Coronavirus Response: Real-World Case for Expanded Autonomous Vehicles Testing in the U.S.

In response to the onset of  the COVID-19 outbreak, companies suspended autonomous vehicle (AV) programs in an effort to limit contact between drivers and riders and to comply with social distancing recommendations.   While limited continued testing of autonomous vehicles will still be possible via virtual simulation tools, AV technology, within the context of the coronavirus pandemic, may still present the possibility of addressing critical needs and providing essential services through the use of driverless delivery vehicles.   The combination of the need to minimize health risks presented to and by human drivers who deliver vital supplies and materials to the public, and the ability of AVs, equipped with disinfection tools, to deliver such items, may incentivize public authorities to authorize expanded testing and use of AV throughout the U.S.

At the present time, food and medical deliveries to customers – especially critical to potentially susceptible people, such as high-risk older adults or those with pre-existing or immunosuppressed conditions – are being conducted by human drivers who are, in turn, exposing themselves to potential risk.  The conflicting needs of protecting the public via social distancing efforts while ensuring continued operation of critical infrastructure, such as health care, transportation, and food/agriculture, are evident in the growing number of stay-at-home orders that have been instituted in many states, counties and cities throughout the U.S., implemented in order to further limit the spread of viral infection. Such orders include the ceasing of “non-essential businesses” while exempting only those businesses that may be designated as “essential businesses” due to the vitally important products or services they provide during the pandemic, provided that such essential businesses adhere to social distancing and other public health measures issued by the CDC and state/local health authorities.  [See, e.g., the Michigan Stay at Home Order]

The most frequently-cited reference for such designation is the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency’s Guidance on Essential Critical Infrastructure Workers, which should be reviewed by companies testing AV, as a means of contributing to continued essential services and to identify critical employees to support real world testing of AVs within such critical sectors as:

  1. Transportation and Logistics:

a.Supporting or enabling transportation functions, including dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area workers, and workers that maintain and inspect infrastructure (including those that require cross-border travel)
b. Providing services that enable logistics operations, including cooling, storing, packaging and distributing products for wholesale or retail sale or use
c. Repairing and maintaining vehicles, aircraft, rail equipment, marine vessels and the equipment and infrastructure that enables operations that encompass movement of cargo and passengers

  1. Health Care/Public Health: Supporting food, shelter and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, such as those residing in shelters
  2. Food & Agriculture: Supporting groceries, pharmacies and other retail that sells food and beverage products; restaurant carry-out and quick serve food operations; carry-out and delivery food employees

The technical ability to address such critical needs via AV testing may be of compelling interest to public authorities, especially with reduced traffic flows in areas subject to stay-at-home orders, which would mitigate safety concerns over expanded presence of AV on public roads.   According to press reports, the concept has been already tested in China, where a self-driving delivery company called Neolix deployed fleets of self-driving vans to transport medical supplies and food to areas of the country hit hardest by COVID-19, including the epidemic’s epicenter in Wuhan.   The self-driving vans were also reported to have the capacity to disinfect city streets, highlighting an added potential beneficial application of AV technology.

Before the coronavirus outbreak, U.S. legislation relating to AV testing was already expanding, with 29 states – including Alabama, California, Florida, Georgia, Louisiana, Mississippi, South Carolina, Tennessee, Texas and Virginia – as well as Washington, D.C. As state and local governments further assess technologies to implement during the coronavirus pandemic to minimize risks to public health, AV testing may serve to enhance innovation in this important area, while serving the public good.

Al Leiva is a member of the Government Enforcement and Investigations Practice Group at Baker Donelson, and advises clients on a broad range of cybersecurity, data privacy and critical infrastructure security matters in regard to compliance, government enforcement, and litigation matters.