United States: Are You Ready For Self-Driving Vehicles?

Frederick Page is a Partner in Holland & Knight's Jacksonville office
Norma Krayem is a Senior Policy Advisor in Holland & Knight's Washington D.C. office

HIGHLIGHTS:

  • The transportation industry is on the verge of a major revolution as personal and commercial vehicles transition from incorporating some driver-assisting technologies to actually becoming highly autonomous, self-driving vehicles. To achieve full implementation, however, there are many technical, legal and ethical hurdles that need to be cleared.
  • Automotive companies already have made massive strides with highly automated vehicles (HAVs) in the last few years, and a number of companies have tested prototypes of partially and fully autonomous vehicles.
  • While at the federal level some regulatory structures are being worked out, states have moved ahead to pass laws that allow prototypes of self-driving vehicles to be tested today on public roads. However, the private sector has expressed concerns over the need for federal preemption over the states when it comes to the safety and testing of the vehicle as well as the need to update the current Federal Motor Vehicle Safety Standards (FMVSS).

The transportation industry is on the verge of a major revolution as personal and commercial vehicles transition from incorporating some driver-assisting technologies to actually becoming highly autonomous, self-driving vehicles. Human error results in more than 35,000 fatalities and more than 2.4 million injuries per year on our roadways,1 and the advent of autonomous vehicles and new technologies stand to dramatically reduce these numbers. To achieve full implementation, however, there are many technical, legal and ethical hurdles that need to be cleared.

While the concept of "intelligent" vehicles has been around for more than 20 years, the development of more accurate sensors, artificial intelligence (AI) and machine learning technologies, vehicle-to-vehicle communications (V2V) and vehicle-to-infrastructure communications (V2I) raise a host of cybersecurity, privacy and potential liability issues for every manufacturer and vehicle operator involved in the transportation system. While the issues faced by automotive manufacturers and technology vendors differ from those faced by fleet operators and motor carriers, everyone stands to benefit from the coming developments.

Automotive companies already have made massive strides with highly automated vehicles (HAVs) in the last few years, and a number of companies have tested prototypes of partially and fully autonomous vehicles. These current prototypes generally use a variety of detailed maps, GPS technologies, physical sensors and computers to navigate through their surroundings. These systems have proven to be quite effective when operating within known, defined parameters, but reports suggest they may be prone to failure when faced with real or perceived unexpected crises. There also are documented cases where cybersecurity risks have allowed hackers to take over control of portions of the vehicle and to "confuse" the sensors into "seeing" and "reacting" to things that may not exist. Changing weather conditions (such as fog, rain, smoke or thick snow that covers lane markers) also have confused or blocked sensors. V2V and V2I systems continue to be developed but face many challenges. Those include the regulatory structure needed to support the systems as well as the implementation of systems that must be integrated across many manufacturers and safe from outside interference. When implemented, these systems will allow vehicles within short range of each other to share road experiences, effectively see around corners and obstacles, and possibly avoid intersection and left-turn collisions. Combining these systems with advancing AI technologies truly could revolutionize the transportation industry.

Prototypes of partially autonomous vehicles from one company have driven more than 1.5 million miles on public roads in the United States and have been involved in 14 reported accidents. To date, 13 of these accidents were blamed on human error of other drivers. The other accident was blamed on the HAV hitting another vehicle when trying to avoid road debris. It is unknown whether any of these accidents potentially were avoidable through V2V or V2I technologies or whether the systems used were completely autonomous as the machine-human interface and systems governing the ultimate control of the vehicle in emergent situations are still being refined. There also are a number of challenges that partially and fully automated systems may experience with varying state speed limit laws, road debris, constant construction changes, geographic differences and fine color variations. At least one fatality has been blamed on a semi-autonomous vehicle operating in "autopilot mode." The vehicle collided with a trailer when the camera-based sensor system did not differentiate between the horizon and the all-white trailer. In this instance, systemic differences between the vehicle manufacturer and the sensor manufacturer exemplify the challenges. The vehicle manufacturer stated that the accident may have been prevented if the sensor systems also had incorporated radar technologies in addition to cameras. The sensor manufacturer noted that the vehicle manufacturer should better warn its drivers to stay alert and take over the driving function, if required.

These are the types of issues that the U.S. Department of Transportation (DOT) and the National Highway Traffic Safety Administration (NHTSA) have been considering over the past several years in connection with potential new regulatory regimes for HAVs to ensure the safety of the traveling public.

Safety and Regulatory Issues

In September 2016, the NHTSA released a long-awaited policy that Holland & Knight previously discussed that included guidance on autonomous vehicles. The NHTSA also sent a Final Notice for Safety-Related Defects and Automated Safety Technologies to the Federal Register, making it clear that safety issues that result from the use of automated technology, as well as cybersecurity, fit under its existing enforcement authorities. Then, in October, the NHTSA released a document, "Cybersecurity Best Practices for Modern Vehicles." The four-part policy makes clear the DOT's role and oversight of autonomous vehicles, as well as expectations on cybersecurity and privacy issues. At the same time, it suggests that changes to existing authorities may be needed.

The quick advancement by the private sector on autonomous vehicles jump-started a process during the Obama Administration and with Congress as the regulators and key decision-makers focused on how to create a regime that provides guidance to the private sector and addresses areas that the current legal and regulatory regime never contemplated. It is expected that the incoming Trump Administration and the new Congress will continue this focus. The NHTSA and the DOT have asked the private sector for recommendations on how best to update the existing regulatory structure and the current public-private sector approach to work collaboratively should continue. President-Elect Donald Trump's nominee for DOT secretary, Elaine Chao, has a long history with transportation issues. While the new team is expected to review and reassess what has happened to date, consistency going forward is likely.

The DOT also has been consistently clear about the need for strong cybersecurity and privacy components in any automated vehicles (AV) policy and has cited the White House Consumer Privacy Bill of Rights from 2015. While the Bill of Rights refers to "best practices" for cybersecurity rather than mandate specific requirements, it is clear that manufacturers should fully document "all actions, changes, design choices, analyses, associated testing and data should be traceable within a robust document version control environment." On privacy issues, while the Bill of Rights stops short of a specific mandate, it does state that manufacturers "should ensure" seven main pillars: Transparency; Choice; Respect for Context; Minimization, De-Identification and Retention; Data Security; Integrity and Access as well as Accountability.

While at the federal level these regulatory structures are being worked out, states have moved ahead to pass laws that allow prototypes of self-driving vehicles to be tested today on public roads. However, the private sector has expressed concerns over the need for federal preemption over the states when it comes to the safety and testing of the vehicle as well as the need to update the current Federal Motor Vehicle Safety Standards (FMVSS) to accommodate for the changes regarding the use of fully autonomous vehicles.

Many key issues remain unresolved regarding liability and ultimate responsibility for fully autonomous vehicles. While the use of AI underlines all potential technology, ethical issues remain since humans will ultimately be programming the AI systems and dictating how it responds to the same challenges that humans face on the roadways. The issues faced by partial or fully automated vehicles also will be multiplied during what likely will be a lengthy transition period while older vehicles remain in service (including ones that do not communicate with V2V technologies).

Nevertheless, as has been seen with many other safety-related technologies, it is only a matter of time before claims are made for the failure of a vehicle manufacturer or fleet operator to install and take advantage of available accident-avoidance or accident-reduction automated technologies and/or for the failure of those technologies to prevent or reduce the severity of an accident when utilized. Failures in the technology in autonomous vehicles also means the vehicles will have to be able to communicate with human passengers in the event that the human needs to take over control in a crisis. There are a host of liability issues surrounding the use of these technologies and much more work is needed to ensure issues are clearly worked out. Consumers and the range of companies within the transportation system will need to work closely together with the insurance community to structure programs that can meet the needs of all involved.

Footnote

1. National Highway Traffic Safety Administration: "Traffic Safety Stats," August 2016

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Foley & Lardner
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Foley & Lardner
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions