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


  • 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.


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.

In association with
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.