Waymo, the autonomous driving arm of Alphabet, was granted a win on Tuesday when a California court ruled it could keep certain details regarding its AV technology secret.
The company filed a lawsuit against the California Department of Motor Vehicles in late January in order to keep some information about its autonomous vehicle deployment permit, as well as emails between the DMV and the company, redacted from a public record request, which was originally filed by an undisclosed third party.
The ruling by the California Superior Court, Sacramento could set a precedent for broader trade secret protection, at least in the autonomous vehicle industry, involving public access to information that has to do with public safety, but which businesses claim contain trade secrets.
In its lawsuit, Waymo argued being forced to reveal trade secrets would undermine its investments into automated driving technology and have a “chilling effect across the industry” where the DMV is no longer a safe space for companies to transparently share information about their tech.
“We’re pleased that the court reached the right decision in granting Waymo’s request for a preliminary injunction, precluding the disclosure of competitively-sensitive trade secrets that Waymo had included in the permit application it submitted to the CA DMV,” a Waymo spokesperson told TechCrunch. “We will continue to openly share safety and other data on our autonomous driving technology and operations, while recognizing that detailed technical information we share with regulators is not always appropriate for sharing with the public.”
Like any other autonomous driving technology company looking to test and deploy in California, Waymo had to submit information about its safety practices and technology to the DMV, which then followed up with more specific questions. When the DMV received the public records request for Waymo’s permit application information, the agency gave Waymo the chance to censor any sections it deemed might reveal trade secrets. Waymo did so, and the DMV sent the package to the third party with major portions blocked out. The requester challenged the blackouts, and the DMV, not wanting to get caught in the middle, advised Waymo to file a temporary retraining order against the DMV, according to Waymo. A judge then issued the restraining order on February 2, giving Waymo more time to seek an injunction prohibiting the disclosure of the material in unredacted form forevermore.
Waymo filed the lawsuit because it wants to protect details about how its AVs identify and navigate through certain conditions, how they determine the circumstances under which the AV will revert control to a human driver, when to provide support to an AV fleet, and how the company addresses disengagement incidents and collision incidents, according to the lawsuit.
“These R&D efforts take many years and an enormous financial investment,” reads Waymo’s declaration shared with the court. “Waymo’s AV development began as part of Google in 2009 before Waymo became its own company in 2016; therefore, Waymo’s AVs have been in development for more than 12 years. Waymo has invested truly significant amounts researching and developing its AV products.”
It is difficult, however, to determine whether or not the information actually contains trade secrets without being able to see any of it.
“The question is, can the company derive economic value purely from not sharing that information with others?” Matthew Wansley, former general counsel of nuTonomy (which Aptiv acquired) and a law professor at Yeshiva University’s Cardozo School of Law in New York, told TechCrunch.
Software failures that detail problems perceiving objects or predicting how other agents in the world are going to behalf, for example, is highly confidential because it could reveal information about how the technology works, allowing competitors to either copy it or just assess where they are relative to a certain business, said Wansley. It makes sense, therefore, that a company wouldn’t want to share that information publicly. However, if a regulator wanted more information under the promise of confidentiality, Wansley said he’d be much more inclined to share because he trusts the regulator knows the tech isn’t perfect and is more concerned with reducing risk rather than bringing it down to zero.
“I looked through the complaint that Waymo filed, and the categories of information they’re talking about are pretty broad,” said Wansley. “Are there trade secrets in that set of information that they sent? Probably, there are some. Does it include all of the information they sent? Almost certainly not. The only thing that would surprise me is if everything they’re claiming is a trade secret is actually a trade secret. But without knowing the specific information that they share with regulators, it’s just hard to know.”
And now the public will never know. While the business community might find this outcome to be a success, the state of California and the public at large might have legitimate public safety concerns around autonomous vehicles, and they may not trust their regulators to be able to make decisions on their behalf.
AV technology is very complex and sophisticated and many regulators aren’t exactly engineers. Some would argue that the public has a right to verify if critical, public-facing decisions are being made properly via things like public hearings or academic studies.
“I think in some respects, this goes to the heart of how do you develop public confidence in public vehicles if it’s simply a black box?” Ryan Koppelman, an intellectual property litigation lawyer and partner at Alston & Bird, told TechCrunch. “And this is a fundamental issues with autonomous vehicles, where it’s really just, data in, data out, and the results indicate it’s safe. So companies will say you don’t need to know what’s happening in the black box, just know that it’s safe and trust us. And trust the DMV, which has peeked into the black box and signed off on it, and that should be good enough for the public.”
For its part, Waymo has pointed to the range of information it shares with the public to assuage any fears about its technology. For example, it publishes an AV safety report, has submitted a safety self-assessment to the U.S. Department of Transportation, and is publishing a law enforcement interaction guide and a detailed description of its safety methodologies.