Waymo, the driverless car company operating an autonomous taxi fleet in San Francisco, is suing the California Department of Motor Vehicles. The immediate issue: whether the company, owned by Google parent Alphabet, can hide from the public safety-related information by designating it as a trade secret.
The topics Waymo wants to keep hidden include how it plans to handle driverless car emergencies, what it would do if a robot taxi started driving itself where it wasn’t supposed to go, and what constraints there are on the car’s ability to traverse San Francisco’s tunnels, tight curves and steep hills. Waymo also wants to keep secret descriptions of crashes involving its driverless cars.
That’s among the information the DMV requires to determine whether to issue permits to deploy robot vehicles on public roads.
The permit was issued last year. Waymo is focusing on San Francisco, where, for the time being, its robotaxis operate under the supervision of trained human drivers.
The wider issue: how to handle the explosion in trade secret claims in an age of artificial intelligence, robot technology, the Internet of Things and pervasive data collection.
The lawsuit, filed in Sacramento County Superior Court on Jan. 21, contends that Waymo would lose out against other driverless car companies if full permit information were shared with the public.
The suit stems from a public records request to the DMV from an unidentified individual or entity seeking Waymo’s driverless deployment application — the basic filled-out form, attachments of additional material, and responses to follow-up questions from the DMV.
Before releasing the material, the DMV invited Waymo to censor sections the company believed would reveal trade secrets. The DMV sent the package to the requester with major portions blacked out, including full concealment of some of the DMV’s own questions.
Whoever asked for the material then challenged the blackouts. According to the lawsuit, the DMV contacted Waymo and invited the company to sue the agency.
“Every autonomous vehicle company has an obligation to demonstrate the safety of its technology, which is why we’ve transparently and consistently shared data on our safety readiness with the public,” Waymo spokesperson Nicholas Smith said via email when asked about the suit. “We will continue to work with the CA DMV to determine what is appropriate for us to share publicly and hope to find a resolution soon.”
Where the DMV stands on the issue remains unclear. The agency has yet to file a response to the suit and told The Los Angeles Times it won’t discuss ongoing legal matters.
In effect, the DMV is shifting responsibility to the court to determine what’s a trade secret, what’s not, and what balance should be struck between corporate claims and public interest. It can take years to resolve such lawsuits. Therefore, if any of the redacted material is made public, it probably won’t be soon.
Punting to the courts is understandable, said Sharon Sandeen, a law professor and director of the Intellectual Property Institute at Mitchell Hamline School of Law in St. Paul, Minnesota.
For government agencies subject to public records laws, “the default rule is supposed to be to disclose, unless there’s a clear exception,” said Sandeen, who researches the intersection of AI and trade secrets. But laws regarding public records and trade secrets are anything but clear, she said. Ambiguous court rulings and lack of legislative clarity have caused agencies to fear that unless they “abide by everything the company wants,” they risk being sued themselves for intellectual property theft.
Trade secrets aren’t automatically protected from public disclosure in matters that call for government regulation, she said. She points to the lengthy, detailed financial documents companies must file with the U.S. Securities and Exchange Commission. Companies presumably would prefer not to do so, she said, but they must if they’re to sell shares to the general public.
Sandeen said she is in no way opposed to protecting true trade secrets. Few lawyers dispute the idea that a legitimate trade secret should be protected by law. But trade-secret cases have mushroomed even as companies collect enormous amounts of data on the public, information they consider their own business property, leading critics to ask whether their trade-secret claims are overbroad and intentionally exaggerated.
“Corporate and government actors have pushed to transform the law of trade secrecy into one of the most — if not the most — powerful tools to ensure concealment of information,” law professors Charles Graves and Sonia Katyal wrote in an article published in the Georgetown Law Journal in June.
“The irony is that this has happened at the very same time that the opaque nature of algorithmic decision making, coupled with the new interplay between government agencies and private technologies, has created a crisis regarding access to information by journalists, regulators and others working in the public interest.”
Sandeen said a distinction should be made between trade secrets and plain secrecy.
“There needs to be leadership at the legislative and executive level that says this is the type of information we need for the public interest,” she said.
The matter will remain contentious.
In its lawsuit, Waymo says revelation of the safety information at issue would cause “a chilling effect across the industry.”
Sandeen said, “The goal of having cars moving around publicly funded streets without a driver is a real important public interest, and they shouldn’t be allowed to hide behind trade secrets to avoid scrutiny.”