Mechanism Landfill Projects Through a Multi-Agent Model, 4 Int’l J. of Envtl. Sci. and Dev. 268 (2013).  ×

Considering the product (service) as a social construct that involves the views of different actors, 7 7. Jean Gadrey, The Characterization of Goods and Services: An Alternative Approach, Rev. of Income and Wealth, Ser. 46 No. 3, Sept. 2000, at 369, 369-87.  × and based on the definition of innovation in services understood as a multi-agent activity 8 8. Pierre Labarthe, Faïz Gallouj & Faridah Djellal, Effects of Institutions on the Integration of End-Users’ Knowledge in ServPPINs: Lessons from two case studies in agro-environmental knowledge-intensive services, in Public–Private Innovation Networks in Services 303, 303-325 (Faïz Gallouj, Luis Rubalcaba & Paul Windrum eds., Edward Elgar Publ’g 2013). × stakeholder participation becomes essential. 9 9. David Banister, The Sustainable Mobility Paradigm, 15 Transport Pol’y, 73 (2008). × In this manner, it is emphasized the collective preferences of citizenship, with a broader view of the citizen as not only a recipient of public services, but also acting in the production, control and planning of these activities. The authors emphasize that an active dialogue is necessary to negotiate and mediate services according to the different preferences of citizens.

As different types of actors are involved in the innovation process, provision of services in a multi-agent configuration allows the development of complementarities and synergies among the different agents. Each possesses their own specific objectives and competences. 10 10. See Paul Windrum & Manuel García-Goñi, A Neo-Schumpeterian Model of Health Services Innovation, 37 Res. Pol’y 649, 649-72 (2008);Paul Windrum et al., The Co-Creation of Multi-Agent Social Innovations, 19 Eur. J. of Innovation Mgmt, 150, 150-66 (2016); Benoît Desmarchelier, Faridah Djellal & Faïz Gallouj, Services in Innovation Networks and Innovation Networks in Services: From traditional innovation networks (TINs) to public service innovation networks (PSINs) (2018). ×

One of the factors that promote interest in analyzing innovation in public services is the recognition of the important role played by public sector organizations in the innovation process. Public organizations, therefore, are no longer restricted to the role of a mere supporter of the innovation process.  The public sector is also a system of services in which innovations may improve the performance of these activities, and ultimately, may affect citizen’s quality of life. Simultaneously, a number of other reasons distinguish the public sector, since it influences the daily lives of citizens in many ways.

The multi-faceted and heterogeneous nature of the public sector is in part a result of the multiple interfaces which characterize public organizations: 1) an interface with the private sector; 2) an interface between the public sector and citizens; and 3) internal interfaces within the public sector (between government levels and between different areas of activity). 11 11. Markus M. Bugge et al., The public Sector in Innovation Systems, Project – Measuring Public Innovation in the Nordic Countries: Toward a common statistical approach (2010). × We emphasize that although there is a range of ways to produce a public service, the public sector, as responsible for the provision of said service, must ensure that this production occurs in an appropriate manner; the State should assume the regulatory, inspection, incentive and planning role.

In the field of service studies, there are advances in understanding the specificities of public services and the socioeconomic contexts in which they exist. The literature on innovation in public services shows the most evident inclusion of non-technological forms of innovation. 12 12. Windrum et al., supra note 12; Desmarchelier et al., supra note 13. × Service innovation often dialogues with social innovation, which has been used as a denominator for the different types of collective actions and social transformations that would lead us from a “top down” economy and society to a more participatory and “bottom up” society. 13 13. See Gordon Shockley, The International Handbook on Social Innovation: Collective Action, Social Learning and Transdisciplinary Research, 55 J. Reg’l Sci. 152, 152-53 (2015) (reviewing The International Handbook on Social Innovation: Collective Action, Social Learning and Transdisciplinary Research (Frank Moulaert et al. eds., 2013)). ×

A brief definition of social innovation points to innovations defined by their (social) goals to improve the wellbeing of individuals or communities. The occurrence of social innovation requires the participation of third sector organizations, groups or social movements ensuring that society is the beneficiary by appropriating the results of innovation. Increased involvement of the third sector, “and nonprofit organizations in general – is also recognized as a ‘social’ innovation per se.” 14 14. Flavia Martinelli, Social Innovation or Social Exclusion? Innovating Social Services in the Context of a Retrenching Welfare State, in Challenge Social Innovation 169, 173 (Hans-Werner Franz, Josef Hochgerner, & Jürgen Howald eds., 2012). ×

Social innovation differs from traditional innovation not only in its nature, but also in its modes of production and in its stakeholders. Another fundamental characteristic of social innovation is its local, or popular, nature, the essential participation of users in its emergence and implementation, and its relation with sustainability (Figure 1). 15 15. See Faridah Djellal, Faïz Gallouj & Ian Miles, Two Decades of Research on Innovation in Services: Which Place for Public Services?, Structural Change and Econ. Dynamics, Dec. 2013, at 99, 102; see Kon, supra note 4, at 603. ×

Figure 1: Characteristics of social innovation and its relations with sustainability.

Regarding urban mobility, we identify a set of services and modes of transport of both people and cargo, as well as the interactions between these displacements and the urban environment. In other words, the term ‘urban mobility’ has overlapped the term ‘transport’, as the broadest definition, encompassing, in addition to transport systems, the access and provision of goods and services in the city. 16 16. Alexandre de Ávila Gomide & Ernesto Pereira Galindo, A Mobilidade Urbana: Uma Agenda Inconclusa ou o Retorno Daquilo Que Não Foi, 27 Estudos Avançados, no. 79, 2013, at 27, 33; Adriana Silva Barbosa, Mobilidade Urbana Para Pessoas Com Deficiência No Brasil: Um Estudo Em Blogs, 8 Revista Brasileira de Gestão Urbana 142, 143 (2016). ×

We can define active transport as any form of human transport, such as walking, cycling, wheelchairs, use of crutches; in short, all the movements made autonomously by citizens, even with the use of auxiliary devices. 17 17. See Ministério das Cidades, Planmob: Caderno De Referência Para Elaboração De Plano De Mobilidade Urbana 88 (2017), https://iema-site-staging.s3.amazonaws.com/planmob.pdf. × Therefore, it plays an important role in the urban context to promote social inclusion and equitable urban development; i.e. it is an important part of sustainable urban mobility.

Despite the importance of walking and cycling in Brazil and other developing countries, infrastructure and policies related to non-motorized transport have suffered neglect in the formulation of public policies. Decision makers still consider active mobility as a sign of delay and inconsistent with their “goals and aspirations for economic growth and competitiveness.” 18 18. Dorina Pojani & Dominic Stead, Policy Design for Sustainable Urban Transport in the Global South, 1 Policy Design and Practice 90, 94 (2018). ×

Services based on the integration of active mobility and public transport depend on certain conditions involving the travel environment for pedestrians and cyclists, which can be better understood from (a) a public service innovation approach in a multi-agent configuration; and (b) by the concept of social innovation, since the cases studied in this article suggest innovations defined by social objectives to improve the community’s wellbeing, based on the improvement of public services for active mobility, and occur with the participation of third sector organizations.

The recent regulatory framework prioritizes active mobility in the city of São Paulo, in for example, Decree no. 56,834/2015, Law no. 16,547/2016, Law no. 16,673/2017, Decree no. 57,889/2017, Law no. 16,885/2018, and Decree no. 58,845/2019. In order to achieve this, civil society has been playing a relevant role, exercising political influence and activism. In a formal instance of participation, within the Municipal Council of Transport and Traffic, the respective thematic chambers of bicycle and pedestrian mobility it helped create in February and December 2015 stand as an example of this. Thematic chambers are presented in Decree nº 54.058 / 2013, Art.10: “Thematic or regional commissions may be constituted aiming to improve the work of the Municipal Council of Transport and Traffic, composed with the attributions defined by each chamber Internal Regulation”. In general, the aim of this space is to promote social participation through dialogue between citizens and representatives of the municipal government. The meetings between chamber members and city hall technicians occur monthly, bimonthly with the municipal secretary of Transport, and every six months with the city mayor. There are no specific regulations for the composition of members, agendas, as well as formats of meetings. Each thematic chamber, based on the decision of its members, jointly decides its operation and topics to be addressed.

However, when analyzing the legal framework, we note that there is a chasm between laws and practices; in theory, the priority to pedestrian mobility is always considered (in the laws of active mobility and in the low carbon economy as well). However, the practical results are negligible of qualifying the environment and infrastructure for pedestrian commuting and connectivity with collective public transport.

Given the above, this article aims to discuss the relationship between social innovation and active mobility public services, based on two cases – Reduced Speed Zones and Complete Streets – in the city of São Paulo. These 11 analysis variables are used: associations/collectives /activist groups; actions to highlight social needs; third sector interaction with the public sector; expertise in identifying the intervention area; establishment of an evidence base on the effectiveness of techniques used in the service; an evidence base created by the public sector; support from public policies for the diffusion of innovation; government bodies that support the provision of services; solutions to respond to social needs; improvement of environmental quality; and social impact.

We propose that the experiences studied may exist as opportunities for social innovation connected to the introduction of public services aimed at pedestrian mobility. After the introduction, Section 2 shows the methodology. Section 3 presents the results highlighting the regulatory framework on active mobility and low carbon economy, at the federal, state and municipal levels; and the opportunities for social innovation in relation to the introduction of public services for active mobility. In Section 4, the conclusion.

2. Methodology

Initially, we mapped the federal, state and municipal regulatory framework on active mobility and the low carbon economy (focusing on aspects related to transport). For the empirical context, the research methodology uses the geographic-temporal approach focused on São Paulo and the period considered for data collection is 2015 until September 2019. In 2015, the São Paulo Urban Mobility Plan was instituted, which established the characteristics of the pedestrian circulation network, necessary infrastructure, specific targets for pedestrians and for accessibility, and integration with other modes of transport.

The concentration of initiatives studied in the São Paulo is justified, as it is one of Brazil’s megacities, with great challenges for urban mobility; and as occurs in other aspects, São Paulo was also a pioneer in the use of tactical urbanism in the country, and later, the technique was disseminated to some other cities. Tactical urbanism uses low-cost temporary materials in order to test places for different uses; subsequently, these locations may go on to receive permanent intervention. These short-term and low cost interventions aim to promote grassroots restructuring, in a participatory approach, towards the re-appropriation of urban spaces by their own users, in line also with the broad view of social innovation, which extends potential forms of participation to specific actors. Finally, it is one of the cities selected for the Bloomberg Philanthropies Global Road Safety Initiative (Bloomberg Initiative), which aims to reduce injuries and fatalities resulting from collisions throughout the world. The development of Reduced Speed Zones and Complete Streets are part of the program. The Bloomberg program was renewed for the 2020-2025 period and São Paulo continues to be one of the cities contemplated by the initiative.

The selection of active mobility cases takes into account the following criteria: implemented in the city of São Paulo; in areas of high pedestrian circulation; connection with collective public transport; and the application of tactical urbanism techniques (Figure 2).

Figure 2: Selected cases.

From the criteria adopted, we selected the following cases: a Reduced Speed Zone (São Miguel Paulista and Santana); and a Complete Street (Joel Carlos Borges) (Table 1).

Table 1: Selected cases.

The secondary data sources used are the CET database of Reduced Speed Zones and the Life Protection program; diagnoses and reports of Impact Evaluation Studies and reports. 19 19. See Cidade Ativa, Diagnóstico Áreas 40: São Miguel Paulista, https://cidadeativa.org/iniciativa/leituras-urbanas/area-40-sao-miguel-paulista/ (last visited Oct. 4, 2020); Fundação Getúlio Vargas [FGV], Relatório de desenho de pesquisa para avaliação de impacto do Projeto de Requalificação Urbana e Segurança Viária de São Miguel Paulista na poluição do ar e na saúde (2017); Fundação Getúlio Vargas [FGV], Relatório de linha de base da avaliação de impacto do projeto de requalificação urbana e segurança viária de São Miguel Paulista (2017); Rafaela Marques, Desenho Urbano e Segurança Viária: requalificação de áreas de baixa velocidade em São Miguel Paulista, Instituto de Políticas de Transporte & Desenvolvimento [ITDP] (Feb. 15, 2016), https://itdpbrasil.org/area40saomiguelpaulista; ITDP et al., Intervenção urbana temporária (Re)pensando a rua em Santana Relatório de Atividade (2018), https://itdpbrasil.org/wp-content/uploads/2020/04/200401-ITDP-relatorio-santana.pdf; Laboratório de Mobilidade Sustentável [LABMOB] et al., Estudo de Impacto e Avaliação de Rua Completa (2018), https://www.labmob.org/avaliacao-de-rua-completa. × Essentially, the reports on interventions provide information about workshops, engagement with stakeholders, post-intervention impact evaluations, intervention design, and materials used (in-event, temporary and permanent actions). For the primary data collection, eight agents completed structured forms: representatives of civil society, startups, universities participating in impact evaluation diagnostics, and the public sector (Secretariat of Urban Mobility).

Finally, we used 11 variables to characterize the social innovation, in the analysis of social innovation opportunities linked to public services for pedestrian mobility (Figure 3):

Figure. 3: Analysis variables
For each variable, it is our intention to identify the following:
  1. The protagonism of civil society, related to the cases studied.
  2. Methods, tactics and tools used to gather information from the communities involved.
  3. The means of interaction with the public sector.
  4. Forms of participation in the elaboration of processes and procedures.
  5. Participatory methodologies for disclosing and validating techniques.
  6. Methodologies created by the public sector for the disclosure and validation of said techniques.
  7. Public policies that are related to the cases’ studied contexts and that, in part, have originated because of the context.
  8. Public bodies related to the projects, highlighting their interdisciplinarity and intersectionality.
  9. Local solutions, aimed at the population’s wellbeing, resulting from the joint process of public sector interaction and civil society participation.
  10. Aspects related to air and noise pollution.
  11. Developments achieved, measured by research methods and the impact evaluation.

3. Results

The section is organized as (3.1) the insertion of active mobility into the regulatory framework, highlighting and analyzing the recent legislation evolution. Then (3.2) we present the cases, identifying opportunities for social innovation in services for active mobility, linking a timeline for the initiatives with the regulatory framework.

3.1 Active mobility in the regulatory framework

The regulatory framework for climate change is related to urban mobility, since, according to the emissions inventory of the State of São Paulo, 20 20. Companhia Ambiental do Estado de São Paulo [CESTESB], Emissões no Setor de Energia: Subsetor de Transportes (2014), https://cetesb.sp.gov.br/ inventario-gee-sp/wp-content/uploads/sites/34/2014/09/emissoes-no-setor-de-energia_Transportes.pdf. × the transport sub sector was responsible for 48% of emissions in the energy sector and 27% of the State’s total emissions in 2005. The road transport is responsible for almost 90% of emissions. 21 21. Id. × Therefore, analyzing how active mobility is addressed in climate change policies is essential to achieve both environmental and emission reduction, and social, economic, land use and occupation goals. Mapping the recent regulatory framework then, which addresses active and low-carbon mobility, at the federal, state and municipal levels, the scenario appears in Figure 4.
Figure 4: Recent regulatory framework: active mobility and low-carbon – federal, state and municipal levels.

At the federal level, with the National Policy on Climate Change (NPCC), in the Brazilian Nationally Determined Contribution (NDC), the country is committed to promoting efficiency measures, and improvements in transport infrastructure and collective public transport in urban areas. In the “Initial Proposal for Implementing the Nationally Determined Contribution of Brazil (NDC)” 22 22. Fórum Brasileiro de Mudança do Clima [FBMC], Proposta Inicial de Implementação da Contribuição Nacionalmente Determinada do Brasil 18-22 (2018), https://www.ccacoalition.org/en/resources/brazils-ndc-initial-implementation-proposal. × the contributions and measures proposed for active mobility to exercise its potential to mitigate CO2 emissions are timid and insufficient, lacking concrete guidelines and actions.

The National Urban Mobility Policy (NPUM) (Law no. 12,187/12), 23 23. Lei No. 12.587, de 3 de Janeiro de 2012, Diário Oficial da União [D.O.U.] de 1.4.2012. × established in 2012, states that all municipalities of more than 20 thousand inhabitants must present a specific urban mobility plan (Decree 56.834/16), 24 24. Decreto No. 56.834 de 24 de Fevereiro de 2016, Diário Oficial da Cidade de São Paulo de 25.2.2016. × and must prioritize non-motorized means of transport and collective public transport. This has several beneficial consequences for the city, as it implies democratization of the use of public space on the roads, gradually reduces the use of the cars, and causes a reduction in the emission of pollutants and an improvement in quality of life, minimizing the respiratory problems caused by pollution and sedentary lifestyles.

At the State level, in 2009, the State Policy on Climate Change (SPCC) was established (Law no. 13,798/2009), 25 25. Lei No. 13.798, de 9 de Novembro de 2009, Diário Oficial do Estado de São Paulo [D.O.E.S.P.] de 9.11.2009. × which aims to reduce greenhouse gas (GHG) emissions by 20% in 2020, in relation to total emissions in the state of São Paulo in 2005. This implies consistent strategies, especially in transport, a sector in which the most significant reductions are possible; in this manner public transport and non-motorized transport are considered essential to achieve greater efficiency and sustainability in urban mobility. 26 26. See Carlos Henrique Ribeiro de Carvalho, Instituto de Pesquisa Econômica Aplicada, Mobilidade Urbana Sustentável: Conceitos, Tendências e Reflexões (2016); see also Antônio Nélson Rodrigues da Silva, Marcela da Silva Costa & Márcia Helena Macedo, Multiple views of sustainable urban mobility: The case of Brazil, 15 Transp. Pol’y 350 (2008). × The Metropolitan Mobility State Policy – MMSP (Law no. 16.956/2019) 27 27. Lei No. 16.956, de 21 de Março de 2019, Diário Oficial do Estado de São Paulo [D.O.E.S.P.] de 21.3.2019. × is also identified, in the same line, highlighting the priority of collective public transport modes over individual, the priority of non-polluting public transport modes over pollutants, and incentives for scientific-technological development in order to mitigate the environmental and socioeconomic costs of people and cargo displacements. Thus, it encourages entrepreneurship and startups that produce innovative urban mobility solutions for citizens.

At the municipal level, the São Paulo Climate Change Law (Law 14.933 / 2009) 28 28. Lei No. 14.933, de 5 de Junho de 2009, Diário Oficial do Município de São Paulo [D.O.M.S.P.] de 5.6.2009. × also outlines strategies to reduce emissions through the transport sector; however, these measures are restricted to the progressive reduction of fossil fuels within the bus fleet. The municipal law follows some guidelines, such as that for land use, as an infrastructure for transport supports and encourages active mobility, but with a focus on mobility by bicycle, without addressing pedestrian mobility.

Since 2015, organizations have begun to emerge that work on pedestrian mobility in the city of São Paulo, also helping to promote experiences/interventions focused on pedestrians. 29 29. como anda o movimento pela mobilidade a pé no brasil: agentes, oportunidades e gargalos (Rafaella Basile et al. eds., 2017). × In 2015, the Urban Mobility Plan (UMP) was instituted through Decree No. 56.834 / 2015, in response to the NPUM request, bringing specific guidelines for pedestrian mobility, in response to the demand from civil society, the Active Mobility Integration policy and the Pedestrian Circulation System. These suggest characteristics of the pedestrian displacement network, the infrastructure required and the specific goals for pedestrians and accessibility.

The Municipal Council of Transport and Traffic of São Paulo in 2015 created thematic chambers of cycling and pedestrian mobility, in a bottom-up process, which emerged out of civil society. In June 2017, also featuring the active participation of civil society, the Pedestrian Statute of the city of São Paulo was approved with the main objectives of consolidating the concept of a pedestrian mobility network and of determining the sources of funds for the infrastructure required for walking, such as sidewalks, boardwalks and crossings. 30 30. Lei No. 16.673, de 13 de Junho de 2017, Diário Oficial do Município de São Paulo [D.O.M.S.P.] de 13.6.2017. × However, despite the sanction, to date (May 2020) the Statute has not been regulated by City Hall, preventing in practice its application within the law.

In 2019, Decree no. 58.611/2019 was published, which consolidates criteria for the standardization of sidewalks in São Paulo. Further, in the same year, the Municipality of São Paulo, through Municipal Decree no. 58.717/2019, 31 31. Decreto No. 58.717, de 17 de Abril de 2019, Diário Oficial do Município de São Paulo [D.O.M.S.P.] de 17.5.2019. × with support from the World Bank, launched the Road Safety Plan of São Paulo Municipality, developed and elaborated with civil society organizations’ involvement: in particular, the Bloomberg Initiative for Global Traffic Safety and WRI Brazil.

When analyzing the regulatory framework, at different government levels, it is clear that the priority for active mobility is guaranteed; however, there are few tools to provide practical results in the qualification of active mobility networks connected to collective public transport. Finally, regarding the role of civil society, it is possible to establish a relationship that the more local (municipal) the public policy, the greater its social influence and participation, opening up opportunities for social innovation of active mobility, as presented in the following topic.

3.2. Social innovation opportunities in active mobility services

In order to improve the conditions for integration with public transport, the initiatives studied have sought to increase the safety and comfort of pedestrians, by reducing speed, and redesigning and expanding sidewalks. The initiatives applied tactical urbanism techniques (temporary interventions) to test the sites for different uses and later, to receive permanent intervention. Table 2 summarizes the interventions studied, based on tactical urbanism and social innovation variables relationed to the introduction of public services for pedestrian mobility.

Table 2: Social innovation variables linked to public services for pedestrian mobility.

Figure 5 shows the integration of the active mobility initiatives studied in the regulatory framework mapped for urban mobility and climate change in Figure 4. The regulatory framework’s evolution is relatively recent; we have identified developments from civil society performances, establishing opportunities for social innovation relationed to innovation in pedestrian mobility public services (service characteristics).

Figure 5: Timeline for initiatives and regulatory frameworks.

The innovation, in the local context, in services provided by City Hall, occurred in the treatment of pedestrian spaces: sidewalks; crossings; accessibility; horizontal and vertical signaling in public spaces; traffic light systems suitable for non-motorized transport; and traffic moderation. In order to improve the conditions for integration with collective public transport, the initiatives studied sought to increase safety and comfort for pedestrians by reducing speed, and reforming and expanding sidewalks. Explaining the link between social innovation and innovation in public services, the protagonism of civil society is highlighted by conducting audits and impact evaluations; supervising public bodies; working together to develop the temporary intervention project; analyzing, along with municipal bodies, those sites that could receive temporary intervention; and holding workshops with the community.

Advances in the regulatory framework explicitly point to a contribution toward sustainable development; equity in citizens’ access to collective public transport; equity in the use of public spaces for circulation, roads and public areas; priority of non-motorized modes of transport over motorized and of collective public transport services over individual motorized transport; mitigation of environmental, social and economic costs of displacement of people and cargo in the city; encouragement of scientific and technological development; and the use of renewable and less polluting energy, among others.

By analyzing the recent Brazilian regulatory framework for active mobility and low-carbon economy, it is possible to establish the relationship that the more local (municipal) the public policy, the greater its social influence and participation. These have concrete examples, such as the municipal Urban Mobility Plan, the Pedestrian Statute, creation of the walking mobility thematic chamber at the municipal council, as well as the active mobility initiatives studied, developed through cooperation agreements with City Hall.

However, despite the advances indicated by both experiences of active mobility analyzed, highlighting the role of civil society organizations, and by the progress in the regulatory framework, until the present day innovative practices in the local context have been restricted to treatment of infrastructure for pedestrians. Therefore, there are great potentials for the continued introduction of innovations for the improvement and scale gain of public services for pedestrian mobility, in line with the paradigm of sustainable urban mobility and based on social participation.

4. Conclusion

Through public services, the social innovations in the Reduced Speed Zones and Complete Streets manifest as a requalification and availability of urban spaces that motor vehicles have previously occupied densely, now to be used by pedestrians. The social innovations introduced are associated with public services previously unavailable in the local context: the improvement of pedestrian spaces, applying temporary interventions for road requalification with a transformation of streets.

The improvement of urban mobility, which responds to the needs evidenced by society, requires services that result in new ways of people occupying the city road space. It is about not only expanding, but also creating and requalifying services for active mobility. New, improved or modified services that result from social innovation, unlike conventional market innovation, are geared toward generating solutions for society rather than the private individual.

The Reduced Speed Zone and Complete Street cases illustrate social innovation opportunities anchored in public services for active mobility in São Paulo. It shows the relevance of paying attention to forms of non-technological innovation, and that the deliberate structuring of innovation networks does not necessarily support innovative processes and results verified in the local context.

The development, introduction and support of social innovation was supported by the role of third sector organizations, with the establishment of agreements with the city government. Additionally, it requires knowledge and competencies from public and third sector organizations, the use of material factors (i.e. construction of roundabouts, temporary and permanent expansion of sidewalks, narrowing of traffic/moving lane, reduction of corner radii, accessibility ramps), and interactions between key stakeholders.

Through the work of third sector organizations, we also highlight the role of volunteers and collectives in the creation and introduction of solutions for active mobility, which meet social needs based on the inclusion of pedestrians as a priority in the use of urban road space. The organizations draw attention to the interests of the individual citizen and use their experience to interact with the public service provider (City Hall) in the identification of areas for intervention and in the establishment of evidence bases on the effectiveness of the techniques used for the requalification of the road space. They also assist in the definition of forms and characteristics of social innovation (service characteristics), that represent solutions to social needs presented to the public sector (service provider).

The public sector may create a window of opportunity for the promotion of innovations, through public policies, and introduces services for the requalification and maintenance of pedestrian urban space. This approach, focused on the relationship between social innovation and innovation in services, therefore permits a better understanding of innovation processes and results.

This study was financed in part by the Coordenação de Aperfeiçoamento de Pessoal de Nível Superior – Brasil (CAPES) – Finance Code 001

By Jennifer J. Huseby


Cite as: Jennifer J. Huseby, Note, Who Gets to Operate on Herbie? Right to Repair Legislation in the Context of Automated Vehicles, 2020 J.L. & Mob. 41.



Abstract

You bought it, you own it, but do you have the right to repair it? As right-to-repair remains a hot topic in the context of consumer electronics such as smartphones, one must consider the ramifications it may have for the automated vehicle (“AV”) industry. As the backdrop for one of the first legislative victories for right-to-repair, the automobile industry has continued to push for the expansion of right-to-repair to cover increased access to telematics and exceptions to proprietary software controls. However, as we revisit the issue for more highly connected and automated vehicles, it is important to assess the unique considerations of the AV sector before we can transpose previously learned lessons into a new, nearly unpredictable context.

As such, this article examines a possible framework that addresses the technical and privacy concerns that uniquely arise when applying right-to-repair legislation to AVs. By attempting to predict on how previously learned lessons may influence action going forward, this article hopes to influence the right-to-repair discourse that will arise between manufacturers, consumers, and independent repair technicians for AVs.

Introduction

“You bought it, you own it,” 32 32. Corynne McSherry & Parker Higgins, You Bought it, You Own It: Supreme Court Victory for Common Sense and Owners’ Rights, Electronic Frontier Foundation (Mar. 19, 2013), https://www.eff.org/deeplinks/2013/03/you-bought-it-you-own-it-supreme-court-victory-common-sense-and-owners-rights. × but the question is: do you have the right to repair it? Many of us may have tried a frantic Google search for “how to replace screen cheap” after a nasty coupling between concrete and iPhone. Some of us may have even ventured to a local independent repair technician to get that spider webbed screen replaced. Yet behind this seemingly simple sequence of events lies a legal and regulatory battleground around “right-to-repair” legislation, involving a clash between manufacturers’ desire to protect their intellectual property and consumers who seek complete ownership of their devices. And as companies increasingly invest in the research and development of automated vehicles (“AVs”), the question now turns to whether people should be free to peek under “Herbie’s” hood and repair their own AVs as well (or at least, have access to a free market with alternative independent repair technicians).

AVs have the potential to revolutionize transportation systems by increasing safety, providing critical mobility access, and creating greater efficiency and fuel savings. 33 33. Daniel J. Fagnant & Kara Kockelman, Preparing a Nation for Autonomous Vehicles: Opportunities, Barriers and Policy Recommendations, 77 Transp. Res. Part A: Pol’y & Prac. 167, 169-75 (2015). × However, initial costs and maintenance charges serve as exceedingly high barriers to mass-market implementation and penetration. 34 34. See id. at 175-78, see also Russ Mitchell, Lidar Costs $75,000 Per Car. If the Price Doesn’t Drop to a Few Hundred Bucks, Driverless Cars Won’t Go Mass Market, L.A. Times (Dec. 11, 2017), https://www.latimes.com/business/la-fi-hy-ouster-lidar-20171211-htmlstory.html. × Although the price tag on key technology components such as LIDAR are decreasing incrementally, figures still cite that fully autonomous technology adds up to an extra $100,000 to the price of an individual vehicle. 35 35. Lance Eliot, LIDAR Game of Thrones for Driverless Cars, There Will Be Winners and There Will Be Losers, Forbes (Apr. 16, 2019), https://www.forbes.com/ sites/lanceeliot/2019/04/16/lidar-game-of-thrones-for-driverless-cars-there-will-be-win ners-and-there-will-be-losers/?sh=3539c1f91f13. × Providing more affordable repair and maintenance options through independent repair shops could be the key to providing cheaper access to AVs, which in turn may prove necessary for mass-market level implementations that could fully take advantage of their benefits.

On the other hand, it is understandable to feel cautious of entrusting AV repair to those that are not original equipment manufacturers (“OEMs”). Right-to-repair, which allows for consumers and third-party vendors to open up and repair their products, is promising in the context of phones or non-AV automobiles. However, opening up Herbie’s hood conjures images of complex circuitry and elaborate schematics that local mechanics may not have seen before. More importantly, AVs involve increased security and privacy concerns when compared to traditional vehicles.

The intense integration of software in AVs means that any potential vulnerabilities in the vehicle’s security may result in physical, potentially catastrophic crashes. 36 36. See Andy Greenberg, Hackers Remotely Kill a Jeep on the Highway – With Me in It, Wired (Jul. 21, 2015) https://www.wired.com/2015/07/hackers-remotely-kill-jeep-highway/. × Given the potential for malicious actors to take advantage of these vulnerabilities, the question not only becomes whether we should entrust the safety of the driver and the public to tinkerers, but also whether it is prudent to do so at the expense of the investment rights and potential reputational damage of OEMs. Finally, current intellectual property statutes such as the Digital Millennium Copyright Act (“DMCA”), which criminalizes the circumvention of “access controls” such as the OEM’s protective software, 37 37. Access controls refer generally to copyright owners’ exertion of control over consumers’ access to the contents of their works. See Jessica D. Litman, Digital Copyright 83 (2nd ed. Amherst, N.Y.: Prometheus Books, 2006). × may even preempt states from enacting such right to repair laws. 38 38. 17 U.S.C.A. § 1201. ×

This article examines a possible framework to address the technical and privacy concerns that uniquely arise when applying right-to-repair legislation to AVs. To do so, this article attempts to predict how previously learned lessons may influence right-to-repair issues that may arise for AVs. Part I explains the right-to-repair movement, its key stakeholders, and the legal and factual development of such legislation in the United States. In Part II, this article discusses the common arguments marshaled for and against right-to-repair legislation, mostly predicated on freedom and security concerns. In Part III, this article proposes a regulatory right-to-repair framework that targets the unique concerns of AVs specifically, explaining the necessity of preserving the privacy of consumer’s data and acknowledging the need for highly qualified technical skill when working on these vehicles.

Part I: The Right-to-Repair “My Stuff”

Right-to-repair is the embodiment of the idea of complete ownership. In other words if you own it, you “should be able to open, hack, repair, upgrade, or tie bells on” on it in whatever way you choose. 39 39. We Have the Right to Repair Everything We Own, iFixit https://www.ifixit.com/Right-to-Repair/Intro (last visited Aug. 12, 2020). × Chief among its leaders is the Repair Association, which includes notable industry organizations and consumer-rights groups such as the Electronic Frontier Foundation (“EFF”), 40 40. EFF is a nonprofit organization dedicated to defending civil liberties in the digital frontier, with a chief focus on protecting access to developing technology. Some notable legal victories include advocating for exemptions to Section 1201 of the DMCA, so as to allow legal “break[ing]” of digital access controls to repair and otherwise use technology more freely. See About EFF, EFF, https://www.eff.org/about; see also Mitch Stoltz, New Exemptions to DMCA Section 1201 Are Welcome, But Don’t Go Far Enough, EFF (Oct. 26, 2018) https://www.eff.org/deeplinks/2018/10/new-exemptions-dmca-section-1201-are-welcome-dont-go-far-enough. × iFixit, 41 41. iFixit, “the Free Repair Manual” is a wiki-based site and community dedicated towards teaching “the world to fix every single thing” by allowing users to share technical knowledge through provisions and edits of repair manuals. See, e.g., The Repair Revolution, iFixit, https://www.ifixit.com/Right-to-Repair (last visited Aug. 12, 2020); Who we are, iFixit, https://www.ifixit.com/Info/background (last visited Aug. 12, 2020). × and other players that are similarly impassioned and involved in advocating for the repair and reuse of technology. 42 42. See About Us: Members, Repair.org, https://repair.org/members-1/ (last visited Aug. 12, 2020). × The movement encompasses a surprisingly broad array of industry interests, including medical device repair and maintenance, automobiles, agriculture and farming, and consumer electronics spaces. 43 43. See id. ×

There is much more to the right-to-repair movement than a want of ownership and control over one’s purchase. Concerns of efficiency and timeliness are also commonly cited by consumers as a reason to support right-to-repair. For example, American farmers have taken to hacking their John Deere tractors with Ukrainian firmware off of the black market. 44 44. Jason Koebler, Why American Farmers Are Hacking Their Tractors With Ukrainian Firmware, Vice (Mar. 21, 2017) https://www.vice.com/en_us/article/xykkkd/why-american-farmers-are-hacking-their-tractors-with-ukrainian-firmware. × They do this because John Deere software has made it impossible to perform unauthorized repairs on their equipment, 45 45. John Deere, License Agreement for John Deere Embedded Software 1, https://www.deere.com/assets/pdfs/common/privacy-and-data/docs/agreement_pdfs/ english/2016-10-28-Embedded-Software-EULA.pdf (last accessed Oct. 23, 2020) (illustrating how software related end user license agreements restrict unauthorized repair). × and the farmers “don’t have time to wait for a dealership employee to show up and fix it,” 46 46. See Koebler, supra note 13. × due to the nature of farm work. Waiting for dealerships or manufacturers to respond to repair requests could end up costing farmers crucial time during harvesting periods, ultimately hurting their livelihoods. 47 47. Kyle Wiens & Elizabeth Chamberlain, John Deere Just Swindled Farmers out of Their Right to Repair, Wired (Sep. 19, 2018) https://www.wired.com/story/john-deere-farmers-right-to-repair/. ×

Right-to-repair movements have been successful in persuading manufacturer side institutions such as the Equipment Dealers Association to make concessions. These concessions include agreeing to provide repair manuals, product guides, diagnostic service tools, and on-board diagnostics to farmers by 2021. 48 48. Jason Koebler, Hospitals Need to Repair Ventilators. Manufacturers Are Making That Impossible, Vice (Mar. 18, 2020) https://www.vice.com/en_us/article/wxekgx/hospitals-need-to-repair-ventilators-manufacturers-are-making-that-impossible. See, e.g., Jerri-Lynn Scofield, Right to Repair and Ventilators: Saving COVID-19 Patients, Naked Capitalism (Apr. 5, 2020) https://www.nakedcapitalism.com/2020/04/right-to-repair-and-ventilators-saving-covid-19-patients.html; Cory Doctorow, Right to Repair in Times of Pandemic, EFF (Mar. 19, 2020) https://www.eff.org/deeplinks/2020/03/right-repair-times-pandemic. × Yet even this agreement contained carveouts allowing manufacturers to continue using proprietary software locks designed to prevent repair. 49 49. Id. × Unsurprisingly, this type of software lock is an important puzzle piece in right-to-repair – and it isn’t just limited to tractors.

Microprocessors and accompanying software are now ubiquitous in our coffee machines, cars, CPAP machines, ventilators and more – and while the complexity hasn’t necessarily deterred the ability of independent repair technicians to fix the product, Digital Rights Management (“DRM”) software locks placed by the manufacturer make the problem an issue of authorized access. DRM is a euphemism for technologies implemented by IP holders and manufacturers that are designed to control how, where and when their consumers use their products and content after purchase. 50 50. Aaron Perzanowski & Jason Schultz, The End of Ownership: Personal Property in the Digital Economy 121 (2016). × This type of software serves as a gatekeeper to enforce any restrictions or limitations demanded by manufacturers, and can do things like restrict your iTunes purchases to Apple products, or prevent you from using your DVR to record your favorite show if the copyright holder objects. 51 51. Id. at 135. See also Eric Bangeman, DirecTV DVR Clampdown: A Sober Reminder of DRM Suckitude, Ars Technica, March 20, 2008, http://arstechnica.com/uncategorized/2008/03/‌directv-dvr-clampdown-a-sober-reminder-of-drm-suckitude/ (last visited Aug. 12, 2020). ×

Unfettered ownership for the consumer sounds amazing. Ownership free from DRM encourages innovation and efficiency in repair, because this “freedom to tinker” lets individuals contribute to technologies in creative ways that the OEM does not (or cannot). 52 52. Perzanowski & Shultz, supra note 19, at 135; see also Eric Von Hippel, Democratizing Innovation 121 – 124 (Cambridge, MA: MIT Press, 2005) http://web.mit.edu/‌evhippel/www/democ1.htm (last visited Oct. 23, 2020) (illustrating the inefficiencies that result when we avoid user-centered innovation systems that model that work on democratizing innovation and creativity). × Yet it is not surprising that manufacturers would want to limit the scope of after-sale repairs and maintenance for purchasers. After all, some estimate that repair business may account for up to three percent of the United States’ economy. 53 53. See also iFixit (Oct. 25, 2018), https://ifixit.org/blog/11951/1201-copyright-final-rule/ (stating that “repair jobs represent 3% of overall employment” in the American economy). × After-sale repair and maintenance markets are a lucrative revenue steam that original manufacturers are incentivized to capitalize on; and this is not to mention the safety and security concerns that may arise from granting such unfettered access to software controls and diagnostics. To that end, many manufacturers have taken the road towards cementing a virtual repair monopoly, by restricting access to repair manuals and replacement parts, using DRM software to wall off potential do-it-yourselfers from attempting to fix their products, and lobbying lawmakers to oppose legislation that would protect and expand access to repair capital. 54 54. Jason Koebler, Appliance Companies are Lobbying to Protect Their DRM-Fueled Repair Monopolies, Vice (Apr. 25, 2018) https://www.vice.com/en_us/article/vbxk3b/appliance-companies-are-lobbying-against-right-to-repair. This article illustrates the efforts of electronics manufacturers such as Dyson, LG, and Wahl to oppose now stagnant Illinois Bill HB 4747, which would have required such electronics manufacturers to: “sell replacement parts and tools, [allow] independent repair professionals and consumers to bypass software locks that are strictly put in place to prevent unauthorized repair, and would require manufacturers to make available the same repair diagnostic tools and diagrams to the general public.” ×

History and Developments in Right-to-Repair Legislation.

Despite being touted by progressive politicians, 55 55. See, e.g., Warren and Sanders Say We Need a “Right to Repair” Tractors. Here’s Why That’s Important, In These Times (Aug. 1, 2019) http://inthesetimes.com/article/21952/right-to-repair-technology-Apple-manufacturing. × right-to-repair is more culturally conservative than we would expect. 56 56. Louis Rossman, What is Right to Repair? An Introduction for Curious People, YouTube (Mar. 4, 2020), https://www.youtube.com/watch?v=Npd_xDuNi9k. × The United States “started as a nation of tinkerers,” building new ways to disrupt existing industries through experimentation and innovation. 57 57. See, e.g., Alec Foege, The Tinkerers: The Amateurs, DIYers, and Inventors Who Make America Great (2013); Daniel J. Kevles, The U.S. Started as a Nation of Tinkerers, Scientific American (Dec. 12, 2015) https://www.scientificamerican.com/article/the-u-s-started-as-a-nation-of-tinkerers/. × Despite this, “tinkering” is quickly becoming discouraged as manufacturers seek new ways to protect and restrict the use of their intellectual property after-purchase, and as concerns of safety and cybersecurity grow increasingly poignant.

       The history of right-to-repair in the automotive industry begins in Massachusetts. The Motor Vehicle Owner’s Right to Repair Act was a landmark achievement in the automotive space, eventually paving the way for a national solution between independent repair technicians and OEMs 58 58. Motor Vehicle Owners Right to Repair Act of 2011, H.R. 1449, 112th Cong. (2011-2012), https://www.congress.gov/bill/112th-congress/house-bill/1449?s=1&r=17; see Leah Chan Grinvald and Ofer Tur-Sinai, Intellectual Property Law and the Right to Repair, 88 Fordham L. Rev. 63, 72 (2019). × . Not content with the initial passage of the law in 2012, pro-repair rights groups were further able to pass a ballot initiative that would allow vehicle owners and repair technicians access to the same diagnostic and repair information that before, had only been available to manufacturers and manufacturer-authorized facilities. 59 59. Sec. of the Commonwealth of Mass., Statewide Ballot Questions — Statistics by Year: 1919 – 2018, https://www.sec.state.ma.us/ele/elebalm/balmresults.html #year2012 (showing 74% of voters in support of Question 1, an initiative petition for a law on Availability of Motor Vehicle Repair Information). × Massachusetts voters overrode the car companies with 74% of voters supporting this right-to-repair ballot measure in November 2012. 60 60. Id., see also Erine Smith, Years After Success, Massachusetts Right to Repair Coalition Re-Forms to Close Loophole (Feb. 6, 2019), https://associationsnow.com/ 2019/02/massachusetts-right-repair-coalition-re-forms-close-loophole/ (stating that after the success in 2012, the Right to Repair Coalition is still fighting in 2020 to close the telematics loophole by advocating for an update to the law). × This wildly successful initial campaign in Massachusetts was spearheaded by the Auto Care Association (“Auto Care”), a national trade organization comprised of 3,000 members representing more than 150,000 independent auto care businesses. 61 61. Right to Repair, Auto Care Ass’n, https://www.autocare.org/government-affairs/issues/right-to-repair/. ×

Right-to-repair continues to be wildly popular in Massachusetts, and the movement very recently saw a win in the 2020 election season, in which an amendment to allow vehicle owners and independent mechanics access to telematics passed with 75 percent approval. 62 62. Mass. Election Results, WCVB TV (Nov. 3, 2020), https://elections.ap.org/WCVB/results/2020-11-03/state/MA/race/I/raceid/24900; see also Adi Robertson, Massachusetts passes ‘right to repair’ law to open up car data, TheVerge (Nov. 4, 2020) https://www.theverge.com/2020/11/4/21549129/ massachusetts-right-to-repair-question-1-wireless-car-data-passes. × Telematics are the data that is transmitted wirelessly from the vehicle to the manufacturer, and can include data such as driving behavior, GPS location, and repair and maintenance data. 63 63. Access to and Control of Vehicle Data, Auto Care Ass’n, https://www.autocare.org/government-affairs/issues/telematics/. ×  Amidst projections that 87% of new vehicles in the United States would transmit such data, 64 64. Car Data Factsheet, Auto Care Ass’n, https://www.autocare.org/uploadedfiles/autocareorg/government_affairs/issues/resources/consumer_cardatafactsheet.pdf. × these results were a crucial win in the fight for legislation that would allow consumers to have more control over who has access to this data, and allow members of the auto care industry to use this data to assist with maintenance and repair.

In brief, the Massachusetts Right to Repair Act granted car owners – thus including the average consumer, and independent repair shops – access to the manuals and diagnostic software that licensed dealerships had, thus vastly facilitating independent repair efforts and expanding the range of repair options consumers would have available. This was buttressed by the subsequent agreement with the Association of Global Automakers, which gave mechanics similar rights. 65 65. Christopher Jensen, Carmakers to Share Repair Data, N.Y. Times (Jan. 31, 2014), https://www.nytimes.com/2014/02/02/automobiles/carmakers-to-share-repair-data.html. ×

Inspired by the successes in Massachusetts’s automobile repair industry, the right-to-repair movement appeared to gain steam across the nation and across various commercial fields. 66 66. See Repairable Products Make Good Sense, iFixit, https://www.ifixit.com/Right-to-Repair/Repairable-Products (last visited Nov. 10, 2020) (currently, right-to-repair is often discussed in the context of consumer electronics such as smartphones). × Its popularity led over twenty states to introduce some form of right-to-repair legislation that draws upon model legislation drafted by the Repair Association itself. 67 67. Repair Ass’n, Model State Right-to-Repair Law, (July 24, 2018), https://repair.org/s/Right-to-repair-Model-state-law-7-24-18.docx. × Largely, such legislation would expand consumer access to the repair manuals, tools, and replacement parts that they need to fix their electronic equipment. 68 68. Id. × Yet despite initial steam, many of these efforts, outside of Massachusetts, seem to have stalled since their inception. 69 69. Grinvald & Tur-Sinai, supra note 27 at 72 – 73. ×

Right-to-Repair in the Courts

Repair doctrine is not a foreign concept in the courts. Intellectual property law has traditionally interpreted ownership rights as extending far past mere physical possession, 70 70. See, e.g., Impression Prods. v. Lexmark Int’l., Inc., 137 S. Ct. 1523 (2017) (for example, the first sale doctrine in copyright has long been recognized and reaffirmed by courts and limits the extent to which owners of intellectual property can control their product or service after an initial sale). × and repair rights are no exception. Notably, the right-to-repair has enjoyed protection as an extension of the exhaustion principle in patent law. 71 71. See id. (rooted in common law, the exhaustion principle is the notion that a holder of intellectually property rights relinquishes, or “exhausts” their control over a product once it sells or otherwise transfers title of that property to someone else). × Dubbed the principle of permissible repair, courts recognize that one who is lawfully using a patented item has the lawful right to preserve and maintain the item in a usable and functional status by repairing the item. 72 72. Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336 (1961). × Such permissible repair allows replacements of the item’s component parts, as long as the replacement does not amount to a reconstruction. Indeed, “[t]he Supreme Court has taken an expansive view of the conduct that constitutes permissible repair of a patented combination of unpatented elements.” 73 73. Sage Products, Inc. v. Devon Indus., Inc., 45 F.3d 1575, 1578 (Fed. Cir. 1995). ×

After-sale market businesses that maintain, repair, customize, refurbish or otherwise resell products have long relied on the exhaustion principle to balance the competing interests of the patent owner’s exclusive property rights, the consumer’s rights to resell and otherwise repair or improve their purchases, and public interest to prevent unfair competition. 74 74. Brief Amici Curiae of Auto Care Ass’n and Int’l Imaging Tech. Council in Support of the Petitioner at 3, Impression Products, Inc. v. Lexmark International, Inc., 137 S. Ct. 1523 (2017) (No. 15-1189) at 3, https://www.scotusblog.com/wp-content/uploads/2017/02/15-1189_amicus_pet_auto_care_assoc.pdf. × Interestingly, broad constructions of the principle of permissible repair are seen especially in the context of medical device maintenance cases, 75 75. See § 11:59. Right-to-repair, 2 Annotated Patent Digest § 11:59; see also Kendall Co. v. Progressive Med. Tech., Inc., 85 F.3d 1570 (Fed. Cir. 1996) (finding that when patent assignee sold its patented medical device for applying compressive pressure to patients’ limbs, assignee granted customers implied license to use device for its useful life, and implied license included right-to-repair patented article and necessarily to purchase repair parts from others; right-to-repair was implied as matter of law). × even though one would expect a higher consideration of the patent owner’s rights because of public interest in maintaining high quality repair standards for the sake of medical safety.

However, there is an increased trend towards separating ownership rights from purchase. We are already in an age that deemphasizes ownership. The insurgence of the right-to-repair movement can be traced to the development of end-user license agreements (“EULA”). 76 76. Perzanowski & Schultz, supra note 19 at 2. × In a nutshell, EULAs are legal contracts, typically involving software, entered into by copyright owners (generally software developers) and consumers that restrict the consumers from redistributing the software or otherwise engaging in use unwanted by the owners—and they are now near-ubiquitous. Taken from software licensing agreements, consumers now see EULAs daily in smartphone applications, and platforms like Netflix and Spotify. 77 77. See id. at 169. × The world is transforming towards a “sharing economy,” shown most clearly in the expansion of these temporary-access business models. 78 78. Id. at 170. × Needless to say, the broad coverage of the repair doctrine may depend on whether jurisprudence around EULAs going forward will continue to favor expansive interpretations of ownership or will instead trend towards emphasizing the original manufacturer’s control over their after-sale products. 79 79. In fact, recent case law would suggest the latter, erecting more barriers for right to repair going forward. See, e.g., Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111 (9th Cir. 2010) (holding that computer software customer was licensee of its copy rather than owner, and thus was not entitled to invoke first sale doctrine or essential step defense). ×

Part II: The Battle Between Freedom and Security Interests

The traditional arguments lobbying for and against right-to-repair legislation largely follow an ideological push and pull cleavage between freedom and security interests. Consumers and independent repair technicians will identify with those arguments that highlight consumer freedom to fix the products that they own, or at least have the option to have their products fixed by whomever they choose. Conversely, manufacturers will rightly point out the various security vulnerabilities that may arise in accommodating the bypass and availability requests of the general public. After all, the primary purpose of controls like DRM software is to protect the integrity of a product, its software, and the information that it collects.

The following sections will assess traditional arguments on both sides, while transposing them onto the AV context. In doing so, some key factors to consider are the unique safety and security risks that AVs would be characteristically exposed to, the new nature of the industry and its infrastructure, and the particular relevance of copyright laws and the DMCA due to the high integration of software in the vehicles themselves.

Consumer Freedom Based Interests: Efficiency & Access

A commonly posed question by proponents of right to repair is: “would you buy a car if it was illegal to replace the tires?” 80 80. iFixit, supra note 8 × The question is commonly cited because of how persuasive it is—after all, most people are likely to answer: “no.”  Repairing a broken chain on a bicycle, restoring classic cars, and taking apart gadgets is something that feels inherent in one’s ownership of a product. Any consumer would balk at having to spend exorbitant sums (or even potentially facing legal action) just to replace the side front wheel of their car—even if that car was a sentient Volkswagen Beetle. Yet this is precisely the issue that faces owners of increasingly complex vehicles, and the necessity of right-to-repair advocacy and legislation will continue to rise as boundaries around ownership are pushed to unprecedented degrees. 81 81. See, e.g., Neil Gladstone, We Need Right-to-Repair Laws Now More Than Ever, DigitalTrends (July 18, 2020) https://www.digitaltrends.com/features/right-to-repair-legislation-now-more-than-ever/ (detailing the story of Youtuber Rich Benoit and his channel’s quest to “salvage and reverse engineer trashed Teslas” after experiencing first-hand frustration at how difficult the vehicles are to fix, even for minor, routine issues such as a ripped tire). ×

Of course, some arguments circling efficiency reasons may prove less or more persuasive when transposed on to the context of AVs. As an example, electronic waste (“e-waste”) and environmental conservation are widely cited reasons to support right-to-repair and the recycling or upcycling of consumer electronics, such as smartphones. 82 82. As an example, electronic waste (“e-waste”) and environmental conservation reasons are widely cited as a reason to support right-to-repair and recycling or upcycling of consumer electronics, such as smartphones. See, e.g. Jennifer Huseby, Cars, Smartphones and Waste: Fighting for the Right to Repair in 2019, MTLR Blog (Nov. 20, 2019) https://mttlr.org/2019/11/cars-smartphones-and-waste-fighting-for-the-right-to-repair-in-2019/. × Notably, such e-waste accounted for waste streams of over 50 million tons in 2018 and is estimated to reach 120 million tons by 2050. 83 83. World Economic Forum, A New Circular Vision for Electronics: Time for a Global Reboot, 10 (2019). × However, this argument is not as persuasive in the AV context, as such vehicles are extremely expensive. Here, consumers are less likely to engage in “wasteful” spending habits such as simply purchasing a new car in response to a defective part. This contrasts highly with “buy new, buy now” marketing models that companies such as Apple have been accused of following, through planned obsolescence type tactics such as engineering iPhone batteries that die out within a matter of years, and by patching handsets with software intended to slow down older generation phones. 84 84. Jen Kirby, Apple Admitted It’s Slowing Down Certain iPhones, Vox (Dec. 28, 2017, 5:00 P.M.), https://www.vox.com/2017/12/22/16807056/apple-slow-iphone-batteries. ×

At the same time, some consumer freedom arguments prove uniquely persuasive for automated vehicles. One such argument is that because right-to-repair laws allow for a greater number of independent repair technicians to service and maintain vehicles, repairs will cost less and conclude faster – thus allowing greater access to mass-market consumers. There are delays and undue expenses in dealer-monopolized repair schemes, and dealers may be unequipped to absorb the capacity of small, minor fixes on a commercial scale.

Wider access to repairs can be the difference between life and death. The FDA stated in 2018 that “the continued availability of third party entities to service and repair medical devices is critical to the functioning of the U.S. healthcare system.” 85 85. FDA, FDA Report on the Quality, Safety, and Effectiveness of Servicing of Medical Devices: In Accordance with Section 710 of the Food and Drug Administration Reauthorization Act of 2017 (FDARA) i (May 2018). × This is largely because healthcare establishments need cost-effective alternatives to simply purchasing new equipment. 86 86. Id. at 10. × For example, Stephen Grimes, a managing partner at Strategic Healthcare Technology Associates LLC, posited that manufacturers may charge between ten and fifteen percent of the cost of the medical device for maintenance services, while in-house or service organization repairs could offer such services for four to six percent. 87 87. Agam Shah, Who Has a Right to Repair Your Farm or Medical Tools?, ASME (Apr. 16, 2019) https://www.asme.org/topics-resources/content/has-right-repair-farm-medical-tools. ×

This need was highlighted most starkly during the current COVID-19 pandemic. As medical workers grew increasingly strapped for functioning ventilators, hospitals have tried to repair the ventilators that they do have to combat the shortage. 88 88. Jason Koebler, Hospitals Need to Repair Ventilators. Manufacturers Are Making That Impossible, Vice (Mar. 18, 2020) https://www.vice.com/en_us/article/wxekgx/hospitals-need-to-repair-ventilators-manufacturers-are-making-that-impossible. See, e.g., Jerri-Lynn Scofield, Right to Repair and Ventilators: Saving COVID-19 Patients, Naked Capitalism (Apr. 5, 2020) https://www.nakedcapitalism.com/2020/04/right-to-repair-and-ventilators-saving-covid-19-patients.html; Cory Doctorow, Right to Repair in Times of Pandemic, EFF (Mar. 19, 2020) https://www.eff.org/deeplinks/2020/03/right-repair-times-pandemic. × According to Gay Gordon-Byrne, the executive director of Repair.org, some “on-site biomedical technicians can fix a ventilator in hours and return it to service more quickly than anyone else. If they can’t get the info they need to fix and restore to use—a whole lot of very sick people won’t have essential care.” 89 89. Koebler, supra note 56. × Yet in response to this, manufacturers have threatened to sue independent databases of repair manuals. 90 90. E.g., id. × Importantly, the medical device examples show us that even in life or death situations, independent repair technicians can be relied upon and trusted, and that sometimes, they are the only feasible alternative.

Manufacturer Concerns: Safety & Security Based Interests.

Automated vehicles offer a unique challenge to right-to-repair supporters in that they combine traditional cybersecurity concerns with real physical danger to the purchaser’s safety. After all, the modern-day vehicle is extremely complex—it is essentially a “computer on wheels.” 91 91. Dan Klinedinst & Christopher King, Software Engineering Institute, Carnegie Mellon University, On Board Diagnostics: Risks and Vulnerabilities of the Connected Vehicle v (2016) https://resources.sei.cmu.edu/ asset_files/WhitePaper/2016_019_001_453877.‌pdf. × Modern vehicles may contain an impressive amount of software with over 100 million lines of code, which operate microprocessor-based electronic control units (“ECUs”) that manipulate anywhere from minor to crucial functions such as the wipers, to the brakes and even steering. 92 92. Robert N. Charette, This Car Runs on Code, IEEE Spectrum (Feb. 1, 2009) https://spectrum.ieee.org/transportation/systems/this-car-runs-on-code; see also Klinedinst & King, supra note 59 at 1. × Predictably, the increasing complexity arising from connectivity and semi-autonomous capabilities brings vulnerabilities that expose the vehicle further just as if it were a computer – but with physical, potentially catastrophic effects. 93 93. See Klinedinst & King, supra note 59, at 1. ×

Nowhere is this more apparent than in the potential exploitation of on-board diagnostic (“OBD-II”) systems. The OBD-II is an innocent looking 16-pin connector port, located in the driver-side footwell of a car, 94 94. Id. × yet it is essentially an on-board computer that monitors an incredible amount of data about the vehicle including emissions, mileage, speed and more. 95 95. Ryan Dube, What is the OBD-II Port and What Is It Used For?, MakeUseOf (Dec. 21, 2018) https://‌www.‌‌make‌useof.com/‌tag/‌obd-ii-port-used/#:~:text=OBD% 2DII%20is%20an%20on,under%20‌the%20driver%27s%20side%20dash. × These innocuous seeming ports have been mandated on new American cars since 1996, as part of an effort to direct OEMs to make diagnostic tools and information available to independent repair technicians and the general public. 96 96. See 40 CFR § 86.1806-05(a)(1) (mandating that “all light-duty vehicles, light-duty trucks and compete heavy-duty vehicles . . . must be equipped with an onboard diagnostic (OBD) system capable of monitoring all emission-related powertrain systems or components during the applicable useful life of the vehicle.”). ×

The issue is that access to OBD technical information renders vehicles extremely vulnerable to outside attacks. Famous car hackers Chris Valasek and Charlie Miller have spent years demonstrating the concerns over cybersecurity in our vehicles, highlighting remote attacks that can result in hijacking the physical control over a car as the most pressing area of concern. 97 97. Lindsey O’Donnell, Chris Valasek and Charlie Miller: How to Secure Autonomous Vehicles, Threatpost (Aug. 10, 2018) https://threatpost.com/chris-valasek-and-charlie-miller-how-to-secure-autonomous-vehicles/134937/. × Notably, Valasek and Miller were able to demonstrate how hackers can remotely steal control of a moving vehicle on the highway in a zero-day exploit—a vulnerability that is taken advantage of by attackers before developers have an opportunity to respond to it (hence the term “zero-day”). 98 98. Greenberg, supra note 5. ×

Just as in the medical device context, manufacturers will also likely cite concerns about the quality of servicing provided by third party technicians as a reason to oppose right-to-repair legislation. 99 99. FDA supra note 53 at 1. × Components are so highly integrated in electronics and equipment that they are difficult for owners to fix – which starts to beg the question whether we should be letting them try. The integration of more technology into devices and vehicles means that repair shops may not have the skillset or the rights to work on newer products. For example, even for a simple tire repair, you need to calibrate a software-controlled tire pressure sensor – a stretch more complicated than slapping on an aftermarket tire on a tractor.

However, it is important to note that for medical devices, the FDA has largely concluded that third party repairs are not dangerous and provide “high quality, safe, and effective servicing of medical devices.” 100 100. Id. at 23. × Industry leaders report that this is especially so where the organization has established quality systems, ensured that adequate and appropriate training was in place, and where validated parts are being used for repair and servicing activities. 101 101. Id. at 17. ×

Still, this infrastructure takes time to build, especially for radically new technology such as AVs. More importantly, this is a new technology whose aftercare may influence legislation on and regulation of AVs going forward. 102 102. Agam Shah, Can You Repair What You Own?, Mechanical Engineering, Sep. 2018 at 37. × Manufacturers may understandably not want the risk of unauthorized repair technicians jeopardizing the potential mass-market implementation of AVs through inconsistent repair quality.

Finally, there are legal blockades to a successful passing of right-to-repair legislation as well. For one, there is a preemption question. The DMCA “criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works and also criminalizes the act of circumventing such an access control.” Copyrighted works certainly covers software, including DRM software, which is present in most of our consumer electronics devices and of course, many automobiles. 103 103. It has been long established that software is an original work of fixed authorship that is copyrightable. See, e.g., Autodesk, 621 F.3d 1102 at 1106 – 07. × It is common for OEMs to sue defendants who copy software to use on replacement parts and controls, especially where the code has locks to prevent such copying. 104 104. See, e.g., Andrew Thompson, How Digital Copyright Law is Being Used to Run Roughshod Over Repairs, MSNBC (Aug. 21, 2016) https://www.nbcnews.com/ news/us-news/how-digital-copyright-law-being-used-run-roughshod-over-repairs-n628606 (illustrating how OEMs such as GM have pursued action against those independent repairers seeking to circumvent software barriers to repair by copying them). × Essentially, breaking this lock constitutes as circumvention of an access control – the exact type of action criminalized by the DMCA.

Importantly, since self-driving vehicles at higher levels of autonomy would be substantially integrated with software, repairing, and tinkering with their software would be subject to similar restrictions under the DMCA. State legislative committees are already cognizant of the complicated conflicts and questions that right-to-repair may create in relation to copyright law. 105 105. Daniel Moore, You Gotta Fight For Your Right-to-Repair: The Digital Millennium Copyright Act’s Effect on Right-to-Repair Legislation, 6 Tex. A&M L. Rev. 509, 517 (2019). × OEMs in the automobile industry already commonly cite the DMCA as reasons for why unauthorized repair or tinkering violates their intellectual property rights, and it is predictable that they would seek to protect their intellectual property interests for AVs as well.

Federal preemption of right-to-repair laws is also a concern when considering the DMCA. Federal preemption can be express or implied depending on the text of a given statute. 106 106. Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (plurality opinion). × The former occurs where the statute’s language expressly preempts state law, and the latter occurs where Congress has left no room for state regulation in the field, or where the state law conflicts with the federal regulation or is an obstacle to the federal objective. 107 107. See id.; see also Moore supra note 73 at 519. × Of course, there is a colorable argument to be made that the DMCA does not preempt state right-to-repair legislation, even where these repair laws would expressly allow independent repair technicians and consumers to circumvent access controls. Federal preemption of right-to-repair legislation would occur through a combination of § 301 (the “Copyright Preemption Statute”) of the Copyright Act of 1976 (“Copyright Act”) with the DMCA. 108 108. 17 U.S.C. §301 (2018). ×

The Copyright Preemption Statute expressly preempts those state laws that first, fall within the scope of copyrightable subject matter, and second, grant rights that are “equivalent to any of the exclusive rights within the general scope of copyright.” 109 109. 17 U.S.C. § 301; Ryan v. Editions Ltd. W., 786 F.3d 754, 760 (9th Cir. 2015); accord Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 429 (2d Cir. 2012); Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001); see also Moore supra note 73 at 519. × The argument here is that state legislatures do not intend for right-to-repair laws to be copyright laws, and that Congress itself did not intend the DMCA to be a copyright law – and as such, the Copyright Preemption Statute does not apply to the DMCA and is unable to preempt state laws. 110 110. Moore supra note 73 at 519-21. × In addition, such state regulation may not be expressly preempted either in those cases where the regulation has added elements. 111 111. Id. ×

However, it is unlikely that this would be the case. Regardless of an inspection of legislative history of either the DMCA or right-to-repair laws that may be passed by state legislature, the question is not superseded by one of intent. Instead, the analysis is quite simple. Primary focus should be placed on the elements of the subject matter requirement and general scope requirement. And it is quite clear that right-to-repair laws dealing with software access controls certainly meet the first prong of this test because it is well established that software constitutes the type of expression entitled to copyright protection. 112 112. See, e.g., Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1355 (Fed. Cir. 2014) (finding it “well established that copyright protection can extend to both literal and non-literal elements of a computer program”); Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 702 (2d Cir. 1992). × Moreover, such laws would not be beyond the general scope requirement because the circumvention of access controls is not “qualitatively different” from rights that the DMCA seeks to prevent – in fact, they are the exact same. Neither is it likely that the courts would view state right-to-repair legislation for AVs, which are so intertwined with software and access controls, as containing additional elements so as to make the state claim qualitatively different. 113 113. Courts have traditionally taken a restrictive view of what extra elements transform an otherwise equivalent claim into one that is qualitatively different. Briarpatch Ltd., L.P v. Phoenix Pictures, Inc., 373 F.3d 296, 306 (2d Cir. 2004). ×

Part III: The “Solution”

Introducing higher levels of autonomy into the general public requires careful attention to safety and security, and at such a crucial introductory stage in the process, manufacturers are highly incentivized against risking their investments and reputations for the sake of consumer and independent technician interests. As illustrated above, AVs offer uniquely heightened challenges to security and safety than have previous sectors that were popular with the right-to-repair coalition. Moreover, insurmountable barriers such as copyright protection from the DMCA and the need to prove the safety and security of AVs remains of paramount importance.

This is not to say that no repair-related heuristics and schematics should be made available to independent repair technicians and the general public. In fact, such a conclusion flies in the face of American traditions around freedom of ownership and repair. Moreover, the discourse around right-to-repair brings forth important concerns that current manufacturers may find noteworthy to take heed of.

First, it is important to realize that there are systematic delays and undue expenses in dealer-monopolized repair schemes. Dealers may be unequipped to absorb the demand for small, minor fixes on a commercial scale. Since automated vehicles have not yet been widely adopted, manufacturers are able to plan ahead and start fostering more expansive networks that will be able to service their customer’s needs. As such, expanding existing authorized repair technician networks and ensuring that authorized repair centers have the complete schematics, manuals, and tools they need is a crucial step that OEMs need to take. Expanded autonomy for authorized repair centers is extremely crucial on this point.

In such a scenario, the discussion on right-to-repair does not necessarily need to lead to legislation (though legislation will likely be necessary due to the above-mentioned incentives OEMs have against right to repair interests). However, manufacturers have been known to loosen up and work with consumers, especially pending legislation. 114 114. Jake Putnam, Right to Repair Situation Improves, Idaho Farm Bureau Federation (Jan. 07, 2020) https://www.idahofb.org/News-Media/2020/01/right-to-repair-situation-improves. × Such legislation may not always be the optimal way to ensure cheaper and more accessible repairs for consumers, regardless. Moreover, manufacturers have been known to offer consumer-friendly benefits in an effort to create a foundational, critical mass of consumers for groundbreaking products. For example, Tesla has intermittently offered free Supercharging programs, either unlimited or based on referrals, on its Model S and Model X vehicles in response to market demands. 115 115. See, e.g., Fred Lambert, Tesla Removes Free Supercharging on Model S and Model X, Electrek (May 27, 2020) https://electrek.co/2020/05/27/tesla-removes-free-supercharging-model-s-x/; Luke Wilkinson, Tesla to Offer Unlimited Supercharger Access to New Customers, Auto Express (Aug. 05, 2019) https://www.autoexpress.co .uk/tesla/model-s/106168/tesla-to-offer-unlimited-supercharger-access-to-new-customers. × Similarly, such creative and market-responsive efforts could be echoed for AVs as well, especially by offering comprehensive and reactive after-purchase care and services.

In addition, it would not make sense to disallow independent repair technicians from maintaining or servicing AVs in every capacity. For example, switching out faulty sensors or tires should be tasks that independent repair technicians can be given the repair capital to perform safely. Importantly, it is worth noting that just as farmers used Ukrainian firmware in order to hack into their otherwise bricked tractors, so too may frustrated consumers decide to turn to black markets or other, under the radar options to address their quick fix needs. As such, it is even more crucial that they have the repair manuals and heuristics that will ensure that their “quick fix” does not turn into a catastrophic accident.

As such, governments should assess the needs of the general repair community to identify those repairs that can and should be made with ease and minimal detriment to consumer security. Manuals and diagnostic tools that dealers use should be made widely available in order to ensure such safer repairs. Going further: states and the National Highway Traffic Safety Administration (“NHTSA”) should require each major OEM to implement a publicly accessible repair program containing re-education or certification processes that would authorize more independent repair technicians to combat those frequent and simpler fixes without unduly jeopardizing driver safety.

Under such a scheme, manufacturers or governments should also set up a tiered security clearance system that may sufficiently protect consumer’s data privacy rights as they relate to telematics and other types of data collected by AVs. This is further complicated by the fact that every jurisdiction seems to have a different idea on how to evaluate cyber security and data privacy issues. While certain privacy laws such as the European Union’s General Data Protection Regulation (“GDPR”) harmonize data privacy laws across a wide geographical expanse, the United States has yet to enact similarly comprehensive privacy laws on the federal level. 116 116. Regulation 2016/679, of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC, 2016 O.J. (L. 119) 1. On the other hand, states such as California have implemented their own consumer privacy laws such as the California Consumer Privacy Act (“CCPA”), which became effective on January 1, 2020. Cal. Consumer Privacy Act, Cal. Civ. Code §§ 1798.100-1798.199 (Deering 2020). Such individual state efforts contribute to the patchwork characteristics of data privacy systems the world over. × As such, any security framework regarding telematics and other data collected by AVs would have to be tailored jurisdictionally due to the “patchwork” quilt characteristic of data privacy laws in the United States and abroad. 117 117. Lorelei Laird, Cybersecurity Laws are a Worldwide but Evolving Patchwork, ABA Journal (Mar. 18, 2016) https://www.abajournal.com/news/article/cybersecurity_laws_are_a_worldwide_but_evolving_patchwork. × Taken together, these suggestions may prove as necessary steps to take in order to facilitate the much needed mass-market penetration of AVs.

Conclusion

Automated vehicles will be the catalyst to jumpstart a long overdue revolution of the transportation industry as we know it. The benefits of AVs, such as increases in drivers’ safety, provision of critical mobility, and fuel savings are maximized post mass-market implementation. 118 118. Daniel J. Fagnant & Kara Kockelman, Preparing a Nation for Autonomous Vehicles: Opportunities, Barriers and Policy Recommendations, 77 Transp. Res. Part A: Pol’y & Prac. 167, 175 (2015). × However, one of the most insurmountable obstacles is the price barrier to entry – and as such, increasing access to maintenance and repair through right-to-repair legislation is an important avenue to consider.

Yet in the context of the nascent AV industry, right-to-repair legislation is unlikely to be successful, and may be riskier or may prove judicially improbable due to heightened challenges to security. For AVs, which necessarily include an extremely high, near unprecedented level of software integration, cybersecurity vulnerabilities can and will be accompanied by physical consequences that may prove disastrous. The barren nature of legislation and regulation on AVs will incentivize OEMs to retain monopolistic control over repair manuals and replacement parts, because any risk of inconsistent or faulty services and repair by independent repair technicians would jeopardize the entire landscape going forward. Finally, the dominance of software in AVs means that it is highly likely that the DMCA would preempt any legislation along the lines of right-to-repair for AVs, even if a state took such a brave step.

In conclusion, right-to-repair legislation will not prove successful for AVs now, or any time in the near future. Regardless, it is important that OEMs and legislature take note of the various concerns that right-to-repair supporters bring up. Chief among these concerns are that access to repair and maintenance must be made easier and more affordable. Such issues can be combated by investing more in existing repair networks, identifying those fixes that occur frequently and are relatively simple to fix, and ensuring the data privacy of drivers owning these vehicles. Maybe not just anyone should get to operate on Herbie, but we need to make sure it is easier and cheaper to find someone who can.

J.D. Candidate, University of Michigan Law School (2021); B.A. Korea University (2017). This paper was written as a final project for the course offering of Legal Issues Surrounding Autonomous Vehicles at the University of Michigan Law School during the Winter 2020 semester, taught by Emily Frascaroli. The author may be contacted at jenjhuseby@gmail.com.

By David Pimentel†, Michael B. Lowry†, Timothy W. Koglin†, and  Ronald W. Pimentel†


Cite as: David Pimentel, et al., Innovation in a Vacuum: The Uncertain Legal Landscape for Shared Micro-mobility, 2020 J. L. & MOB. 17.



Abstract

The last few years have seen an explosion in the number and size shared micro-mobility systems (“SMMS”) across the United States. Some of these systems have seen extraordinary success and the potential benefit of these systems to communities is considerable. However, SMMS have repeatedly ran into legal barriers that either prevent their implementation entirely, confuse and dissuade potential users, or otherwise limit SMMS’s potential positive impact.

This paper reflects a detailed study of state laws relating to SMMS and the platforms commonly used in these systems. The study uncovered many inconsistencies with micro-mobility laws across the country. Currently, many states lack clear definitions for these emerging forms of transportation, which do not otherwise fit neatly in the categories contemplated by existing law. Several states lack clear, state-level policies, which has led to discrepancies between state and local regulations. Further, there are several areas of micro-mobility law that are sharply inconsistent between states. All of these differences leave users confused as to what the law is and may discourage them from riding.

A number of states are attempting to remedy inconsistencies and legislative silence by passing and proposing laws that regulate the use of electric bikes (“e-bikes”) and electric scooters (“e-scooters”), but even these efforts are unlikely to bring the consistency that is needed. Federal authorities should act to create uniform laws and work with states to adopt them, otherwise, the lack of a legal infrastructure may threaten to stifle the innovation and undermine SMMS’s promised returns.

Introduction 119 119. Funding for this research was provided by a grant from the Pacific Northwest Transportation Consortium (PacTrans), USDOT Transportation Center for Federal Region 10. Additional funding for research assistance was provided by the University of Idaho College Of Law. Thanks also to Ken McLeod of the League of American Bicyclists, Andrew Glass Hastings of Remix, Steve Hoyt-McBeth and Briana Orr of the City of Portland, Chris A. Thomas of the law firm of Thomas, Coon, Newton and Frost, and Asha Weinstein Agrawal of San Jose State University, all of whom were generous with their time, responding to questions and requests and advising the authors on these topics. Credit for design and creation of the searchable state law database, and all the coding it required, belongs exclusively to Timothy Koglin. Thanks to Spencer Felton, Erin Hanson, Brandon Helgeson, Jacqueline Maurer, and Jamie Schwantes for outstanding research of the laws of all 50 states and of the District of Columbia, for populating the database, and for assistance in compiling the report and the early drafts of this paper. ×

The first bike-share programs in the United States appeared in 2010 and since then micro-mobility sharing of electric bikes (“e-bikes”) and electric scooters (“e-scooters”) has greatly expanded. 120 120. Alex Baca, What Cities Need to Understand About Bikeshare Now, Bloomberg Citylab (April 24, 2018, 10:17 AM), https://www.bloomberg.com/news/articles/2018-04-24/a-mostly-complete-taxonomy-of-bikeshare-so-far. × The legal environment, however, has been slow to embrace these innovations, or even to address them. The success or failure of shared micro-mobility systems (“SMMS”) may turn on the legal environment in which they attempt to operate. This study surveyed the laws governing bicycles, e-bikes (bicycles equipped with electric motors to assist in propulsion), and e-scooters (stand-up kick scooters powered by an electric motor) in all fifty states and the District of Columbia, and created a searchable database summarizing these laws as they may affect SMMS. The survey revealed serious issues and challenges for SMMS, as the development of the legal landscape has failed to keep pace with shared micro-mobility innovations.

Structure of the sharing systems

Two separate models of SMMS have emerged. Some systems have fixed docking stations where bicycles are picked up and returned. Other systems are “dockless,” and use GPS systems and cell phone apps to help users locate available bicycles. The user can leave the bicycle in almost any location when the trip is completed, and the next user can find and claim it for its next use. While bike-share systems have been implemented using both docking and dockless systems, e-bike and e-scooter systems overwhelmingly favor the dockless approach. It is common to see multiple systems using different mobility devices in operation side-by-side in the same municipality, essentially competing with each other. 121 121. Susan Shaheen & Adam Cohen, UC Berkeley: Transp. Sustainability Research Ctr., Shared Micromobility Policy Toolkit: Docked and Dockless Bike and Scooter Sharing (2019), https://escholarship.org/uc/item/00k897b5#main; Nicole DuPuis, Jason Griess & Connor Klein, Nat’l League of Cities, Micromobility in Cities: A History and Policy Overview (Laura Cofsky ed., 2019), https://www.nlc.org/sites/default/files/2019-04/CSAR_MicromobilityReport_FINAL.pdf. ×

These dockless systems raise additional challenges not seen in earlier docked systems. Docked systems typically require some level of municipal cooperation to provide land in ideal locations to place the docking stations as well as lengthy investments of time and capital to get the systems up and running. Dockless systems require none of these. Instead, they can pop-up in a city overnight with little to no notice to any government officials or the general public. This lack of notice and cooperation can lead to serious legal problems down the road.

Regardless of how the SMMS is structured, the legal regime that governs the use of the mobility – rules governing who can ride, where they can ride, how riders must be equipped, etc., as well as riders’ perception of those laws – can have an outsized impact on the success of the system. This project was aimed at ascertaining and analyzing these various laws across the country.

Potential benefits of shared micro-mobility

SMMS serve a wide variety of purposes, including flexible mobility, emission reductions, individual financial savings, reduced traffic congestion, reduced fuel use, health benefits, improved multimodal transport connections, “last mile” connection to public transport, and equity (greater accessibility for minority and lower-income communities). 122 122. Peter Midgley, Urban Mobility Advisor, Address at Global Consultation for Decision Makers on Implementing Sustainable Transport (2019), https://sustainabledevelopment.un.org/content/documents/4803Bike%20Sharing%20UN%20DESA.pdf; Benjamin Schneider, What Keeps Bike Share White, Bloomberg Citylab (July 14, 2017, 9:07 AM), https://www.citylab.com/equity/2017/07/what-keeps-bike-share-white/533412; James Woodcock, et al., Health Effects of the London Bicycle Sharing System: Health Impact Modelling Study, theBMJ (Feb. 13, 2014), https://www.bmj.com/content/348/bmj.g425. ×  Most of these objectives – with the exception of health benefits – are served equally well by e-bike and e-scooter sharing systems.

But while e-bikes and e-scooters cannot deliver the health benefits that would come from getting users to travel under their own power, they offer other benefits that traditional bicycles lack. These include (1) the ability to travel with minimal physical effort, (2) the ability to use without getting sweaty, (3) the capacity to travel longer distances or on hillier terrain, (4) the ability to use in all types of clothing (at least for e-scooters – which are compatible with dresses in a way that bicycles are not) and, (5) the promise of an entirely different level of fun. To the extent that these attractions lure people out of their cars, when traditional bicycles would not, these new micro-mobility sharing systems have the potential to generate societal benefits well beyond the promise of a basic bike-sharing system.

All of these benefits speak strongly in favor of SMMS, suggesting that local governments should be supportive of them. Indeed, some municipalities have invested heavily in these systems, subsidizing them, or otherwise committing public funds to their installation and operation. At the same time state and, to a lesser degree, local governments operate legal regimes that have the potential to undermine all these benefits, particularly where users receive confusing or mixed messages about what is legal and what is not.

This study

The research team set out to examine the relevant laws in all fifty states and the District of Columbia. It developed a list of questions related to sharing platforms, falling into nine categories: Definitions, Age Restrictions, Safety Equipment, Licensing Requirements, Where to Ride, Riding Under the Influence, Insurance Requirements, Sidewalk Clutter, and Shared Micro-Mobility Regulations. The research team then developed a database in Microsoft Access to facilitate the collection, storage and analysis of the state laws, and employed graduate students from the University Of Idaho College Of Law for the summer of 2019 to research the laws in each state and input them into the database.

The researchers used the LexisNexis legal database, Westlaw, and state-operated websites in each assigned jurisdiction to find the relevant laws. Since this is an emerging field of law, many states have legislation pending at various stages of the legislative cycle. For the purposes of this study, any laws that had been fully enacted by the state government were included as the relevant law, even if they had not yet gone into effect. Any laws that were pending in the state legislature or were awaiting the governor’s signature were not considered for this study.

The research team met weekly to discuss any unclear laws and to ensure that similar situations were logged in a consistent manner. After the states were completed, researchers checked a sampling of each other’s work to ensure that the data collection had been done in a consistent manner. Any and all discrepancies that were identified were raised for discussion, clarification, and ultimately harmonization.

Discussion

Even the most cursory review of the data collected reveals some compelling conflicts and gaps in the legal and regulatory regime that governs micro-mobility-sharing systems in the United States. These legal deficiencies threaten the success of such ventures, and limit society’s ability to achieve the myriad benefits that such innovations promise. Most of the examined laws regulate the use of micro-mobility (bikes, e-bikes, and e-scooters) and not sharing systems. While the problems discussed below do not apply exclusively to these shared systems, many of them are made exponentially more problematic because of the typical role shared mobility plays. The following discussion will highlight some of the largest legal problems and the specific difficulties they pose for the successful implementation of SMMS.

  1. Legal Inconsistency/Ambiguity

The most prevalent legal problems the study revealed were the numerous inconsistencies and ambiguities in the laws regulating the use of micro-mobility. Inconsistencies arise in a few distinct ways and each presents a slightly different problem to SMMS. Each of these inconsistencies is no more than a minor inconvenience to experienced riders who are either familiar with their local specifications, or know what kind of laws vary in different states and how to fill those gaps when riding in a new location. Anyone who has invested in a means of micro-mobility is likely to have invested some effort in learning the rules that govern its use. To misquote Socrates, they are wise because they know what they do not know.

However, the inexperienced or recreational rider, or the tourist, may be caught completely unaware of any variation or change in the law. Since these casual or inexperienced riders are the target market for most SMMS, inconsistent laws pose a potentially crippling impediment to their success. In our research laws were grouped into two categories. First, laws that are inconsistent with other laws in the same state, here called internal inconsistency. Second, laws that are inconsistent between states, here called external inconsistency – but perhaps better characterized as state-by-state variations in the law. Before addressing the external consistency issues, we will turn to the more acute problem of internal consistency: where even within a single state, sharp differences, ambiguities, and even conflicts exist in the applicable laws.

a. Internal inconsistency in the laws

While most laws are not facially inconsistent, several states’ statutory schemes create confusion that unnecessarily burdens riders. E-scooters in Oregon, for example, are banned from sidewalks and prohibited from traveling faster than 15 mph. But simultaneously, mobility devices used in the street are prohibited from traveling in the roadway at less than the normal speed of traffic. 123 123. Or. Rev. Stat. §§ 814.512-524 (2020) (Defining the offense of “unlawful operation of a motor assisted scooter.”). ×  Thus, if traffic flows at 25 mph, the scooter is required by law to travel no faster than 15 mph, but no slower than 25 mph. 124 124. The conflict is arguably reconciled Or. Rev. Stat. § 814.520, which suggests that a rider may avoid liability for the separate offense of “improper operation of a motor assisted scooter” for driving too slowly if she keeps as close to the right edge of the roadway as possible. But because it is not clear whether “improper operation” is the same offense as “unlawful operation,” the legal requirements remain, at best, ambiguous. At worst we have an outright conflict. ×   Even if there is a way to read these laws together consistently, it is certainly not clear at first glance. The resident who may want to use the new SMMS to help commute to work or the tourist who wants to use it to get around town cannot easily tell how fast or where they can ride.

Other issues can arise when a state does not clearly define e-bikes or e-scooters. Even when an e-bike or e-scooter is not defined by statute, it may fall within another statutory definition, such as motorcycle, moped, or more broadly, motor vehicle. This categorization can lead to more restrictive regulations of e-bikes and e-scooters, such as requiring driver’s licenses, registration, or insurance. For example, New York does not define e-bike or e-scooter. Because motor vehicles are defined as “every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power,” e-bikes and e-scooters both fall within this category. 125 125. N.Y. Veh. & Traf. Law § 125 (McKinney 2020). ×  New York state law also requires that every motor vehicle be registered in order to drive on public highways. 126 126. N.Y. Veh. & Traf. Law § 401 (McKinney 2020). ×  However, as of 2019, the Department of Motor Vehicles did not allow for the registration of e-scooters or e-bikes, which appeared to render riding these devices in public illegal according to their website at the time. 127 127. Motorized devices that cannot be registered in New York, N.Y. State Dep’t of Motor Vehicles, https://web.archive.org/web/20190316092234/https:/dmv.ny.gov/re gistration/motorized-devices-cannot-be-registered-new-york (last visited July 25, 2020) (That agency site was recently changed to indicate that e-bikes may be operated “on some streets and highways in New York State,” and e-scooters will receive the same treatment later this year). Electric Scooters and Bicycles and Other Unregistered Vehicles, N.Y. State Dep’t of Motor Vehicles, https://dmv.ny.gov/registration/electric-scooters-and-bicycles-and-other-unregistered-vehicles (last visited July 25, 2020). ×  This is but one example of how bureaucratic operations can frustrate legislative actions. The inconsistency, in turn, is likely to result in user confusion.

Additionally, state laws can conflict with the laws of the state’s own counties or municipalities. In an emerging field such as shared micro-mobility, some city ordinances conflict directly with their state law. Direct conflicts are likely to occur when a city chooses a position quickly and the state subsequently adopts a contrary position that is incompatible with the local law without allowing for local variation of the matter. While the state law presumably supersedes the local ordinance, the conflicting local law remains on the books. A couple of examples may illustrate.

Sometimes a local law is more restrictive than a state law, so the discrepancy may not create a direct conflict. California state law, for example, identifies three classes of e-bikes and allows all to be ridden on sidewalks. 128 128. Cal. Veh. Code § 21207.5 (West 2020). ×  West Hollywood, CA, however, recently banned the use of all classes of e-bikes on sidewalks. 129 129. West Hollywood, Cal., Mun. Code § 10.04.030 (2020). ×  In this situation, it is possible for both laws to be valid, depending on whether the state law is read to pre-empt local variation or not. If not pre-empted, the local, more restrictive law simply imposes higher standards than required by the state. Nonetheless, the inconsistency can create difficulties for riders. In King County, Washington, for example, adult users of bicycles are required to wear helmets, but elsewhere in the state they are not. 130 130. King County, Wash., Bd. of Health Code § 9.10 (2018). ×  Once again, the SMMS user – i.e. an occasional or casual rider – is far more likely to be caught off guard.

Finally, state and local laws may define or classify mobility devices differently. For example, the city of Seattle defines e-bikes in a manner that does not mirror the three-category classification system for e-bikes adopted by the State of Washington. 131 131. Seattle, Wash., Mun. Code §11.14.055; Wash. Rev. Code Ann. § 46.04.169 (West 2020). ×  The definition provided by Seattle only encompasses what would be Class 1 and Class 2 e-bikes according to Washington State law, leaving Class 3 e-bikes outside of the city’s definition. This creates the potential for regulatory issues if Class 3 e-bikes are not considered e-bikes at all in Seattle, affecting riders’ abilities to ride on bicycle paths or be subject to other restrictions or protections offered to e-bike riders.

b. Externally inconsistent laws

The legal system has long grappled with the problem of state-by-state variations in the law. Some such variations have been celebrated, where local control has been hailed as a benefit of federalism. But there are limits to how and where such variation can or should be tolerated, and the problems of “external inconsistency” have at times demanded remedial attention. Sometimes the federal government has to step in and pre-empt the field, in order to achieve a desirable consistency in the law: examples include historically federal concerns, including bankruptcy, 132 132. See generally, Oleksandra Johnson, The Bankruptcy Code as Complete Preemption: The Ultimate Trump?, 81 Am. Bankr. L.J. 31 (2007). × securities and banking regulation, 133 133. Jay B. Sykes, Cong. Research Serv., R45081, Banking Law: An Overview of Federal Preemption in the Dual Banking System (January 23, 2018), https://fas.org/sgp/crs/misc/R45081.pdf. ×  immigration, 134 134. See generally, 8 U.S.C. ×  and national security. 135 135. See, e.g., USA PATRIOT Act, Pub. L. No. 107-56), 115 Stat. 272 (2001). In the 1990s, federal jurisdiction expanded to include violence against women. The inability to enforce restraining orders across state lines prompted Congress to federalize an area of law long reserved to the states. Lisa N. Sacco, Cong. Research Serv., The Violence Against Women Act (VAWA): Historical Overview, Funding, and Reauthorization, 3rd ed., (2019), https://fas.org/sgp/crs/misc/R45410.pdf. ×  Other times, states have chosen voluntarily to align their laws with each other’s: examples include the adoption of the Uniform Commercial Code. 136 136. States’ eagerness to facilitate commercial transactions for businesses within the state meant that states were happy to adopt a national standard, so interstate transactions could be more easily affected. At present 49 of the 50 states have adopted all or substantially all of the UCC. Tracey George & Russell Korobkin, Selections from the Restatement (Second) Contracts and Uniform Commercial Code, 4-5 (2019). ×  Similar efforts have yielded an overwhelmingly consistent motor vehicle code, making it easy for drivers to traverse the country without worrying that they will run afoul of obscure and idiosyncratic state laws. At the same time, some areas of law – such as Tort Law and Family Law – have been held to be squarely within the province of the states, where uniformity is not necessarily desirable as a matter of federalism. 137 137. Tort reform laws are all over the map, with all kinds of different approaches taken in the various states. Family Law, of course, has become a battleground as these local variations – affecting the rights of interracial, same-sex, and polygamous unions, among others – have come under attack for perceived violations of constitutional guarantees. See e.g. Reynolds v. U.S., 98 U.S. 145 (1879); Loving v. Virginia, 388 U.S. 1 (1967); Obergefell v. Hodges, 576 U.S. 644 (2015). ×  Justice Louis Brandeis famously praised this aspect of our federal system, noting that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” 138 138. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932). ×

The “laboratories of democracy” concept has borne fruit for micro-mobility use. The state of Idaho adopted in 1982 its “Idaho stop law” that allows cyclists to treat “stop” signs as if they were “yield” signs, and to treat red lights as if they were “stop” signs. 139 139. Asmara M. Tekle, Roll On, Cyclist: The Idaho Rule, Traffic Law, and the Quest to Incentivize Urban Cycling, 92 Chi.-Kent L. Rev. 549 (2017). ×  The resounding success of this experiment has led other jurisdictions to follow suit. 140 140. Delaware has adopted the stoplight portion of the Idaho Stop, redubbing it the “Delaware Yield.” Del. Code Ann. tit. 21 § 4196A(c) (2020). Colorado State law specifically allows for local adoption of either the Idaho or Delaware models but does not adopt either at the state level. Colo. Rev. Stat. § 42-4-1412.5 (2019). Oregon has adopted the limited Delaware model. Or. Rev. Stat. §§ 814.414, 416 (2020). Arkansas has fully adopted the Idaho Stop. Ark. Code. Ann. § 27-51-1803 (2020). Washington has enacted legislation authorizing the Delaware version which will go into effect on Oct. 1, 2020. Increasing Mobility Through the Modification of Stop Sign Requirements for Bicyclists, 2020 Wash. Sess. Laws 6208. ×

At the same time, the patchwork of legal requirements for bicycle and other micro-mobility use in different states may sow confusion, particularly for travelers who may find themselves using bikeshare in different states, or in communities situated on a state border. Such issues arise, for example, on roads surrounding the Chipman Trail bike route, which connects Washington State University in Pullman, Washington (WSU), with the University of Idaho in Moscow, Idaho, eight miles east. At the start of a recent community-organized ride that started on the WSU campus, the riders had to be cautioned that they were in Washington now, and needed to stop at stop signs. 141 141. The Tour de Lentil, associated with the annual Lentil Festival in Pullman Washington, is a 50k/100k/150k ride that takes place every August. John Nelson, Tour de Lentil Provides Challenging Ride Through the Palouse, The Spokesman-Review (Aug. 11, 2017), https://www.spokesman.com/stories/2017/aug/11/tour-de-lentil-provides-challenging-ride-through-t/. The Fondo on the Palouse, a “century” (100-mile ride) which starts in Moscow, Idaho, encounters similar issues, as its route straddles the Washington-Idaho border. About the Fondo on the Palouse, The Fondo on the Palouse, http://fondopalouse.org/ (last visited July 19, 2020). ×  There, the ride was organized by a local cycling club who was familiar with the differences and intricacies of the two states’ laws, so the riders were able to prepare for the change in laws. However, if a solo rider or group of friends decided to take the bikes from WSU’s campus bike sharing program along that same trail for a Saturday ride, they would be unlikely to know that the governing laws had changed on them mid-ride. Absent a reminder or notification of some kind they are unlikely to even think to look up the law to see if there was any discrepancy.

While the laws governing cars are largely consistent across the country, inconsistency persists in the laws applying to bicycle use and even more so in those governing e-bike and e-scooter use. This is a particular concern given that a significant number of users of such systems are travelers and tourists – people from outside the relevant jurisdiction and therefore ill-equipped to know local laws. 142 142. Virginia Tech, Virginia Tech Capital Bikeshare Study: A Closer Look at Casual Users and Operations 10 (2012), https://ralphbu.files.wordpress.com/2012/01/vt-bike-share-study-final3.pdf. ×  Similar problems emerged in the early days of automobiles, and the need for consistent laws governing motor vehicle transportation became apparent. A special committee was appointed at the federal level to draw up a uniform code – one that facilitated effective automobile use – and pressure was put on the state legislatures across the country to adopt it. This eliminated idiosyncratic rules that may have existed in different cities and states and allowed manufacturers to produce vehicles that were legal in every state. 143 143. See J. Allen Davis, The California Vehicle Code and the Uniform Vehicle Code 14 Hastings L. J. 377 (1963). ×  Drivers could then have some confidence of the rules of the road when crossing state lines. While traffic laws are not entirely uniform in the U.S. (e.g. some states – including Washington, Oregon, and Idaho – allow left turns on red lights when the driver is turning onto a one-way street, for example), the exceptions are very few and largely minor.  Even the traffic signals and signage have been made standard across jurisdictions. 144 144. This standardization occurred over time as automobiles became more widespread. Clay McShane, The Origins and Globalization of Traffic Control Signals, 25 J. of Urban History 379, 389 (1999), https://sites.tufts.edu/carscultureplace2010/ files/2010/09/McShane-traffic-signals-1999.pdf. ×  Efforts to bring uniformity to the laws governing cycling – much less to the laws governing the use of e-bikes, e-scooters, or SMMS in general – have yet to bear fruit.

Laws that dictate where each platform can and cannot be ridden, “where to ride” laws, present particularly troublesome external inconsistency. Most states allow bicycles to be ridden on the sidewalk or the street so the rider can choose to ride where they feel the most comfortable. However, e-bikes and e-scooters, the primary platforms for dockless SMMS, are restricted much more and far less consistently. E-bikes are burdened slightly, as in about half of states they cannot be ridden on sidewalks. E-scooters, as the newest platform on the scene, are treated the most inconsistently. Over a third of states do not have any regulation at all regarding where e-scooters are allowed. 145 145. See infra Section 2.b. and Figure 4. ×  In those states that do address e-scooters, about half allow them to be ridden on the street and half do not. A handful of states prohibit e-scooter use on the shoulder of the road or the bike lanes. Twenty-three states allow e-scooters to be ridden on sidewalks while six prohibit their use there; the remaining states are silent on the issue. If an individual purchases one of these platforms, especially an e-scooter, it is reasonable to expect that they would look up the rules for the use of their new device in their own state. 146 146. A neighbor of author David Pimentel, however, acquired a motorized scooter in 2019, and after a discussion with a police officer, is now afraid to ride it anywhere. The police officer was unable to advise him where, or whether, such a vehicle could be used in the city limits. ×  However, it seems far less likely that the typical SMMS user would know the details about where they are allowed to ride or take the time to research the question, even if it were easy to find answers, which it often is not. Further, many riders who do not know where they can ride may forgo using the SMMS altogether because of their questions.

Other types of laws also raise external inconsistency issues. For instance, helmet laws vary dramatically in various states (see Figures 1.1 and 1.2). In over 20 states, there is no requirement that anyone wear a helmet when using a bicycle, an e-bike, or an e-scooter. Many states impose helmet requirements on bicycle riders under a certain age. Six states require helmets for all users of e-bikes.

FIGURE 1.1 – Mandatory Helmet Laws

Helmets are required . . .

FIGURE 1.2 – Mandatory Helmet Laws

Helmets are required . . .

Laws requiring helmet use can be particularly burdensome for bike-sharing systems because the typical user does not carry a helmet with her/him. 147 147. Gigi Douban, A Pothole for Bike-Sharing Programs: Helmets, Marketplace Morning Report (Sep. 4, 2015), https://www.marketplace.org/2015/09/04/business/pothole-bike-sharing-programs-helmets/; David Gutman, Will Helmet Law Kill Seattle’s New Bike-Share Program?, Seattle Times (Dec. 19, 2016), https://www.seattletimes.com/seattle-news/transportation/will-helmet-law-kill-seattles-new-bike-share-program/; Emily Elias, Helmets Pose Challenge For Vancouver Bike Share Program, CBC (July 19, 2013) https://www.cbc.ca/news/canada/british-columbia/helmets-pose-challenge-for-vancouver-bike-share-program-1.1379433. × Attempts to share helmets along with bikes have not been well received by the public, presumably because of concerns about the cleanliness of shared helmets. 148 148. Gutman, supra note 29. × Some speculate that the failure of Seattle’s first bike-share venture was due to the strictures of the mandatory helmet law there; 149 149. Id. × more recent success with SMMS in Seattle may be due to local police’s decision to relax their enforcement of King County’s mandatory helmet laws. 150 150. David Gutman, Helmets may be Seattle Law, but Many Bike-Share Riders Don’t Wear Them, Seattle Times, (Aug. 9, 2017), https://www.seattletimes.com/seattle-news/transportation/helmets-may-be-seattle-law-but-many-bike-share-riders-dont-wear-them/. ×

The “ins.tructions” commonly provided by the micro-mobility sharing services are unhelpful on this score, as they may simply tell the user to wear a helmet, without indicating whether the helmet is required by law (e.g. the instruction video for Bird scooters, inside the Bird app, includes a “Bring your own helmet” instruction, without further elaboration to clarify whether this is a legal requirement or just a prudent recommendation). 151 151. App: Bird, How to Ride, (Bird Rides, Inc.) (available on Google Play or the Apple App Store), www.bird.co/how/. × This uncertainty can serve as a deterrent to would-be riders. 152 152. Ronald W. Pimentel, Michael B. Lowry, David Pimentel, Amanda K. Glazer, Timothy W. Koglin, Grace A. Moe, & Marianna M. Knysh, If You Provide, Will They Ride? Motivators and Deterrents to Shared Micro-Mobility, 6 Int’l J. Bus & Applied Soc. Sci. 26, 31 (2020). ×

E-bike and e-scooter riders also face uncertainty about the application of Driving Under the Influence (“DUI”) laws. In many states, it is not at all clear whether the e-bikes and e-scooters qualify as “motor vehicles” for purposes of DUI statutes. A small handful of states have attempted to clarify this by passing separate laws governing Riding Under the Influence (“RUI”), which explicitly apply to micro-mobility users. These laws typically impose lesser punishments for RUI than the state imposes for DUI violations, which makes sense since an intoxicated driver is endangering the lives of others (pedestrians, car passengers, etc.) at a level far beyond the dangers posed by an intoxicated e-scooter rider. A general breakdown of state law treatment of these issues is shown in Figure 2.

FIGURE 2 – “Riding Under the Influence” Legislation*

*A few states have both RUI laws specifically applicable to micro-mobility, and separate DUI laws that apply equally to micro-mobility, introducing potential for contradiction and inconsistency (see discussion of such issues above). The states that fall into both the DUI and the RUI categories are depicted in the “RUI Law Applies” section of the pie charts above.

Naturally, some level of inconsistency is necessary. Not every community has the same needs, and the laws that are appropriate in New York City may not be appropriate in Moscow, Idaho (pop. 24,000). However, a common foundation of legal rules for micro-mobility use, short of complete uniformity, is important if those transportation modalities are to take hold in American cities. For instance, some kind of baseline system that applies broadly but allows for limited local variation based on the specific needs of the location, where those local variations could be clearly demonstrated to potential riders, would go a long way to solving both internal and external inconsistency issues.

  1. (Lack of) Awareness of the law

Even if inconsistent laws were aligned, micro-mobility users still might not know what the laws are. Someone who is unaware of the law will have difficulty complying with it and, as noted above, the uncertainty may scare riders off altogether.

a. Ignorance and (mis)perception of the applicable laws

It is far from clear, even for a lawyer trained to interpret statutes, which existing laws may apply to a particular mode of micro-mobility. In some states, the term “pedestrian” is interpreted to include bicyclists on sidewalks, so laws that give pedestrians the right-of-way simultaneously give bicyclists the right-of-way. 153 153. E.g. Mich. Comp. Laws § 257.660c (2020). × In thirty-five states, the word “vehicle” is interpreted to include bicycles, which lumps bicycles in with other vehicles and subjects them to the laws governing vehicular traffic. 154 154. E.g. Or. Rev. Stat. § 814.400 (2020). ×

As for e-bikes and e-scooters, the problem is even more difficult. Because most of these laws were passed before e-bikes and e-scooters came on the market, laws cannot reflect the legislature’s intention concerning them. Pullman, Washington, requires that all scooters be equipped with a “muffler,” for example, in an ordinance that must have been drafted during an era of gas-powered scooters; 155 155. Pullman, Wash., Code § 12.11.020(8) (2019). × it is, of course, a ridiculous requirement to impose on virtually silent e-scooters. Even the most well-informed user is left to wonder whether an e-bike is a “motor-driven cycle” within the meaning of the statute, for example, or whether an e-scooter is a “motor vehicle.” Exacerbating the problem, there does not appear to be any consensus or consistency, state-by-state, on what these terms mean.

Potential users of SMMS being unaware of the laws governing the mobility presents two separate problems. The first is that users may unwittingly violate the law. They may assume that e-scooters are legal on sidewalks, and ride them there, illegally disrupting pedestrian traffic and unwittingly subjecting themselves to liability. The second concern is that the uncertainty itself will be a deterrent to use of the mobility. A potential user may be tempted to rent a scooter or a bike but may err on the side of caution and avoid using the device altogether when unsure of whether it’s legal to ride without a helmet, or to ride without a driver’s license, or to ride on the running path that goes through the park or along the river. A July 2019 survey of users and non-users in the Northwest suggest that uncertainty about the law can significantly discourage use of SMMS. 156 156. Pimentel, supra note 34, at 31. × Uncertainty about where it is legal to ride provides at least a slight deterrent effect for 74% of potential users (See Figure 3).

FIGURE 3 – Deterrent Effect of Legal Uncertainty

b. Statutory silence

The lack of legislation in many jurisdictions leaves both the purveyors of SMMS and their customers in the dark about what is legal and what is not. The laws are reasonably comprehensive as they apply to bicycles, but significant gaps exist for newer technologies, particularly e-scooters, which do not fit so easily into pre-existing categories. While some states are already working to get laws on the books that govern the use of such mobility, many more legislatures either have failed to perceive a need or have been unwilling or unable to muster the political will or material resources to respond to it. Figure 4 shows the conspicuous gaps which exist in several states’ legislation regarding where riders can use various devices, particularly e-scooters. It unrealistic to expect states to have comprehensive legal regimes in place regarding these newer devices; it is understandable that legislatures may have trouble keeping up with new technologies. However, SMMS will be hamstrung in any states that fail to grapple with basic issues, such whether these devices can be ridden on their sidewalks, or on their streets, or on both, or on neither.

FIGURE 4 – Where to Ride Table

c. Emerging legislation

By 2019, new laws were in the works in a number of states. New York’s legislature introduced a bill that defined “bicycles with electric assist” and “electric scooters,” stipulating that e-bikes are subject to the same regulations as bicycles while e-scooters are subject to new regulations laid out in the bill. 157 157. S.B. 5294 (N.Y. 2019). The bill was vetoed by the Governor in December 2019. × The Hawaiian legislature introduced two separate bills to govern the use of these devices. The first set a minimum age of fifteen for e-bike riders, and included e-bikes within the definition of bicycles, thus subjecting them to most of the same regulations that govern non-motorized bicycles. 158 158. H.B. 812 (Haw. 2019). × The second defined “electric foot scooters,” set a minimum riding age of fifteen, and subjected e-scooters to many of the same laws that govern bicycles. 159 159. H.B. 754 (Haw. 2019). × Similarly, Alaska introduced a bill that defined e-bikes without a classification system, and clarified that they are not motor vehicles or subject to any registration requirements. 160 160. H.B. 123 (Alaska 2019) ×

The wave of new legislation presents both challenges and opportunities for SMMS. If the laws passed aid the implementation and operation of SMMS or facilitate the platforms that they use, then SMMS may be well on their way to becoming a permanent fixture of American cities. Additionally, states have the opportunity to see what laws are the most successful and to copy them, laying the groundwork for a more consistent, if not entirely uniform system. One example is the three-tiered e-bike classification system. This system was first implemented in California in 2015 and has since been adopted almost completely in twenty-five other states, making it by far the most common classification system. 161 161. Claudia Wasko, Why More States Need to Adopt the Three-Class Ebike System, Bosch, https://www.bosch-ebike.com/us/everything-about-the-ebike/stories/three-class -ebike-system/# (“In 2015, California was the first state to adopt this ‘3-Class’ approach, and since then, 25 other states followed suit: Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Maine, Maryland, Michigan, New Hampshire, New Jersey, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin and Wyoming.”). × A consistent and coherent classification system is a prerequisite to any unified e-bike laws that could come in the future. However, advocates (including SMMS providers) must act quickly to lobby for favorable laws, as it will become much harder to implement favorable laws after states have enacted barriers.

  1. Laws addressing shared micro-mobility implementation and use directly

Some states have adopted laws that focus on sharing systems, recognizing the difference between regulating e-bike or e-scooter use and regulating the businesses or systems set up to share them. As of this writing, Alabama is the only state that has comprehensive shared micro-mobility law that covers bicycles, e-bikes, and e-scooters. Four other states, Arkansas, Nevada, Utah, and Washington, have enacted statewide regulations concerning e-scooter sharing systems exclusively. However, most states’ statutory schemes are either silent on this issue or leave the regulation of these systems to the local government.

Without any laws regulating the sharing systems directly, many problems are likely to arise which are specific to SMMS. One such problem is the “pop-up” SMMS start-ups. Without statewide regulations in place, SMMS providers may be able to enter a market more or less overnight with no warning to the local government. This presents a number of problems, many of which have already been discussed. These problems can be prevented with simple state-wide schemes which include regulations for startup procedures that allow SMMS to operate but require additional cooperation between the providers and the cities they serve.

Even when states do enact SMMS-specific laws, another issue emerges: shared micro-mobility laws that differ from the existing laws. For example, Alabama defines a “scooter” as:

[A] device weighing less than 100 pounds that satisfies all of the following:

(a)  [h]as handlebars and an electric motor;

(b)  [i]s solely powered by the electric motor or human power; [and]

(c)  [h]as a maximum speed of no more than 20 mph on a paved level surface when powered solely by the electric motor. 162 162. Ala. Code § 32-1-1.1(60) (2020). ×

By this definition, an e-scooter would qualify simultaneously as a “scooter” and as a motor vehicle in the Alabama Code. 163 163. Ala. Code § 32-1-1.1(33) (2020). × Conversely, the definition for a “shared micromobility device” is a type of transportation device, including a scooter that is used in a shared micro-mobility device system. 164 164. Ala. Code § 32-1-1.1(64) (2020). × The “shared micromobility device[s]” are subject to the same laws and regulations as a bicycle, and not a motor vehicle. 165 165. See e.g. Seattle Times Editorial Bd., Opinion, Hold Bike-Share Vendors Accountable, Seattle Times (Sep. 5, 2019), https://www.seattletimes.com/opinion/editorials/hold-bike-share-vendors-accountable/; Quemuel Arroyo, Op-ed: Where Do We Put All Those Dockless E-Scooters?, StreetsBlog NYC (Feb. 4, 2020), https://nyc.streetsblog.org/2020/02/04/op-ed-where-do-we-put-all-those-dockless-e-scooters/; Elizabeth Chou, LA Looks to Improve Parking of Dockless Scooters and Bikes. Here’s How, L.A. Daily News (Oct. 22, 2019), https://www.dailynews.com/2019/10/22/la-looks-to-improve-parking-of-dockless-scooters-and-bikes-heres-how/. × As a result, scooters that are privately owned are subject to rules and regulations pertaining to motor vehicles, such as licensing requirements, while scooters that are used within a SMMS are subject to a different set of rules and regulations, including an exemption from the licensing requirement.

  1. Parking and Storage

While there are several deficiencies in the laws governing SMMS (including the absence of them), the research painted a more encouraging picture about the problems of parking and storage. One of the most common complaints about dockless systems is the concern that the bicycles, e-bikes, or e-scooters get left in inconvenient places. 166 166. See Arroyo, supra note 48. × Accordingly, the research team looked at the laws governing the problem.

Part of the concern is one of untidy or unsightly clutter, but the greater concern is about obstructing sidewalks and other thoroughfares of pedestrian traffic, creating a nuisance and a safety-related tripping hazard, as well as limiting access to the sidewalk for people with disabilities. 167 167. See Arroyo, supra note 48. × While this concern often prompts critics to call for banning SMMS, 168 168. Leif Reigstad, The Rise and Fall of Dockless Bike Sharing in Dallas, Texas Monthly, (Aug. 7, 2018), https://www.texasmonthly.com/news/rise-fall-dockless-bike-sharing-dallas/. × most states already have statutes that address the issues of clutter or obstruction, and the problem is simply a matter of finding a way to enforce these laws in the context of shared bikes, e-bikes, and e-scooters. Alabama, the state with the most comprehensive statewide shared micro-mobility legislation, specifically prohibits shared micro-mobility devices from being parked in a manner that impedes normal pedestrian movement. 169 169. Ala. Code § 32-19-2(c) (2020). × However, many other states that currently lack shared micro-mobility legislation already have laws that prohibit all vehicles or specific micro-mobility devices from impeding pedestrian and other traffic. Still others list specific locations where such vehicles can and cannot be parked or delegate such decisions to local authorities. In total, thirty states already have statutes preventing micro-mobility devices from being strewn on or about the sidewalks.

Since laws preventing SMMS devices from cluttering the street are already in place, the problem may come from the difficulties of enforcement. Law enforcement may be hesitant to seize or ticket SMMS devices without clear directives. They are also likely even more hesitant to ticket a user who leaves them in an improper location because they plausibly may not know the requirements. Perhaps comprehensive SMMS laws such as those discussed above can help clarify these laws with regard to shared devices and enable law enforcement to manage the situation more effectively.

This problem may be one of perception more than reality. People are more likely to remember the few times they were walking down the sidewalk and had to step around an obstructing scooter or bicycle than they are to remember the countless times that they walked down the street without any such obstruction. Or they may remember an inflammatory picture they have seen in the press of unwanted and unloved bike-share bikes heaped in huge piles, and perceive a problem in the U.S., even though those pictures were taken in China. 170 170. See generally, Dan Gardner, The Science of Fear: Why We Fear the Things We Shouldn’t-- and Put Ourselves in Greater Danger (2008) (discussing the “availability heuristic”). × Indeed, despite conspicuous complaints about the clutter associated with shared micro-mobility, 171 171. Reigstad, supra note 50. × a study in Spokane Washington found the problem to be at most minor (finding that 96% of e-scooters were parked in a “preferred area” and that 98% of them were parked upright). 172 172. Toole Design, Spokane Shared Mobility Study Final Recommendations 18 (2019), https://static.spokanecity.org/documents/projects/shared-mobility/spokane-shared-mobility-report.pdf. ×

  1. Creating laws that favor bicycles and other micro-mobility to further promote SMMS

Laws that make bicycling, and other micro-mobility use easier will necessarily make SMMS more attractive to potential users; and laws that burden the mobility-user will have the opposite effect. The Idaho stop laws, for example, make cycling vastly more efficient and attractive. 173 173. See Tekle, supra note 21. × State laws that expect cyclists to adhere to the laws that govern motor vehicles, in contrast – failing to account for the fact that bicycles have different capabilities, needs, and safety concerns – impose heavier burdens on cyclists and place them at greater risk of harm. 174 174. David Pimentel, Cycling, Safety, and Victim-Blaming: Toward a Coherent Public Policy for Bicycling in 21st Century America, 85 Tenn. L. Rev. 753 (2018). ×

As noted above, mandatory helmet laws may also be a barrier to SMMS success. While it is tempting to cling to these laws as a fundamental safety measure, such laws have been sharply criticized as counter-productive, from a safety perspective, 175 175. Luke Turner, Australia’s Helmet Law Disaster, 64 IPA Review 28, 28–29 (Apr. 2012), http://www.vehicularcyclist.com/ozdisaster.pdf; Craig Baird, Bike helmets can make roads more dangerous for cyclists, says Bike Regina, Regina Leader-Post (May 2, 2017), https://leaderpost.com/news/local-news/bike-helmets-can-make-roads-more-dangerous-for-cyclists-says-bike-regina; Sue Knaup, Are Helmet Programs Scaring Kids Away from Bicycling?, The Bike Helmet Blog (Nov. 10, 2015), https://www.bikehelmetblog.com/2015/11/are-helmet-programs-scaring-kids-away.html. × and for the implicit message that micro-mobility is very dangerous and therefore something to be avoided. 176 176. Rosenthal, E., To Encourage Biking, Cities Lose the Helmets, N.Y. Times (Sept. 29, 2012), https://www.nytimes.com/2012/09/30/sunday-review/to-encourage-biking-cities-forget-about-helmets.html; Knaup, supra note 57. × That message, as well as the victim-blaming message that responsibility for cyclist safety lies solely with the cyclist, rather than with the drivers who hit them, can only discourage ridership. 177 177. Peter Walker, The Big Bike Helmet Debate: “You Don’t Make it Safe by Forcing Cyclists to Dress for Urban Warfare,” The Guardian (Mar. 21, 2017), https://www.theguardian.com/lifeandstyle/2017/mar/21/bike-helmet-cyclists-safe-urban-warfare-wheels; Pimentel, supra note 56. ×

Laws that permit, or prohibit, riding bicycles on sidewalks or off-road paths and trails may have an impact as well. If people know that they can be cited for riding where they feel safe to ride, they may opt not to ride at all. For example, in a busy urban center, someone may be happy to ride an e-scooter on the sidewalk, but if they know that e-scooters are legal only in the street (as is the case in the states of Washington and California), they may stay off the scooter altogether. 178 178. Cal. Veh. Code § 21235(g) (Deering 2020); Wash. Rev. Code Ann. § 46.61.710 (LexisNexis 2020). ×   Of course, the laws of states, such as Florida and South Dakota, that ban the use of scooters in the streets too, or of the twenty states that are silent on the subject, generate serious uncertainty about whether they can be used legally anywhere.

Conclusions

The wheels of transportation innovation turn much faster than the wheels of legislation. The legal system struggles, playing catch-up with industry changes. That alone does not necessarily constitute a problem. However, the lack of a legal infrastructure may threaten to stifle the innovation and undermine the potential benefits of SMMS in America. This comprehensive study of applicable laws exposes the gaps and inconsistencies in these laws and illustrates some of the impact of these legal deficiencies. The hope is that federal authorities may intervene, promulgating standardized legal rules for shared micro-mobility, as they have for automobiles, which would clarify and harmonize the scattershot approach heretofore taken. If the federal government is unwilling or unable (politically or otherwise) to act, perhaps interested parties – bicycling advocates, safety advocates, industry representatives, and regulators – can combine forces to produce a “uniform law,” one that states may be willing to adopt, much as they have the Uniform Commercial Code. The searchable database of the compiled state laws on this subject created in this study can support such efforts, as well as future research. In the meantime, innovators should be aware of and sensitive to how the variegated legal landscape may impact the results and the future of shared micro-mobility.


David Pimentel is Associate Dean and Professor of Law at the University of Idaho. Before beginning his academic career, he served as staff in the U.S. federal judiciary, including one year as a Supreme Court Fellow, before going abroad to do rule of law development work in post-conflict countries (Bosnia, Romania, and South Sudan). He also spent four years with a United Nations war crimes tribunal in the Netherlands, where he developed an appreciation for cycling as transportation. Intrigued by Idaho’s bicycle laws, he has recently published scholarship on the public policy behind legal regulation of bicycle usage and of shared micro-mobility systems.

Dr. Michael Lowry is an associate professor of Civil Engineering at the University of Idaho with a research focus on transportation planning. He serves on the National Academy of Science Committee for Bicycle Transportation and the Committee for Transportation Investment Decision-Making. He teaches courses on transportation safety, benefit-cost analysis, and geographic information systems. He was awarded the College of Engineering Outstanding Young Faculty award for excellence in teaching and research. Dr. Lowry has been a visiting scholar in Spain, Norway, the Netherlands, and the United Kingdom.

Timothy W. Koglin is a recent graduate of the University of Idaho College of Law and (soon to be) member of the Washington State Bar Association. He spent time at the United States Military Academy and Washington State University before graduating from Liberty University with a B.S. in History. He spent the last two years of law school as the research assistant for David Pimentel working on a wide range of legal topics including parenting, sports, and transportation.

Ronald W. Pimentel has been a marketing professor for 30 years and also had a 12-year career in industry doing marketing and sales. He completed a BA in Art/Design at BYU, an MBA at UC Berkeley, and a Ph.D. in marketing at The University of Arizona. He is currently a Scholarly Associate Professor of marketing and the Faculty Director of the Professional Sales Certificate program at Washington State University Vancouver. Ron has published three book chapters, and many journal articles and conference proceedings. Recent research has included inter-disciplinary work on shared micro-mobility.

For the past two years, the purpose of this blog and the Law and Mobility Program has been to peak around the corner and see what’s next. We have explored the legal and policy ramifications of emerging transportation technologies and tried to figure out how those technologies, be they automated vehicles, e-scooters, delivery drones, or even flying cars, will fit into our existing transportation and legal systems.

As it has with so many aspects of our lives, the COVID-19 pandemic has complicated our ability to look forward – the world to come is harder to predict. How close to “normal” will we get without a vaccine or treatment? If a significant portion of the workforce moves to remote work (Twitter, for example, is going to a permanent remote work option), what does that mean for our transportation system? Will people retreat from large, dense cities? As the pandemic disrupts state and local budgets, what will happen to transportation budgets? Right now, there are no clear answers.

Going forward, this blog and the Law and Mobility Program will remain focused on the future, with a keen eye on today. We will still explore new technologies and their ramifications, while also seeking a better understanding of how the current crisis is altering the mobility landscape. Later today we’ll publish the first of a series of blog posts dealing with some of the specific disruptions and changes that are already occurring. We hope you’ll enjoy these posts and, as always, invite you to join us in the conversation by submitting posts of your own – outside blog post submissions (of 500-1,000 words) are always welcome at JLMsubmissions@umich.edu (all submissions are evaluated for publication by our staff).

Here you will find more information on the Expert Participants who are taking part in our 2020 conference, including bios and links to their websites and work:

  • Silvia Stuchi Cruz – Founder, CorridaAmiga (Brazil)

Silvia Stuchi Cruz is a Postdoc in Sustainability at the University of Sao Paulo, with emphasis on active mobility. She has previously served as an environmental manager at the University of Sao Paulo, and holds a PhD in Scientific Policy and Technology from State University of Campinas. While completing her PhD she interned at the University of Science and Technology in Lille/ France, and was a visiting student researcher at the VTT Technical Research Centre of Finland. Silvia has 8 years of experience in sustainability and climate change, along with 6 years of work on pedestrian mobility. A passionate active transportation advocate, she is the founder of the NGO “Corrida Amiga” which works with Brazilian communities (public schools, as wel as institutions for elderly people and people with disabilities) to promote pedestrian mobility and to develop projects, campaigns and tools related to walkability, accessibility and right to the city.   

  • Dr. Rohit Baluja – Chairman, Institute of Road Traffic Education (India)

Rohit Baluja has a PhD in Civil Engineering from the University of Birmingham. Rohit is now a visiting faculty at the School of Civil Engineering, University of Birmingham as well as at the Sardar Vallabhai Patel –Indian National Police Academy, Hyderabad.

Rohit established the Institute of Road Traffic Education (IRTE)as a not for profit organization in New Delhi  1991, which has led to the establishment of the College of Traffic Management in the NCR Delhi which is the only single umbrella facility for research and training in all the areas of traffic management. The College of Traffic Management has now been recognized as the Centre for Excellence in Road Safety for the South East Asian Region.

Rohit is a Member at the United Nations Road Safety Collaboration. As President IRTE, he is Observer at the United Nations Global Forum for Road Traffic Safety (Working Party 1). The IRTE has been granted the Roster Consultative Status by the United Nations Economic and Social Council and have recently signed an MOU with the United Nations towards promoting road safety in South East Asia.

  • He Shanshan – Partner, Anli Partners (China)

He Shanshan is the head of Autonomous Driving Law Centre of Intelligent & Connected Mobility Academy, and leader of Automobile and Artificial Intelligence Group of Anli Partners. Ms. He Shanshan is also the member of Autonomous Driving Expert Committee of Beijing.

Shanshan has been closely working on the automated driving projects and conducting research and advice on law, policy, ethics and standards regarding AI and autonomous driving. She also keeps close communication and cooperation with industry field, academic field and relevant authorities domestically and overseas on AI and autonomous vehicles. 

Shanshan obtained the bachelor of law degree and master of law degree from Tsinghua University School of Law, the master of law degree from Columbia University in New York. She is both qualified in P.R. China and New York.  Her previous experience includes work in an international law firm and the legal department of an international automobile company.

  • Luiz Otávio Maciel – Miranda Advisor, Traffic Department of State of Pará (Brazil)

Luiz Otávio Maciel Miranda is an advisor at the Traffic Department of the State of Pará – DETRAN/PA, where he has worked since 1983. He is the Brazilian delegate at the Global Forum for Road Traffic Safety (WP.1) of the United Nations Economic Commission for Europe (UNECE) since 2016. Counselor at the National Traffic Council (CONTRAN) representing the Ministry of Health, working on the drafting of National Road Safety Regulations and the enforcement of the Brazilian Traffic Code. He worked as a consultant at the Global Road Safety Partnership (GRSP) at the Bloomberg Philanthropies Global Road Safety Programme (BPGRSP) and the Bloomberg Initiative for Global Road Safety (BIGRS) for Brazil. He worked as an advisor at the National Traffic Department (DENATRAN), Technical Consultant at the Ministry of Health and Counselor at the State Traffic Council (CETRAN/PA)

Mr. Miranda graduated from Federal University of Pará with degrees in Civil Engineering (1985), Mathematics (1983) and Science (1982).

  • Pramanand Gopaldu – Lead Engineer, Traffic Management and Road Safety Unit (Mauritius)

Pramanand Gopaldu is a Lead Engineer for Traffic Management and Road Safety, a department under the aegis of the Ministry of Land Transport and Light Rail in Mauritius. For the past 15 years he has devoted much of his practice to maximize road safety and to address road traffic issues.

Mr Gopaldu graduated from the University of Mauritius, with a bachelor degree in Civil Engineering in 1994. He then earned his Master’s degree in Traffic from Monash University, Australia, in 2012.

  • Phil Monture – (Six Nations of the Grand River)

Beginning in 1975, Phil developed a long-term research program and supervised the research for the Six Nations of the Grand River as relates to lands which are no longer used for their benefit or legal surrender obtained under prevailing legislation. He was the principle architect of the ongoing 1995 litigation against Canada and Ontario for an accounting of all Six Nations Lands, resources and assets supposedly held and managed on Six Nations behalf by the Crown(s). 

Phil has also been active in taking Six Nations unresolved Land Rights issues to the United Nations and working with developer proponents utilizing the legal duty to consult and accommodate; implementing the UN Declaration on the Rights of Indigenous Peoples and its requirement to obtain our free, prior and informed consent. This has enabled the Six Nations Peoples to have partnerships and beneficiaries of over 1,000 MGW of Green Energy developments within Six Nations Treaty lands.

Utilizing Six Nations’ Sovereign Treaty relations with the Crown, Six Nations have undertaken protective measures through the Climate Development Mechanism of the UN to assert certain initiatives to counter climate change and to enhance their environment.

  • Raymond Hess – Transportation Manager, City of Ann Arbor (US)

Raymond Hess is Transportation Manager for the City of Ann Arbor, Michigan. Alongside a passionate team, he implements transportation initiatives that aim to improve safety and the livability of the community. Previously, he was Director of Planning Services at the Regional Transportation Commission of Southern Nevada and oversaw the Metropolitan Planning Organization for the greater Las Vegas Valley as well as a regional sustainable communities initiative known as Southern Nevada Strong. Prior to joining the RTC, Raymond worked for the City of Bloomington (IN), the City of Brooksville (FL) and was a Peace Corps Volunteer in the Ivory Coast West Africa.

  • Ellen Partridge – Policy and Strategy Director at Shared-Use Mobility Center (US)
Ellen Partridge has nearly 20 years of work in public transit administration and operations at both the federal and transit agency levels. She was appointed Chief Counsel for the USDOT Research and Innovative Technology Administration and also served as Deputy Assistant Secretary for Research and Technology and Chief Counsel for the FTA. She is intimately familiar with the legal and regulatory landscape of public transit, including the nuances of public agency partnerships with private mobility providers.
 
At the Chicago Transit Authority, she focused on policy initiatives – first as Deputy General Counsel for Policy and Appeals and then in the Strategic Operations unit that deployed new technology and trained supervisors on how to use it to improve bus service. Before joining the nation’s second-largest transit agency, she practiced environmental law with the firms of Jenner & Block in Chicago and Van Ness Feldman in Washington, D.C. She lived in the Republic of Palau, serving as counsel to its government as it transitioned from being a United Nations Trust Territory to independence.
 
While practicing law, she taught environmental and natural resources law as an adjunct professor at Northwestern University and DePaul University Law Schools. Ellen is a fellow with Leadership Greater Chicago, was awarded a fellowship with the German Marshall Fund and was a Senior Fellow with the Environmental Law and Policy Center. She earned her law degree at Georgetown University Law School and an MBA from the University of Chicago.
 
  • Daniel Arking – Counsel, Department of Law, City of Detroit (US)

Daniel Arking is an Assistant Corporation Counsel in the City of Detroit Law Department. In this role, Daniel works on a variety of regulatory and transactional matters related to land use and zoning, recreation, transportation and mobility, and public private partnerships. In the mobility space, Daniel has worked with the City’s mobility innovation team to expand access to a variety of transportation options, including the development of guidelines for the operation of dockless electric scooters in Detroit. Since then, multiple scooter operators have deployed over 1,000 scooters in neighborhoods across the City with notable success.

Prior to joining the Detroit Law Department in 2015, Daniel served as an Associate in the Washington DC office of Holland & Knight LLP and as an aide in the New York City Mayor’s Office under the Bloomberg Administration. Daniel holds a Juris Doctor from the Georgetown University Law Center and a Bachelor of Arts in Physics from the University of Chicago.

  • Jeff P. Michael, EdD – Distinguished Scholar and Leon S. Robertson Faculty Development Chair in Injury Prevention, Health Policy and Management, Johns Hopkins University (US)

Dr. Michael is an accomplished national and international leader with demonstrated leadership in analysis, development and implementation of programs to improve road safety – both in the United States and in other nations. As the Leon S. Robertson Faculty Development Chair in Injury Prevention, Dr. Michael’s current research focuses on the development of strategies for utilizing emerging mobility technologies to improve safety and reduce health disparities. The combination of artificial intelligence, shared rides and electric vehicles is predicted to transform mobility patterns in the next decade.  Inherent in this transformation is the potential to deliver mobility services to populations that have historically suffered from limited access to health care, nutritious food and economic opportunities. However, the prevailing market-driven mobility movement is unlikely to reach these underserved populations absent a deliberate scientific and policy initiative dedicated to this purpose.

As Coordinator of the New Mobility Initiative at the Center for Injury Research and Policy, Dr. Michael is leading an effort to develop evidence-based policy models to steer the deployment of New Mobility products and services for public health benefit. The New Mobility Initiative is working closely with the City of Baltimore to conduct and evaluate mobility experiments and policy evaluations.  

  • Emily Frascaroli – Managing Counsel, Product Litigation Group, Ford Motor Company (US)

Emily Frascaroli is managing counsel of the Product Litigation Group at Ford Motor Company, including the product litigation, asbestos, and discovery teams. She also advises globally on automotive safety, regulatory, and product liability issues, including a focus on autonomous vehicles and mobility. She has extensive experience handling complex product litigation cases, regulatory matters with the National Highway Traffic Safety Administration and other governmental entities, and product defect investigations. She also is co-chair of the Legal and Insurance Working Group for the University of Michigan’s Mcity. In 2017, she was appointed by Gov. Rick Snyder to the Michigan Council on Future Mobility, and in 2019 she was appointed by Ohio Gov. John Kasich to the DriveOhio Expert Advisory Board.

She earned her JD, cum laude, from Wayne State University and was an editor of the Wayne Law Review. She received her BS in aerospace engineering from the University of Southern California and her MEng in aerospace engineering from the University of Michigan. Prior to practicing law, she worked in engineering at both Ford and NASA.

  • Jessica Robinson – President and Executive Director, Michigan Mobility Institute (US)

Jessica Robinson is President and Executive Director of the Michigan Mobility Institute where she works to accelerate the development of talent for the growing mobility industry. The Institute is the first initiative of the Detroit Mobility Lab which she co-founded to focus on building the mobility talent infrastructure necessary to shape the sector’s future within the City of Detroit. She has more than 10 years of operating experience with mobility businesses at Zipcar and Ford Smart Mobility and a background in technology and innovation launching startup accelerator programs at Techstars with industry-leading corporate partners.

Global Perspectives on Law, Policy, and Mobility Innovation

Co-sponsored by the University of South Carolina School of Law.

 February 7th, 2020

9:00 AM – 5:30 PM

Room 1225, Jeffries Hall, University of Michigan Law School 

The goal of the 2020 Law and Mobility conference is to bring together a diverse selection of international transportation experts from government, industry, and civil society to discuss how communities and nations across the globe are reacting to new mobility technologies like drones, automated vehicles, and micro-mobility platforms. Within the United States the discussion around new mobility technology has been focused on domestic developments, with some discussion of developments in nations and regions that have deep connections to the American transportation system – as dictated by geography (Canada) or economics (the EU, Japan, South Korea, and Japan, among others). This conference is intended to expand that discussion to a wider set of nations and regions, to gain new perspectives on both the promise and peril of these emerging technologies.

Global Perspectives on Law, Policy, and Mobility Innovation is presented by the University of Michigan Law School’s Law and Mobility Program, and co-sponsored by the University of South Carolina School of Law.

Expert Participants will include:

  • Silvia Stuchi Cruz – Founder, CorridaAmiga (Brazil)
  • Dr. Rohit Baluja – Chairman, Institute of Road Traffic Education (India)
  • He Shanshan – Partner, Anli Partners (China)
  • Luiz Otávio Maciel – Miranda Advisor, Traffic Department of State of Pará (Brazil)
  • Pramanand Gopaldu – Lead Engineer, Traffic Management and Road Safety Unit (Mauritius)
  • Phil Monture – (Six Nations of the Grand River)
  • Raymond Hess – Transportation Manager, City of Ann Arbor (US)
  • Ellen Partridge – Policy and Strategy Director at Shared-Use Mobility Center (US)
  • Daniel Arking – Counsel, Department of Law, City of Detroit (US)
  • Jeff P. Michael, EdD – Distinguished Scholar and Leon S. Robertson Faculty Development Chair in Injury Prevention, Health Policy and Management, Johns Hopkins University (US)
  • Emily Frascaroli – Managing Counsel, Product Litigation Group, Ford Motor Company (US)
  • Jessica Robinson – President and Executive Director, Michigan Mobility Institute (US)

Further Information on Expert Participants is Available Here

Schedule of Events

Morning Sessions


(Available via livestream)

  • 9:00 am – 9:05 am
Welcome and Introduction

Profs. Daniel Crane and Bryant Walker Smith


  • 9:05 am – 10:15 am
Expert Participant Presentations 

Expert participants will make short presentations on their work and the transportation issues faced by their communities and nations.

Presenters:


  • 10:30 am – 12:00 pm
Rural and Inter-City Transportation

Emily Frascaroli, Moderator  

Expert participants will discuss the transportation challenges facing rural communities, the demands of moving people and goods across nations and regions as a whole, and how emerging transportation technologies can meet those challenges.

Each expert will briefly present their views on these issues, followed by open discussion with other speakers and questions from the audience.

Expert Participants:

Pramanand Gopaldu, Lead Engineer, Traffic Management and Road Safety Unit (Mauritius)

Luiz Otávio Maciel Miranda, Advisor, Traffic Department of State of Pará (Brazil)

Phil Monture, (Six Nations of the Grand River)

Lunch and Expert Participant Presentations

(Available via livestream)

  • 12:00 pm – 1:45 pm 

All guests will enjoy lunch while some of our expert participants make short presentations on their work and the transportation issues faced by their communities and nations.

Presenters: 

Afternoon Sessions

(Available via livestream)

  • 1:45 pm – 3:15 pm
Urban Transportation

Ellen Partridge, Moderator  

Expert participants will discuss the transportation challenges facing urban areas, and how emerging transportation technologies can meet those challenges. 

Each expert will briefly present their views on these issues, followed by open discussion with other speakers and questions from the audience.

Expert Participants:

Daniel Arking, Counsel, Department of Law, City of Detroit (US)

Silvia Stuchi Cruz, Founder, CorridaAmiga (Brazil)

Raymond Hess, Transportation Manager, City of Ann Arbor (US)


  • 3:30 pm – 5:00 pm
Transportation Regulation, Policy, and Planning 

Bryant Walker Smith, Moderator

Expert participants will discuss how governments and communities approach new transportation technology, and the relationship between law, policy, and planning in transportation systems. 

Each expert will briefly present their views on these issues, followed by open discussion with other speakers and questions from the audience.

Expert Participants:

Dr. Rohit Baluja, Chairman, Institute of Road Traffic Education (India)

Jeff P. Michael, EdD, Distinguished Scholar and Leon S. Robertson Faculty Development Chair in Injury Prevention, Health Policy and Management, Johns Hopkins University (US)

Jessica Robinson, President and Executive Director, Michigan Mobility Institute (US)


  • 5:00 pm – 5:30 pm

Summary and Closing

Ian Williams, Moderator

Expert participants and attendees will close out the day by taking part in wide discussion of all of the day’s panels.

    

A write-up of the afternoon sessions is now available here!

March 15, 2019 – 10:00 AM – 5:30 PM

Room 1225, Jeffries Hall, University of Michigan Law School 

In the case of automated driving, how and to whom should the rules of the road apply? This deep-dive conference brings together experts from government, industry, civil society, and academia to answer these questions through focused and robust discussion.

To ensure that discussions are accessible to all participants, the day will begin with an introduction to the legal and technical aspects of automated driving. It will then continue with a more general discussion of what it means to follow the law. After a lunch keynote by Rep. Debbie Dingell, expert panels will consider how traffic law should apply to automated driving and the legal person (if any) who should be responsible for traffic law violations. The day will conclude with audience discussion and a reception for all attendees.

(Re)Writing the Rules of the Road is presented by the University of Michigan Law School’s Law and Mobility Program, and co-sponsored by the University of South Carolina School of Law.

Schedule of Events

Morning Sessions 

  • 10:00 am – 10:45 am

Connected and Automated Vehicles – A Technical and Legal Primer

Prof. Bryant Walker Smith

Professor Bryant Walker Smith will provide a technical and legal introduction to automated driving and connected driving with an emphasis on the key concepts, terms, and laws that will be foundational to the afternoon sessions. This session is intended for all participants, including those with complementary expertise and those who are new to automated driving. Questions are welcome. 

  • 10:45 am – 11:15 am
Drivers Licenses for Robots? State DMV Approaches to CAV Regulation

Bernard Soriano, Deputy Director for the California DMV and James Fackler, Assistant Administrator for the Customer Services Administration in the Michigan Secretary of State’s Office, discuss their respective state’s approaches to regulating connected and autonomous vehicles.

  • 11:15 am – 12:00 pm
Just What Is the Law? How Does Legal Theory Apply to Automated Vehicles and Other Autonomous Technologies?

Prof. Scott Hershovitz    

Human drivers regularly violate the rules of the road. What does this say about the meaning of law? Professor Scott Hershovitz introduces legal theory and relates it to automated driving and autonomy more generally.                  

Keynote & Lunch

  • 12:00 pm – 12:30 pm
Lunch

Free for all registered attendees!

  • 12:30 pm-1:30 pm

Keynote – Rep. Debbie Dingell

Rep. Dingell shares her insights from both national and local perspectives.  

Afternoon Sessions

(Chatham House Rule)

  • 1:30 pm – 3:00 pm
Crossing the Double Yellow Line: Should Automated Vehicles Always Follow the Rules of the Road as Written?

Should automated vehicles be designed to strictly follow the rules of the road? How should these vehicles reconcile conflicts between those rules? Are there meaningful differences among exceeding the posted speed limit to keep up with the flow of traffic, crossing a double yellow line to give more room to a bicyclist, and driving through a stop sign at the direction of a police officer? If flexibility and discretion are appropriate, how can they be achieved in law?

A panel of experts will each briefly present their views on these questions, followed by open discussion with other speakers and questions from the audience.

Featured Speakers:

Justice David F. Viviano, Michigan Supreme Court

Emily Frascaroli, Counsel, Ford Motor Company

Jessica Uguccioni, Lead Lawyer, Automated Vehicles Review, Law Commission of England and Wales

  • 3:15 pm – 4:45 pm
Who Gets the Ticket? Who or What is the Legal Driver, and How Should Law Be Enforced Against Them?

Who or what should decide whether an automated vehicle should violate a traffic law? And who or what should be responsible for that violation? Are there meaningful differences among laws about driving behavior, laws about vehicle maintenance, and laws and post-crash responsibilities? How should these laws be enforced? What are the respective roles for local, state, and national authorities?

A panel of experts will each briefly present their views on these questions, followed by open discussion with other speakers and questions from the audience.

Featured Speakers:

Thomas J. Buiteweg, Partner, Hudson Cook, LLP

Kelsey Brunette Fiedler, Ideation Analyst in Mobility Domain

Karlyn D. Stanley, Senior Policy Analyst, RAND Corporation

Daniel Hinkle, State Affairs Counsel, American Association for Justice

  • 4:45 pm – 5:30 pm 
 Summary and General Discussion                                     

Participants and attendees close out the day by taking part in wide discussion of all of the day’s panels.

By Wesley D. Hurst and Leslie J. Pujo*

Cite as: Wesley D. Hurst & Leslie Pujo, Vehicle Rental Laws: Road Blocks to Evolving Mobility Models?, 2019 J. L. & Mob. 73.

I.          Introduction

The laws and regulations governing mobility are inconsistent and antiquated and should be modernized to encourage innovation as we prepare for an autonomous car future. The National Highway Traffic Safety Administration (“NHTSA”) has concluded that Autonomous Vehicles, or Highly Automated Vehicles (“HAVs”) may “prove to be the greatest personal transportation revolution since the popularization of the personal automobile nearly a century ago.” 179 179. Federal Automated Vehicles Policy, NHTSA 5 (2016), https://www.transportation.gov/sites/dot.gov/files/docs/AV%20policy%20guidance%20PDF.pdf. × Preparation for a HAV world is underway as the mobility industry evolves and transforms itself at a remarkable pace. New mobility platforms are becoming more convenient, more automated and more data driven—all of which will facilitate the evolution to HAVs. However, that mobility revolution is hindered by an environment of older laws and regulations that are often incompatible with new models and platforms.

Although there are a number of different mobility models, this article will focus on carsharing, peer-to-peer platforms, vehicle subscription programs, and rental car businesses (yes, car rental is a mobility platform). All of these mobility models face a host of inconsistent legal, regulatory and liability issues, which create operational challenges that can stifle innovation. For example, incumbent car rental, a mobility platform that has been in place for over 100 years, is regulated by various state and local laws that address everything from driver’s license inspections to use of telematics systems. Although physical inspection of a customer’s driver’s license at the time of rental is commonplace and expected in a traditional, face-to-face transaction, complying with the driver’s license inspection for a free-floating carsharing or other remote access mobility model becomes more problematic.

Part B of this article will review current federal and state vehicle rental laws and regulations that may apply to incumbent rental car companies and other mobility models around the country, including federal laws preempting rental company vicarious liability and requiring the grounding of vehicles with open safety recalls, as well as state laws regulating GPS tracking, negligent entrustment, and toll service fees. Part C poses a series of hypotheticals to illustrate the challenges that the existing patchwork of laws creates for the mobility industry. 180 180. Note: This article focuses on existing laws applicable to short-term rentals of vehicles, rather than long-term leases (including the federal Consumer Leasing regulations, known as “Regulation M,” which are set forth in 12 C.F.R., Part 213). For a more detailed discussion of long-term vehicle leasing laws, see Thomas B. Hudson and Daniel J. Laudicina, The Consumer Leasing Act and Regulation M, in F&I Legal Desk Book (6th edition 2014). × For instance, whether a mobility operator can utilize GPS or telematics to monitor the location of a vehicle is subject to inconsistent state laws (permitted in Texas, but not California, for example). And vehicle subscription programs are currently prohibited in Indiana, but permitted in most other states. Similarly, peer-to-peer car rental programs currently are prohibited in New York, but permitted in most other states. Finally, Part D of the article will offer some suggested uniform rules for the mobility industry.

First, however, we offer the following working definitions for this article:

  • Carsharing” – a membership-based service that provides car access without ownership. Carsharing is mobility on demand, where members pay only for the time and/or distance they drive. 181 181. About the CSA, Carsharing Ass’n., https://carsharing.org/about/ (last visited May 7, 2019). ×
  • Peer-to-peer Carsharing” or “Rentals” – the sharing of privately-owned vehicles in which companies, typically for a percentage of the rental charge, broker transactions among car owners and renters by providing the organizational resources needed to make the exchange possible (i.e., online platform, customer support, driver and motor vehicle safety certification, auto insurance and technology). 182 182. Car Sharing State Laws and Legislation, Nat’l Conf. of St. Legislatures (Feb. 16, 2017), http://www.ncsl.org/research/transportation/car-sharing-state-laws-and-legislation.aspx. Since most personal auto policies do not cover commercial use of personal vehicles, if the peer-to-peer platform does not provide liability and physical damage coverage, there likely will be no coverage if the vehicle is involved in an accident during the rental period. As noted above, peer-to-peer carsharing platforms currently do not operate in New York, based, in part, on the New York Department of Insurance’s findings that a peer-to-peer platform operator’s insurance practices (including sale of group liability coverage to vehicle owners and renters) constituted unlicensed insurance producing. See RelayRides, Inc. Consent Order (N.Y. Dep’t of Fin. Serv., 2014). Although a detailed discussion of insurance-related issues is beyond the scope of this article, the Relay Rides experience in New York illustrates the need for the insurance industry and insurance laws to evolve to accommodate new mobility models. See Part B.2.d. for a discussion of legislative approaches that several states have taken to address the insurance issues implicated by the peer-to-peer model (including a 2019 New York bill). ×
  • Subscriptions” – a service that, for a recurring fee and for a limited period of time, allows a participating person exclusive use of a motor vehicle owned by an entity that controls or contracts with the subscription service. 183 183. See Ind. Code § 9-32-11-20(e) (2018). The prohibition on vehicle subscription services in Indiana originally expired on May 1, 2019, but was recently extended for another year through May 1, 2020. The Indiana definition also provides that “[Subscription] does not include leases, short term motor vehicle rentals, or services that allow short terms sharing of a motor vehicle.” A bill pending in North Carolina uses similar language to define “vehicle subscription” for purposes of determining highway use tax rates. See H.B. 537 (N.C. 2019). As further discussed in Part C below, it is not clear whether other states would take the same approach and classify a subscription model as distinct from rental or leasing instead of applying existing laws. × Typically, the subscriber is allowed to exchange the vehicle for a different type of vehicle with a certain amount of notice to the operator. This is a developing model with a number of variations, including whether the subscription includes insurance, maintenance, a mileage allowance, or other features and services.
  • Vehicle Rental” – a customer receives use of a vehicle in exchange for a fee or other consideration pursuant to a contract for a period of time less than 30 days. 184 184. See Cal. Civ. Code § 1939.01 (Deering 2019). Although for purposes of this article, we use a traditional 30-day period to define short-term rentals, we note that the time period for rentals varies by state (or even by statute for a particular state) with some defining a short-term rental for periods as long as 6 months or even one year. See, e.g., Md. Code Ann., Transportation § 18-101 (LexisNexis 2019) (defining “rent” as a period of 180 days or less). Compare 35 Ill. Comp. Stat. 155/2 (2019) (defining “rent” as a period of one year or less for purposes of the Illinois Automobile Renting Occupation and Use Tax), with 625 Ill. Comp. Stat. 27/10 (defining “rental company” as one that rents vehicles to the public for 30 days or less for purposes of the Illinois damage waiver law). ×
  • Mobility Operators” – any person or entity that provides access to a vehicle to another person whether by an in-person transaction, an app-based or online platform, or any other means and whether the entity providing the access is the owner, lessee, beneficial owner, or bailee of the vehicle or merely facilitates the transaction.

II.          Existing Laws: Lack of Uniformity and Certainty

As noted above, a patchwork of federal, state (and in some cases city or county) laws regulate short-term car rentals (in addition to generally applicable laws affecting all businesses, such as privacy and data security laws, 185 185. In addition to general privacy and data security concerns applicable to all businesses, the advent of HAVs and connected vehicles may trigger additional privacy and data security issues for mobility operators. For example, issues surrounding the control, access, and use of vehicle-generated data is still unsettled and the subject of much debate. See, e.g. Ayesha Bose, Leilani Gilpin, et al., The Vehicle Act: Safety and Security for Modern Vehicles, 53 Willamette L. Rev. 137 (2017) for additional information on this topic. × the Americans with Disabilities Act (“ADA”), employment law, and zoning laws). Car rental laws have developed over time and typically address:

  1. State and local taxes and surcharges;
  2. Licensing and operational requirements, including airport concessions and permits for picking-up and dropping-off passengers;
  3. Public policy issues, such as liability insurance and safety recalls; and
  4. Consumer protection matters, like rental agreement disclosures, restrictions on the sale of collision damage waivers, prohibitions on denying rentals based on age or credit card ownership, and restrictions on mandatory fees. 186 186. See, e.g., Final Report and Recommendations of the National Association of Attorneys General Task Force on Car Rental Industry Advertising and Practices, 56 Antitrust & Trade Regulation Report No. 1407 (March 1989) at S-3 (“NAAG Report”). The NAAG Report includes “guidelines,” which were intended for use by states in providing guidance to car rental companies on compliance with state unfair and deceptive practice laws, Id. at S-5. ×

As is often the case with regulated industries, state and local vehicle rental laws vary considerably, which can lead to uncertainty and inefficiency. For example, a multi-state operator may need to vary product offerings and pricing, customer disclosures, and agreement forms, depending upon the state in which the rental commences. 187 187. Typically, a state law will apply to a transaction if the renter accepts delivery of the vehicle in that state, regardless of where the rental company’s physical offices are located, where the vehicle is typically parked, or where the vehicle is returned. See, e.g., 24 Va. Code Ann. § 20-100-10 (2019) (“The term [rental in this State] applies regardless of where the rental agreement is written, where the rental terminates, or where the vehicle is surrendered.”). × The uncertainty and inefficiency increases dramatically when considering whether and how existing vehicle rental laws apply to new mobility platforms and services since many of the existing laws do not address or even contemplate modern technology like self-service, keyless access to vehicles, digital agreements, or telematics fleet management.

The following paragraphs provide a brief overview of some of the existing laws.

A.         Federal Law

1. Graves Amendment

The federal Graves Amendment, 188 188. 49 U.S.C.S. § 30106 (LexisNexis 2019). × passed in 2005, preempts any portion of state law that creates vicarious liability for a vehicle rental company based solely on ownership of a vehicle. Specifically:

An owner of a motor vehicle that rents or leases the vehicle to a person . . . shall not be liable . . . by reason of being the owner of the vehicle . . . for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if– (1) the owner . . . is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner . . . 189 189. Before passage of the Graves Amendment, many car leasing and renting companies ceased activities in states with unlimited vicarious liability laws based solely on ownership, such as New York. See Graham v Dunkley, 852 N.Y.S.2d 169 (App. Div. 2008); see also Susan Lorde Martin, Commerce Clause Jurisprudence and the Graves Amendment: Implications for the Vicarious Liability of Car Leasing Companies, 18 U. FLA. J.L. & Pub. Pol’y 153, 162 (2007). ×

Determining whether the Graves Amendment applies to a particular case involves an analysis of both factual and legal issues. The factual issues include a determination of whether:

(A) the claim involves a “motor vehicle”;

(B) the individual or entity is the “owner” of the motor vehicle (which may be a titleholder, lessee, or bailee) or an affiliate of the owner;

(C) the individual or entity is “engaged in the trade or business of renting or leasing motor vehicles”; and

(D) the accident occurred during the rental period. 190 190. Johnke v. Espinal-Quiroz, No. 14-CV-6992, 2016 WL 454333 (N.D. Ill. 2016). ×

    The legal issues include:

(A) whether the owner is being sued in its capacity as owner (as opposed to the employer or other principal of another party); and

(B) whether there are allegations that the owner was negligent or criminal. 191 191. Id. ×

Perhaps not surprisingly, the Graves Amendment has been highly litigated, from early challenges to its constitutionality, 192 192. See, Rosado v. Daimlerchrysler Fin. Servs. Trust, 112 So. 3d 1165 (2013); Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242 (2008); Rodriguez v. Testa, 993 A.2d 955 (Conn. 2009); Vargas v. Enter. Leasing Co., 60 So. 3d 1037 (Fla. 2008). × to later assertions that it does not apply to a particular case because the vehicle’s owner was not “engaged in the business of renting or leasing,” 193 193. See e.g., Minto v. Zipcar New York, Inc., No. 15401/09 (N.Y. Sup. Ct., Queens County Mar. 17, 2010); Moreau v. Josaphat, et al., 975 N.Y.S.2d 851 (N.Y. Sup. Ct. 2013). × or that an accident did not occur during the “rental period.” 194 194. Currie V. Mansoor, 71 N.Y.S.3d 633 (App. Div. 2018); Chase v. Cote, 2017 Conn. Super. LEXIS 3533 (2017); Marble v. Faelle, 89 A.3d 830 (R.I. 2014). ×

Two New York cases are instructive to operators of newer mobility models. In Minto v. Zipcar New York, Inc. 195 195. See Minto v. Zipcar New York, Inc., No. 15401/09. × and Moreau and Duverson v. Josaphat, et al., 196 196. See Moreau, 975 N.Y.S.2d 851. × a New York court examined whether carsharing company Zipcar was “engaged in the trade or business of renting or leasing motor vehicles” for purposes of the Graves Amendment – despite the fact that it touted itself as an alternative to car rental.

In the 2010 Minto case (which the Moreau case closely followed), the court stated that Zipcar’s advertising, which contrasted the company to “‘traditional car rental cars’, d[id] not foreclose the possibility that it is nevertheless also in the rental car business, although not of a traditional sort.” 197 197. See Minto v. Zipcar New York, Inc., No. 15401/09 at 2. × The court then noted that the Graves Amendment did not define “trade or business of renting or leasing motor vehicles.” 198 198. Id. × As a result, it analyzed the “constituent terms” of “renting” and “leasing” to determine whether Zipcar was a rental company for purposes of the Graves Amendment 199 199. Id. See also Moreau, 975 N.Y.S.2d at 855-856. × and concluded that the key features of a “lease” or rental” were the “transfer of the right to possession and use of goods for a term in return for consideration.” 200 200. See Minto v. Zipcar New York, Inc., No. 15401/09 at 2-3. × With these definitions in mind, the court focused on the requirement that Zipcar members pay fees in exchange for the right to use Zipcar vehicles, which it found to be “little different from ‘traditional rental car’ companies, notwithstanding Zipcar’s marketing statements that contrast it with those companies” and held that Zipcar was covered by the Graves Amendment. 201 201. Id. at 3. × As further support of its conclusion, the Minto court noted that the Zipcar marketing “shows that the company competes with traditional car-rental companies and serves a similar consumer need.” 202 202. Minto v. Zipcar New York, Inc., No. 15401/09 at 4. ×

2. Safe Rental Car Act

The Raechel and Jacqueline Houck Safe Rental Car Act of 2015 (“Safe Rental Car Act”) 203 203. Raechel and Jacqueline Houck Safe Rental Car Act of 2015, S. 1173, 114th Cong. (2015) (codified as amended in scattered sections of 49 U.S.C.). × places limits on the rental, sale, or lease of “covered rental vehicles”. 204 204. 49 U.S.C.A. § 30120(i) (2017). × A “covered rental vehicle” is one that: (A) has a gross vehicle weight rating (“GVWR”) of 10,000 pounds or less; (B) is rented without a driver for an initial term of less than 4 months; and (C) is part of a motor vehicle fleet of 35 or more motor vehicles that are used for rental purposes by a rental company. 205 205. 49 U.S.C.A. § 30102(a)(1) (2017). × A “rental company” is any individual or company that “is engaged in the business of renting covered rental vehicles,” and “uses, for rental purposes, a motor vehicle fleet of 35 or more covered rental vehicles, on average, during the calendar year.” 206 206. 49 U.S.C.A. § 30102(a)(11) (2017). ×

Under the Safe Rental Car Act, after receiving notice by electronic or first class mail of a NHTSA-approved safety related recall, a rental car company may not rent, sell, or lease an affected vehicle in its possession at the time of notification, until the defect has been remedied. The rental car company must comply with the restrictions on rental/sale/lease “as soon as practicable,” but no later than 24 hours after the receipt of the official safety recall notice (or within 48 hours if the notice covers more than 5,000 vehicles in its fleet). 207 207. 49 U.S.C.A. § 30120(i)(1) and (3) (2017). The 24-hour/48-hour time requirement applies only to vehicles in the possession of the rental company when the safety recall is received, and does not require rental companies to locate and recover vehicles that are on rent at that time. × If the safety recall notice indicates that a remedy is not immediately available, but specifies interim actions that an owner may take to alter the vehicle and eliminate the safety risk, the rental company may continue to rent (but not sell or lease) the vehicle after taking the specified actions. 208 208. 49 U.S.C.A. § 30120(i)(3)(C) (2017). Once a permanent remedy becomes available, the rental company may not rent affected vehicles until those vehicles have been repaired. ×

Despite the federal recall legislation, several states have introduced bills for similar legislation with California passing a law in 2016 that extends the restrictions on rental, sale, and lease to fleets of any size, as well as to cars loaned by dealers while a customer’s own vehicle are being repaired or serviced. 209 209. Cal. Veh. Code § 11754 (Deering 2019). × Effective January 1, 2019, the California prohibitions on the rental, lease, sale, or loan of vehicles subject to safety recalls also apply to “personal vehicle sharing programs,” which are defined as legal entities qualified to do business in the State of California that are “engaged in the business of facilitating the sharing of private passenger vehicles for noncommercial use by individuals within the state.” 210 210. Cal. Veh. Code § 11752 (West 2019); Cal Ins. Code § 11580.24(b)(2) (West 2011). ×

B.         State Law

Several states, including California, 211 211. Cal. Civ. Code §§ 1939.01 – 1939.37 (West 2017). × Hawaii, 212 212. Haw. Rev. Stat. Ann. §437D (West 2019). × Illinois, 213 213. 625 Ill. Comp. Stat. 27 (West 2019); 625 Ill. Comp. Stat. 5/6-305 (West 2019). × Nevada, 214 214. Nev. Rev. Stat. Ann. §§ 482.295–482.3159 (West 2019). × and New York, 215 215. N.Y. Gen. Bus. Law § 396-z (McKinney 2019). × have comprehensive vehicle rental laws that regulate a variety of issues, including minimum age requirements; sales of damage waivers; limitations on amounts recoverable from renters, fees that a vehicle rental company may charge; recordkeeping practices; general licensing or permit requirements; 216 216. See, e.g., Conn. Gen. Stat. Ann. § 14-15 (West 2018); D.C. Code § 50-1505.03 (2019); Del. Code Ann. Tit. 21 § 6102 (West 2019); Haw. Rev. Stat. Ann. § 251-3 (West 2019); Minn. Stat. Ann. § 168.27 (West 2019); Nev. Rev. Stat. Ann. § 482.363 (West 2019); N.J. Stat. Ann. § 45:21-12 (West 2019); Okla. Stat. tit. 47, § 8-101 (2004); 31 R.I. Gen. Laws Ann. § 31-5-33 (West 2019); W. Va. Code Ann. § 17A-6D-1 (West 2019); Wis. Stat. Ann. § 344.51(1m) (West 2018). × imposition of short-term rental taxes and surcharges; airport concession and permit requirements; limitations on the use of telematics; deposit and credit card restrictions; required display of counter signs; and required disclosures on rental agreements (including specified language, font size/style, and placement on written agreements). California even requires rental companies to warn their customers that operation of a passenger vehicle can expose individuals to certain chemicals that are known to cause cancer and birth defects, and therefore the customers should avoid breathing exhaust and take other precautions. Other states regulate one or more of these issues, with most states varying the specific requirements. For example, approximately 21 states regulate the sale of damage waivers with states taking different approaches on several key issues, including the permissibility of selling partial or deductible waivers, customer disclosures, and the permissible bases for invalidation of a waiver. 217 217. The typical damage waiver statute requires vehicle rental companies to disclose the optional nature of the waiver on the front of the rental agreement form and/or signs at the rental counter. Some statutes also regulate the content of the waiver and its exclusions. See, e.g., Cal. Civ. Code § 1939.09 (Deering 2019). Hawaii, Illinois, Maryland, New York, and Wisconsin require the distribution of brochures summarizing the damages waiver and its terms, and rental companies selling damage waivers in Louisiana and Minnesota must file a copy of the rental agreement before using it. Haw. Rev. Stat. Ann. § 437D-10 (LexisNexis 2019); 625 Ill. Comp. Stat. Ann. 27/20 (LexisNexis 2019); La. Stat. Ann. § 22:1525 (2018); Md. Code Ann. Com. Law § 14-2101 (LexisNexis 2019); Minn. Stat. Ann. § 72A.125 (West 2019); N.Y. Gen. Bus. Law § 396-z(4) (Consol. 2019); and Wis. Stat. Ann. § 344.576 (West 2018). ×

In addition to the issues noted above, most states prohibit rental of a vehicle without first inspecting the renter’s driver’s license to confirm that it is “facially valid” and (1) comparing the signature on the license with the renter’s signature written at the time of rental; and/or (2) comparing the photo with renter. 218 218. See, e.g., Fla. Stat. Ann. § 322.38(1-2) (LexisNexis 2018); 625 Ill. Comp. Stat. Ann. 5/6-305(b) (LexisNexis 2019); Nev. Rev. Stat. Ann. § 483.610 (LexisNexis 2019); Md. Code Ann. Transp. § 18-103(a), (b) (LexisNexis 2019); Wash. Rev. Code Ann. § 46.20.220 (LexisNexis 2019); W. Va. Code Ann. § 17B-4-6 (LexisNexis 2019). × Moreover, case law from various states provide guidance on what may or may not constitute negligent entrustment (which is excluded from the Graves Amendment). Finally, some states have begun to recognize the emergence of new mobility models and have either amended existing laws or passed new legislation to address the new models.

The paragraphs below summarize typical state laws (and how they vary) on several of these issues, including use of telematics systems; tolls and other fees, negligent entrustment, and peer-to-peer car sharing programs.

2. Telematics Systems and Vehicle Technology

Many mobility operators equip their rental vehicle fleet with global positioning systems (GPS) or other telematics systems (collectively “Telematics Systems”) to track vehicles for a variety of purposes, including fleet management; locating and recovering vehicles that are not returned by the due-in date (or that have been reported missing); calculating information related to the use of the vehicle, such as mileage, location, and speed; and providing services to renters, such as roadside assistance, maintenance, and navigation. Connected cars and HAVs will provide even more data that mobility operators can use to manage their fleets and enhance the user’s experience. 219 219. See, e.g., Avis Budget Group Boosts Fleet of Connected Cars with 75,000 In-Vehicle Telematics Units From I.D. Systems, Avis Budget Group (Dec. 17, 2018), https://avisbudgetgroup.com/avis-budget-group-boosts-fleet-of-connected-cars-with-75000-in-vehicle-telematics-units-from-i-d-systems-2/. (last visited May 8, 2019). ×

At the same time, mobility operators that use Telematics Systems to impose fees related to vehicle use (e.g., fees for traveling outside a geographic area or excess speeding), may face customer complaints or even litigation. For example, rental companies have been subject to suit in the past when they used GPS to collect location or speed information about a vehicle while on rent and impose additional fees on customers who violated geographic limitations of the rental agreement or state speed limits. 220 220. See Turner v. American Car Rental 884 A.2d 7 (Ct. App. Ct. 2005); Proposed Judgment, People v. Acceleron Corp., (Cal. Super. Ct. 2004), https://oag.ca.gov/system/files/attachments/press_releases/04-129_settle.pdf. ×

Four states, including California, Connecticut, Montana, and New York, currently have laws that specifically regulate “rental company” use of Telematics Systems. Specifically:

CaliforniaCalifornia generally prohibits rental companies from using, accessing, or obtaining information about a renter’s use of a rental vehicle that was obtained from “electronic surveillance technology” (“a technological method or system used to observe, monitor, or collect information, including telematics, . . . GPS, wireless technology, or location-based technology”), including for the purpose of imposing fines or surcharges.  However, electronic surveillance technology may be used if:

(1) The rented vehicle is missing or has been stolen or abandoned;

(2) the vehicle is 72 hours past the due-in date (and the company notifies the renter and includes required disclosures in the rental agreement);

(3) the vehicle is subject to an AMBER Alert; or

(4)  in response to a specific request from law enforcement pursuant to a subpoena or search warrant. 221 221. See Cal. Civ. Code § 1939.23(a) (West 2019). ×

Rental companies that use electronic surveillance technology for any of the reasons identified above also must maintain certain records of each such use for one year from date of use. 222 222. Id. The records must include any information relevant to the activation of the GPS, including: (1) the rental agreement; (2) the return date; (3) the date and time the electronic surveillance technology was activated; and (4) if relevant, a record any communication with the renter or the police. The record must be made available to the renter upon request, along with any explanatory codes necessary to read the record. × Rental companies may also use telematics at the request of renters, including for roadside service, navigation assistance, or remote locking/unlocking – as long as the rental company does not use, access or obtain information related to the renter’s use of the vehicle beyond that which is necessary to render the requested service. 223 223. See Cal. Civ. Code § 1939.23(b) (West 2019).  In addition, rental companies may obtain, access, or use information from electronic surveillance technology for the sole purpose of determining the date and time of the start and end of the rental, total mileage, and fuel level. × Like most of the other provisions of the California Vehicle Rental law, customers cannot waive these requirements. 224 224. See Cal. Civ. Code § 1939.29 (West 2019). The only provisions of the California vehicle rental law that a customer may waive are those related to business rentals, rentals of 15-passenger vans, and driver’s license inspection exceptions for remote access programs. ×

ConnecticutConnecticut’s non-uniform version of UCC Article 2A, 225 225. Conn. Gen. Stat. § 42-2A-702 (2013). × (which applies to both short-term and long-term consumer and commercial leases) regulates the use of “electronic self-help,” including the use of GPS devices to track and locate leased property to repossess the goods (or render them unusable without removal, such as remotely disabling the ignition of a vehicle). Before resorting to electronic self-help, a lessor must give notice to the lessee, stating:

      • That the lessor intends to resort to electronic self-help as a remedy on or after 15 days following notice to the lessee;
      • The nature of the claimed breach which entitled the lessor to resort to electronic self-help; and
      • The name, title, address and telephone number of a person representing the lessor with whom the lessee may communicate concerning the rental agreement.

In addition, the lessee must separately agree to a term in the lease agreement that authorizes the electronic self-help. A commercial lease requires only that the authorization is included as a separate provision in the lease, which implies that a consumer lease requires the express, affirmative consent of the lessee. 226 226. Conn. Gen. Stat. § 42-2A-702(e)(2)-(3) (2013). Lessees may recover damages, including incidental and consequential damages, for wrongful use of electronic self-help (even if the lease agreement excludes their recovery). Conn. Gen. Stat. § 42a-2A-702(e)(4). In addition, a lessor may not exercise electronic self-help if doing so would result in substantial injury or harm to the public health or safety or “grave harm” to third parties not involved in the dispute – even if the lessor otherwise complies with the statute. Conn. Gen. Stat. § 42a-2A-702(e)(5). ×

Montana Montana requires a “rental vehicle entity” providing a rental vehicle equipped with a GPS or satellite navigation system to disclose in the rental agreement (or written addendum) the presence and purpose of the system. 227 227. See Mont. Code Ann. 61-12-801(1)(a) (2019). For purposes of the Montana law, a “rental vehicle entity” is a business entity that provides the following vehicle to the public under a rental agreement for a fee: light vehicles, motor-driven cycles, quadricycles, or off-highway vehicles. Mont. Code Ann. 61-12-801(2)(b)-(c) (2019). A “rental agreement” is a written agreement for the rental of a rental vehicle for a period of 90 days or less. Mont. Code Ann. 61-12-801(2)(a) (2019). × If the GPS or satellite navigation system is used only to track lost or stolen vehicles, disclosure is not required.

New York – New York prohibits a “rental vehicle company” from using information from “any” global positioning system technology to determine or impose fees, charges, or penalties on an authorized driver’s use of the rental vehicle. 228 228. N.Y. Gen. Bus. Law 396-z(13-a). New York defines a “rental vehicle company” as “any person or organization . . . in the business of providing rental vehicles to the public from locations in [New York]. NY Gen. Bus. Law 396-z(1)(c). × The limitation on use of GPS, however, does not apply to the rental company’s right to recover a vehicle that is lost, misplaced, or stolen.

More recently, vehicle infotainment systems, which may include Telematics Systems like GPS, have come under scrutiny. In a putative class action filed against Avis Budget Group in December 2018, the plaintiff asserted that:

(a) a customer’s personal information may be collected and stored automatically by a vehicle each time the customer pairs his or her personal mobile device to the vehicle infotainment system to access navigation, music streaming, voice dialing/messaging, or other services; and

(b) failure to delete the customer data after each rental violated customers’ right to privacy under the California constitution, as well as the California rental law electronic surveillance technology provisions.

As of the date of this article, the defendant had removed the case to federal court and filed a motion to compel arbitration based on the terms and conditions of the rental agreement. 229 229. See Complaint, Kramer v. Avis Budget Group, Inc., Case No. 37-2018-00067024-CU-BT-CTL (Ca. Super. Ct., San Diego County 12/31/2018). The federal case number is 3:19cv421 (S.D. Cal.). Similar claims have been filed against other companies in California and all were initially removed to federal court, however, one of the cases has been remanded to state court. ×

2. Tolls and Other Fees

Several states, including California, Nevada, and New York, limit the types and even the amounts of fees that rental companies can charge. For example, California prohibits additional driver fees, and Nevada and New York cap those fees. In other states, a fee that appears to be excessive or punitive may be unenforceable. Generally, a fee is more likely to be enforced if it is fully disclosed, and the customer can avoid paying it by either not selecting a particular product or service (such as supplemental liability insurance or an additional driver) or not engaging in a particular behavior (such as returning the car late or with an empty gas tank). 230 230. See, e.g., Blay v. Zipcar, Inc., 716 F. Supp. 2d (D. Mass. 2010); Reed v. Zipcar, Inc., 883 F. Supp. 2d 329 (D. Mass. 2012). Cf. Bayol v. Zipcar, Inc., 78 F.Supp.3d 1252 (N.D. Cal. 2015). ×

Although disgruntled customers may complain about any fee that they believe is excessive or “hidden,” over the past several years, toll program charges have been among the most disputed in the car rental industry. Indeed, several class action claims have been filed against rental companies alleging inadequate disclosure of toll payment terms, failure to disclose use of third parties, unauthorized charges to the customer’s credit card, breach of contract, and similar claims. 231 231. See Doherty and Simonson v. Hertz, No 10-359 (NLH/KMW) 2014 WL 2916494 (D.N.J. Jun. 25, 2014) (approving over $11 million settlement of class action case based on assertions that inadequate disclosure of a rental company’s toll program violated consumer protection laws and breached the rental agreement); see also Mendez v. Avis Budget Group, Inc., No. 11-6537(JLL), 2012 WL 1224708 (D. N.J. Apr. 10, 2012); Readick v. Avis Budget Group, Inc., No. 12 Civ. 3988(PGG), 2013 WL 3388225 (S.D. N.Y. Jul. 3, 2013); Sallee v. Dollar Thrifty Automotive Group, Inc., et al., 2015 WL 1281518 (N.D. Okla. Mar. 20, 2015); Maor v. Dollar Thrifty Automotive Group, Inc., 303 F.Supp.3d 1320 (S.D. Fla. 2017). × State and local attorneys general have also investigated or filed civil claims against rental companies based on similar allegations. 232 232. See infra, note 55. ×

The increase in customer complaints and litigation likely stems from innovations in both toll collection methods and rental car toll payment processing (both of which seem likely to become an integral part of the connected car/HAV ecosystem). For example, an increasing number of toll roads and bridges are all-electronic. At the same time, many rental companies have introduced optional toll service products that permit renters to use electronic toll roads and lanes during the rental, some of which are provided by third parties. Often, a renter who declines to purchase the toll service at the time of rental will be subject to higher fees if he or she incurs toll charges by driving on an all-electronic road or lane during the rental.

The typical complaint focuses on alleged lack of or inadequate disclosure of the toll payment-processing program. For example, in recent settlement agreements with the Florida Attorney General, Avis Budget Group, Inc., and Dollar Thrifty Automotive Group, Inc. both agreed to disclose that Florida has cashless tolls, along with details about the rental company’s toll service options, and how the toll service charges can be avoided (such as by paying in cash, programming a GPS to avoid toll roads, contacting local authorities for other payment options, or using a personal transponder that is accepted on the toll road). 233 233. In February 2019, Hertz settled a case with the City Attorney of San Francisco for $3.65 million. The case alleged that the Hertz toll fee program as applied to the Golden Gate Bridge (an all-electronic toll road) failed to adequately disclose the fees or to provide customers the ability to opt-out. See Julia Cheever, Hertz Reaches $3.65 Million Settlement with SF over Golden Gate Bridge Tolls, San Francisco Examiner (Feb. 19, 2019), http://www.sfexaminer.com/hertz-reaches-3-65-m-settlement-sf-golden-gate-bridge-toll-fees/. See also Office of the Att’y Gen. of Fla.v. Dollar Thrifty Automotive Group, Inc., No. 16-2018-CV-005938 (Fla. Cir. Ct Jan. 7, 2019), https://myfloridalegal.com/webfiles.nsf/WF/TDGT-B8NT5W/$file/Final+Signed+DT AG+Settlement+Agreement+1+11+19.pdf.; In re Investigative Subpoena Duces Tecum to Avis Budget Group, Inc. and Payless Car Rental System, Inc., No 2017 CA 000122 (Fla. Cir. Ct. Jul. 7, 2017), http://myfloridalegal.com/webfiles.nsf/WF/JMAR-AP6LZQ/ $file/Settlement+Agreement+Avis.pdf. ×

Finally, state legislatures are taking notice of the tolling issues with several states proposing new legislation to regulate rental company toll programs and fees. As of January 1, 2019, Illinois became the first state to directly regulate toll programs by establishing maximum daily fees for toll programs if the rental company fails to notify the customer of the option to use a transponder or other device before or at the beginning of the rental. 234 234. See 625 Ill. Comp. Stat. 5/6-305. ×

3. Negligent Entrustment.

As noted above, the federal Graves Amendment protects “rental” or “leasing” companies from vicarious liability for their customers’ accidents based solely on ownership of the vehicle; however, the rental or leasing company is still liable for its own negligence or criminal wrongdoing. As a result, one common challenge to a rental or leasing company’s assertion of the Graves Amendment as an affirmative defense is a claim that the rental or leasing company somehow negligently entrusted the vehicle to the customer.

A vehicle owner may be liable for negligent entrustment if: (1) it provides a vehicle to a person it knows, or should know, is incompetent or unfit to drive; (2) the driver is in an accident or otherwise causes injury; and (3) that injury is caused by that person’s incompetence. 235 235. See Osborn v. Hertz Corp., 205 Cal.App.3d 703, 708-709 (1989). × To be found liable for negligent entrustment in the vehicle renting or leasing context, the rental or leasing company generally must have some special knowledge concerning a characteristic or condition peculiar to the renter that renders that person’s use of the vehicle unreasonably dangerous. Plaintiffs’ counsel typically allege that negligent entrustment is at issue where the driver appears to be intoxicated at the time of the rental or has a known substance abuse problem; where a renter is known by the rental company and its agents to be a reckless driver; or  where the rental company has reason to know that the renter may cause injury to others.

On the other hand, courts around the country have found that the following circumstances did not constitute negligent entrustment:

(1) failure to research the renter’s driving record; 236 236. See Flores v. Enterprise Rent-A-Car Co., 116 Cal. Rptr. 3d 71, 78 (2010). ×

(2) failure to recognize the signs of habitual drug use (when renter was not under the influence at the time of rental); 237 237. See Weber v Budget Truck Rental, 254 P.3d 196 (Wash. Ct. App. 2011). ×

(3) renting to an individual whose license had been suspended, but who had not yet received notification of the suspension; 238 238. See Young v. U-Haul, 11 A.3d 247 (D.C. Cir. 2011). ×

(4) failure to administer a driving test or to ensure that the driver is capable of actually operating the vehicle; 239 239. See Reph v. Hubbard, No. 07-7119, 2009 WL 659910 at *3 (E.D. La. 2009). ×

(5) renting to an individual who does not speak English fluently; (6) renting to an individual with an arm splint who did not indicate that the splint would interfere with his ability to drive; 240 240. See Mendonca v. Winckler and Corpat, Inc., No 1-5007-JLV, 2014 WL 1028392 (D.S.D. 2014). ×  and

 (7) renting to a former customer who previously reported an accident in a rental car and also allegedly returned a car with illegal drugs left behind. 241 241. See Maisonette v. Gromiler, No. FSTCV176031477S, 2018 WL 3203887 (Conn. Super. Ct. 2018). ×

4. State Laws Addressing New Mobility Platforms

More recently, some states have begun to recognize the emergence of new mobility models and have amended existing laws or passed new laws to address some of the issues. For example:

  • In 2011, California amended its insurance code to include a “personal vehicle sharing” statute, which regulates insurance aspects of “personal vehicle sharing programs” that facilitate sharing of private passenger vehicles (i.e., vehicles that are insured under personal automobile policies insuring a single individual or individuals residing in the same household) for non-commercial purposes, as long as the annual revenue received by the vehicle’s owners from the personal vehicle sharing does not exceed the annual expenses of owning and operating the vehicle (including the costs associated with personal vehicle sharing). 242 242. See Cal. Ins. Code 11580.24 (West 2018). Oregon and Washington have similar laws. ×
  • In 2012, California amended its driver’s license inspection statute to exempt membership programs permitting remote, keyless access to vehicles from driver’s license inspection requirements. 243 243. Cal. Civ. Code § 1939.37 (Deering 2019). × As of the date of this article, a similar draft bill is pending in Massachusetts. 244 244. H.D. 4139 (Mass. 2019). A similar bill came into effect in Florida on July 1, 2019. See Fla. Stat. Ann. § 322.38 (West 2019). ×
  • In 2015, Florida and Hawaii amended their laws to impose modified car rental surcharges on “carsharing organizations” (i.e., membership programs providing self-service access to vehicles on an hourly or other short-term basis). 245 245. Fla Stat. Ann. § 212.0606 (LexisNexis 2019); Haw. Rev. Stat. Ann. § 251 (LexisNexis 2019). ×
  • Maryland passed the first comprehensive “Peer-to-Peer Car Sharing Program” law in 2018. The Maryland law defines a “peer-to-peer car sharing program” as, “a platform that is in the business of connecting vehicle owners with drivers to enable the sharingof motor vehicles for financial consideration” 246 246. Md. Code Ann., Ins. § 19-520(a)(9) (LexisNexis 2019). Illinois also passed a peer-to-peer car sharing/rental law in 2018, but that law was vetoed by then-Governor Rauner. Michael J. Bologna, Illinois Governor Pumps the Brakes on Car-Sharing Taxes, Bloomberg; Daily Tax Report: State (August 31, 2018), https://www.bna.com/illinois-governor-pumps-n73014482161/ (last visited May 15, 2019). × and extends a number of vehicle rental law requirements, including those related to safety recalls, 247 247. Md. Code Ann., Transp., § 18.5-109 (LexisNexis 2019). ×  collision damage waiver sales, 248 248. Md. Code Ann., Com. Law, § 14-2101 (LexisNexis 2019). ×  limited lines licensing in connection with the sale of car rental insurance, 249 249. Md. Code Ann., Ins., § 10-6A-02 (LexisNexis 2019). × airport concession agreements, 250 250. Md. Code Ann., Transp. § 18.5-106 (LexisNexis 2019). ×  and recordkeeping requirements, to peer-to-peer car sharing programs. 251 251. Md. Code Ann., Ins. § 19-520 (LexisNexis 2019). × It also exempts the Peer-to-Peer Car Sharing Program operator and the shared vehicle’s owner from vicarious liability based solely on vehicle ownership in accordance with the Graves Amendment. 252 252. Md. Code Ann., Ins. § 19-520(e) (LexisNexis 2019). ×

 As of June 2019, the following states have pending, or have passed, peer-to-peer car sharing/car rental (or personal motor vehicle sharing) legislation: Arizona, California, Colorado, Georgia, Hawaii, Indiana, Iowa, Massachusetts, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, Washington, and West Virginia. 253 253. Arizona H.B. 2559 (Ariz. 2019) and S.B. 1305 (Ariz. 2019); A.B. 1263 (Cal. 2019); S.B. 090 (Colo. 2019); H.B. 378 (Ga. 2019); H.B. 241 HD2 SD 1 (Haw. 2019) and S.B. 662 SD2 (Haw. 2019); Pub. L. No. 253 (Ind. 2019) (to be codified at Ind. Code § 9-25-6-3); H.F. 779 (Ia. 2019); H.D. 4139 (Mass. 2019); L.B. 349 (Neb. 2019); S.B. 478 (Nev. 2019); H.B. 274 (N.H. 2019); A.B. 5092 (N.J. 2019); S.B. 556 (N.M. 2019); S.B. 5995 (N.Y. 2019); H.B. 2071 (Wash. 2019); H.B. 2762 (W. Va. 2019). × The scope of the pending bills ranges from extension of rental tax obligations to peer-to peer rentals to more comprehensive schemes similar to that passed in Maryland in 2018.

III.          The Challenge of Compliance

As demonstrated in the brief survey of existing rental laws above incumbent vehicle rental companies (especially those that operate in several states) must navigate numerous and often-inconsistent federal and state laws in their day-to-day operations. In addition to the challenges created by inconsistencies in the substantive requirements of the laws, not all of the laws use the same definition of “vehicle rental company” (which may vary depending upon the length of the transaction and the type of vehicle rented), so it is possible for an entity or transaction to be considered a “rental” in some, but not all, states or for some, but not all, purposes. 254 254. See Minto v. Zipcar New York, Inc., No. 15401/09 (N.Y. Super. Ct., Queens County Mar. 17, 2010). ×

In recent years, the challenge of compliance with existing laws – most of which did not contemplate anything other than a face-to-face handover of vehicle and keys — has increased as new entrants and incumbent operators attempt to innovate and take advantage of new technology to improve operations and customer experience. For example, use of kiosks, keyless access and GPS fleet management are all innovations that can improve the customer experience, which existing vehicle rental laws fail to facilitate. Enter the newer mobility operators, and things become even more interesting, with a close analysis of the definition of “rental company,” “rental vehicle,” and other key terms becoming even more important. To provide some context, consider a few hypotheticals:

Hypothetical 1 A 26-year old driver with a facially valid, but recently suspended driver’s license, rents a car in Arizona and is involved in an accident injuring a third party. Under Arizona law and indeed the law of all states, the rental car operator meets its statutory obligations by inspecting the driver’s license and confirming that it is facially valid. There is no duty to conduct any further investigation into the status of the driver’s license or the driving record of the prospective renter. Under this simple fact pattern, the rental car company has no liability to the injured third party for the negligence of the renter (beyond any state mandated minimum financial responsibility limit). Should the outcome be the same for a carsharing operation where the user accesses the vehicle through an app without any direct in-person contact with personnel of the operator? What about an owner of small fleet of cars who “rents” his vehicles through a peer-to-peer rental platform? How about a subscription program where an employee delivers a vehicle to a “lessee” or “renter” who has elected to switch the model of car being used?

Hypothetical 2 A California carshare member has had possession of a vehicle for three days and the operator receives notice that the member’s credit card is expired. The member has not responded to inquiries from the operator. If the carsharing transaction is considered to be a rental, as noted above, in California and a few other states, the mobility operator is precluded by statute from utilizing the vehicle’s GPS to locate the vehicle (at least until certain time periods have expired). Should that same limitation apply to the carshare operator? What if the purpose was to make sure that vehicles are properly distributed around a region so that it can serve its members’ anticipated demands? What about the renter of a peer-to-peer vehicle who is late with the car – can either the owner of the car or the peer-to-peer platform assist in locating the car via the vehicle’s GPS system? Can the operator of a subscription program utilize GPS to track the location of vehicles?

Hypothetical 3 A 30-year old renter with a valid license rents a vehicle through a peer-to-peer platform and two days later causes an accident resulting in substantial property damage and injuries. Pursuant to the federal Graves Amendment, if a peer-to-peer rental is characterized as a car rental transaction, the vehicle owner might argue there is no vicarious liability for the actions of the driver (assuming there was no negligence in how the transaction was handled). It is possible the arguments would vary if the owner of the vehicle operated a small fleet of cars, which it placed on a peer-to-peer platform. A few courts have concluded that the Graves Amendment protection extends to carshare operations. 255 255. See id. × Should that protection extend to the individual or small fleet owner that utilizes a peer-to-peer platform? Is there any basis to extend the Graves Amendment protection to the platform operator given that it typically does not own the vehicles?

Currently, the answers to many of the questions raised above are unclear with scant guidance from state legislatures or courts. As a result, a mobility operator generally must look to the definition of “rental company” to determine whether its model is or may be covered by a particular law. And that inquiry may lead an incumbent car rental operator to argue that it should no longer be subject to the outdated vehicle rental laws and regulations either.

IV.          Proposal

There is an ongoing debate in the mobility industry as to the extent that some models need to comply with existing laws and regulations related to the rental car industry. In particular, some peer-to-peer companies resist the application of those rules to their operations and argue that they are merely a technology company providing a platform to connect drivers with cars, and therefore are not subject to taxes, licensing requirements, or consumer protection laws governing incumbent rental companies. 256 256. See Turo, Inc. v. City of Los Angeles, 2019 U.S. Dist. LEXIS 6532 (C.D. Cal. 2019) (dismissing as unripe a peer-to-peer platform provider’s claim that it is immune from liability for state law violations under Section 230 of the Communications Decency Act and denying motions to dismiss claims that the City of Los Angeles misclassified the peer-to-peer platform provider as a rental company). × However, others urge that if all mobility operators are offering essentially the same services (use of a non-owned vehicle), then it seems more accurate to consider all mobility operators in the same business – mobility. As the New York Supreme Court noted in the Zipcar cases discussed in Part B, the services provided by a carsharing company (Zipcar) served a similar consumer need and were “little different from ‘traditional rental car’ companies, notwithstanding marketing statements that contrast it with those companies.” 257 257. See Minto v. Zipcar New York, Inc., No. 15401/09; see also Orly Lobel, “The Law of the Platform,” 101 Minn. L. Rev. 87, 112 (November 2016). ×

Setting aside those differences, there is some value to the mobility industry as a whole in consistent laws and regulations on some issues across the country and, of course, in protecting the safety and privacy of users. What follows are a few recommendations that could form the basis for a set of uniform laws applicable to the mobility industry. 258 258. The authors are unaware of any existing model laws for car rental or the broader mobility industry. Although the National Association of Attorneys General issued the NAAG Report on car rental practices and “guidelines” in 1989, those Guidelines were not intended to serve as model and uniform law, but rather guidance on compliance with state unfair and deceptive trade practice laws. See supra note 8. In addition, the NAAG Guidelines are now 30 years’ old and somewhat outdated in light of the changes in technology and the evolution in the mobility industry discussed in this article. ×

A.         Standardized Terms and Definitions 

Mobility operators, consumers, and regulators would benefit if federal and state laws used more consistent definitions for key terms and phrases. The definitions of the different platforms at the beginning of this article could be a starting point (which we repeat here without citations for ease of reference):

  • “Carsharing” – a membership-based service that provides car access without ownership. Carsharing is mobility on demand, where members pay only for the time and/or distance they drive.
  • “Peer-to-Peer Carsharing or Rentals” – the sharing of privately-owned vehicles in which companies, typically for a percentage of the rental charge, broker transactions among car owners and renters by providing the organizational resources needed to make the exchange possible (i.e., online platform, customer support, driver and motor vehicle safety certification, auto insurance and technology).
  • “Subscriptions” – a service that, for a recurring fee allows a participating person exclusive use of a motor vehicle owned by an entity that controls or contracts with the subscription service. Typically, the subscriber is allowed to exchange the vehicle for a different type of vehicle with a certain amount of notice to the operator. The term of the subscription can vary, but should be subject to a periodic renewal by the subscriber (user).
  • “Vehicle Rental” – a customer receives use of a vehicle in exchange for a fee or other consideration pursuant to a contract for an initial period of time less than 30 days.
  • “Mobility Operators” – any person or entity that provides access to a vehicle to another person whether by an in-person transaction, an app-based or online platform, or any other means and whether the entity providing the access is the owner, lessee, beneficial owner, or bailee of the vehicle or merely facilitates the transaction.

In addition, standard definitions for the terms, “rental” and “rental company” would provide additional clarity for all mobility operators, and to the extent feasible, the more narrow term “rental” and its derivatives should be replaced with “mobility.”

“Rental” should focus on the service provided and be distinguished from long-term leases (which are subject to additional laws and regulations, including federal Regulation M). As a starting point, “rental” could be defined as the right to use and possess a vehicle in exchange for a fee or other consideration for an initial period of less than 90 days. 259 259. Although the definition of “consumer lease” is a transaction for a period exceeding 4 months, we note that other federal laws, such as Graham-Leach-Bliley impose additional requirements on leases of at least 90 days. See 12 C.F.R. § 213.2(e)(1) (2011); 16 C.F.R. § 313.3(k)(2)(iii) (2000). ×

“Rental Company” or “Mobility Company” should be defined as “any corporation, sole proprietorship or other entity or person who is engaged in the business of facilitating vehicle rental transactions.” 260 260. See, e.g., H.B. 2762 (W. Va. 2019). × A de minimis exemption for individuals renting private vehicles through a peer-to-peer or other private vehicle program could apply (e.g., no more than X vehicles available for rent during a 12-month period). 261 261. See id. ×

A more uniform definition for “Rental Vehicle” or “Mobility Vehicle” also could produce more consistency across or even within states since some existing vehicle rental laws currently apply only to “private passenger vehicles,” while others apply more broadly to “motor vehicles.” Before proposing model language, however, we believe that regulators and industry experts need to consider several important (and somewhat thorny) issues.

For example, consider the rental of a pick-up truck to a contractor for use at a construction site. If a law applies only to rentals of “private passenger vehicles,” then the pick-up truck likely would not be subject to the law. On the other hand, if the law applies more broadly to “motor vehicles,” then the pick-up truck rental likely would be covered. The policy argument for covering our hypothetical pick-up truck rental may be weaker for consumer protection statutes, like required disclosures for sales of damage waiver or child safety seat rules. On the other hand, using a broader definition of “rental vehicle,” which would include the hypothetical pick-up truck, may better serve the general public policy goals of the Graves Amendment, the Safe Rental Act, and laws related to liability and insurance.

B.         Use of GPS and Telematics Technology

The use of this technology for locating and monitoring vehicles for a legitimate business, operational, maintenance or safety purpose should be permitted. Those states that have restricted the use of GPS tracking have done so to protect the privacy of renters. Operators in states where there is no statutory limitation often provide a full disclosure to users that vehicle location and other data may be monitored. We believe there are certain mobility models and circumstances where location and other data should be monitored – as long as there is full disclosure. For example, a free-floating carshare operator should be allowed to monitor vehicle location for the purpose of serving anticipated demand. Similarly, an operator of an EV fleet should be allowed to monitor a vehicle’s battery charge and location to ensure an adequate charge level for the next user. Finally, mobility operators should have the right to use GPS or other technology to locate vehicles that have not been returned on time or when the operator otherwise has reason to believe that the vehicle has been abandoned or stolen, or to track mileage driven or fuel used for purposes of charging associated fees (provided there is appropriate notice and full disclosure to the user). On a broader scale, uniform regulation that permits some vehicle monitoring, as long as done in a manner to protect the privacy of a user and with full disclosure, should be adopted across all mobility platforms.

C.         Vehicle Access

Provided there is an initial verification of a driver’s license, a mobility operator that either allows access to vehicles without in-person contact or does not require signing of a rental agreement at the time of rental should be subject to a provision similar to the following:

If a motor vehicle rental company or private vehicle rental program provider facilitates rentals via digital electronic, or other means that allow customers to obtain possession of a vehicle without in person contact with an agent or employee of the provider, or where the renter does not execute a rental contract at the time of rental, the provider shall be deemed to have met all obligations to physically inspect and compare a renter’s driver license pursuant to this article when such provider:

  1. At the time a renter enrolls, or any time thereafter, in a membership program, master agreement, or other means of establishing use of the provider’s services, requires verification that the renter is a licensed driver; or
  2. Prior to the renter taking possession of the rental vehicle, the provider requires documentation that verifies the renter’s identity.

D.         Graves Amendment    

The Graves Amendment, by its language, applies to the business of “renting or leasing” vehicles. A few state court cases have confirmed that Graves applies to carsharing. That application should be expressly adopted on a national basis and extended to all mobility models that involve a vehicle “owner’s” grant of the right to possess and use a vehicle in exchange for a fee or other consideration (including loaner vehicles).

Similarly, subscription programs which operate somewhere between incumbent car rental and vehicle leasing programs, at their core involve the short-term use of a vehicle in exchange for payment. Provided the subscription program complies with state rental car laws or applicable subscription legislation, the operation should be subject to the Graves Amendment. For that reason, we recommend that state legislatures either refine the Indiana/North Carolina definition of “subscription” to clarify that the model is a rental or lease for purposes of the Graves Amendment or simply state that subscription models are exempt from state vicarious liability laws based on vehicle ownership.

Peer-to-Peer platforms raise some issues when considering the Graves Amendment. On the one hand, an end-user is paying money to use a vehicle that belongs to someone else much like an incumbent rental car operation. On the other hand, a true “peer”-or individual- who occasionally lists his or her personal vehicle for rent when not using it may not really be in the business of renting cars. Much of the recent Peer-to-Peer legislation addresses this and related issues. Our suggestion is that Peer-to-Peer be subject to express state legislation and that such legislation impose sufficient operational, safety and economic obligations on operators, including required insurance coverage. In the absence of Peer-to-Peer legislation, an operator should have to comply with existing state rental car regulations especially if the operator somehow claims it is subject to the Graves Amendment.

E.         Americans with Disabilities Act

    Compliance with and exceptions to the ADA is complex. However, we propose that all mobility operators with fleets above a certain size must provide adaptive driving devices for selected vehicles, as long as the customer provides advance notice (which may vary depending upon the operator’s location and fleet size) and the adaptive driving devices are compatible with vehicle design and do not interfere with the vehicle’s airbag or other safety systems.

F.         Disclosure Requirements

All operators must provide sufficient disclosures to users regarding the following matters: fees, charges, damage waivers, added insurance, and vehicle technology. However, typical requirements in the existing state rental laws, including specified placement and font size for disclosures and in-person acknowledgment of receipt of those disclosures, simply do not contemplate modern technology, including digital agreements and remote access.  We propose the 2018 amendment to the New York vehicle rental law as the model for addressing required disclosures and formatting in electronic and/or master, membership agreements. That amendment provides:

(a) Notwithstanding any other provision of this section, any notice or disclosure of general applicability required to be provided, delivered, posted, or otherwise made available by a rental vehicle company pursuant to this section shall also be deemed timely and effectively made where such notice or disclosure is:

(i)       provided or delivered electronically to the renter at or before the time required provided that such renter has given his or her expressed consent to receive such notice or disclosure in such a manner; or

(ii)      included in a member or master agreement in effect at the time of rental.

(b)  . . . Notices and disclosures made electronically pursuant to this subdivision shall be exempt from any placement or stylistic display requirements, including but not limited to location, font size, typeset, or other specifically stated description; provided such disclosure is made in a clear and conspicuous manner.

G.         Other Issues

There are, of course, other issues the industry can consider. For example, some states (New York and Michigan) have laws requiring rental car companies to make vehicles available to younger drivers, subject to certain conditions. Some uniformity on the ability of mobility operators to set minimum age requirements would reduce risk. Additionally, there are inconsistent laws across the country regarding the amount of time a rental car company must wait after a renter fails to return a car before it can notify law enforcement. Appropriate and consistent rules as to when an operator can start to recover a valuable (and mobile) asset would help promote growth in the industry.

The mobility revolution involves a number of different players with disparate and sometimes competing interests. Not all the participants will agree on all the issues, however, we offer the above suggestions to encourage discussion and to advance some level of consistency on a few points.


Wes Hurst is an attorney with a nationwide Mobility and Vehicle Use Practice. He represents rental car companies, carsharing companies, automobile manufacturers and companies pursuing new and emerging business models related to mobility and the use of vehicles. Wes is a frequent speaker and author on mobility related topics. Wes is in the Los Angeles office of Polsinelli and can be reached at whurst@polsinelli.com.

Leslie Pujo is a Partner with Plave Koch PLC in Reston, Virginia. In her Mobility and Vehicle Use Practice, Leslie regularly represents mobility operators of all types, including car rental companies, RV rental companies, automobile manufacturers and dealers, carsharing companies and other emerging models. Leslie is a frequent speaker and author on car rental and other mobility topics and can be reached at lpujo@plavekoch.com.

* The authors wish to thank Naila Parvez for her assistance

By Bryan Casey

Cite as: Bryan Casey, Title 2.0: Discrimination Law in a Data-Driven Society, 2019 J. L. & Mob. 36.

Abstract

More than a quarter century after civil rights activists pioneered America’s first ridesharing network, the connections between transportation, innovation, and discrimination are again on full display. Industry leaders such as Uber, Amazon, and Waze have garnered widespread acclaim for successfully combating stubbornly persistent barriers to transportation. But alongside this well-deserved praise has come a new set of concerns. Indeed, a growing number of studies have uncovered troubling racial disparities in wait times, ride cancellation rates, and service availability in companies including Uber, Lyft, Task Rabbit, Grubhub, and Amazon Delivery.

Surveying the methodologies employed by these studies reveals a subtle, but vitally important, commonality. All of them measure discrimination at a statistical level, not an individual one. As a structural matter, this isn’t coincidental. As America transitions to an increasingly algorithmic society, all signs now suggest we are leaving traditional brick-and-mortar establishments behind for a new breed of data-driven ones. Discrimination, in other words, is going digital. And when it does, it will manifest itself—almost by definition—at a macroscopic scale. Why does this matter? Because not all of our civil rights laws cognize statistically-based discrimination claims. And as it so happens, Title II could be among them.

This piece discusses the implications of this doctrinal uncertainty in a world where statistically-based claims are likely to be pressed against data-driven establishments with increasing regularity. Its goals are twofold. First, it seeks to build upon adjacent scholarship by fleshing out the specific structural features of emerging business models that will make Title II’s cognizance of “disparate effect” claims so urgent. In doing so, it argues that it is not the “platform economy,” per se, that poses an existential threat to the statute but something deeper. The true threat, to borrow Lawrence Lessig’s framing, is architectural in nature. It is the algorithms underlying “platform economy businesses” that are of greatest doctrinal concern—regardless of whether such businesses operate inside the platform economy or outside it. Second, this essay joins others in calling for policy reforms focused on modernizing our civil rights canon. It argues that our transition from the “Internet Society” to the “Algorithmic Society” will demand that Title II receive a doctrinal update. If it is to remain relevant in the years and decades ahead, Title II must become Title 2.0.


Introduction

For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics.

—Oliver Wendell Holmes, Jr. 262 262. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). ×

The future is already here—it is just unevenly distributed.

—William Gibson 263 263. As quoted in Peering round the corner, The Economist, Oct. 11, 2001, https://www.economist.com/special-report/2001/10/11/peering-round-the-corner. ×

It took just four days after Rosa Parks’ arrest to mount a response. Jo Ann Robinson, E.D. Nixon, Ralph Abernathy, and a little-known pastor named Martin King, Jr. would head a coalition of activists boycotting Montgomery, Alabama’s public buses. 264 264. Jack M. Bloom, Class, Race, and the Civil Rights Movement 140 (Ind. U. Press ed. 1987). × Leaders announced the plan the next day, expecting something like a 60% turnout. 265 265. Id. × But to their surprise, more than 90% of the city’s black ridership joined. The total exceeded 40,000 individuals. 266 266. See History.com Editors, How the Montgomery Bus Boycott Accelerated the Civil Rights Movement, History Channel (Feb. 3, 2010), https://www.history.com/topics/black-history/montgomery-bus-boycott. ×

Sheer numbers—they quickly realized—meant that relying on taxis as their sole means of vehicular transport would be impossible. Instead, they got creative. The coalition organized an elaborate system of carpools and cabbies that managed to charge rates comparable to Montgomery’s own municipal system. 267 267. Id. × And so it was that America’s first ridesharing network was born. 268 268. More precisely, the first large-scale ridesharing network making use of automobiles. ×

Fast forward some sixty years to the present and the connections between transportation, innovation, and civil rights are again on full display. Nowadays, the networking system pioneered by Montgomery’s protestors is among the hottest tickets in tech. Newly minted startups launching “ridesharing platforms,” “carsourcing software,” “delivery sharing networks,” “bikesharing” offerings, “carpooling apps,” and “scooter sharing” schemes are a seemingly daily fixture of the news. And just as was true during the Civil Rights Movement, discrimination continues to be a hot-button issue.

Industry leaders such as Uber, Amazon, and Waze have garnered widespread acclaim for successfully combating discriminatory barriers to transportation that stubbornly persist in modern America. 269 269. See infra Part I. × But alongside this well-deserved praise has come a new set of concerns. Indeed, a growing number of studies have uncovered troubling racial disparities in wait times, ride cancellation rates, and service availability in the likes of Uber, Lyft, Task Rabbit, Grubhub, and Amazon Delivery. 270 270. See infra Part I(A). × The weight of the evidence suggests a cautionary tale: The same technologies capable of combating modern discrimination also appear capable of producing it.

Surveying the methodologies employed by these reports reveals a subtle, but vitally important, commonality. All of them measure discrimination at a statistical—not individual—scale. 271 271. See infra Part I(A). ×

As a structural matter, this isn’t coincidental. Uber, Amazon, and a host of other technology leaders have transformed traditional brick-and-mortar business models into data-driven ones fit for the digital age. Yet in doing so, they’ve also taken much discretion out of the hands of individual decision-makers and put it into hands of algorithms. 272 272. See infra Part II(D). × This transfer holds genuine promise of alleviating the kinds of overt prejudice familiar to Rosa Parks and her fellow activists. But is also means that when discrimination does occur, it will manifest—almost by definition—at a statistical scale.

This piece discusses the implications of this fast-approaching reality for one of our most canonical civil rights statutes, Title II of the Civil Rights Act of 1964. 273 273. Civil Rights Act of 1964, tit. II, 42 U.S.C. § 2000a (2018). × Today, a tentative consensus holds that certain of our civil rights laws recognize claims of “discriminatory effect” based in statistical evidence. But Title II is not among them. 274 274. See infra Part II(B). Major courts have recently taken up the issue tangentially, but uncertainty still reigns. × Indeed, more than a quarter century after its passage, it remains genuinely unclear whether the statute encompasses disparate effect claims at all.

This essay explores the implications of this doctrinal uncertainty in a world where statistically-based claims are likely to be pressed against data-driven companies with increasing regularity. Its goals are twofold. First, it seeks to build upon adjacent scholarship 275 275. Of particular note is a groundbreaking piece by Nancy Leong and Aaron Belzer, The New Public Accommodations: Race Discrimination in the Platform Economy, 105 Geo. L. J. 1271 (2017). × by fleshing out the specific structural features of emerging business models that will make Title II’s cognizance of disparate effect claims so urgent. In doing so, it argues that it is not the “platform economy,” per se, that poses a threat to the civil rights law but something deeper. The true threat, to borrow Lawrence Lessig’s framing, is architectural in nature. 276 276. Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 Harv. L. Rev. 501, 509 (1999) (describing “architecture,” “norms,” “law,” and “markets” as the four primary modes of regulation). × It is the algorithms underlying emerging platform economy businesses that are of greatest doctrinal concern—regardless of whether such businesses operate inside the platform economy or outside it. 277 277. And, needless to say, there will be a great many more companies that operate outside of it. ×

Second, this essay joins other scholars in calling for policy reforms focused on modernizing our civil rights canon. 278 278. See, e.g., Leong & Belzer supra note 14; Andrew Selbst, Disparate Impact in Big Data Policing, 52 Georgia L. Rev. 109 (2017) (discussing disparate impact liability in other civil rights contexts). × It argues that our transition from the “Internet Society” to the “Algorithmic Society” will demand that Title II receive a doctrinal update. 279 279. See Jack Balkin, Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation, 51 U.C. Davis L. Rev. 1149, 1150 (noting that society is entering a new post-internet phase he calls the “Algorithmic Society”). × If the statute is to remain relevant in the years and decades ahead, Title II must become Title 2.0.

I.          The Rise of Data-Driven Transportation

Today, algorithms drive society. They power the apps we use to skirt traffic, the networking systems we use to dispatch mobility services, and even the on-demand delivery providers we use to avoid driving in the first place.

For most Americans, paper atlases have been shrugged. Algorithms, of one variety or another, now govern how we move. And far from being anywhere near “peak” 280 280. Gil Press, A Very Short History of Digitization, Forbes (Dec. 27, 2015), https://www.forbes.com/sites/gilpress/2015/12/27/a-very-short-history-of-digitization/#1560b2bb49ac (describing digitization technologies in terms of “peak” adoption). × levels of digitization, society’s embrace of algorithms only appears to be gaining steam. With announcements of new autonomous and connected technologies now a daily fixture of the media, all signs suggest that we’re at the beginning of a long road to algorithmic ubiquity. Data-driven transportation might rightly be described as pervasive today. But tomorrow, it is poised to become the de facto means by which people, goods, and services get from Point A to B.

Many have high hopes for this high-tech future, particularly when it comes to combating longstanding issues of discrimination in transportation. Observers have hailed the likes of Uber and Lyft as finally allowing “African American customers [to] catch a drama-free lift from point A to point B.” 281 281. E.g., Latoya Peterson, Uber’s Convenient Racial Politics, Splinter News (Jul. 23, 2015), https://splinternews.com/ubers-convenient-racial-politics-1793849400. × They’ve championed low-cost delivery services, such as Amazon and Grubhub, as providing viable alternatives to transit for individuals with disabilities. 282 282. See, e.g., Winnie Sun, Why What Amazon Has Done For Medicaid And Low-Income Americans Matters, Forbes (Mar. 7, 2018), https://www.forbes.com/sites/winniesun/2018/03/07/why-what-amazon-has-done-for-medicaid-and-low-income-americans-matters/#7dbe2ff1ac76; Paige Wyatt, Amazon Offers Discounted Prime Membership to Medicaid Recipients, The Mighty (Mar. 9, 2018), https://themighty.com/2018/03/amazon-prime-discount-medicaid/. × And they’ve even praised navigation apps, like Waze, for bursting drivers’ “very white, very male, very middle-to-upper class” bubbles. 283 283. E.g., Mike Eynon, How Using Waze Unmasked My Privilege, Medium (Oct. 2, 2015), https://medium.com/diversify-tech/how-using-waze-unmasked-my-privilege-26 355a84fe05. × It is through algorithmic transportation, in other words, that we’re beginning to glimpse a more equitable America—with our mobility systems finally exorcised of the types of discrimination that stubbornly persist today, some fifty years after the passage of modern civil rights legislation.

A.         Out With the Old Bias, In With the New?

As with seemingly all significant technological breakthroughs, however, algorithmic transportation also gives rise to new challenges. And discrimination is no exception. Already, multiple studies have revealed the potential for racial bias to infiltrate the likes of Uber, Lyft, Grubhub, and Amazon. 284 284. See infra notes 14 – 28. See also, e.g., Jacob Thebault-Spieker et al., Towards a Geographic Understanding of the Sharing Economy: Systemic Biases in UberX and TaskRabbit, 21 ACM Transactions on Computer-Human Interaction (2017). × The National Bureau of Economic Research’s (“NBER”) groundbreaking study revealing a pattern of racial discrimination in Uber and Lyft services is one such exemplar. 285 285. Yanbo Ge, et al., Racial and Gender Discrimination in Transportation Network Companies, (2016), http://www.nber.org/papers/w22776. × After deploying test subjects on nearly 1,500 trips, researchers found that black riders 286 286. Or riders with black-sounding names. × experienced significantly higher wait times and trip cancellations than their white counterparts.

The NBER’s piece was preceded—months earlier—by a similarly provocative report from Jennifer Stark and Nicholas Diakopoulus. 287 287. See Jennifer Stark & Nicholas Diakopoulus, Uber Seems to Offer Better Service in Areas With More White People. That Raises Some Tough Questions., Wash. Post (Mar. 10, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/03/10/uber-seems-to-offer-better-service-in-areas-with-more-white-people-that-raises-some-tough-questions/. × Using a month’s worth of Uber API data, the scholars found a statistical correlation between passenger wait times and neighborhood demographic makeup. The upshot? That Uber’s patented “surge pricing algorithm” resulted in disproportionately longer wait times for people of color, even after controlling for factors such as income, poverty, and population density.

Another example comes from Bloomberg, which reported in 2017 that Amazon’s expedited delivery services tended to bypass areas composed of predominantly black residents. 288 288. See David Ingold & Spencer Soper, Amazon Doesn’t Consider the Race of Its Customers. Should It?, Bloomberg (Apr. 21, 2016), https://www.bloomberg.com/graphics/2016-amazon-same-day/. × Bloomberg’s findings were subsequently buttressed by a Washington Post piece revealing that the “delivery zones” of services such as Grubhub, Door Dash, Amazon Restaurants, and Caviar appeared highly limited in low-income, minority-majority areas. 289 289. Tim Carman, D.C. has never had more food delivery options. Unless you live across the Anacostia River., Wash. Post (Apr. 2, 2018), https://www.washingtonpost.com/news/food/wp/2018/04/02/dc-has-never-had-more-food-delivery-options-unless-you-live-across-the-anacostia-river/?utm_term=.dead0dca9e8a. ×

B.         Discrimination’s Digital Architecture

While the patterns and practices uncovered by these reports vary dramatically, they share one commonality whose importance cannot be overstated. Each of them measures racial bias at a statistical—not individual—scale.

As a structural matter, this observation is in some sense unavoidable. When discrimination occurs in traditional brick-and-mortar contexts, it generally does so out in the open. It is difficult to turn someone away from Starbucks, 290 290. This example is pulled from an all-too-recent headline. See Rachel Adams, Starbucks to Close 8,000 U.S. Stores for Racial-Bias Training After Arrests, N.Y. Times (Apr. 17, 2018), https://www.nytimes.com/2018/04/17/business/starbucks-arrests-racial-bias.html. × after all, without them being made aware of the denial, even if the precise rationale is not clear.

But as the means by which Americans secure their transportation, food, and lodging goes increasingly digital, the “architecture” 291 291. See Lessig, supra note 15. × of discrimination will take on a different face. Our interactions with cab companies, public transportation providers, and delivery services will be mediated by algorithms that we neither see nor necessarily understand. And face-to-face interactions with service providers, meanwhile, will become a thing of the past.

In countless respects, this transition is cause for celebration. A society driven by algorithms is one that holds genuine hope of eliminating the types of overt discrimination that drove civil rights reforms of past eras. But in its stead, an emerging body of evidence suggests that subtler forms of discrimination may persist—ones that could challenge the doctrinal foundations on which our civil rights laws currently rest.

II.         When Blackletter Civil Rights Law Isn’t Black and White

When it comes to holding private entities that provide our transportation, food, and lodging accountable for racial discrimination, the usual suspect is Title II of the Civil Rights Act. Title II sets forth the basic guarantee that “[a]ll persons [are] entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation. . . without discrimination or segregation on the ground of race, color, religion, or national origin.” 292 292. Civil Rights Act of 1964, 42 U.S.C. § 2000a(a) (2018). × The statute defines “public accommodation” broadly as essentially any “establishment affecting interstate commerce.” 293 293. See id (with the exception of a few carve outs—private clubs being one such example). ×

Pursuing a Title II claim requires, first, establishing a prima facie case of discrimination. To do so, claimants must show they: (1) are members of a protected class; (2) were denied the full benefits of a public accommodation; and (3) were treated less favorably than others 294 294. Id (specifically, “. . . treated less favorably than others outside of the protected class” who are similarly situated). × outside of the protected class. 295 295. Having established a prima facie case, the burden of persuasion then shifts to the defendant. For simplicity’s sake, this piece strictly analyzes prima facie claims and does not delve into the complexities of burden shifting and justifying legitimate business decisions under modern antidiscrimination law. ×

A.         The Intent Requirement and the Man of Statistics

At first blush, establishing these prima facie elements using the types of evidence documented by the reports noted in Part I(A) may seem straightforward. But there’s just one tiny detail standing in the way. As it turns out, no one knows whether Title II actually prohibits the kinds of racial disparities uncovered by the studies.

Not all civil rights laws, after all, allow claimants to use statistically-disparate impacts as evidence of discrimination. Title VI, for example, does not, whereas Title VII does.

This distinction owes, in large part, to the antidiscrimination canon’s “intent requirement,” which draws a doctrinal dividing line between acts exhibiting “discriminatory intent” and those, instead, exhibiting “discriminatory effects.” 296 296. See Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11,460 (Feb. 15, 2013) (codified at 24 C.F.R. § 100.500(1) (2014)). × To oversimplify, acts of intent can be understood as overt, “invidious acts of prejudiced decision-making.” 297 297. Susan Carle, A New Look at the History of Title VII Disparate Impact Doctrine, 63 Flo. L. Rev. 251, 258 (2011). × Acts of effect, meanwhile, are those that “actually or predictably . . . result[] in a disparate impact on a group of persons” even when the explicit intent behind them is not discriminatory. 298 298. See Implementation of the Fair Housing Act’s Discriminatory Effects Standard, supra note 35. ×

Ask Rosa Parks to give up her seat for a white passenger? The civil rights claim filed in response will likely take a narrow view of the interaction, examining the discrete intent behind it. Systematically route buses in such a way that they bypass Rosa Parks altogether? Under the right circumstances, this could be evidence of discrimination equally as troubling as in the former scenario. But the civil rights claim it gave rise to would likely entail a far wider view of the world—one that couched its arguments in statistics. 299 299. Title VII offers plaintiffs a “disparate impact” framework under which they may prove unlawful discrimination alongside the more traditional “disparate treatment” model. 42 U.S.C. § 2000e-2(k)(l)(A) (1994). ×

Today, a tentative consensus holds that theories involving discriminatory effects are available under the Fair Housing Act, the Age Discrimination and Employment Act, certain Titles of the Americans With Disabilities Act, and Title VII of the Civil Rights Act. When it comes to Title II, however, the jury is still out. Neither the Supreme Court, a major circuit court, nor a federal administrative body has resolved the issue to date, and “there is a paucity of cases analyzing it.” 300 300. Hardie v. Nat’l Collegiate Athletic Ass’n, 97 F. Supp. 3d 1163, 1163 (S.D. Cal. 2015), aff’d, 861 F.3d 875 (9th Cir. 2017), and superseded by, 876 F.3d 312 (9th Cir. 2017). ×

B.         Hardie’s Open Question

Uncertainties surrounding Title II’s scope most recently came to a head in Hardie v. NCAA. The case involved a challenge to the collegiate association’s policy of banning convicted felons from coaching certain tournaments. The plaintiff, Dominic Hardie, alleged that the policy disparately impacted blacks, putting the question of Title II’s “discriminatory effect” liability at center stage.

The court of first impression ruled against Hardie, finding that Title II did not cognize such claims. But on appeal, the case’s focal point changed dramatically. In a surprise turn of events, the NCAA abandoned its structural argument against disparate impact liability outright. Instead, it conceded that Title II did, in fact, recognize statistical effects but asserted that the NCAA’s policy was, nonetheless, not a violation. 301 301. See id. (“On appeal, the NCAA does not challenge Hardie’s argument that Title II encompasses disparate-impact claims. . . . Instead, the NCAA asks us to affirm entry of summary judgment in its favor on either of two other grounds advanced below, assuming arguendo that disparate-impact claims are cognizable under Title II.”). ×

Thus, when the case came before the 9th Circuit, the question of whether Title II encompassed discriminatory effects was, essentially, rendered moot. The court ruled in favor of the NCAA’s narrower argument but went out of its way to emphasize that it had not decided the question of discriminatory effect liability. And no other major appeals court has addressed the issue since.

C.         Title II’s Fair Housing Act Moment

It was not long ago that another civil rights centerpiece—the Fair Housing Act of 1968 (FHA)—found itself at a similar crossroads. The FHA makes it illegal to deny someone housing based on race. But a half century after the statute’s passage, the question of whether it prohibited disparate effects had not been tested in our highest court.

By 2015, the Supreme Court had twice taken up the issue in two years. 302 302. See Gallagher v. Magner, 619 F.3d 823, (8th Cir. 2010), cert. dismissed, 565 U.S. 1187, 132 S.Ct. 1306 (2012); Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mt. Holly, 658 F.3d 375 (3rd Cir. 2011), cert. dismissed, 571 U.S. 1020, 134 S.Ct. 636 (2013). × And twice, the cases had settled in advance of a ruling.

Then came Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, alleging that a state agency’s allocation of tax credits disparately impacted the housing options of low-income families of color. 303 303. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2514 (2015) [hereinafter “Inclusive Communities”]. × This time, there was no settlement. And the ruling that followed was subsequently described as the “most important decision on fair housing in a generation.” 304 304. Kristen Capps, With Justice Kennedy’s Retirement, Fair Housing Is in Peril, Citylab (Jun. 28, 2018), https://www.citylab.com/equity/2018/06/what-justice-kennedys-retirement-means-for-fair-housing/563924/. ×

Writing for the 5-4 majority, Justice Kennedy affirmed that the FHA extended to claims of both discriminatory intent and effect. 305 305. But his ruling, according to some commenters, took a troublingly narrow view of viable disparate impact claims. × Kennedy was careful to note that the FHA’s passage occurred at a time when explicitly racist policies—such as zoning laws, racial covenants, and redlining—were the norm. But the Justice, nonetheless, stressed that more modern claims alleging racially disparate impacts were also “consistent with the FHA’s central purpose.” 306 306. See Inclusive Communities supra note 42. ×

D.        The New Back of the Bus

Much like the FHA, Title II arrived on the scene when discriminatory effect claims were far from the leading concern among civil rights activists. As Richard Epstein writes:

“Title II was passed when memories were still fresh of the many indignities that had been inflicted on African American citizens on a routine basis. It took little imagination to understand that something was deeply wrong with a nation in which it was difficult, if not impossible, for African American citizens to secure food, transportation, and lodging when traveling from place to place in large sections of the country. In some instances, no such facilities were available, and in other cases they were only available on limited and unequal terms.” 307 307. Richard A. Epstein, Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right, 66 Stan. L. Rev. 1241, 1242 (2014). ×

The paradigmatic act of discrimination, in other words, was intentional, overt, and explicitly racial.

Today, however, we are heading toward a world in which this paradigm is apt to turn on its head. Gone will be the days of racially explicit denials of service such as the well-documented phenomena of “hailing a cab while black,” “dining while black,” “driving while black,” or “shopping while black.” 308 308. See, e.g., Matthew Yglesias, Uber and Taxi Racism, Slate (Nov. 28, 2012), http://www.slate.com/blogs/moneybox/2012/11/28/uber_makes_cabbing_while_black_easier.html; Danielle Dirks & Stephen K. Rice in Race and Ethnicity: Across Time, Space, and Discipline 259 (Rodney Coates ed., 2004). × But as an increasing body of evidence suggests, inequality will not simply disappear as a consequence. Rather, discrimination will go digital. And when it does occur, it will likely manifest not as a discrete act of individual intent but instead as a statistically disparate effect.

With this future in view, forecasting the consequences for Title II requires little speculation. Absent the ability to bring statistically-based claims against tomorrow’s data-driven establishments, Title II could be rendered irrelevant. 309 309. In effect, this means that the greatest threat to the statute may not be the doctrinal uncertainty posed by “platform economy businesses,” per se. Instead, it could be the algorithmic “architecture” that drives such companies, regardless of whether they adopt a “platform” business model. ×

If America is to deliver on its guarantee of equal access to public accommodations, its civil rights laws must reach the data-driven delivery services, transportation providers, and logistics operators that increasingly move our society. 310 310. No matter one’s ideological view, the dismantling of legislation through mere technological obsolescence would be a troubling outcome. × Failing to do so simply because these business models were not the norm at the time of the statute’s passage could lead to tragic results. As Oliver Wendell Holmes, Jr. wrote more than a century ago:

“It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” 311 311. See Holmes supra note 1 at 469. ×

To save one of our antidiscrimination canon’s most iconic statutes from such a fate, all signs now suggest it will need a doctrinal update. Title II, in software parlance, must become Title 2.0.

III.       A Policy Roadmap for Title 2.0

With the foregoing analysis in our rearview mirror, it is now possible to explore the road ahead. The policy challenges of applying Title II to a data-driven society appear to be at least threefold. Policymakers should establish: (1) whether Title II cognizes statistically-based claims; (2) what modern entities are covered by Title II; and (3) what oversight mechanisms are necessary to detect discrimination by such entities? The following sections discuss these three challenges, as well as the steps policymakers can take to address them through judicial, legislative, or regulatory reform.

A.         Statistically-based Claims in a Data-Driven Society

The first, and most obvious, policy reform entails simply clarifying Title II’s cognizance of statistically based claims. Such clarification could come at the judicial or regulatory level, as occurred with the FHA. Or it could come at the legislative level, as occurred with Title VII.

Though the question of whether litigants can sustain statistical claims under Title II may seem like an all-or-nothing proposition, recent experience shows this isn’t actually true. Short of directly translating Title VII theories to Title II, there exist numerous alternatives. Justice Kennedy himself noted as much in Inclusive Communities when he remarked that “the Title VII framework may not transfer exactly to [all other] context[s].” 312 312. See Inclusive Communities, supra note 42. ×

Nancy Leong and Aaron Belzer convincingly argue that one framing might involve adopting a modern take on discriminatory intent claims. The scholars assert that even if intent is deemed essential under Title II, statistically based claims could nevertheless satisfy the requirement. 313 313. See Leong & Belzer supra note 14, at 1313. × In their telling, the intent requirement could manifest through a company’s “decision to continue using a platform design or rating system despite having compelling evidence that the system results in racially disparate treatment of customers.” 314 314. See id. × Under this view, the claim would then be distinguishable from unintentional claims because “once the aggregated data is known to reflect bias and result in discrimination,” its continued use would constitute evidence of intent. 315 315. See id. Indeed, this argument may become especially compelling in a world where improved digital analytics enable much more customized targeting of individuals or traits. With more fine-grained control over data-driven algorithms, it may become much more difficult to justify the use of those that appear to perpetuate bias against protected groups. ×

Not only would this approach countenance Kennedy’s admonition in Inclusive Communities “that disparate-impact liability [be] properly limited,” 316 316. See Inclusive Communities, supra note 42. × it may also offer an elegant means of addressing the concerns raised by dissenting opinions that Title II claims demonstrate a defendant’s discriminatory “intent.” 317 317. See, e.g. id. (Justice Alito’s dissent highlighted Title II’s “because of” language). × Policymakers should, therefore, take this line of analysis into consideration when clarifying Title II’s scope.

B.         Public Accommodations in a Data-Driven Society

Although this essay has thus far presumed that large-scale algorithmic transportation services like Uber and Amazon are covered by Title II, even that conclusion remains unclear. As enacted, Title II is actually silent as to whether it covers conventional cabs, much less emerging algorithmic transportation models. 318 318. See, e.g., Bryan Casey, Uber’s Dilemma: How the ADA Could End the On Demand Economy, 12 U. Mass. L. Rev. 124, 134 (citing Ramos v. Uber Techs., Inc., No. SA-14-CA-502-XR, 2015 WL 758087, at *11 (W.D. Tex. Feb. 20, 2015)). × A second policy reform, therefore, would entail clarifying whether Title II actually covers such entities in the first place.

Here, understanding the origins of the Civil Rights Act of 1964 is again useful. The statute lists several examples of public accommodations that were typical of America circa 1960. 319 319. Civil Rights Act of 1964, tit. II, 42 U.S.C. § 2000a(b) (2018). × Some courts have suggested that this list is more or less exhaustive. 320 320. See Leong & Belzer supra note 14, at 1296. × But that view is inconsistent with the law’s own language. 321 321. Civil Rights Act of 1964, tit. II, 42 U.S.C. § 2000a(a) (2018) (prohibiting discrimination in “establishment[s] affecting interstate commerce”). × And numerous others have taken a broader view of the term “public accommodations,” which extends to entities that were not necessarily foreseen by the statute’s original drafters. 322 322. See, e.g., Miller v. Amusement Enters., Inc., 394 F.2d 342, 349 (5th Cir. 1968) (“Title II of the Civil Rights Act is to be liberally construed and broadly read.”). ×

Policymakers in search of analogous interpretations of public accommodations laws need look no further than the Americans With Disabilities Act (ADA). Like Title II, the ADA covers places of public accommodation. And, again like Title II, its drafters listed specific entities as examples—all of which were the types of brick-and-mortar establishments characteristic of the time. But in the decades since its passage, the ADA’s definition has managed to keep pace with our increasingly digital world. Multiple courts have extended the statute’s reach to distinctly digital establishments, including popular websites and video streaming providers. 323 323. See Nat’l Ass’n of the Deaf v. Netfix, Inc., 869 F Supp. 2d 196, 200-02 (D. Mass. 2012) (holding the video streaming service constitutes a “public accommodation” even if it lacks a physical nexus); National Federation of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 576 (D. Vt. 2015) (holding that an online repository constitute a “public accommodation” for the purpose of the ADA). But see Tara E. Thompson, Comment, Locating Discrimination: Interactive Web Sites as Public Accommodations Under Title II of the Civil Rights Act, 2002 U. Chi. Legal F. 409, 412 (“The courts, however, have not reached a consensus as to under what circumstances ‘non-physical’ establishments can be Title II public accommodations.”); Noah v. AOL Time Warner Inc., 261 F Supp. 2d 532, 543-44 (E.D. Va. 2003) (holding that online chatroom was not a “public accommodation” under Title II). ×

Policymakers should note, however, that Uber and Lyft have fiercely resisted categorization as public accommodations. 324 324. See Casey, supra note 57. The Department of Justice and numerous courts have expressed skepticism of this view. But, to date, there has been no definitive answer to this question—due in part to the tendency of lawsuits against Uber and Lyft to settle in advance of formal rulings. × In response to numerous suits filed against them, the companies have insisted they are merely “platforms” or “marketplaces” connecting sellers and buyers of particular services. 325 325. See id. × As recently as 2015, this defense was at least plausible. And numerous scholars have discussed the doctrinal challenges of applying antidiscrimination laws to these types of businesses. 326 326. See generally id.; Leong & Belzer supra note 14. × But increasingly, companies like Uber, Lyft, and Amazon are shifting away from passive “platform” or “marketplace” models into more active service provider roles. 327 327. See Bryan Casey, A Loophole Large Enough to Drive an Autonomous Vehicle Through: The ADA’s “New Van” Provision and the Future of Access to Transportation, Stan. L. Rev. Online (Dec. 2016), https://www.stanfordlawreview.org/online/loophole-large-enough/ (describing Uber’s and Lyft’s efforts to deploy autonomous taxi fleets). Other platform companies in different sectors are acting similarly. See, e.g., Katie Burke, Airbnb Proposes New Perk For Hosts: A Stake in The Company, San Francisco Bus. Times (Sept. 21, 2018), https://www.bizjournals.com/sanfrancisco/news/2018/09/21/airbnb-hosts-ipo-sec-equity.html. × All three, for example, now deploy transportation services directly. And a slew of similarly situated companies appear poised to replicate this model. 328 328. See Casey, supra note 66(noting the ambitions of Tesla, Google, and a host of others to deploy similar autonomous taxi models). × For most such companies, passive descriptors like “platform” or “marketplace” are no longer applicable. Our laws should categorize them accordingly.

C.         Oversight in a Data-Driven Society

Finally, regulators should consider implementing oversight mechanisms that allow third parties to engage with the data necessary to measure and detect discrimination. In an era of big data and even bigger trade secrets, this is of paramount importance. Because companies retain almost exclusive control over their proprietary software and its resultant data, barriers to accessing the information necessary even to detect algorithmic impacts often can be insurmountable. And the ensuing asymmetries can render discrimination or bias effectively invisible to outsiders.

Another benefit of oversight mechanisms is their ability to promote good corporate governance without the overhead of more intrusive command-and-control regulations. Alongside transparency, after all, comes the potential for extralegal forces such as ethical consumerism, corporate social responsibility, perception bias, and reputational costs to play meaningful roles in checking potentially negative behaviors. 329 329. See Bryan Casey, Amoral Machines; Or, How Roboticists Can Learn to Stop Worrying and Love the Law, 111 Nw. U. L. Rev. Onlineat 1358. There was, for example, a happy ending to the recent revelations regarding racial disparities in Amazon delivery services. See Spencer Soper, Amazon to Fill All Racial Gaps in Same-Day Delivery Service, Bloomberg (May 6, 2016), https://www.bloomberg.com/news/articles/2016-05-06/amazon-to-fill-racial-gaps-in-same-day-delivery-after-complaints. × By pricing externalities through the threat of public or regulatory backlash, these and other market forces can help to regulate sectors undergoing periods of rapid disruption with less risk of chilling innovation than traditional regulation. 330 330. As importantly, this encourages proactive antidiscrimination efforts as opposed to retroactive ones. See Mark Lemley & Bryan Casey, Remedies for Robots, U. Chi. L. Rev. (forthcoming 2019). Without meaningful oversight, the primary risk is not that industry will intentionally build discriminatory systems but that “[biased] effects [will] simply happen, without public understanding or deliberation, led by technology companies and governments that are yet to understand the broader implications of their technologies once they are released into complex social systems.” See Alex Campolo et. al, AI Now 2017 Report (2017). ×

Some scholars have proposed federal reforms—akin to those put forward by the Equal Employment Opportunity Commission, 331 331. 29 C.F.R. § 1602.7 (1991). × the Department of Housing and Urban Development, 332 332. 24 C.F.R. §§ 1.6, 1.8 (1996). × and the Department of Education —as a means of implementing oversight mechanisms for Title II. But state-level action, in this instance, may be more effective. A multi-fronted push that is national in scope provides a higher likelihood of successful reform. And much like the “Brussels Effect” documented at an international level, intra-territorial policies imposed on inter-territorial entities can have extra-territorial effects within the U.S. As the saying goes: “As goes California, so goes the nation.”

As a parting note, it cannot be stressed enough that mere “disclosure” mechanisms are not necessarily enough. For oversight to be meaningful, it must be actionable—or, in Deirdre Mulligan’s phrasing, “contestable.” That is, it must allow downstream users to “contest[] what the ideal really is.” Moreover, if oversight is to be accomplished through specific administrative bodies, policymakers must ensure that those bodies have the technical know how and financial resources available to promote public accountability, transparency, and stakeholder participation. Numerous scholars have explored these concerns at length, and regulators would do well to consider their insights.

Conclusion

Following any major technological disruption, scholars, industry leaders, and policymakers must consider the challenges it poses to our existing systems of governance. Will the technology meld? Must our policies change?

Algorithmic transportation is no exception. This piece examines its implications for one of America’s most iconic statutes: Title II of the Civil Rights Act of 1964. As algorithms expand into a vast array of transportation contexts, they will increasingly test the doctrinal foundations of this canonical law. And without meaningful intervention, Title II could soon find itself at risk of irrelevance.

But unlike policy responses to technological breakthroughs of the past, those we have seen so far offer genuine hope of timely reform. As Ryan Calo notes, unlike a host of other transformative technologies that escaped policymakers’ attention until too late, this new breed “has managed to capture [their] attention early [] in its life-cycle.”

Can this attention be channeled in directions that ensure that our most important civil rights laws keep pace with innovation? That question, it now appears, should be on the forefront of our policy agenda.


Legal Fellow, Center for Automotive Research at Stanford (CARS); Affiliate Scholar of CodeX: The Center for Legal Informatics at Stanford and the Stanford Machine Learning Group. The author particularly thanks Chris Gerdes, Stephen Zoepf, Rabia Belt, and the Center for Automotive Research at Stanford (CARS) for their generous support.

By David Redl

Cite as: David Redl, The Airwaves Meet the Highways
2019 J. L. & Mob. 32.

I applaud and congratulate the University of Michigan for launching the Journal of Law and Mobility. The timing is perfect. The information superhighway is no longer just a clever metaphor. We are living in an era where internet connectivity is a critical part of making transportation safer and more convenient.

Internet connectivity has powered the U.S. and global economies for years now. In the early stages, dial-up connections enabled users to access a vast store of digital information. As the internet and its usage grew, so did the demand for faster broadband speeds. Finally, wireless networks untethered the power of broadband Internet so consumers could have fast access when and where they want it.

We are now seeing technology advances in the automotive sector begin to better align with what has occurred in the communications space. The possibilities for what this means for human mobility are truly exciting. Challenges abound, however, with questions around the security and safety of self-driving vehicles and how to create the infrastructure and policies needed for vehicle connectivity. While many of these will be sorted out by the market, policy levers will also play a role.

In the late 1990s, the Federal Communications Commission (FCC) agreed to set aside radio frequencies for intelligent transportation systems (ITS), persuaded that emerging advances in communications technologies could be deployed in vehicles to increase safety and help save lives. 333 333. Amendment of Parts 2 and 90 of the Commission’s Rules to Allocate the 5.850-5.925 GHz Band to the Mobile Service for Dedicated Short Range Communications of Intelligent Transportation Services, Report and Order, 14 FCC Rcd. 18221 (Oct. 22, 1999). × Specifically, the FCC allocated the 75 megahertz of spectrum between 5850-5925 MHz (5.9 GHz band) for ITS. 334 334. Id. × The automobile industry’s technological solution was to rely primarily on a reconfiguration of IEEE Wi-Fi standards 335 335. The Working Group for WLAN Standards, IEEE 802.11 Wireless Local Area Networks, http://www.ieee802.org/11/ (last visited Oct. 31, 2018). × suitable for ITS (802.11p) so vehicles could “talk” to one another and to roadside infrastructure. 336 336. Accepted nomenclature for these communications include vehicle-to-vehicle (V2V), vehicle-to-infrastructure (V2I), or more generally vehicle-to-x (V2X). Other applications include vehicle-to-pedestrian. × The FCC in turn incorporated the Dedicated Short Range Communications (DSRC) standards into its service rules for the 5.9 GHz band. 337 337. Amendment of the Commission’s Rules Regarding Dedicated Short-Range Communication Services in the 5.850-5.925 GHz Band (5.9 GHz Band), 19 FCC Rcd. 2458 (Feb. 10, 2004). ×

The National Telecommunications and Information Administration (NTIA), by statute, is the principal advisor to the President of the United States on information and communications policies, including for the use of radiofrequency spectrum. NTIA also is responsible for managing spectrum use by federal government entities. As such, NTIA seeks to ensure that our national use of spectrum is efficient and effective. Over the past two decades, innovations in wireless technologies and bandwidth capacity have completely changed what is possible in connected vehicle technology. 2G wireless evolved to 3G, and then 4G LTE changed the game for mobile broadband. 5G is in the early stages of deployment. Meanwhile, Wi-Fi not only exploded in usage but in its capability and performance. Many vehicles in the market today are equipped with wireless connectivity for diagnostic, navigation and entertainment purposes. Yet DSRC as a technology remains largely unchanged, notwithstanding recent pledges from proponents to update the standard. 338 338. See IEEE Announces Formation of Two New IEEE 802.11 Study Groups, IEEE Standards Association (June 5, 2018), https://standards.ieee.org/news/2018/ieee_802-11_study_groups.html. × This stasis persists despite the technological leaps of advanced driver assistance systems, enhanced by innovations in vehicular radars, sensors and cameras.

This situation is not new or novel as traditional industries continue to grapple with the pace of technological change in the wireless sector.  In fact, the automotive sector has faced the challenge of wireless technological change before, struggling to adapt to the sunset of the first generation of analog wireless networks.  This leads to the question of whether, as some promise, DSRC effectively broadens a vehicle’s situational awareness to beyond line-of-site as the industry creeps toward autonomous driving – or has innovation simply left DSRC behind? The answer is important to the question of whether it makes sense to continue with DSRC for V2X communications.  Regardless of how the question is answered, we must address who should answer it.

One distinction between V2X communications for safety applications and most other communications standards choices is that a fragmented market could have drastic consequences for its effectiveness, given that vehicles must be able to talk to each other in real time for the entire system to work. This is why the National Highway Transportation Safety Administration (NHTSA) initially proposed a phased-in mandate of DSRC beginning with cars and light trucks. 339 339. See Federal Motor Vehicle Safety Standards; V2V Communications, 82 Fed. Reg. 3854 (Jan. 12, 2017). ×

This question of whether to mandate DSRC has also been complicated by inclusion in 3GPP standards of a cellular solution (C-V2X), first in Release 14 for 4G/LTE, 340 340. Dino Flore, Initial Cellular V2X Standard Complete, 3GPP A Global Initiative (Sept. 26, 2016), http://www.3gpp.org/news-events/3gpp-news/1798-v2x_r14. The updates to the existing cellular standard are to a device-to-device communications interface known as the PC5, the sidelink at the physical layer, for vehicular use cases addressing high speed and high density scenarios. A dedicated band is used only for V2V communications. × and continuing with Release 15 and especially Release 16 for 5G, targeted for completion in December 2019. 341 341. Release 16, 3GPP: A Global Initiative (July 16, 2018), https://www.3gpp.org/release-16. × It raises the legitimate question of whether leveraging the rapid innovation and evolution in wireless communication technology is the right way to ensure automotive safety technology benefits from the rapid pace of technological change, and what role the federal government should play in answering these questions.

Despite the federal government’s legitimate interest in vehicle safety, as is true in most cases I question whether the federal government should substitute its judgment for that of the market. A possible solution that strikes a balance between legitimate safety needs and technological flexibility are federal performance requirements that maintain technological neutrality.

Moreover, because the spectrum environment has changed drastically since the 1990s many are questioning whether protecting this 75 megahertz of mid-band spectrum for ITS use is prudent. The 5.9 GHz band is adjacent to spectrum used for Wi-Fi , which makes it unsurprising that some are calling for access to 5.9 GHz spectrum as a Wi-Fi expansion band. Other still question whether V2V safety communications require protected access to all 75 megahertz. NTIA, the FCC, and the Department of Transportation continue to study the feasibility of whether and how this band might be shared between V2V and Wi-Fi or other unlicensed uses and remain committed to both the goal of increased vehicle safety and the goal of maximum spectrum efficiency.

While I am optimistic that wireless technologies will bring a new level of safety to America’s roadways, a number of other policy and legal issues, including user privacy and cybersecurity, will persist as challenges despite being addressed in current solutions. If we are to see the kind of adoption and reliance on V2X safety applications and realize the systemic improvements in safety they portend, Americans must have trust in the security and reliability of these technologies.

The marriage of communications technology with transportation will help define the 21st century, and potentially produce enormous benefits for consumers. A lot of work remains, however, to ensure we have the right laws, regulations and policy frameworks in place to allow private sector innovation to flourish. This forum can play an important role in moving the dialogue forward.


David Redl is the Assistant Secretary for Communications and Information at the U.S. Department of Commerce, and Administrator of the National Telecommunications and Information Administration.