The big problem with legal definitions surrounding driverless vehicle technology: There are none.
Although a few states, Michigan included, have begun to acknowledge driverless systems in their law books, the subject mainly remains a legal gray area. Michigan’s laws, passed in December, only provide for testing of autonomous vehicles, and no state’s motor vehicle regulator (like Michigan’s Secretary of State) has begun addressing driverless technology in its rules.
This is where the legal work will need to be done if full-blown driverless systems are to become a consumer reality, those who study the issue say.
“For truly autonomous vehicles to be successfully implemented in volume and in multiple states — a critical mass of deployment — there are going to need to be significant changes in law. One is permitting these vehicles on roadways, and that will take a number of years,” said William Kohler, speaking in his capacity as head of Clark Hill PLC‘s automotive practice before taking a position as chief legal officer for Dura Automotive Systems last week.
Analysts aren’t in even full agreement on the present legality of driverless systems. Some say the law’s lack of wording makes the systems tacitly legal, much as some new recreational drugs are legal until lawmakers or regulators say otherwise. For testing purposes, manufacturers already have special plates that should cover them.
On the other hand, laws “presume and were intended to pertain only to vehicles that have drivers,” Kohler said.
If autonomous vehicles hit the roads today, the result would be wildly varying court interpretations.
“For autonomous vehicles to appear — nontesting — on American roads, there needs to be state-level legislation authorizing the operation of autonomous vehicles on states’ roads. That has occurred in only a few states subject to regulations being developed,” Kohler said.
Talking the talk
Even basic terminology of autonomous vehicles isn’t agreed upon. “Driverless” and “autonomous” are the more widely used terms. Many developers and manufacturers who would put these systems on the road prefer “automated,” raising the possibility that the phrase “automated automobile” could be used in all seriousness — not an encouraging sign for anyone looking to clarify the law.
Muddying things further are the many gradations of automated vehicles. The National Highway Traffic Safety Administration and SAE International have applied levels to these gradations to bring some definition to the subject. Lower levels have the least amount of automation — features like adaptive cruise control — while the highest level means a person doesn’t have to be in the car to “drive” it. (See box, below.)
It’s at these higher levels where the most society-changing effects would be — in safety, use of time, land use — and also where the biggest legal questions arise.
“Everything will have to be redone in the context of this technology,” said David Cole, former longtime chairman of the Center for Automotive Researchin Ann Arbor and now chairman of AutoHarvest Foundation in Detroit.
Truly autonomous cars are the furthest from being ready for wide public consumption because the technology still needs work and they involve things like changes to traffic infrastructure. But as things go, technology tends to march faster than law.
The legal driver’s seat
While safety and liability concerns have been the focus of much of the legal talk over autonomous driving, the basic legal framework to accommodate the systems at all will need to happen first.
“We won’t have major manufacturers committing to production of autonomous vehicles in volume until they can be sold in most states, not just one state,” Kohler said.
As a practical matter, the law books’ saying nothing will only go so far. Otherwise, awkward legal questions arise — unintended consequences of laws made without a thought toward cars without people in them.
“And those questions might be addressed first by legislatures, and if not, then they will be addressed by the courts,” setting the stage for a mess of rules and precedents, said Bryant Walker Smith, a fellow at the Center for Automotive Research at Stanford University and a professor of law at the University of South Carolina.
State laws say things like this passage from California’s rulebook on unattended vehicles: “No person driving, or in control of, or in charge of, a motor vehicle shall permit it to stand on any highway unattended without first effectively setting the brakes thereon and stopping the motor thereof.”
Is it really unattended if the person who put it there did so from a computer screen miles away? And has the power to drive off using the same system? Isn’t that person “in control” of it?
Similar questions arise from laws regarding negligence and distracted driving. Smith notes in one of his research papers from 2012 that an Ohio law says, “No person shall drive a ‘commercial motor vehicle’ … while the person’s ability or alertness is so impaired by fatigue, illness, or other causes that it is unsafe for the person to drive such vehicle.” A strict interpretation of this and other distracted-driving laws would effectively outlaw autonomous driving, as one of the prime selling points is the ability to nap or read on the way to work.
Countless examples like this can be found if a person were to peruse every state’s driving laws, which is precisely what Smith did. For the past three years, he has been studying, full time, the finer legal conundrums that autonomous driving exposes. He calls for common vocabularies and definitions, and for states to examine how their laws would apply to automated vehicles, with or without human operators.
His work points needling questions at previously straightforward concepts like “driving.” What’s a “driver”? Does it have to be a person? How is it different from “operating”? Statutes are filled with these and other terms like “prudence,” “due care” and “reasonable” when it comes to driving responsibility.
“Under the existing code, a human user could almost always be considered a ‘driver,’ ” regardless of where that person is, Smith said. “That is probably not appropriate for these higher levels of automation.”
Many ambiguities could be clarified by through statements of purpose that say the state’s intent is to promote the use of safe technology on the road, he said. Judges would then use these statements as guidance for interpreting flexible concepts like “prudence” and “driving,” said Smith.
States also could define terms like “automated operation,” “automated vehicle” and “driver,” which then would allow for clearer rules on unattended vehicles, distracted driving and so on.
Adjustments such as these would smooth out most wrinkles in the legal codes and make it so every comma of the law doesn’t need reviewing. Smith does recommend, however, that autonomous system developers get in front of any legal issues by scrutinizing the codes and publicly requesting relevant changes.
It will take a lot of work to sort out the issues ahead, and that means business for lawyers. “Those who understand the legal issues — and anticipate them — will be well-rewarded,” Kohler said.
An overhaul of the rules is necessary but not urgent, Cole said, offering a final word of temperance. Although headlines suggest otherwise, the technology still has quite a way to go and the path it will take it remains unclear.
“It’s very early,” he said. “The hype is running faster than the technology.”
THE LINGO OF THE CONNECTED CAR
Connected vehicle: Equipped with technology that enables a connection between other vehicles, infrastructure and a consumer wireless device.
Automated vehicle: Uses mechatronics and sometimes connectivity to gather information and autonomously perform driving functions. Automated technology includes lane departure warning systems, emergency braking and adaptive cruise control.
Autonomous vehicle: A vehicle equipped with radar, remote sensing, cameras and other technology to perform many or all of the driving functions — better known as a self-driving car. Automotive experts think partially autonomous vehicles will be sold by 2020.