A Patch with the Dev-il: How the Development of Autonomous Vehicle Software Will Challenge Attorney-Client Privilege

• Author: Dawson Honey
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A., The College of Wooster (2019)
• Pages: 1043-1055

A Patch with the Dev-il: How the Development of

Autonomous Vehicle Software Will Challenge

Attorney-Client Privilege

DAWSON HONEY*

INTRODUCTION

As Hurricane Irma approached the Florida coast, Tesla released a software

update that temporarily boosted the range of all of their vehicles in the area to

help those fleeing the storm.

1

The proliferation of software features in tradition-

ally mechanical vehicles poses novel ethical questions to developers, engineers,

and lawyers.

2

Software patches can be applied remotely, allowing manufacturers

to instantaneously shift the behavior of entire fleets of vehicles.

3

However, not all

vehicle software updates proceed from good intentions. In 2015, Volkswagen cir-

cumvented pollution limits by installing software that temporarily improved the

engine’s emissions whenever it detected that the vehicle was being tested.

4

Autonomous Vehicle (“AV”) software is on a collision course with compli-

cated ethical questions that will entangle the moral choices of developers with the

legal obligations of the lawyers who represent them.

5

The hardware to control

vehicles already exists, but the software for truly independent driving is an

ongoing effort that has seen steady improvement through regular patches.

6

The

Hurricane Irma incident demonstrates that an AV company could introduce an

unannounced software patch to all of their vehicles that would instantly change

the way their autonomous features operate.

A central issue in the morality of AVs is how software will be programmed to

deal with conflicting or ambiguous situations. Computers are not limited by

* J.D., Georgetown University Law Center (expected May 2022); B.A., The College of Wooster (2019).

© 2021, Dawson Honey.

1. Brian Fung, As Hurricane Irma bore down, Tesla gave some Florida drivers more battery juice. Here’s

why that’s a big deal, WASH. POST (Sept. 11, 2017), https://www.washingtonpost.com/news/innovations/wp/

2017/09/11/as-hurricane-irma-bore-down-tesla-gave-some-florida-drivers-more-battery-juice-heres-why-thats-a-

big-deal/ [https://perma.cc/95NQ-LZFY].

2. See generally Sven Nyholm & Jilles Smids, The Ethics of Accident-Algorithms for Self-Driving Cars: an

Applied Trolley Problem?, ETHIC THEORY MORAL PRAC. (Jul. 28, 2016).

3. See id.

4. Russell Hotten, Volkswagen: The scandal explained, BBC (Dec. 10, 2015), https://www.bbc.com/news/

business-34324772 [https://perma.cc/3SNX-PVKV].

5. Nyholm & Smids, supra note 2 at 1281.

6. See Steven Loveday, Elon Musk Says Tesla Is ’Very Close’ To Level 5 Self-Driving Technology, INSIDE

EEVS (Jul. 9, 2020), https://insideevs.com/news/433141/elon-musk-tesla-level-5-autonomous-driving/ [https://

perma.cc/7DNR-KP6C].

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