“Driving the Future:  The Legal Implications of Autonomous Vehicles” Conference Recap

Aroma Sharma, Graduate Fellow, High Tech Law Institute

In January 2012, the Santa Clara Law Review hosted its annual symposium on the topic of “Driving the Future: The Legal Implications of Autonomous Vehicles.” The High Tech Law Institute co-sponsored the symposium. The symposium was one of the first major academic events to explore the legal issues raised by autonomous vehicles symposium received. As a result, it received substantial worldwide media coverage, including articles in The New York Times, San Jose Mercury, Mashable, CNET, PoliceOne.com, CNBC, The Sydney Morning Herald, and La Republica. A forthcoming symposium issue of the Santa Clara Law Review will publish articles by the presenters.

A lot of efforts are being invested to develop autonomous vehicles. Stanford researchers won $2 million for an early robot car in a 2005 contest organized by the Pentagon, and recently Google tested self-driving cars on California roads. The Nevada Legislature authorized the use of autonomous vehicles on public roads, and Florida and Hawaii are currently considering similar laws. Several auto manufacturers, including GM, BMW, and Audi, are already moving towards semi-autonomous vehicles (vehicles with driving assistance technologies).

These developments are exciting because of their potential to improve society. Autonomous vehicles could save lives, reduce traffic, reduce accidents (and concomitantly save billions of dollars), and help the environment by reducing fuel demands and pollution.

However, existing laws may hinder the realization of these benefits. Presenters at the symposium enumerated a long list of legal, policy and social challenges that need to be overcome before autonomous vehicles become ubiquitous.

The Technology of Autonomous Vehicles

Dr. Sven Beiker, Executive Director of the Center for Automotive Research at Stanford (CARS), introduced the technology and history of autonomous vehicles. Dr. Beiker identified some of the challenges to autonomous vehicles, such as how they will interact with standard cars, will they make people safe and comfortable, will they be affordable, and will they release drivers from the need to monitor the vehicle. For example, if an autonomous vehicle is programmed to wait at a stop sign for at least half a second, and the majority of human drivers do not wait, how do we prevent the too-polite vehicle from being stuck at an intersection indefinitely? Due to the challenges, Dr. Beiker thinks it may take a while for autonomous vehicles to arrive. “Twenty years from now, we might have completely autonomous vehicles,” he said, “maybe on limited roads.”

The Coming Collision between Autonomous Vehicles and the Liability System

Gary E. Marchant, from the Center for Law, Science & Innovation at Arizona State University Law School, spoke about civil liability. We still need to address questions such as, “who will be liable?”—the vehicle owner, manufacturer, software developer, etc.—and “what types of liability claims may be invoked?” Marchant indicated the liability issues may affect the development of autonomous vehicles because civil liability may discourage manufacturers from investing in innovation.

Professor Kyle Graham of Santa Clara University School of Law likened autonomous vehicles to the first wave of early automobiles. When cars were first introduced, the most common car-related lawsuits were by persons injured by horses frightened by the cars. These cases turned out to be atypical of the bulk of later lawsuits that implicated automobiles, but they proved influential in establishing the basic liability rules applicable to cars. Read a draft of Prof. Graham’s paper, “Frightened Horses and Autonomous Vehicles: Tort Law and its Assimilation of Innovations.”

Insurance Law Issues for Autonomous Vehicles

Professor Robert Peterson, Director of the Center of Insurance Law and Regulation at Santa Clara University School of Law, discussed California’s Proposition 103. Proposition 103 also mandates rating factors when calculating auto insurance premiums— insured’s driving safety record, number of miles driven annually by the insured, and number of years of driving experience the insured has had—which make little sense for self-driving vehicles. It also mandates a 20% “good driver” discount, which is offset by charging other drivers more. Who is a good driver when some vehicles drive themselves? Peterson noted that Proposition 103 may need to be amended to accommodate the new technology. For now, although much autonomous vehicle research is taking place in California, ironically the vehicles can’t be tested here because of laws such as Proposition 103.

Spectrum and Wireless Communications for Autonomous Vehicles and Automated Highway Systems

Mark Johnson, from the Washington D.C. office of Squire, Sanders & Dempsey LLP, highlighted spectrum-related legal, policy and regulatory issues implicated by autonomous vehicles and automated highway systems technologies, such as spectrum access, interface resolution, and international harmonization. Coordinating between manufacturers, drivers, and people on the road is going to be difficult. Rich Seifert, President of Networks & Communications Consulting, doesn’t think coordination is possible at all.

Public Policy and Autonomous Vehicles on Public Roadways

O. Kevin Vincent, Chief Counsel of the National Highway Transportation Safety Administration (NHTSA), delivered the conference keynote address. Vincent identified advantages to having autonomous vehicles on the road, including efficiency and safety benefits. However, the federal government does not have enough information to determine how to regulate autonomous vehicles yet. One major barrier is public perception. “We think it’s a scary concept for the public. If you have two tons of steel going down the highway at 60 miles an hour a few feet away from two tons of steel going in the exact opposite direction at 60 miles an hour, the public is fully aware of what happens when those two hunks of metal collide and they’re inside one of those hunks of metal. They ought to be petrified of that concept.” Vincent said NHTSA will do what it can to push for safe vehicles, which may include requiring functional limitations.

“But Officer, It Wasn’t My Fault, the Car Did It!”

Frank Douma, Associate Director of the State and Local Policy Program, Humphrey School of Public Affairs, Center for Transportation Studies, University of Minnesota, discussed how the current criminal justice system provides little guidance regarding autonomous vehicles. Criminal liability often depends on intent or a person’s “control” of a vehicle. Simple questions, such as whether police officers will have the right to pull over an autonomous vehicle, have yet to be answered as well. “It’s a 21st-century Fourth Amendment seizure issue,” he noted. Douma also suggested that addressing the laws and cultural acceptance of autonomous vehicles may require as much work as solving the technical or engineering obstacles to these vehicles.

Managing Autonomous Transportation Demand

Bryant Walker Smith, Stanford Law School Fellow at the Center for Automotive Research at Stanford (CARS), discussed state and local issues. Smith noted that autonomous vehicles may increase maximum and average vehicle capacities on roadways and improve car-sharing and mass transit, but these potential efficiencies will not end congestion. Those who were otherwise unable to drive will be on the road, some trips will be made by cars that are passenger-less, and near-term automation may lower driving costs, which would in turn increase the number and distance of trips.

In looking at the legal issues, we should also consider how the laws will respond to changes in travel behavior, especially in terms of land use and zoning, taxes and user fees, and administrative cost-benefit analysis. For instance, because commuting won’t be as much of an issue with the use of autonomous vehicles, people may choose to live further away from metropolitan areas.

Federal Regulatory Issues Facing Autonomous Vehicles

Stephen Wood, Assistant Chief Counsel at the National Highway Transportation Safety Administration (NHTSA), spoke on federal law issues. NHTSA is currently research crash avoidance and vehicle-to-vehicle safety. NHTSA has some regulatory tools, but it must also consider when to establish standards. For example, recently there was a proposal regarding how to shut down the engine of autonomous cars in an emergency. We should also consider how these vehicles will affect driving skills and risk-taking behavior. For example, the Federal Aviation Administration recently concluded that jetliner pilots rely on autopilot “too much.” This means pilots don’t get as much practice flying, so they may be ill-prepared to react to emergency situations. Eventually, drivers of autonomous vehicles may be similarly ill-equipped to deal with emergencies that require driving skill.

Privacy in Autonomous Vehicles

Dorothy Glancy, Professor of Law at Santa Clara University, addressed privacy issues raised by autonomous vehicles, including personal data collection, passenger and environmental surveillance, and privacy expectations for law enforcement searches and traffic stops. Glancy discussed how autonomous vehicles will enhance privacy for some people. For example, disabled persons, the elderly, and those with impaired driving abilities will have more autonomy about when, how and with whom to travel. At the same time, autonomy may be diminished due to surveillance capabilities of autonomous vehicles. What an individual is doing and with whom can be tracked, creating a permanent record of the places that an individual has been. As autonomous vehicles become commonplace consumer products, privacy safeguards and protections will need to keep pace.