OPENING THE DOOR TO SELF-DRIVING CARS: HOW WILL THIS CHANGE THE RULES OF THE ROAD?

• Author: Pearah, Paul J.

1. Introduction: Fueling the Driverless Revolution

   That which only a few years ago seemed futuristic or even unattainable is now bearing down on us with the momentum of an 18-wheeler: vehicles that autonomously drive passengers or cargo to predetermined destinations. (1) However, widely publicized accidents involving semi-autonomous vehicles including fatal crashes of Tesla cars operating in "Autopilot" mode have heightened safety concerns. (2) In September 2016, President Obama and Transportation Secretary, Anthony Foxx touted the promise of self-driving cars to enhance the convenience, efficiency and safety of day-to-day travel. (3) The federal government is budgeting for an expanded role in regulating this emerging automotive technology. (4)

   Diverse considerations compel governmental intervention to address legal, technological and public safety concerns. (5) These issues affect nearly everyone due to the pervasive nature of automobile travel in modern society--drivers in America drive an average of more than 1100 miles per month. (6) Automobile travel entails inherent safety risks as evidenced by the more than 35,000 traffic fatalities occurring annually in the United States alone. (7) Autonomous vehicles (8) pose a devastating threat to the automobile collision repair and insurance industries, (9) which may attempt to put up roadblocks to the technology. (10) Many people are inherently fearful and skeptical of science and technology, (11) and will likely condition their adoption of self-driving cars on the assurance of governmental regulation. (12) The U.S. media's unrestrained penchant to sensationalize anomalous occurrences will likely exacerbate public fear and skepticism. (13) For instance detailed media accounts of the aforementioned fatal Tesla crashes create a compelling image in the mind of the media consumer in a way that more relevant and meaningful statistical data cannot rival. (14)

   The looming self-driving car revolution raises a multitude of legal and business related issues. (15) For instance, in anticipation of autonomous vehicle safety regulation, manufacturers will likely be required to share pertinent software code and standardize the manner in which conflicts are resolved in complex or ambiguous traffic situations. (16) Corporations, safety experts and the government will have to work together to strike a balance between patent and trade secret protection on the one hand, and technology standardization for public safety on the other. (17) Given the global nature of the automotive industry, policies addressing intellectual property and standardization concerns should be crafted with an eye toward international implementation. (18)

   While self-driving vehicles are expected to be far safer than driven vehicles, (19) no computer, sensor, road, or algorithm is perfect, and accidents will inevitably occur. (20) When driverless cars are used for delivery or taxi service, common carrier liability might be a sensible solution. (21) However it is unclear how much responsibility a self-driving car occupant who programs the destination, route or other parameters influencing the behavior of a self-driving car should assume. (22) For example, an occupant might decide to travel at night in adverse weather conditions such as freezing rain that greatly increase the probability of an accident. (23)

   Additional complexity will arise from a period of approximately a couple of decades during which self-driving and legacy technology vehicles will inevitably coexist on the same roadways. (24) Pioneering applications of autonomous vehicles are likely to be implemented in geographically constrained fleets such as buses, taxis or delivery vehicles for which the challenge of maintaining up-to-date maps and rules is more manageable than in the case of a passenger vehicle that might conceivably travel to any place accessible by road. (25) Even when autonomous vehicles are made available to consumers, adoption will be gradual; the average age of vehicles currently on the road is 11.5 years and increasing. (26) Conventions for allocating liability in the event of collisions between various permutations of fully autonomous, semi-autonomous, and driven vehicles will be required. (27) Liability determinations will further be complicated by considerations of the degree to which driver/occupant distraction or impairment should be taken into account depending on the type(s) of vehicle(s) involved. (28)

   The emergence of driverless vehicles has great potential to disrupt the automotive industry model that has been in place for more than a century. (29) Self-driving taxi and delivery services could largely supplant privately owned automobiles and sprawling parking facilities. (30) Uber is already testing driverless vehicles in the Pittsburg Area. (31)

   This paper sets forth principles and suggestions for devising a system of standardization and regulation promoting safety, economic efficiency and innovation. Collaborative solutions designed to foster innovation while simultaneously conferring benefit to the automobile and transportation industries as a whole are generally favored over intrusive governmental regulation.

2. Road Map

   Automation of driving tasks is a road well-traveled. (32) Over the years, drivers have steadily relinquished control over various aspects of their vehicles to automotive technology advances including self-shifting automatic transmissions, sound systems with self-adjusting volume based on vehicle speed, auto-on headlights and windshield wipers, and self-pulsing antilock brakes. (33) Other systems began to automate piloting functions decades ago. (34) Cruise control systems that maintain constant velocity have long since evolved into sensor-equipped self-adjusting adaptive cruise control systems that actively avoid collisions by maintaining a safe following distance. (35) Several automakers including Tesla, Honda, Volvo, Ford and Subaru currently offer semi-autonomous vehicles that can control at least some aspects of steering. (36) A system supplanting human drivers altogether can be regarded as a predictable step along a well-established historical continuum. (37) However the key distinction is that fully autonomous vehicles must be far more complex and sophisticated than current vehicles in order to operate safely without human oversight. (38) This paper defines self-driving vehicles as those that require no human intervention after the destination is programmed.

   There is no question that the current federal regulatory framework and state vehicle codes will require far-ranging modifications in order to accommodate self-driving vehicles. (39) In particular, standardization of the rules of the road would greatly simplify the challenge of designing and optimizing sensor-algorithm systems for safety and efficiency. (40) Greater consistency in state traffic rules, for instance, whether right turns are allowed after stopping for a red light, or who has the right of way in a roundabout, would arguably go a long way toward enhancing safety for all vehicle types. (41) Any potential for autonomous vehicles to compel more uniform state-to-state and international traffic laws can be regarded as a significant indirect benefit of the technology. (42)

   In light of the ongoing evolution of vehicle automation, federal auto safety regulators have taken measures to test, regulate, and even require safety features that will pave the way for self-driving cars including forward collision avoidance, backup camera, vehicle-to-vehicle communication, and lane detection systems. (43) Twenty automakers comprising nearly the entire U.S. automotive market have agreed to incorporate Automated Emergency Braking Systems in all of their vehicles by 2022. (44) Plans to release self-driving car models into the market within the next five years have been announced by mainstream companies including Ford, (45) General Motors, (46) Toyota, (47) and BMW. (48) World leading semiconductor manufacturers are investing tens of billions of dollars to position themselves to provide the sophisticated chips needed to implement the new technology. (49)

   Paradoxically the incremental and largely foreseeable development of self-driving vehicle technology gives rise to myriad unprecedented issues in areas encompassing tort law, intellectual property law, regulatory law, the automotive industry, the transportation industry, the insurance industry, law enforcement, privacy, security, and ethics. (50) Among the foregoing considerations, the bulk of legal scholarship to date has focused on tortious liability and personal injury considerations. (51) This paper is primarily devoted to other nascent questions and dilemmas arising from the imminent implementation of autonomous vehicles. Policies and solutions are discussed in terms of their conduciveness to safety, efficiency, economics, and technological innovation.

   Switching to a self-driving vehicle paradigm will require ambitious technological innovation. (52) Section III discusses how best to balance corporate incentives to develop and implement the new technology with the standardization and testing needed to ensure public safety. (53) Section IV discusses liability issues beyond the scope of the basic issue of determining fault when self-driving cars collide. (54) Transformative effects of the autonomous vehicle technology on established business models in industries such as automotive, vehicle rental, transportation, and delivery services are the focus of Section V. (55) Section VI deals with privacy, security and other issues arising from the use of self-driving and unoccupied vehicles, particularly in law enforcement and related applications. (56)

3. Licensing and Safety Registration, Please

   The development and implementation of autonomous vehicle technology will generate critical intellectual property issues, primarily around the software algorithms and sensor systems that will replace...