Sigma Khan, JD '22, Windsor Law
The University of Windsor is situated near the busiest international border crossing in North America in terms of trade volume. The Ambassador Bridge, which can be viewed during a stroll outside of the Law Building, carries more than 25% of all merchandise trade between the United States and Canada. It is then inevitable that the bridge is often filled line to line with commercial trucks. With the rise of self-driving autonomous vehicles, it is important to ask what kind of an impact self-driving trucks carrying shipments of goods can have on international borders such as the Windsor-Detroit border. To provide insight on this important question, on March 10, 2020, the Dual JD program at Windsor Law and Detroit Mercy Law (UDM) hosted a panel discussion: Connected Commerce: Self-Driving Trucks & Impact on Cross-Border Trade.
The discussion featured Joe Comartin, Canada’s Consul General to Detroit (and a Windsor Law Graduate); Laurie Tannous, International Business, Canadian Immigration Attorney and lawyer with the Cross-Border Institute (a Windsor Law graduate); and Jennifer Dukarski, Intellectual Property lawyer with Butzel Long (a UDM Law graduate). The panel addressed various positive and negative aspects of self-driving commercial trucks, as well as sought solutions to the regulatory challenges such vehicles would pose in the areas of customs, privacy, contracts and emerging technology law. The discussion began with Joe Comartin stating that autonomous vehicles are disrupting the current automotive industry. Comartin expressed that the shift from the current vehicular technology to autonomous vehicles could be equated to the shift from horse-drawn carriages to motorized vehicles. After introducing the two other panelists, Laurie Tannous spoke regarding the problems and potential solutions of self-driving commercial trucks crossing international borders to carry out cross-border trade. Tannous maintained that according to research by the Cross-Border Institute, the positive aspects of autonomous trucks include efficiency, as there are simply not enough truck drivers available to meet the demands of international trading and shipping. However, Tannous mentioned that in order for autonomous trucks to be successful, there must be changes made to infrastructure, customs laws, liability laws (including insurance), administrative laws and concepts related to data breaches or hacking must be accounted for.
With regards to infrastructure, the panelists emphasized that border-crossing conduct has to be adjusted to account for autonomous trucks that may require additional inspection by border officials. For example, in current border-crossing practices, when U.S. Customs and Border Protection Officers cannot verify information, do not have all of the required documentation or there is suspicious activity at the initial port of entry, cars and trucks are directed to an interview area known as “secondary inspection”. Secondary inspection allows additional research and investigation prior to authorizing vehicles to cross borders. With autonomous cargo trucks, there would be no driver to verify additional information or answer questions regarding searches. Therefore, these processes must be modified to take into account autonomous vehicles and their role in cross-border trade. Furthermore, custom laws themselves have to address who would be held liable if contraband was seized from autonomous vehicles, as commercial trucks are handled by the trucking company, the producer of the goods, drivers, handlers and many other positions along the way. In terms of liability laws, questions were raised of which jurisdiction’s law would apply to autonomous trucks that drove through numerous Provinces, or States prior to crossing an international border. Currently, both Canada and the U.S have phased in pre-emptive online paperwork allowing for truck companies to provide customs information prior to arriving at the port of entry. For autonomous trucks crossing the borders, administrative practices of visas and customs paperwork must be taken into account to facilitate the logistics of such a technological endeavour.
A pressing topic of discussion among the panelists was the importance of data-protection, breaches and liability in such instances. Dukarski discussed the various types of data these trucks would embed and process, and the shared responsibility of protecting such data. From information regarding driving routes, customs tracking and the contents of the shipment to the delivery locations and road conditions, the trucks would carry information that could result in numerous commercial data breaches and cause conflict in the realms of cybersecurity and/or terrorism. One solution to the liability issues regarding such matters are to outline various clauses in private commercial contracts between the companies, governments, shippers, and every entity involved in the process. Comartin encouraged the audience of legal scholars and law students to think of solutions to the multitude of problems that arise from an innovative technological shift. Dukarski questioned that both the nature of the data, and liability in breaches have to be newly regulated to account for cross-border conduct. Dukarsi proposed an interesting hypothetical scenario: in the event that an individual rents a car to cross an international border, the onus is on the renter to clean the car and rid it of any contraband, illegal substances or other materials prohibited in an international border-crossing. In terms of data, Dukarski asked if ridding autonomous cars of data is, or should be equivalent to eliminating tangible materials from the interior of vehicles.
After the initial introduction and back-and-forth between the panelists where the topic of commercial autonomous vehicle was introduced along with corresponding legal issues they raised, the panel opened up to questions from the audience. The first question pointed out that in its current state, autonomous vehicles are semi-autonomous and proposed that continue to be the case for cross-border commercial trucks in order to phase in the regulation as necessary. The panelists agreed with the question and further reiterated that before cross-border trucks can become fully autonomous, there needed to be many legal regulations and legislations passed to accommodate the facilitation. The second question, came from Windsor Law’s Dean Christopher Waters. Dean Waters asked the panelists how self-driving cars would impact the livability of border cities such as Windsor-Detroit. The panelists pointed to models of European legislation as well as technological checks that can be put in place to address livability. For example, setting boundaries and jurisdictions where cross-border trucks would be allowed, and prohibiting the trucks from using certain roads or neighbourhoods.
My personal question for the panelists had to do with the data protection of individuals unassociated with commercial trade. I wondered how the data these trucks picked up about regular Canadians and Americans would be protected to ensure privacy rights, as autonomous trucks would inevitably have record of customs tracking, driving records or patterns, speed limits and other information. I asked whether a model similar to the European General Data Protection Regulation (GDPR) should be implemented to ensure the companies employing autonomous trucks complied to protect individual privacy interests. Tannous elaborated that this was an area where government frameworks and legislations would be helpful, as well as maintained that both GDPR-light legislations such as Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA), as well as private contracts favoured adopting language from the GDPR, and a similar model could be useful for cross-border commercial autonomous trucks. The last question from an audience member was whether we can expect to see cross-border drone legislation and regulatory frameworks sooner than commercial truck legislation and regulation. The panelists concluded that it would be likely for drone regulation to be implemented quicker, as they mirror similar issues previously dealt with by commercial aircrafts, and that infrastructure challenges are reduced when autonomous technology travels via air rather than roads.
Overall, I found the event to be an educative dialogue for lawyers, law-students and anyone interested in finding out how current customs and cross-border conduct need to adjust to account of technological evolution. The panel discussion was especially relevant to border cities like Windsor and Detroit. The panel raised a variety of potential issues with this new technological development and related trade practice, as well as showcased how technological disruption in one area has a domino effect on regulation in multiple areas.