Opening the Door to Self-Driving Cars: How Will This Change the Rules of the Road?

By Pearah, Paul J. | The Journal of High Technology Law, July 2017 | Go to article overview

Opening the Door to Self-Driving Cars: How Will This Change the Rules of the Road?


Pearah, Paul J., The Journal of High Technology Law


I. Introduction: Fueling the Driverless Revolution

That which only a few years ago seemed futuristic or even unattainable is now bearing down on us with the momentum of an 18-wheeler: vehicles that autonomously drive passengers or cargo to predetermined destinations. (1) However, widely publicized accidents involving semi-autonomous vehicles including fatal crashes of Tesla cars operating in "Autopilot" mode have heightened safety concerns. (2) In September 2016, President Obama and Transportation Secretary, Anthony Foxx touted the promise of self-driving cars to enhance the convenience, efficiency and safety of day-to-day travel. (3) The federal government is budgeting for an expanded role in regulating this emerging automotive technology. (4)

Diverse considerations compel governmental intervention to address legal, technological and public safety concerns. (5) These issues affect nearly everyone due to the pervasive nature of automobile travel in modern society--drivers in America drive an average of more than 1100 miles per month. (6) Automobile travel entails inherent safety risks as evidenced by the more than 35,000 traffic fatalities occurring annually in the United States alone. (7) Autonomous vehicles (8) pose a devastating threat to the automobile collision repair and insurance industries, (9) which may attempt to put up roadblocks to the technology. (10) Many people are inherently fearful and skeptical of science and technology, (11) and will likely condition their adoption of self-driving cars on the assurance of governmental regulation. (12) The U.S. media's unrestrained penchant to sensationalize anomalous occurrences will likely exacerbate public fear and skepticism. (13) For instance detailed media accounts of the aforementioned fatal Tesla crashes create a compelling image in the mind of the media consumer in a way that more relevant and meaningful statistical data cannot rival. (14)

The looming self-driving car revolution raises a multitude of legal and business related issues. (15) For instance, in anticipation of autonomous vehicle safety regulation, manufacturers will likely be required to share pertinent software code and standardize the manner in which conflicts are resolved in complex or ambiguous traffic situations. (16) Corporations, safety experts and the government will have to work together to strike a balance between patent and trade secret protection on the one hand, and technology standardization for public safety on the other. (17) Given the global nature of the automotive industry, policies addressing intellectual property and standardization concerns should be crafted with an eye toward international implementation. (18)

While self-driving vehicles are expected to be far safer than driven vehicles, (19) no computer, sensor, road, or algorithm is perfect, and accidents will inevitably occur. (20) When driverless cars are used for delivery or taxi service, common carrier liability might be a sensible solution. (21) However it is unclear how much responsibility a self-driving car occupant who programs the destination, route or other parameters influencing the behavior of a self-driving car should assume. (22) For example, an occupant might decide to travel at night in adverse weather conditions such as freezing rain that greatly increase the probability of an accident. (23)

Additional complexity will arise from a period of approximately a couple of decades during which self-driving and legacy technology vehicles will inevitably coexist on the same roadways. (24) Pioneering applications of autonomous vehicles are likely to be implemented in geographically constrained fleets such as buses, taxis or delivery vehicles for which the challenge of maintaining up-to-date maps and rules is more manageable than in the case of a passenger vehicle that might conceivably travel to any place accessible by road. (25) Even when autonomous vehicles are made available to consumers, adoption will be gradual; the average age of vehicles currently on the road is 11. …

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