Motor Mouth: Autonomous cars still pose a legal quagmire

Challenging lawyers is never a good idea. Fraught as it is with loopholes, whereases and interminable subordinate clauses, legal opinion is deliberately indecipherable specifically because the law — and the incredibly high cost of litigation — depends on confounding us. Inscrutability is the profession’s metier, the more confused we remain, the more likely we are to pay $400 an hour for legal advice.

Thus, it is with great trepidation — I’ll baldly admit that I did not pore over a thousand pages of legalese to reach the conclusions of this rant simply because I know I would be none the wiser — that I publicly challenge a lawyer’s opinion.

Said legal beagle — John Villasenor — is a scholarly sort, being a fellow at the Brookings Institution and a professor at U.C.L.A. More pertinent is that Mr. Villasenor has penned a treatise — Products Liability and Driverless Cars: Issues and Guiding Principles for Legislation — on the legal ramifications of one of the most game-changing of technologies to ever hit the automotive industry: autonomous cars.

Motor Mouth: Who’s liable when a self-driving car crashes?

Now, most industry experts and pundits alike see said legal ramifications as the major impediment to roads filled with cars that drive themselves. One could argue that the various sensors and computing technologies aren’t quite ready for prime time (they’re certainly not ready for Canadian winters), but compared with the question of who is liable when a driverless car plows through a school bus full of toddlers, the technological questions are hardly insurmountable.

I suspect that is why Mr. Villasenor has received so much press lately, the New York Times and The Atlantic both looking on his conclusions favourably. If I am reading this right — and, again, a comprehensive understanding of the English language is no guarantee of understanding legalese — Mr. Villasenor is positing that we need not worry about legislating laws specific to the nuances of driverless motoring because the current safeguards serve us so well. Indeed, maintaining the status quo is one of the paper’s main points, “Preemptively resolving liability issues should not be a precondition to commercial rollout of autonomous vehicles,” writes Mr. Villasenor. He goes on to note that “products liability law has proven to be remarkably adaptive to new technologies.”


Volvo’s “Drive Me” project aims to put self-driving cars on public Swedish roads by 2017. Volvo’s autonomous cars use a series of radars and sensors to detect surroundings all-around the car.
Handout, Volvo

I suspect that might be a bit of a tough sell with yet another case of corporate villainy in the automotive industry — General Motors’ problematic ignition switch debacle — making headlines around the world. No matter how it is sliced or diced, the decades long delay between malfeasance and public admission (never mind the scandalously picayune US$35 million penalty) is hardly proof that regulatory bodies and court systems are serving us well.

And that is for a technological fault — the ignition key turned itself off thus disabling the entire car — that is easily understood. Methinks the technological faults of the future — almost all electronic and mostly frustratingly intermittent — will challenge juries and jurists alike. Indeed, while the mechanical aspects — namely floor mats interfering with throttle pedals — of Toyota’s unintended acceleration problems were laid to rest fairly expeditiously, it is only recently that the more important question of whether the cars’ computers were sending errant messages to the engine has been satisfied. In the interim, all manner of bad jurisprudence took place, my favourite being the case of Minnesotan Koua Fong, who was pardoned of his conviction for vehicular manslaughter simply because he was driving a Toyota, even though his 1996 Camry wasn’t even part of the original recall.

Never mind the technological questions, defining what the appropriate levels of care and control of an automobile might look like remains very much a legal quagmire. For the immediate future at least, all self-driving cars will require a driver behind the wheel (Level III autonomy according to the U.S. National Highway Traffic Safety Administration’s standards) to be ready to take control should the entire system go “Error: Path_Not_Found.”

Motor Mouth: Driverless revolution cometh? Not so fast

But what is the appropriate level of care and control? Volvo’s recently introduced “Drive Me” program will see 100 self-driving V40s and S60s hitting public roads in the Swedish city of Gothenburg by 2017. Initial reports show the cars requiring the occasional helping hand from the driver, Volvo’s test pilot obviously at the ready should the car wander a little too much out of its lane. And yet the company’s marketing video for this very same system shows a completely contented driver stenciling sketches behind the wheel of her Volvo, happily oblivious to the road ahead of her.

Yes, there may come a time when talking on a cellphone while driving is not considered illegal. But don't hold your breath for it.

Yes, there may come a time when talking on a cellphone while driving is not considered illegal. But don’t hold your breath for it.
Handout, Volvo

So how will the legal system determine appropriate behaviour — and therefore liability — behind the wheel of a (semi) autonomous car? Will texting be deemed legal — because one could argue that there is at least a partial view of the road ahead — while laying a newspaper on your steering wheel — completely blocking one’s vision — would be verboten? Will working on a laptop be kosher? How about sleeping behind the wheel?

The need for specific guidelines is paramount. The best comparison I can think of is the recent spate of anti-texting laws. One could argue that the laws governing the safe conduct of an automobile should be sufficient to deal with the issue of distracted driving. Nonetheless, that hasn’t stopped many jurisdictions from passing laws specifically banning cell phone use while driving.

Of this much I am sure: Until the specifics of who is liable are resolved, the promised nirvana of motorists happily working, reading and even sleeping while their car conducts itself completely autonomously remains a pipe dream.

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The five levels of automation

For the record, the U.S. National Highway Traffic Safety Administration — the all-powerful NHTSA — divides autonomous automobiles into five categories. Level 0 (no automation) would represent the majority of current automobiles, having no capacity to drive itself. Level Is (function-specific automation) have controls, like stability control system, that assist drivers. Level II (combined function automation) versions, like a few current luxury cars, combines individual functions — such as adaptive cruise control systems and lane departure controls — working in unison. Level III (limited self-driving automation) is the first level of true autonomy, cars so equipped able to navigate roads by themselves but requiring the driver “to be available for occasional control, but with sufficiently comfortable transition time.” Level IV, full self-driving automation, is the much-promised complete autonomy in which no one in the car is expected to be able to take over control at any time. It’s worth noting, again, that even though many automakers are marketing a future full of Level IV autonomy, all are really only promising Level III with you still behind the wheel.

About David Booth