Will Your Self-Driving Vehicle Need a License? Jennifer

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1 Will Your Self-Driving Vehicle Need a License? Jennifer Dukarski@Butzel.com

2 Dogs and Elevators and Driverless Cars

3 A Thought: Can the Law Keep Up With Tech? Probably not with the advent of SPAM we turned to A writ of trespass de bonis asportatis otherwise known as Trespass to Chattels (in CompuServe v. Cyber Promotions 1997)

4 The U.S. Landscape Automated Driving Systems 1.0, 2.0 and 3.0? House Legislation: SELF DRIVE Act Senate Legislation: AV START Act State Patchwork Cities?

5 START Stop and Maybe Go Again Too slow on new AV-related safety standards Should provide the same level of safety to vehicle occupants in a crash as required in current standards Indefinite preemption of state and local regulations even if federal safety standards are never developed Insufficient cybersecurity and privacy safeguards The requirement for submitting safety-evaluation reports (not broad enough - also should apply to Level 1 and 2 vehicles)

6 Will Your Self-Driving Vehicle Need a License? CURRENT REGULATORY APPROACH: STAY IN YOUR SWIM LANES!

7 Roles and Responsibilities Federal Safety Standards Enforcement of FMVSS Recall and Noncompliance Communication with the public State Licensing and registration Traffic laws and regulations Safety inspections Insurance Liability

8 The Threshold of Self-Certification? Pressure is mounting to collect data and provide additional scrutiny But is this the end of our selfcertification regime? And will this tradeoff truly impact consumer confidence?

9 Safety Standards: Preemption and State Vehicle Regulations When NHTSA regulations are only intended to create a minimum safety standard, states are free to adopt common law rules which require a greater level of safety. O'Hara v. Gen. Motors Corp., 508 F.3d 753, 759 (5th Cir. 2007) What happens if a state passes something that isn t conflicting, but is different from all other states? Example X by wire: [o]ne of the means of brake operation shall consist of a mechanical connection from the operating lever to the brake shoes or bands. Ga. Code Ann (a) (West 2013).

10 Traditional Automotive / Driver Liability Traditional Negligence: Drivers have a duty to take reasonable care when driving their vehicles. They are then liable for the injuries that they cause where they have breached the duty or reasonable care. No Fault Liability: In many states, automobile accident victims may not sue other drivers under tort law, depending on the law, unless injuries are at a certain degree of severity. The intent of such laws is to compensate victims through their insurance policies. Strict Liability: Strict liability may come into play where a driver is involved in an abnormally dangerous or ultrahazardous activity, although such application is extremely rare.

11 Traditional Product Liability Negligence: Product manufacturers have a duty to exercise a reasonable degree of care in designing products to be safe when used in used in reasonably foreseeable ways. Strict Liability: A company can be held responsible if it manufactures and sells a defective product causing harm to a person or property. Strict liability includes: Design Defects Manufacturing Defects Failure to Warn Breach of Warranty: Assurances, either express or implied, that goods are of sufficient quality. Misrepresentation: Reliance on false or misleading information that leads to harm.

12 Will Your Self-Driving Vehicle Need a License? WHY IT MATTERS: CURRENT FLAWS AND RISKS IN SELF DRIVING CARS

13 Disengagement When a driverless car encounters difficulty, it will disengage and require a human driver to quickly take over the vehicle. This switch can occur based on a hardware failure, software failure, or perception of a problem by a driver.

14 Cybersecurity As noted in the Guardian, [s]elf-driving cars will prove an irresistible target for hackers if they ever hit the roads. Although many recent studies demonstrate the susceptibility of traditional cars to such cyberattacks, the stakes may be higher for autonomous vehicles which could be weaponized or rendered immobile with ransomware.

15 Sensor Evolution Currently, vehicles equipped with LIDAR, radar, cameras and other sensing technology are often limited in the processing and detection in the areas of lane identification and roadwork. The 2015 Detroit Test Drive Fail: Tar vs. Road Lines Tar wins. The result: a disengagement where the driver needed to take control to avoid merging into another car on a congested highway.

16 Unusual Objects Along with traditional obstacles like cyclists and pedestrians, an autonomous vehicle may encounter new items that create challenges for its programming. The Great November 2017 General Motors Bolt / Taco Truck Standoff: A Reuters reporter was involved in a ride-along on the streets of San Francisco when the car was thwarted by a taco truck where people were waiting in line for lunch. After waiting more than a minute, the driver took control of the vehicle and navigated the Bolt away from the lunch rush.

17 Overall, driverless vehicles also find the unpredictable behaviors of humans to be difficult. Key examples include: Pedestrians that jaywalk Drivers who try to bully driverless cars Drivers who tend to break or bend driving regulations People

18 Will Your Self-Driving Vehicle Need a License? THE ROLE OF INDUSTRY GROUPS AND DESIGN TEAMS

19 The Role of Industry Groups The level of action within groups like SAE, IEEE, ISO and others has been significant. These groups, comprised by stakeholders, employees, engineers and other professionals have been recognized for their ability to continue collaboration with NHTSA and develop criteria that may be incorporated by reference into future guidelines.

20 Contemplate The Ethics of Autonomy From Moral Machine (MIT) The Trolley Problem IEEE s Principles of Ethically Aligned Design Transparency - Human Benefits Data access controls - Economics Ethics Commission on Automated Driving 20 Ethical Propositions (Germany) Connectivity is an imperative if the system causes fewer accidents Target harm minimization to people All human life is equal

21 Risk Mitigation The Design Team s Role Use the right tools Quality Function Deployment (QFD) Failure Mode and Effects Analysis (FMEA) Test Plans To achieve a robust strategy Assess alternative designs Reflect on newsworthy cases and lessons learned Consider culturally competent data sets Edge cases!

22 Planning for Uncertainty Understand the role of Government Affairs and Legal Promote participation in Standards organizations Follow the emerging trends by monitoring news and blogs Speed Dating with NHTSA (get to know your regulators) Butzel Long 2015

23 Don t pencil-whip safety, quality, or engineering documents. It s a matter of personal pride and professionalism. Capt. Chesley Sullenberger

24 Thank you! Jennifer Dukarski

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