New Regulations for Self-Driving Cars

In “Automated Driving Systems 2.0: A Vision for Safety” (the Vision), the U.S. Department of Transportation updated its safety guidelines for the testing, manufacturing and deployment of self-driving, or autonomous, vehicles. The new version is not only significantly more relaxed than its predecessor, but also emphasizes its voluntary nature “this Guidance is entirely voluntary, with no compliance requirement or enforcement mechanism.” Car manufacturers and technology companies are praising the new guidelines as they allow these entities broad discretion by “encouraging the self-establishment of industry safety norms.” Essentially, the DOT is advocating for these entities’ independence in establishing the standards for employee training, consumer educating, and overall quality in the autonomous vehicle industry. However, giving private businesses full reign to establish adequate standards for their own products creates the unavoidable risk of companies prioritizing their own financial self-interests over the interests of public safety.

While the Vision’s goal is promoting innovation in the autonomous vehicle industry, it is unclear how it will be implemented without stripping State and Local governments of regulatory power. In the Vision’s Introductory Message, U.S. Secretary for Transportation, Elaine L. Chao, contemplates “a future” where “the elderly and people with disabilities gain access to the freedom of the open road” with self-driving cars. However, this is rather a bold assertion as it presumes that either the States will proactively revise current legislation to reflect and support the self-established industry norms, or Congress will preempt the States from legislating on self-driving vehicles. The Vision states, “NHTSA is responsible for regulating motor vehicles and motor vehicle equipment, and States are responsible for regulating the human driver and most other aspects of the motor vehicle operation,” yet it is unclear where on the spectrum a human driver behind the wheel of an autonomous vehicle would land – under NHTSA’s or the State’s regulatory power? Assuming self-driving cars allowed the elderly and disabled wider access to “the open road,” this would necessitate a more lenient revision of licensing requirements as well as traffic laws and regulations.

It is inevitable that self-driving vehicles will lower both driver alertness and control as the driver will be allowing the autonomous system to maintain primary control over the vehicle. Minimizing human interaction could trigger an influx of potential concerns, including questions of accountability. If an autonomous system fails to acknowledge a red light or perceive a merging vehicle resulting in a crash, should the driver, the manufacturer, or both be held accountable and to what extent? Beyond liability, how will driver alertness be mandated, measured and enforced? Will autonomous vehicles substitute the driver or supplement driving? Misclassifying autonomous vehicles as substitute drivers instead of a complement to driving (and vice versa) could easily transform self-driving vehicles’ safety function into a safety hazard; under-reacting to a situation can be just as dangerous as over-reacting, and the hazards associated with both can be expected to increase as driver alertness decreases. According to the Vision, consumer education and employee training (which could minimize risk) should be the responsibility of the manufacturer, but it is highly unlikely a manufacturer’s commitment to public safety would come at the expense of finalizing a sale. So the final question is… how effective can we really expect self-serving safety standards to be?