Implications of the Pursuit of the Driverless Car
Stakeholders need to stay ahead of the regulatory curve, as laws on the state and federal levels will change in tandem with technological developments.
January 5, 2015
Although it is unclear when, autonomous vehicle technology is certainly coming. Stakeholders will want to carefully consider the following implications before consumers take this technology for a spin.
Telematics Data Privacy and Security
Telematics systems generate a lot of data, including location, direction and speed of travel, raising questions as to who has access to this data and how it can be used. Privacy concerns also abound, including how long data is stored, who can access it and what constitutes consent for data collection. In November 2014, 19 automakers committed to a set of principles to protect data streamed or downloaded from onboard computers. This is a start, but further discussions will be needed as technology evolves.
As high-profile data breaches continue to make headlines, data security also is a key consideration. Stolen credit cards can be canceled and replaced. Much more is implicated if your car is stolen. The U.S. military has conducted tests on telematic cars where hackers were able to operate various aspects of the vehicle including safety features.
Manufacturers need to take security to the next level to protect drivers from cyberthieves seeking to sell GPS coordinates and VINs to car thieves or from attempts by hackers to commandeer vehicles. Protocols will need to be put in place to administer security patches, and contracts need to spell out responsibility for these patches. Crisis plans should be developed in preparation for a security breach or if vulnerability is exploited.
Regulating Driverless Cars
What will change as the government creates regulations and safety standards for autonomous vehicles? The answer is complicated by our constitutional division of responsibility between state and federal government. The result is most likely to be regulatory changes coming from both.
California has taken the lead with the Department of Motor Vehicles’ new testing rules requiring drivers be able to take “immediate physical control” of a vehicle in the event of an emergency. The guidelines resulted in design changes for Google’s driverless car prototype. Other substantial issues could include whether there should be federal standards regulating usage in different conditions due to climate, terrain, density or other factors.
Stakeholders need to stay ahead of the regulatory curve, as laws on the state and federal levels will change in tandem with technological developments. Proactively engaging lawmakers now may help avoid some of the disconnect between proposed regulations and driverless technology. A cautionary attitude should be taken as even though a car meets federal standards, the product design, production or operation could still be subject to tort concepts of negligence. As such, product liability issues can arise relating to negligent design and defects.
Dealing With Ethics (and Overrides) for Telematics Technology
Some of the most paramount ethical and legal issues surrounding autonomous-vehicle technology relate to its real-world application.
Can or should crash-avoidance software be programmed to address the decisions drivers traditionally are responsible for making? Telematic sensors use electromagnetic waves to detect pedestrians, cars and other obstacles. But when an emergency situation arises and the telematics system has to make a moral decision between two bad choices (swerve to avoid colliding with a car but potentially strike a pedestrian or collide with a car to avoid the pedestrian), how will the computer respond and who is liable for that decision?
The driverless car offers the ultimate in distracted driving, blurring the lines between driver and passenger. States will need to determine the requirements for vehicle operation (will there be a license required if there is no vehicle operator or restrictions on users, usage relating to time of day, weather or school zone?). NHTSA since May 2013 has not updated its policy regarding driverless vehicles, which stated that it does not recommend states authorize the operation of self-driving vehicles for purposes other than testing.
Questions regarding liability likely will come through the courts. In the event of a crash, who is liable when the vehicle is not under the driver’s control? To what extent and how quickly was the driver able to override the system? If the driver did or did not override the system, is the technology or car manufacturer responsible? Determining the assumption of risk will not be a cut-and-dried decision. Looking beyond the vehicle operator, investigators will be closely examining product design, maintenance and so forth, opening the door to potential recalls.
Robert Huey is a partner in the Washington office of Foley & Lardner, where he is a member of the Transactional & Securities and International practices and the Automotive Industry Team. He can be reached at 202.295.4043 or [email protected].
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