The infrastructure law just gave a boost to controversial driver-monitoring AI tech companies

"If you're absolutely upset, well, the car can know that," said one maker of driver-monitoring AI, which could get a boost from the new law.

AI analyzes a car driver's ID

The driver-monitoring research mandate could be a boon for the small sector providing technologies that use AI to analyze expressions.

Image: Smart Eye AB

Tech vendors including Affectiva and Visteon call it "interior sensing." The European Commission will make it mandatory in cars, vans, trucks and buses next year. Now, AI-based driver-monitoring systems used to detect whether a driver is paying attention to the road or showing signs of drowsiness or distraction will be the subject of research funded by the newly signed Infrastructure Investment and Jobs Act.

The law's $1.2 trillion budget appropriates more than $200 million each year from 2022 through 2026 to fund a variety of vehicle safety provisions, from rules requiring automatic braking features to systems that automatically steer cars back into their lanes. These sorts of semi-autonomous vehicle technologies are already installed in some vehicles on the road right now. But the law also funds research of a far more controversial form of AI: driver-monitoring systems.

According to the law, the goal is to reduce driver distraction to create safer roads. It calls on the secretary of transportation to conduct research within three years after the law is enacted to study the use of driver-monitoring systems to minimize or eliminate driver distraction or disengagement, and to limit complacency when drivers are behind the wheel of vehicles with automated features. After the study is complete, a research report will be submitted to Congress.

If the transportation secretary determines that rules related to possible requirements of driver-monitoring tech are necessary, the law calls for them to be established within two years of submission of the report. And if the secretary concludes no new driver-monitoring tech rules are necessary? Another report is due to explain why not.

More immediately, the law mandates use of tech to monitor for signs of drunk driving-related impairment, though it is unclear what form of technology legislators have in mind.

The driver-monitoring research mandate could be a boon for the small sector providing technologies that use AI to analyze people's facial expressions or behavioral cues in an attempt to decipher their emotions and moods or levels of distraction, stress or anger while driving. Those companies got a boost in 2019 when the EU said it would make distraction-detection systems mandatory in vehicles next year.

In advance of the new law, publicly held driver-monitoring tech firm Smart Eye acquired Affectiva in May for $73.5 million. "I think this kind of will energize and divert a lot of resources both in academia and industry to continue to do the basic research, but also productize solutions for driver monitoring," said Rana el Kaliouby, Affectiva's co-founder and CEO and deputy CEO of Smart Eye.

Safety promises and surveillance risks

According to Affectiva's website, the company develops AI software that improves road safety through "a deep understanding of what's happening in a vehicle." Visteon says its driver-monitoring system, which incorporates infrared cameras, facial recognition and AI to gauge driver distraction, drowsiness and emotion by detecting head movements and eye gaze, makes "for a safe, autonomous future." The company did not respond to a request to comment for this story.

Liz O'Sullivan, CEO of AI compliance and governance vendor Parity, said the mandated driver-monitoring research will affect the market for attention-detection software. "We'll see new infusions of investor cash into sentiment analysis companies, whose science is dubious at best," said O'Sullivan, who argued that tie-ins between auto companies and AI makers could be tough to untangle even if they create problems.

Sketch of people in car with AI O'Sullivan and others warned of a new level of privacy infringements and surveillance normalization.Image: Smart Eye AB

Automakers such as Lexus have featured earlier forms of driver-monitoring tech as far back as 2007. Smart Eye says it has partnerships with 13 automakers including BMW, which delivered models equipped with its driver-monitoring system as early as 2018. Even firms like 3M are designing technologies for the emerging market. The 120-year-old company said its tape-like material made to camouflage infrared sensors "[hides] them completely from the driver's view."

Affectiva's technology uses in-car cameras that not only pick up on the direction of the driver's eye-gaze and blink-rate, but on things like head-bobbing, indicating drowsiness. Its cameras also watch what's happening in and around the driver throughout the vehicle. And Affectiva claims to decipher the driver's emotional and mental state, noting signs of anger indicating road rage.

"If you're absolutely upset, well, the car can know that," said el Kaliouby.

O'Sullivan and others warned of a new level of privacy infringements and surveillance normalization.

"There's always the chance that car makers will see this as a coming trend and implement the feature as a default in their new cars long before any needed privacy protective legislative policies come to pass," said O'Sullivan. "The consequences of increasing the accessible vector of monitoring have historically fallen disproportionately on marginalized communities, and this latest research, should it ever be transformed into policy, would surely contribute to the same effect. The tech itself is guaranteed to fail in unpredictable ways, and to function poorly on anyone whose eye characteristics or behaviors fall outside of the 'average.'"

Nandita Sampath, a policy analyst with Consumer Reports focused on algorithmic bias and accountability issues, also warned that data collected for driver-monitoring systems could be employed for unintended purposes or "used in other sorts of algorithms that make other decisions about people." Though data privacy is mentioned very rarely throughout the infrastructure law, it is mentioned in relation to driver-distraction monitoring. If rules are established as a result of the driver-monitoring research, the law briefly states they "shall incorporate appropriate privacy and data security safeguards."

O'Sullivan called the driver-monitoring research plan "typical surveillance creep," noting, "it's pretty hard to see how this could be done in a privacy-preserving way." She pointed to the potential for data gathered by in-car sensing cameras to be subpoenaed by law enforcement, for example. "The cameras will record data that's very appealing for law enforcement subpoena, and it's unlikely that any legal protections, should they ever materialize, would exclude law enforcement requests," she said.

When Affectiva's system is deployed it performs analysis in the car as it picks up on data signals, but does not store the data afterwards, said el Kaliouby. "No video gets recorded; no data gets recorded," she said.

If you're absolutely upset, well, the car can know that."

However, that may not be true of other driver-monitoring technologies, and it is unclear what sorts of agreements driver-monitoring tech firms have or will have with automakers in regards to data ownership and privacy controls. Either way, such technologies could have a profound impact on how people behave in their vehicles.

Ultimately, when it comes to AI technologies claiming to detect people's emotions or level of distraction based on facial or other body language, Sampath said "the risk of installing that outweigh the benefits." She also questioned the scientific basis for claims that AI can accurately gauge a person's inner moods. Sampath and other critics also question whether emotion-detection AI can "work differently on people with different skin colors or a disability that manifests in their face a particular way and that gets flagged as distracted driving."

Affectiva's technology is designed to detect and analyze complex mental states, el Kaliouby said. "You cannot map a single facial expression to a single mood or emotion; you have to incorporate multiple signals," she said. Affectiva trained its driver-monitoring AI using video of 11.5 million people in 90 countries with their permission, and she emphasized the cross-cultural diversity of the data set used to build the system.

As the details of the infrastructure law's safety provisions emerge, there is bound to be heightened scrutiny of some of those components of the legislation. As far as el Kaliouby is concerned, the law is just another sign of the impending ubiquity of driver-monitoring tech.

"It's going to be like the airbag or the seatbelt," she said.


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