Once the stuff of science fiction, self-driving cars are now careening towards reality. The term is somewhat deceptive, conjuring to mind vehicles navigating entirely self-sufficiently without human intervention when, in truth, there are many shades of gray between a purely human-operated car and a fully automated car. Many vehicles on the road today now offer enhanced features such as parking assistance, emergency brake application, and lane drift detection. Every new shade of increased artificial intelligence participation in vehicle operation poses potential legal questions (to say nothing of the ethical quandary present in how cars would be programmed to react to certain impossible choices). As legal practitioners, we would do well to monitor developments in the following areas:
- E-discovery: More computer operations create more potentially discoverable electronic information, from data about the operations of the vehicle itself to anything its sensors (which could include cameras, radar, and ultrasonic detections) may have picked up. In addition to increased volume, information obtained from self-driving cars may include proprietary codes and require expert interpretation.
- Intellectual property: On the topic of proprietary codes, the poaching of engineering talent and trade-secret arms race is well underway. Though Tesla has taken a collaborative approach in some aspects, notably making 200 of its battery-tech patents publicly available in 2014, Toyota alone has 1,400 patents on self-driving car technology. Clients developing products in this sphere will need to be advised on avoiding patent infringement.
- Data security: Newer vehicles may record data on how, when, and where individuals drive, which could raise privacy concerns if the information is stolen or improperly handled.
- Civil liability shifts: Could an enterprising plaintiff in motor vehicle accident litigation who was struck by a car with self-driving elements argue that the creator or purveyor of a self-driving car’s algorithm shares some liability with human operators for a vehicle’s actions?
- Criminal culpability: As “driving” becomes a murkier concept requiring less and less from the individual engaged in it, at what point would an intoxicated or unconscious person no longer be guilty of a DUI or falling asleep at the wheel?
- Insurance law: The parameters of traditional auto insurance may be altered, perhaps moving away from the user-liability mode and opening new potential limits and exclusions. Moreover, if motor vehicle accident rates were to drop from sharp reduction in humor error, what would happen to the auto insurance industry itself?
- Employment: As the requirements of paying attention at the wheel evolve, will employers expect or require employees to check work email or perform other tasks while driving? Could this raise wage and hour or workers’ compensation issues?
- New statutes and regulations: As technology progresses, expect potential legislation from federal, state, and local levels that could impact your clients.