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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. |
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< | Using Climate Change Law to Combat Closed Software |
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> | Closed Software's Danger to Privacy and Climate |
| | -- By GreggBadichek - 13 Jan 2016
Introduction |
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< | Car companies increasingly use lower-emissions technology to conform with governmental regulations intended to reduce greenhouse gas (“GHG”) emissions.[1] Modern cars use software containing millions of lines of code to measure their emissions, regulate their power input in the case of electric vehicles, and to operate their internal systems.[2] Volkswagen in 2015 showed us that proprietary software can mask a profit-enterprise's deception by preventing regulators and the public from discovering manipulation without rigorous testing and some luck.[3] Closed software also greatly endangers user privacy, increasingly so in the world of "smart" cars.[4] |
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> | Modern cars use software containing millions of lines of code to measure their emissions, regulate their power input in the case of electric vehicles, and to operate their internal systems.[1] Volkswagen in 2015 showed us that proprietary software can mask a profit-enterprise's deception by preventing regulators and the public from discovering manipulation without rigorous testing and some luck.[2] Closed software also greatly endangers user privacy, increasingly so in the world of "smart" cars.[3]
In the near future, cars will run on electricity and integrate advanced computers, frequently with self-driving capability. Their software will then be even more advanced, and if it remains closed, the ways in which the vehicle uses driver data will remain mysterious, thus harming the consumer. Can environmental law force this software to open before "smart cars" replace dumb ones? |
| | Drivers Will Not Care About Their Privacy, But Drivers Will Care About Emissions, Fuel Economy, and Physical Safety |
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< | Just as a modern “smart” phone tracks at least its human's location, data usage, communications and reports this information to its corporate masters, so too does car software track its drivers' movements and vehicle operations. As software sophistication increases, cars will report more information about its occupants. Recipient nodes for car data may exist through cellular towers or wifi stations worldwide; particularly for electric vehicles, nodes will exist on the smart grid, allowing the car to function as an organ in a complicated electrical sensory machine. Convenience will overwhelm any concern most drivers feel about their privacy, as is the case with phones.
Drivers purchase high fuel economy vehicles specifically for their mileage and environmental benefits. Consumers who purchase such vehicles pay higher prices to obtain a car that will save money on gas purchases, and because they feel that their expenditure is benefiting a cause. GHG emissions is an issue under close scrutiny by the federal government, whereas potential privacy implications of “smart” vehicles clearly does not garner such attention. Vehicle safety has long been an area of public concern. The argument that complex, opaque software endangers passengers more so than software open to public scrutiny is not new. |
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< | Why this matters
Allowing software transmitting highly personal information—geolocation—to go unmonitored in a necessary market normalizes and under-emphasizes regular privacy violations. Additionally electric cars will gradually replace their carbon-fuelled counterparts. At that time, car software will not control emissions, but will become increasingly complex in response to increasing car "intelligence." Should software remain closed when this industry shift occurs, the opportunities to use environmental law techniques to expose privacy risks will be greatly diminished. |
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> | Convenience will overwhelm any concern most drivers feel about their privacy, as is the case with phones. Additionally the eventual proliferation of smart cars capable of driving themselves will give regulators pause when they consider the possibility of opening software: to them, this will pose more danger than benefit, unless by then it's common practice.
Drivers purchase high fuel economy vehicles specifically for their mileage and environmental benefits. Future cars will not significantly emit greenhouse gases. Should software remain closed when this industry shift occurs, the opportunities to use environmental law techniques to expose privacy risks will be greatly diminished. |
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< | Using Environmental Concerns to Expose Privacy Violations |
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> | Using Environmental Concerns to Open Software |
| | Proprietary software permitted Volkswagen to deceive its consumers and governmental entities into believing that their “clean diesel” emissions technology had met and surpassed fuel economy standards. Had the software been open, Volkwagen's cheating would have been noticed almost immediately; consumers would have saved billions of dollars, and Volkwagen would have saved its reputation. It is feasible to imagine several ways in which proprietary software harms users' agency beyond GHG emissions specifically, or environmental problems generally.
Demanding open software must be tempered: allowing users to alter their car's software could lead to unexpected safety hazards in a tightly regulated industry. A reasonable middle ground is software that is publicly readable, but can not be edited. This would allow car companies to protect their software's function, yet open it up to the broad scrutiny of countless individual simulations. Readers could even suggest edits to the software to improve its functionality and efficiency. |
| | Solutions from Environmental Law |
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< | Financial disclosure protocols and agency regulations can force car software to open. |
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> | Financial disclosure protocols and agency regulations are legal tools with which private citizens can force car software to open. |
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< | Disclosure and Shareholder Lawsuits |
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> | Sue the EPA and DOT |
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< | Under SEC guidance, Regulation S-K, requiring public agencies to disclose certain information to investors, contains four items through which disclosure of climate change risks and contributions should be made. Two of them are ways to get to a car's code. Item 303 requires the company to disclose management's discussion and analysis of industry trends that are likely to have a material effect on the company's liquidity. Potentially this could include an industry shift towards readable software, particularly if a regulatory regime change arises post-Volkswagen. Item 503 meanwhile requires the company to assess "risk factors," which could include contributions to, or regulations in light of, climate change. Companies may choose to include increased software scrutiny under these items, as post-Volkswagen car company investors will be much more keen to know if the company is complying with all relevant regulatory regimes. Should the company not disclose that information sua sponte, shareholders may demand, or even sue, the company to force them to be more open about their complicated software, its functions, and its potential flaws. |
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> | If these agencies are empowered to analyze vehicle emissions in the physical sense, there is no reason that they shouldn't be able to do so in the digital sense. Private parties can test GHG emissions, but have tremendous difficulty testing "software emissions." Thus a lawsuit against these agencies on the grounds that their failure to examine software is a failure of their duty outside of discretion may close the gap, and move agencies towards examining software. Citizens are empowered to sue the agency for neglect of duty under the Clean Air Act's citizen suit provision.[4] The EPA must prescribe by regulations "standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in [its] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare."[5] Greenhouse gases are air pollutants under the Clean Air Act.[6] Another non-discretionary duty in this case is the special emphasis that the EPA shall give "to research and development into new and improved methods, having industry-wide application, for the prevention and control of air pollution resulting from the combustion of fuels."[7] |
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< | Petition for Rulemaking before the EPA and DOT |
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> | Disclosure and Shareholder Lawsuits |
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< | If these agencies are empowered to analyze vehicle emissions in the physical sense, there is no reason that they shouldn't be able to do so in the digital sense. Private parties can test GHG emissions, but have tremendous difficulty testing "software emissions." Thus a lawsuit against these agencies on the grounds that their failure to examine software is a failure of their duty outside of discretion may close the gap, and move agencies towards examining software. |
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> | Under SEC guidance, Regulation S-K, requiring public agencies to disclose certain information to investors, contains four items through which disclosure of climate change risks and contributions should be made. Two of them are ways to get to a car's code. Item 303 requires the company to disclose management's discussion and analysis of industry trends that are likely to have a material effect on the company's liquidity. Potentially this could include an industry shift towards readable software, particularly if a regulatory regime change arises post-Volkswagen. Item 503 meanwhile requires the company to assess "risk factors," which could include contributions to, or regulations in light of, climate change. Companies may choose to include increased software scrutiny under these items, as post-Volkswagen car company investors will be much more keen to know if the company is complying with all relevant regulatory regimes. Should the company not disclose that information sua sponte, shareholders may demand, or even sue, the company to force them to be more open about their complicated software, its functions, and its potential flaws. |
| | References |
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< | [1] The Obama administration has been active in promoting high fuel economy standards as a means of mitigating GHG emissions. http://www3.epa.gov/otaq/climate/regulations.htm |
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< | [2] See David Gelles, Hiroko Tabuchi and Matthew Dolan, Complex Car Software Becomes the Weak Spot Under the Hood, New York Times (Sept. 26, 2015), http://www.nytimes.com/2015/09/27/business/complex-car-software-becomes-the-weak-spot-under-the-hood.html. |
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> | [1] See David Gelles, Hiroko Tabuchi and Matthew Dolan, Complex Car Software Becomes the Weak Spot Under the Hood, New York Times (Sept. 26, 2015), http://www.nytimes.com/2015/09/27/business/complex-car-software-becomes-the-weak-spot-under-the-hood.html.
[2] An explanation of the events can be found here: http://www.bbc.com/news/business-34324772.
[3] See, e.g. http://www.huffingtonpost.com/entry/spy-act-car-hackers-senators-security_55ae4e72e4b0a9b94852748b. |
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< | [3] An explanation of the events can be found here: http://www.bbc.com/news/business-34324772. |
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> | [4] 42 U.S. Code § 7604 |
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< | [4] See, e.g. http://www.huffingtonpost.com/entry/spy-act-car-hackers-senators-security_55ae4e72e4b0a9b94852748b. |
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> | [5] 42 U.S. Code § 7521
[6] See Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007)
[7] 42 U.S. Code § 7404 |
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