Crashing into the unknown: an examination of crash-optimization algorithms through the two lanes of ethics and law.

Author:Gurney, Jeffrey K.
Position:I. Introduction through V. Legal Concerns A. The Non-Duty to Act, p. 183-224

    One, a[n] [autonomous vehicle] may not injure a human being, or, through inaction, allow a human being to come to harm....

    Two, ... a[n] [autonomous vehicle] must obey the orders given it by human beings except where such orders would conflict with the First Law....

    Three, a[n] [autonomous vehicle] must protect its own existence as long as such protection does not conflict with the First or Second Laws. (1)

    Isaac Asimov first penned his three rules of robotics in a short story titled "Runaround." (2) These rules formed the governing principles of the robots in his stories, and also served as a plot device to show the shortcoming of programming robots to follow these three simple rules. (3) These shortcomings arose due to the ambiguity of the rules. (4)

    In addition to being impractical in Asimov's stories, these rules would be ineffective for programming autonomous vehicles. (5) For example, how would an Asimovian autonomous vehicle address a situation where a truly unavoidable accident must occur and someone must be harmed? No matter how well autonomous vehicles are programmed, they will inevitably be involved in accidents. (6) In Asimov's short story, titled "Liar," a robot named Herbie had the ability to read people's minds. (7) Herbie read two characters' minds and told each what they wanted to hear--lies--so that he would not cause "emotional harm," which Herbie considered to be in violation of the first rule. (8) Based on what Herbie told them, the characters changed their behavior; eventually, a disagreement ensued. (9) The characters confronted Herbie to sort out their mess. (10) Herbie, realizing that he could not answer the question without causing harm to someone, broke down and stopped working. (11)

    An autonomous vehicle that breaks down when it encounters a truly unavoidable accident would be impractical and dangerous. (12) Shutting down would not prevent the accident, and would most likely aggrandize it, and thus, would still violate the first rule. For that reason, and many others, Asimov's laws are impractical for addressing the ethical issues created by autonomous vehicles. (13)

    Instead of the autonomous technology shutting down when faced with an unavoidable accident, society will want the autonomous vehicle to minimize the amount of harm that results from such an accident, regardless of who is at fault. (14) An algorithm writer can minimize harm that results from an accident through use of a "crash-optimization algorithm," which is the method by which an autonomous vehicle determines who or what to hit. (15) The nature of the decisions made by the algorithm writer in creating the crash-optimization algorithm implicates serious ethical and legal questions.

    This article examines those ethical and legal questions. Part II begins by providing background information on autonomous vehicles, and the benefits that those vehicles are projected to bring to society. Part III introduces six moral dilemmas as a lens through which to examine the ethical and legal questions arising out of a crash-optimization algorithm. In Part IV, the article provides an overview of Utilitarian and Kantian ethics, as well as the application of both ethical theories to autonomous vehicles. Part V examines tort and criminal law issues relating to the crash-optimization algorithms. Part VI initially addresses whether these decisions should even be made by robotic cars. After concluding that the decisions should be made by the autonomous vehicles, Part VI examines who--the car owner, the car manufacturer, or the government--should make that decision. Finally, the article provides a legal framework for the application of criminal and tort law to accidents involving the use of crash-optimization algorithms.


    1. Background

      Since at least 1939, when General Motors introduced the Futurama exhibit at the World's Fair in New York, generation after generation has awaited the arrival of autonomous vehicles. (16) However, it was not until recent years that automated technology has become more advanced. (17) Today's vehicles are equipped with such autonomous technology as automatic lane-keeping, automatic braking, adaptive cruise control, traffic jam assist, and automated parallel-parking. (18) Mercedes-Benz's E- and S-Class models utilize "Stop&Go Pilot," which navigates the vehicle in traffic jams. (19) The 2016 Cadillacs and Tesla's new Model S will be capable of driving themselves on highways. (20)

      The race to create automated vehicles accelerated after the Defense Advanced Research Projects Agency ("DARPA") held its first "Grand Challenge" in 2004. (21) The first Grand Challenge was a 142-mile autonomous vehicle race in the Mojave Desert. (22) Unfortunately, all of the cars failed shortly after the race started. (23) The following year, four of the twenty-three cars completed a 132-mile course in the second Grand Challenge. (24) Since then, all major car companies, (and Google) have been in the process of developing technology to allow for self-driving vehicles. (25) Although no autonomous vehicle is on the road yet, it is projected that these vehicles will be operated by a complex computer system, with the use of radar, laser, lidar, ultrasonic sensors, video cameras, global positioning systems, and maps. (26) This technology allows the vehicle to safely operate by constantly watching the road and obstacles in its view. (27) Most automakers intend to keep the human operator in the loop, (28) at least at first. (29)

      Autonomous vehicles have demonstrated both safety and efficiency on the roadway. Google's autonomous vehicles have travelled over two million miles without causing an accident; (30) an autonomous vehicle created by the automotive supplier Delphi drove from San Francisco to New York City within nine days. (31) These trends have led many experts to predict that fully autonomous vehicles will be available within decades, (32) and that they will be commonplace by 2040. (33)

      The federal government has also begun researching autonomous vehicles. The National Highway Traffic Safety Administration ("NHTSA") released a preliminary statement of policy regarding these vehicles. (34) In that statement, the NHTSA outlined its five levels of automation:

      Level 0--No-Automation: The driver is in complete and sole control of the primary vehicle controls (brake, steering, throttle, and motive power) at all times, and is solely responsible for monitoring the roadway and for safe operation of all vehicle controls....

      Level 1--Function-specific Automation: Automation at this level involves one or more specific control functions; if multiple functions are automated, they operate independently from each other. The driver has overall control, and is solely responsible for safe operation....

      Level 2--Combined Function Automation: This level involves automation of at least two primary control functions designed to work in unison to relieve the driver of control of those functions....

      Level 3--Limited Self-Driving Automation: Vehicles at this level of automation enable the driver to cede full control of all safety-critical functions under certain traffic or environmental conditions and in those conditions to rely heavily on the vehicle to monitor for changes in those conditions requiring transition back to driver control....

      Level 4--Full Self-Driving Automation (Level 4): The vehicle is designed to perform all safety-critical driving functions and monitor roadway conditions for an entire trip. (35)

      Current automated vehicle technology is between Levels 2 and 3. (36) Because this technology is not at Level 3 or Level 4, the NHTSA believes it is premature to issue regulations. (37) The NHTSA signaled its encouragement for the innovation of autonomous vehicles, but it cautioned that they should not be used on public roads except for testing purposes. (38)

      Some states and the District of Columbia are foreshadowing the arrival of Level 3 and Level 4 autonomous vehicles onto their roadways and have already enacted autonomous vehicle laws. Thus far, California, Florida, Michigan, Nevada, and the District of Columbia have enacted autonomous vehicle laws that explicitly allow for testing of autonomous vehicles on their roads. (39) None of these laws, however, address crash-optimization algorithms or, more generally, tort liability for accidents caused by autonomous vehicles. (40)

      In addition, foreign countries are enacting autonomous vehicle laws and fostering the growth of such technology. (41) For example, the United Kingdom is on the cutting edge of the autonomous vehicle movement. (42) Starting this year, the United Kingdom is funding autonomous shuttles in the cities of Greenwich, Bristol, Milton Keynes, and Coventry. (43) The shuttle resembles an elongated golf cart. (44) A two-seater vehicle called a "pod" will be operated on the streets of Milton Keynes. (45)

    2. Benefits of Autonomous Vehicles

      A major reason why there is so much interest in autonomous vehicle development by car manufacturers--and so much support for this development from governments worldwide--is the societal benefits that autonomous vehicles are projected to have. Approximately 1.24 million people die annually worldwide due to accidents on roadways. (46) In 2013, 32,719 Americans died and 2,313,000 American were injured in car crashes; a total of 5,657,000 accidents occurred in the United States that year. (47) To put the amount of Americans who die on the roadways into perspective, more Americans died from motor vehicle accidents during the United States' involvement in World Wars I and II, the Korean War, and the Vietnam War than Americans who died defending the country in those same years. (48) This has led one commenter to suggest that self-driving cars will save more lives than world peace. (49)

      Most experts believe that autonomous vehicles will prevent accidents because ninety percent of accidents are caused by...

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