SELF-DRIVING CARS: ON THE ROAD TO A NEW REGULATORY ERA.

• Author: Browne, Brian A.

INTRODUCTION

Self-driving cars shatter the schism between federal and state safety regulations for automobiles in the United States. The federal government, through the U.S. Department of Transportation (DOT) National Highway Traffic Safety Administration (NHTSA), currently regulates the manufacturing safety standards of vehicles, whereas state governments regulate the operation of vehicles. (1) But fully autonomous self-driving cars will replace human drivers with computers, uniting manufacturers with the task of operating the vehicle. The introduction of fully autonomous self-driving cars, therefore, creates an imminent regulatory challenge for federal and state agencies to determine how to regulate self-driving cars.

In Part I, this paper will define self-driving cars and their benefits, describe the imminent safety issues they present for regulatory agencies, and introduce the most commonly analyzed legal issues for self-driving cars. Part II will give background information on the United States regulates motor vehicles by first describing the federal government's traditional role in regulating vehicle safety via NHTSA. Then, Part II will explain the preliminary actions NHTSA and several state governments have taken to preliminarily regulate self-driving cars. Part III will compare two approaches to creating a new regulatory regime for self-driving cars: a federal approach and a state approach. Part III will begin by examining the legal authority of NHTSA to regulate self-driving cars, and what authority the states may retain. Then, Part III will compare the practical benefits and drawbacks of seeking enhanced federal regulations versus a state-by-state approach to regulation. Finally, Part VI will show that NHTSA's use of a model national policy is the best way to prospectively regulate self-driving cars because it combines the strengths of a consistent national policy with the flexibility of state rulemaking.

1. DEFINING SELF-DRIVING CARS AND THEIR IMPACT

   In time, self-driving cars will not only radically change the way we move, but they will radically change the way we live. They have the potential of curbing traffic accidents and fatalities, creating more independence for disabled individuals, and reforming the way we build streets and cities. (2) But before our most optimistic dreams for self-driving cars can become a reality, it is important to understand where the technology stands today and what obstacles may impede their introduction to market. This section will first define the various levels of automation for self-driving cars and describe the predicted societal benefits of both semi-autonomous and fully autonomous vehicles. Next, this section will describe some of the imminent safety issues that self-driving vehicles will present for regulatory agencies. Finally, this section will describe the legal issues for self-driving cars typically explored in academia: liability, privacy, and security. Despite the focus in legal academia on liability, privacy and security, the oft overlooked and more pressing legal obstacle is the upheaval that self-driving cars will bring to the traditional regulatory schism between federal and state regulatory agencies.

   1. THE FOUR LEVELS OF SELF-DRIVING CARS

      The term "self-driving car" is misleading because self-driving cars can have various levels of automation. To better understand the differences between the levels of automation that cars can have, NHTSA created a classification system. Level 0, where the driver controls all aspects of the vehicle's movement, encapsulates automobiles that lack any automated feature. Even vehicles with relatively new safety features, such as adaptive headlights, (3) can be characterized as Level 0 because the driver still retains all control of the vehicle's operation. (4) Level 1 vehicles contain at least one automated control function such as electronic stability control (5) or pre-charged brakes that are used in isolation. (6) Other automated features could include lane centering, adaptive cruise control, (7) and automatic emergency braking. (8)

      Level 2 consists of vehicles that combine specific control functions, such as when adaptive cruise control and lane centering work in unison. (9) These "semi-autonomous" vehicles are already on the road. In June 2015, Volvo introduced its pilot assist feature when it released the XC90 sports utility vehicle. (10) In October 2015, Tesla released an update for its cars, called Auto Pilot that allows the cars to autonomously drive and shift lanes on highways. (11) By the end of 2016, Nissan will release an affordable semiautonomous vehicle, priced at a mere $21,500 that can autonomously drive under heavy highway traffic conditions. (12)

      Level 3 vehicles, like Google's self-driving car prototype, allow the driver to cede all control to the car's computer system under favorable weather and traffic conditions. Drivers of Level 3 vehicles are required to be ready and able to take control of the vehicle in certain circumstances. Level 4 is a fully autonomous vehicle that allows the driver (or "passenger") to submit a destination or route but requires no further input for the trip. Level 4 vehicles do not require passengers at all. (13) In fact, Google aims to create a Level 4 car that requires no steering wheel or pedals by 2020. (14)

      According to the Insurance Institute for Highway Safety, if all cars added several Level 0 and Level 1 features, namely forward collision and lane departure warning systems, side view (blind spot) assist systems, and adaptive headlights, then nearly one third of all crashes and fatalities could be prevented. (15) Nevertheless, much of the hype around self-driving cars focuses on expected benefits from fully autonomous vehicles of Level 4. (16) First, self-driving cars will eliminate the human errors that often cause car crashes. Self-driving cars will be able to measure safe distances between each other and more quickly react to obstacles. In addition, some predict that fully autonomous cars will drastically reduce individual car ownership because households often have little "trip overlap," or periods where multiple members of a household commute at the same regular times. (17) As a result, people could summon an empty car to provide them with a ride once it drops off the first passenger of the morning. Furthermore, parking needs are predicted to fall as cars will no longer need to sit idle between trips, but rather can be used to transport other passengers. (18) Combining reduced parking needs with the lack of individual car ownership and improved vehicle efficiency will help to ease congestion on the roads. (19)

      Self-driving cars will also be able to safely draft off of each other, (20) allowing for a more efficient fuel usage, and denser lanes for driving. (21) Additionally, car insurance rates will decrease or become part of the cost of the car. (22) Many predict that the cars will also allow disabled passengers more mobility, (23) provide inebriated passengers a safe trip home, (24) and permit workers to spend their trips to and from work more productively. (25) Despite the many benefits fully autonomous cars will bring, there are numerous safety issues self-driving cars will present in the immediate future.

   2. IMMINENT SAFETY ISSUES FOR SELF-DRIVING CARS

      Self-driving cars may seem like a distant reality, (26) but the transition to semi-autonomous and fully autonomous cars presents immediate and unique safety issues. As stated above, semi-autonomous cars are already on the road. (27) The potentially slow transition to fully autonomous cars may contribute to distracted driving, causing an increase in crashes. Furthermore, Level 0 vehicles, along with pedestrians and cyclists, will likely dominate the roadways for the immediate future. (28) As a result, it is likely that accidents will result from the confusion between computer-driven and human-driven vehicles.

      Despite the excitement about fully autonomous vehicles, regulatory agencies must plan for and address the potential issues that vehicles from Levels 1 through Level 3 ("semi-autonomous vehicles") will introduce within the next few years. These semi-autonomous cars will require the driver to remain alert and ready to intervene in the car's regular operation. Since one of the benefits of a self-driving car is its ability to share some driving responsibilities with the driver, many drivers will likely make use of their newly freed hands, feet, and attention. Drivers may place too much trust in their cars (29) and distract themselves because they are looking at their phones, crossing their legs, and occupying their hands with a smartphone or tablet. The less active driving becomes, the more people will be susceptible to distractions that prevent them from making quick driving decisions.

      In addition, the potential for misguided expectations among human drivers, pedestrians, and cyclists about how self-driving cars operate may initially result in an increase in crashes. (30) Moreover, the reverse will likely be true as well: self-driving cars are likely to slavishly follow the rules of the road in a world where human drivers and pedestrians behave erratically. According to Google, which keeps records of all incidents with its self-driving car fleet, human drivers caused collisions with the self-driving cars fourteen times since 2009. (31) The car has only been the cause of an accident once. (32) Therefore, although self-driving cars are mostly accident-free, there is still a safety issue with how the cars will interact with other drivers.

      To be sure, the new automated features of semi-autonomous vehicles still have the potential to curb traffic accidents and make commuting more convenient. By one estimate, automatic emergency braking in cars can yield a thirty-five percent decrease in insurance claims for bodily injury. (33) Further, adaptive cruise control can make driving long distances less...