Are we there yet? The legal aspects of driverless cars

October 2015 | Around the ABA

For decades, there have been discussions and theories about everything from driverless cars to automated and crash-proof highways. Although discussions of futuristic technologies have come about in waves, with the recent debut of Google’s driverless car prototype new discussions have arisen about the legalities of such a vehicle and technology.

In “Driverless Cars in the Fast Lane: Legality, Safety, and Liability on the Road Ahead,” a webinar sponsored by the ABA Section of Science & Technology Law, Stephen Wu, of counsel at the Silicon Valley Law Group and one of the founding members of SciTech’s Artificial Intelligence and Robotics Committee, said, “Right now we stand on the precipice of a change in transportation technology that we haven’t seen since the transition from the horse and buggy to the automobile.”

Because of this, there will be legal issues that will arise from the transition from the vehicles we drive today to future vehicle technologies, he said.

Thomas Leu, corporate counsel at Google Inc., said the company is investing its time and money in the technology because of safety concerns.

“Driving is actually a very dangerous activity,” Leu said, adding that 1.2 million people are killed every year around the world, and in the U.S. alone 33,000 people die each year. And he said traffic crashes are the primary cause of death for people between the ages of 5 and 34, and human error causes over 90 percent of accidents.

“Self-driving cars – they don’t fall asleep, they don’t get drunk, they don’t get distracted by text messages or phone calls,” Leu added. “So we think that developing this technology really gives us a chance to dramatically reduce car incidents that are caused by human error.”

Beyond safety, some other advantages to the technology include increased mobility for the elderly, disabled and for people who can’t currently drive.  Leu also pointed out other benefits, such as reduced fuel consumption, greenhouse gas emission reductions, better land use in cities by the elimination of parking garages, convenience and saving time.

Although driverless cars -- also referred to as autonomous vehicles -- are being designed to save lives with many safety features, there are also legal aspects to consider.

J. Christian Gerdes, associate professor of mechanical engineering at Stanford University, said that actuators (steering, braking, throttle, gear shifting), sensors (radar, camera, ultrasonic, lidar) and logic (algorithms based on actions to create sensor input) are required for automated vehicles.

Cars today have the actuators to become automated, and a lot of progress has been made in the area of sensors. Although there has been tremendous development over the last few years, he said that these vehicles still “see the world differently than our eyes and brains.”

Gerdes, a pioneer in the field of autonomous driving, said, “There are still open issues here.”

A vehicle’s basic logic levels and the ability to make real world decisions are extremely important, he said. For example, if a child runs after a ball in the street, a car would have to make some “real world” decisions about what to do.

“So from the very simple examples of lane following to very real-world decision-making this logic example is extremely important,” Gerdes said.

According to the panelists, inevitably driverless cars will crash and the issue of product liability will be a concern. Currently, some state and federal laws are not written to accommodate driverless vehicles. The use of such vehicles will span various areas of the law including torts, insurance, privacy, data security, transportation and communications administrative law.

Bryant Walker Smith, assistant professor of law at the University of South Carolina, said New York is the only state that requires one hand on the wheel at all times.

“States as a whole have laws that could complicate automated driving, but few that would actually outright prohibit it,” Smith said.

Gerdes added that in the next few years, the market will see advances in technology in conventional vehicles and automated low-speed transportation. In Switzerland, Singapore and the United Kingdom, 100 percent electric driverless shuttles are being used. Audi recently announced the Traffic Jam Assistant, which would guide the passenger through traffic jams, “while you turn your attention to other things,” he noted.

Ultimately, what will likely determine the speed with which we see driverless cars in the mass market will be safety issues, Gerdes said.

“I think the limiting factor is really going to be safety,” Gerdes said. “I’m not aware of anyone who isn’t dedicated to making the system safe but the question, really, is how safe?”

According to Gerdes, automated vehicles can avoid some of the “really bad behaviors” seen on the road today such as texting, distraction or being impaired while driving. “So, in some ways it’s very easy to design a car that can overcome the bad behaviors of humans, but it’s not as easy to design a car that can handle the behaviors of the best humans,” Gerdes added.

Engineers spend a lot of time with race car drivers because they are good at controlling the vehicle “to the limits of its capabilities,” he said.“They do it to be fast, but we do it to be safe.”

He added, “It’s pretty tricky to drive the vehicle up to its limits and be as safe as the world’s best drivers.”

Other than safety, legal issues would also come into play in with autonomous vehicles in situations such as where a human driver would cross a double yellow line to pass a car. Would the autonomous vehicle break the law to do this or wait all day behind a vehicle in the road? These are questions that engineers ponder.  Other questions center on the car’s responsibility to the law and other people in the flow of traffic.

Gerdes said the desires for safety and legality sometimes conflict, which is a continuing issue for vehicle designers.

“I think that the decisions made in the legal field may in fact frame the problem that engineers have to solve,” Gerdes said.  “Are we trying to solve ethical considerations because of a conflict between human desires and the law or in fact will these issues be solved in the law and make the engineering much simpler?”

The webinar also covered the insurance impact of autonomous vehicles from the product liability, privacy violations and data security breaches aspect.

The webinar was cosponsored by the ABA’s Center for Professional Development.