Corporate Capture in California

By Susannah Glickman
September 11, 2023

The rollout of self-driving taxis in the San Francisco Bay Area has been anything but smooth for public safety. Automated cars have blocked emergency vehicles trying to make it to the scene of a mass shooting, and hindered the path of an ambulance carrying a man who was struck by a vehicle and didn’t reach the hospital in time to save his life. Long lines of robotaxis shut down the streets of an entire neighborhood in San Francisco after turning off for 15 minutes without warning. According to the Los Angeles Times, “[t]he city’s Fire Department has logged more than 55 cases of robotaxis interfering with first responders.” These are but a few of the litany of problems.

How did the Bay Area population become uncompensated test subjects for the banal dreams of hubristic tech billionaires? California’s incredible deference to Big Tech is to blame.

THE CALIFORNIA DEPARTMENT OF MOTOR VEHICLES (DMV) presides over the largest autonomous-vehicle testing program in the country, having granted permits to no fewer than 60 companies. Only two, Cruise (owned by General Motors) and Waymo (a Google “sister company,” according to their court filings) have gotten “driverless deployment permits,” which allow them to receive compensation for their rides. Despite recurring safety problems, these companies had no problems receiving these permits, which critics have condemned.

The California DMV has extended another significant favor to these companies: completely shielding them from any scrutiny about how the DMV, a public agency funded with public tax dollars and ostensibly accountable to the public, granted these permits.

In order to receive permits, Cruise, Waymo, and others must submit information about the self-driving technology, as well as safety measures, practices, and crash data. Typically, vehicles must pass federal National Highway Traffic Safety Administration (NHTSA) regulations in order to be on public roads. The murkiness about the status of robotaxis—in particular, whether what’s being tested is software or something else—and lack of federal laws on the subject have enabled an end run around typical safety regulations. The San Francisco County Transportation Authority (CTA) has consistently opposed the state-approved rollout of these vehicles, to no avail.

But the public in California has one more option to shed light on matters of public concern: filing a request under the state’s Public Records Act to release relevant documents that can be scrutinized. However, when an individual citizen did so in this case, to determine how Waymo received permits to run their automatic vehicles (AVs), the DMV bent over backwards to stymie the request.

As TechCrunch reported, “After receiving the public record request for Waymo’s permit application, the DMV invited the company to censor sections that might reveal trade secrets. Waymo did so, even going as far as to censor certain questions the DMV had for Waymo.” The agency also concealed emails between Waymo and the DMV. Court records show that the DMV delayed release of the documents, and sent a letter inviting tech companies to sue the DMV to keep them secret. According to David Loy, legal director of the First Amendment Coalition, “the clear intent of the law [CPRA] is that the release of records should not be delayed.” But the DMV’s delay, and its notification of Waymo that this information had been requested, allowed Waymo to quickly file a reverse-California Public Records Act lawsuit (reverse-CPRA), to make sure the DMV kept these records private.

The DMV then decided to remain “neutral” in the lawsuit, leaving the third-party records requestor, a random citizen, to bear the burden of fighting a company worth $30 billion. (Waymo’s parent company Alphabet is currently valued at $1.643 trillion.) This imbalance meant that the only arguments and evidence before the Sacramento Superior Court came from the company. Despite the obvious public interest in knowing the justification for these permits, the requestor filed no affidavits, the DMV sat on its hands, and Waymo made a number of filings.

Any one of these actions might be construed as the California DMV unfairly favoring Waymo. Together, they paint a picture of government capture, in an effort to shield the company from justifiable public concern about driverless car permits.

As The Lever has reported, Waymo and Cruise have spent almost $2 million on lobbying in the past two years, including interactions with numerous DMV officials.

REQUESTORS ACROSS THE COUNTRY OFTEN HAVE TO SUE the agencies from which they demand documents in order to receive them. This raises the financial bar for access to public records. But the reverse-CPRA lawsuit, a California-specific innovation long loathed by the state’s reporters, increases costs even further by opening journalists and other citizen groups up to being countersued, or owing exorbitant attorney’s fees to the winning party if they lose the case. Requestors, by contrast, cannot automatically recover attorney’s fees if they win.

According to Loy, these problems are built into the system. “Reverse-CPRA processes are open to abuse because it is easy for wealthy individuals and corporations to drive requestors without significant resources out of court,” he said.

All of this makes it incredibly difficult for anyone without significant financial and legal resources to get records from California government agencies. In fact, the adversary is often the government; according to the Reporters Committee for Freedom of the Press, “[a] number of [California] government agencies have also used these lawsuits themselves in an attempt to avoid disclosing records by devising litigation strategies to block the release in court.” With the several pliant judges in California’s state system, this is a significant risk.

A proposed Government Transparency Act ballot initiative would amend the CPRA—including provisions about reverse-CPRA cases—but would enshrine current processes in the constitution,

precluding a better legislative response. Given the amount of tech money sloshing around

California, a legislative response may be unlikely.

In the Waymo case, Judge Shelleyanne W.L. Chang agreed with Waymo that the information requested, including crash data and communications with the DMV, constituted company trade secrets, and therefore ruled that this information should be withheld from the people of California. Judges in similar cases like Amgen Inc. v. Health Care Servs. have decided the opposite.

Any one of these actions might be construed as the California DMV unfairly favoring Waymo. Together, they paint a picture of government capture.

The redacted information deemed confidential includes such banal descriptions as how Waymo vehicles will come to a safe stop “in light of local curb conditions and regulations” and “in response to specific road conditions.” First of all, if Waymo would experience significant harm from the disclosure of these “trade secrets,” perhaps they should not have been submitted to the DMV, a public agency. In addition, these descriptions are just evidence of compliance with California law. To make an analogy, when you are tested for a driver’s license, you have to demonstrate that you are complying with state law by, for example, stopping at a stop sign (analogous to the “safe stop”).

Judge Chang enjoined the California DMV from releasing any material until April 22, 2024. But the judge ensured that this outcome will be repeated by ordering that “if the DMV receives any additional request for disclosure of the Challenged Redactions … [the] DMV shall provide notice to Waymo so that Waymo has at least thirty days to seek any appropriate relief from this Court,” according to Sacramento Superior Court records. That gives the company a heads-up to request another delay.

The outcome of this case means that not only are Bay Area residents put at risk by autonomous-vehicle projects, but they have no right to see the basis whereby these AVs have been deemed safe enough to traverse Bay Area streets. The approval of further permits by California regulators at the California Public Utilities Commission (CPUC), appointed by Gov. Newsom, demonstrates a similar acquiescence to tech company desires.

According to Beth Osborne, director of Transportation for America, this outcome is a product of a broad government failure to regulate the robotaxi industry. “AV companies have convinced elected officials, courts, and agencies that information about the safety of these vehicles should be private,” she said, “which would be like saying prescription drug companies would be hurt by releasing the numbers of people who died from tests of their new drugs.”

She added, “Too many politicians want technology to take policy decisions off their plates … [They would rather] take a passive approach to transportation and safety, repeating decades of failed policy.”

WHEN ASKED FOR COMMENT, THE CALIFORNIA DMV did not address the questions posed but offered the following: “Documents submitted to the DMV by companies as part of the DMV’s autonomous vehicle permitting process may contain information the companies consider to be confidential trade secrets. Under California law, companies have the right to petition a court to prevent the public release of such information. This is what Waymo did in 2022.”

Fully autonomous vehicles have been a perpetually “almost here” dream of tech giants since as far back as the 1980s. A 1986 video shot by Motorola promises that advances in semiconductors can bring about innovations. Some of them are with us today, like “electronically delivered newspapers” or computers that “permit us to shop and bank without leaving our home.” But others, like “computerized cars that will practically drive themselves,” continue to experience halting debuts. Since the spate of problems in San Francisco, GM has slashed its robotaxi fleet by 50 percent, and the California DMV announced it is “investigating recent concerning incidents involving Cruise vehicles in San Francisco.” Waymo, despite similar issues, has not announced any rollback.

According to Osborne, the experience of San Francisco is a “preview of how industry will be able to shove new products down the throats of localities and communities whether they want these products or not … Similar things will happen across the country. This is how transportation has worked in the U.S. historically.”

The regulatory capture by these tech “geniuses” and the companies they represent in California, and the federal government, means that citizens will be subjected over and over to the ill-conceived and sometimes fatal effects of these schemes. Whatever disasters are unleashed upon the public as a result will only be reined in when they become obvious, rather than before they inflict significant damage.

* This article was automatically syndicated and expanded from The American Prospect.

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