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No one at the wheel: Driverless car technology is gaining speed. Is the law ready?

By: David Donovan//December 8, 2014

No one at the wheel: Driverless car technology is gaining speed. Is the law ready?

By: David Donovan//December 8, 2014

It sounds like something out of science fiction: You hail a car on your smartphone, and it shows up at your door. You hop in, but there’s no driver. You simply plug in your coordinates, and the car pilots itself to your destination while you catch up on some insuranceWEB

We’re still a few decades away from all that, but bit by bit, cars are becoming increasingly able to take their own reins. We’ve entered a period of great disruptive innovation in the automobile industry, and the new technology will create significant changes for the legal industry. New statutes will be needed to accommodate self-autonomous cars and assign liability for when they (perhaps only rarely) get involved in accidents. The criminal defense bar will have to adapt to a world where traffic laws are designed mainly for computers instead of humans.

Don’t expect to wake up one morning and hear that some car manufacturer has invented a model that operates itself while its human passengers nap in the back. Rather, experts in the field say, the technology will hit the roads incrementally. Some of it, in fact, is already here. Tesla and Mercedes-Benz have already released models that can handle certain highway and parking functions automatically, although drivers still need to remain fully focused on their operation.

“In the next few years we are going to see automakers make cars that are capable of doing more tasks for longer periods with less interaction by a human,” said Bryant Walker Smith, an assistant professor at the University of South Carolina School of Law and affiliate scholar at the Center for Internet and Society at Stanford Law School. “The more exciting question is how soon we can see a car that can drive in any condition with no engagement. We’re still a good ways away from that. There are still many technological challenges before we get to that vision of a car that drives itself anywhere all the time.”

Within a decade?

The tipping-point moment, Smith said, would be when a manufacturer suggests in its advertising that the human operator could be doing anything other than paying attention to the road while it’s moving. Elon Musk, Tesla’s chief executive and one of the industry’s leading optimists, has predicted that such technology could be available for sale within 10 years. Much of the needed technology already works in testing, Musk has claimed, but the necessary regulatory framework has yet to develop, and most customers aren’t ready to embrace the technology yet, anyway.

To date, only four states (California, Nevada, Michigan and Florida) have passed any laws addressing autonomous vehicles, and many of those laws deal with the issue on only a superficial level, to permit things like public road testing.

In South Carolina, a bill to allow autonomous vehicles on public highways was referred to committee in February but was never acted upon this session. Rep. Garry Smith, one of the bill’s co-sponsors, said that there are no plans to re-introduce the bill in the upcoming session. He said the bill was introduced in order to get feedback from stakeholders, and based on those discussions, the sponsors decided that no new laws were needed at this time.

The North Carolina legislature, like many across the country, has yet to formally take up the issue. Legislators might appear, then, to be behind the curve, but Joachim Taiber, a research professor with the Clemson University International Center of Automotive Research, believes that regulators have already been very active in this area, even if that activity has yet to translate to much passed legislation.

“Legislators are actively supporting the path towards autonomous driving because they see the benefit on the safety side, but they also want to make sure that the rules that they are developing are reasonable in terms of implementation, technical feasibility and cost, so that the industry can follow and implement these regulations,” Taiber said. “There needs to be a balance between what they want and what the industry can deliver. That will take dialogue and will take time so that these regulations can be developed in a way that the car industry can follow and implement at an affordable cost.”

A smaller pie

Those safety implications Taiber talks about are one of the most exciting aspects of the steady advance of vehicle autonomy. The widely held assumption is that autonomous cars will cause significantly fewer accidents than human-driven vehicles, although that assumption has yet to be tested in practice. The mere fact that an automated car will never drive drunk, though, figures to cut down on fatal accidents significantly.

Automated cars are unlikely to eliminate traffic accidents completely, however, which raises novel questions about who should be held liable if an autonomous car gets into a wreck. Smith predicted that in such cases car manufacturers, as opposed to the cars’ human owners or passengers, would have a greater share of the liability — a much bigger slice of a much smaller pie — as liability shifts from a car’s driver to its designers. That leads to more risk for manufacturers, and if those risks can’t be easily predicted and factored into a vehicle’s cost, that could delay the arrival of new technologies to market.

“Imagine that driver hits an automated vehicle. That driver is still primarily liable, but now the question is, should the automated vehicle have done more to avoid that crash? Should it have taken evasive action that a human couldn’t have been expected to do? Would that lead to a manufacturer, a much less sympathetic defendant, being held partly responsible for the injury?” Smith asked. “These issues I think are ultimately solvable and will be solved. There will be hiccups and there will be uncertainties, but the legal system will sort them out.”

Fewer car accidents would mean far fewer personal injury lawsuits. And another area of legal practice that might really get squeezed by a move to autonomous cars is criminal defense. Traffic tickets are by far the most common type of criminal citation, and many defense attorneys draw a significant stream of revenue by handling them. Autonomous cars could cause that revenue stream to dry up completely.

Lawyers would not be the only ones to feel the pinch, either. Traffic tickets are a major revenue stream for local governments, as well. According to the North Carolina Department of Public Safety, almost 1 million traffic tickets were issued in the state in 2013, and a 2009 study in the Journal of Law and Economics found that the number of traffic tickets issued tended to go up in years after local revenues in the state’s counties dropped.

Autonomous cars wouldn’t just mean that there would be no culpable human driver. It might cause us to rethink our entire system of traffic laws, Taiber said.

“If you have fully autonomous driving, you can be sure that the driving is always within the traffic rules, but you also have to consider that traffic rules were designed to minimize the impact of human errors,” Taiber said. “But once cars are drones, so to speak, then you could change the rules. If you have zero emissions vehicles, you could increase the speed of travel, you could eliminate traffic lights — there are many things that are currently done to minimize the impacts of human error that could be minimized.”

Sweeping change

These questions only scratch the surface of how a shift to autonomous cars would impact the legal industry. Cars could become workspaces, allowing attorneys to complete billable hours on their daily commutes. The vast volumes of data that such vehicles could collect would certainly raise very serious privacy concerns that would need to be protected.

But changes to the legal industry could pale compared to how autonomous cars are likely to uproot society as a whole. The entire layouts of today’s cities are built — some argue inefficiently — around a system where most people drive a car. Once cars can drive themselves, they might evolve into an ubiquity, with a majority of people relying on driverless transportation rather than owning their own cars. Those secondary effects of autonomous cars on the economy could be just as significant, then, as the primary ones.

“You think back 10 years when smart phones were coming on the market and people said, ‘I don’t need a smart phone.’ It turned out your competitor has a smartphone, so they could be answering emails anywhere and you couldn’t, so that became a business necessity,” Smith said. “The same thing could happen with driverless cars. Your competitors are billing 90 extra minutes a day because they’re working in the driverless cars. Suddenly that becomes not a luxury or a status symbol, but a necessity for business.”

Follow David Donovan on Twitter @SCLWDonovan

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