The black box solution to autonomous liability.

• Author: Bose, Ujjayini

Imagine walking out your front door, newspaper and coffee in hand, ready to start the day. You open your car door, press the on button and proceed to work on today's crossword, sipping your coffee, as you are chauffeured to work by your autonomous vehicle. Imagine the significance of this ride. Imagine the productivity you gain--an extra hour for work? An extra hour of reflection? Imagine the benefits to your family--your elderly parents could achieve their desired independence, and you would not have to worry about your teenager crashing into a mailbox every time he or she pulls out of the driveway.

More importantly, imagine the potential to save lives. Autonomous vehicles may significantly lower the number of car accidents in the United States. (1) As human error has been found to be a contributing cause of over ninety percent of car accidents, (2) taking responsibility for driving out of the hands of the driver would significantly decrease the number of accidents that occur every year, and save thousands of lives. (3)

While the idea of a car that drives itself evokes images of science fiction, autonomous vehicles are no longer relegated to Minority Report (4) and I, Robot (5)--rather, they are being developed today by Google, (6) Toyota, (7) Nissan, (8) Audi (9) and Tesla. (10) There is no question that such Car functions fit into five categories: no-automation, function-specific automation, combined function automation, limited self-driving automation, and full self-driving automation. (11) No-automation is the type of driving experience that is currently the norm: the driver has full control of steering, speed, and other functionality. Function-specific automation, combined function automation, and limited self-driving automation are intermediary levels of automation, ranging from antilock braking systems to adaptive cruise control. (12) Full self-driving automation is the most advanced of these categories and is the type of functionality envisioned in an autonomous vehicle. These vehicles are "designed to perform all safety-critical driving functions and monitor roadway conditions for an entire trip." (13) Essentially, they replace the driver by guiding and operating themselves. This frees the user's time, creates opportunities for individuals with less mobility, and increases overall road safety. For all of the benefits, autonomous vehicles raise a number of issues that have yet to be tackled by legislators or legal scholars.

The first of these questions is a threshold question: To avoid barriers to manufacturing related to tort liability, what could manufacturers use to correctly determine who is liable in tort in the event of a car crash? This Note argues that the inclusion of a mechanism to monitor and record data about vehicle functioning, known as an Event Data Recorder ("EDR"), aboard autonomous vehicles is the solution. This technology is analogous to the Flight Data Recorders ("FDR"), colloquially known as a "black box," found on airplanes. An FDR records and transmits information about the airplane's functionality, as well as pilot error. By analyzing this information, investigators can easily determine whether the cause of a plane crash was human error or mechanical failure. The same would apply to autonomous vehicles. Manufacturers would be more secure about their financial liability in tort claims, thus increasing their willingness to develop the new technology. However, issues related to the data recorded on EDRs will arise that may prevent manufacturers and users from adopting the technology. To provide comfort for users while protecting manufacturer interests, consumer privacy protections must secure and limit EDR data usage. Vehicle user ownership of the EDR data and a requirement of affirmative consent for any commercial use of data should be mandated.

This Note will explore the development of autonomous technology, barriers to manufacturing, a solution in the mandatory inclusion of EDRs aboard autonomous vehicles, and consumer protections that must be put in place to secure EDR data. Part I will provide a background of autonomous vehicles, including historical development and current legislation. Part II will discuss the issue of tort liability and how it may serve as a barrier to manufacturing of autonomous vehicles. Part III will argue that requiring EDRs on autonomous vehicles will ensure car manufacturers that liability will be assigned accurately, and the manufacturers will be responsible for only failures of their own products. Part IV asserts that consumer privacy protections must be implemented to prevent misuse of EDR data.

1. BACKGROUND OF AUTONOMOUS VEHICLES

   1. Historical Development

      As a result of the potential societal benefits from autonomous vehicles, the incentives for creating this technology have become apparent. Originally, the idea of self-driving vehicles arose from the national security interest in creating unmanned vehicles that could be used for military purposes. (14) In 2004, the Defense Advanced Research Projects Agency ("DARPA") created the Grand Challenge, which challenged inventors to create cars that could drive themselves 150 miles across the Mojave Desert. (15) While no cars completed the 2004 Grand Challenge, (16) DARPA extended another challenge in 2005. (17) During the 2005 Grand Challenge, five cars completed the 132-mile course over desert terrain, (18) with four of the cars completing the race in less than ten hours. (19) In 2007, DARPA held its last Grand Challenge, requiring cars to drive sixty miles "in an urban environment, complete with four-way stop signs, lanes that merge, and moving vehicle traffic." (20) Six teams successfully completed the final challenge. (21)

      Google Inc. ("Google") became enamored with the prospect of creating self-driving cars. In 2005, one of their engineers, Sebastian Thrun, led the Stanford Racing Team to victory in DARPA's 2005 Grand Challenge. (22) Thrun and Larry Page, one of Google's co-founders, were early promoters of the potential of autonomous cars to "make highways safer and lower the nation's energy costs." (23) Over the next six years, Google continued investing in autonomous vehicle technology.

      In 2011, Google decided it had the capacity to put autonomous vehicles on public roadways and began lobbying for preemptive legislation to deal with the introduction of autonomous vehicles. (24) On June 4, 2011, Google lobbyist, David Goldwater, spoke before the Nevada Senate Committee on Finance in support of legislation allowing autonomous vehicles to operate on the public roadways of Nevada. (25) Goldwater's statements indicated the leaps and bounds Google had made in its autonomous technology since the Grand Challenge in 2005. (26) Instead of manufacturing its own cars, Google harnessed the existing technology in cars such as the Toyota Prius and Audi TT, and added the systems necessary to allow the cars to operate autonomously. (27) According to Goldwater, an autonomous vehicle "uses artificial intelligence, global positioning system, radar, lasers, cameras and internal sensors to create a three-dimensional view of the road." (28)

      While Google may be the "pioneer of self-driving cars," (29) other car companies are quickly getting into the business. Audi AG and Toyota Motor Corporation ("Toyota"), both companies whose vehicles Google is currently using to test its autonomous technology, are beginning to develop their own autonomous models. (30) Nissan Motor Co., Ltd. ("Nissan") is also planning to enter the autonomous vehicle market. Nissan's goal, according to its current Chief Executive Officer Carlos Ghosn, is to place an autonomous vehicle on the market by 2020. (31) Among the potential developers is Tesla Motors, Inc. ("Tesla"), an innovative car company known for its electric vehicles. Tesla Chief Executive Officer, Elon Musk, stated that his company plans to produce autonomous vehicles by 2016. (32)

   2. Current Legislation

      With the rise of competition and the creation of the new marketplace, companies interested in investing in autonomous vehicle technology are lobbying for regulation of new issues that will arise as a result of autonomous vehicles. With the advent of these new vehicles, "technology is now advancing so quickly that it is in danger of outstripping existing law, some of which dates back to the era of horse-drawn carriages." (33) Cars operated by humans have extensive regulations and many of these will apply to autonomous vehicles. Autonomous vehicles, which are controlled by GPS and sensors as opposed to a human driver, will raise a myriad of new issues that may not be reconcilable with current regulations. Among these issues is tort liability--specifically, determining the party responsible for causing a vehicular accident. This Note will focus on providing and defending a method that may be used to establish liability in case of an accident.

      According to Google lobbyist David Goldwater, "forward-looking" legislation may allow states to avoid the problem of "technology outpacing] the law." (34) If states are able to promulgate laws to deal with predictable legal issues, citizens and businesses will both have legal guidance in making decisions about the technology during the development process and when it is released.

      Currently, Nevada, California, Florida, Michigan, and the District of Columbia have adopted regulations for autonomous vehicles. (35) Nevada was the first state to pass legislation on autonomous vehicles. (36) Its law went into effect on March 1, 2012, and the first autonomous vehicle driver's license was issued on May 8, 2012. (37) Nevada was followed by Florida, (38) California, (39) and the District of Columbia. (40) Effective March 2014, Michigan also passed legislation. (41)

      All four states and the District of Columbia have passed similar regulations in a number of areas. All have defined autonomous vehicles using similar language, such as "a vehicle...