As I mentioned in my last article, vehicles are some of the most heavily regulated items in the US. There are laws governing their use at both the state and national level. This particular article will deal with issues and potential problems of creating and passing laws at the state level in the US. I also discuss some of the issues of legislation at the state level in my book, The Future is Autonomous.
Laws at the state level concern the driver and include things like licensing, registration, liability, and insurance. The national level deals with safety of the vehicle itself, with the Federal Motor Vehicle Safety Standards (FMVSS). However, with autonomous vehicles, the distinction between the driver and the vehicle is essentially lost. This opens the door to confusion and uncertainty. This article will attempt to clarify some of that uncertainty.
States as the “Laboratories of Democracy” for Autonomous Vehicles
As of the time of this writing, thirty-eight states and Washington, DC have passed laws and/or governors have issued executive orders regarding the operation of autonomous vehicles on public roads. Of these thirty-eight states, twelve states only allow for testing while sixteen and DC allow for full deployment of autonomous vehicles. The remaining twelve states do not have either laws or executive orders from their governors.
The Department of Transportation (DoT) and the National Highway Traffic Safety Administration (NHTSA) issue periodic updates for guidelines for autonomous vehicles. However, there can be vastly different interpretations of these guidelines between states. For example, even basic definitions of “vehicle operator,” has differences in interpretations.
For Tennessee this “operator” means the vehicle’s Automated Driving System (ADS) with no need for an actual human backup driver. Texas describes the need for a “natural person” riding in the driver’s seat. Meanwhile, Georgia only recognizes the operator as someone who activates the car’s ADS. This means the car could be part of a fleet of vehicles and would not necessarily need a human backup driver in the driver’s seat if someone from the other vehicle could remotely take over that vehicle.
This confusing patchwork of state laws currently provides the only governing structure in the US for autonomous vehicles. For trips between two different states, there could be very different laws governing autonomous vehicles. To make matters worse, there could be a situation in which a neighboring state does not have a law passed. This would make driving in an autonomous vehicle between these two states illegal.
One particular case comes to mind related to interstate travel, with New York having laws governing autonomous vehicles, while New Jersey does not. While not everyone commutes to work by vehicle, hundreds of thousands of people cross state lines between New York and New Jersey every day. Therefore, it is vital for New Jersey to pass laws governing autonomous vehicles if the tri-state region wants autonomous vehicles in the near future.
I talked to Avi Kelin, chair of the Autonomous Vehicles Law Practice at the law firm Genova Burns in New Jersey. In the interview, we talked about the process of getting a law governing autonomous vehicles passed in the state legislature. He expressed his frustration that New Jersey does not have any laws regulating autonomous vehicles. He said, “The strongest argument now for New Jersey to consider legislation whether you’re in favor or opposed is right now, New Jersey has nothing.”
This remark stood out to me because even people opposed to autonomous vehicles would still want to have standards governing them. This is particularly true because semiautonomous vehicles, such as vehicles with lane keep assist and adaptive cruise control, are currently driven in New Jersey.
One of the most interesting ideas he mentioned about the work he does to advocate for autonomous vehicle legislation in the New Jersey state government was his work on the New Jersey Advanced Autonomous Vehicle Task Force. He described this task force, saying, “Part of the beauty of the task force was there was a broad range of stakeholders involved. Everyone from New Jersey state officials, and the head of the motor vehicles commission in New Jersey.”
He then described the task force was broadened to include an attorney (himself), engineering representatives, policy experts related to vehicles, and insurance representatives. Just like the CFM, inclusion of different people representing different areas all interested in autonomous vehicles would work to pass legislation. Creating this task force represents a step in the right direction to law formulation and passage.
Another issue related to the autonomous vehicle industry at the state level relates to issues of civil and criminal liability and auto insurance. With conventional vehicles, blame can be relatively easily determined. It will be the driver of one of the two vehicles in the accident. With autonomous vehicles, the situation becomes more complex. The blame could be with the automated driving system of the vehicle, a faulty sensor or camera, worn-out brake pads, or a backup driver not paying attention to the road, leading to a collision.
On Sunday evening on March 18, 2018, an Uber autonomous test Volvo XC90 SUV struck and killed forty-nine-year-old Elaine Herzberg. She was walking across the street with her bicycle outside of a crosswalk in Tempe, Arizona.
According to the National Transportation Safety Board’s (NTSB) report of the incident, the SUV had three sensors — radar, LiDAR, and camera — designed to detect an object and determine its velocity. However, the vehicle could not determine whether Herzberg was a pedestrian and failed to determine her path and velocity. According to the report, “The system did not include a consideration for jaywalking pedestrians.” Computer engineers at Uber failed to program this very common “edge case” scenario into the system’s driving algorithm and this failure resulted in a woman’s death.
There was a backup driver behind the wheel who could have taken control of the car. The report mentions 1.2 seconds before the crash, the system recognized Herzberg as a bicycle and not a pedestrian. By then it was too late to safely brake and avoid a collision. According to The Arizona Republic, Rafaela Vasquez was watching an episode of The Voice on her cell phone while operating the vehicle.
Uber CEO Dara Khosrowshahi tweeted his condolences the following day. He wrote, “Some incredibly sad news out of Arizona. We’re thinking of the victim’s family as we work with local law enforcement to understand what happened.”
Uber offered to pay for the victim’s funeral, but this was a weak statement of regret. It never mentioned her name and described the accident like a PR news release with little emotion or believable empathy for her family. This fatal accident badly damaged the American public’s already shaky trust in autonomous vehicles. It brought up many questions about civil and criminal liability as well as whether the vehicle itself was safe enough to be on the road.
Almost a year later. in early March 2019, the Yavapai County Attorney’s Office prosecutors declared Uber as a corporation did not commit a crime in the fatal crash. However, on August 27, 2020 prosecutors from the neighboring Maricopa County, Arizona charged Ms. Vasquez with criminal negligence. She appeared in court for the first time on September 15, 2020 and the trial is set to take place in February 2021.
After the crash, Uber suspended its autonomous vehicle testing on public roads for nine months. Herzberg’s family chose not to sue Uber, which is a welcome sign for companies in the autonomous vehicle industry. However, they did sue the city of Tempe for ten million dollars. This lawsuit could have long-term implications for the industry. Cities might not want to risk losing millions of dollars in lawsuits by allowing autonomous vehicles on their public roads.
This incident also raises questions about the lack of federal regulations and safety standards. Unfortunately, these are still open questions today. According to Ethan Douglas, senior policy analyst for Consumer Reports, “We hope Uber has cleaned up its act, but without mandatory standards for self-driving cars, there will always be companies out there that skimp on safety.”
Bills have been introduced since this incident in both the US House and Senate to create federal safety regulations for autonomous vehicles. However, neither bill has been passed to enact the laws. Therefore OEMs, universities, and other autonomous vehicle companies are forced to deal with a patchwork system of many different state and local laws which form a confusing and occasionally contradictory regulatory framework.
I talked to the vice president of an insurance carrier. She is in charge of the day-to-day execution of their strategy and tactics. She explained how, right now, they have to deal with all of the states separately if they want to change their insurance policy.
With autonomous vehicles that could change. She mentioned, “These manufacturers might not want to deal with fifty different insurance departments which might have a shift toward a federal law and regulations.” However, there could just be a federal review board or committee. These issues could be discussed and gain the approval of the states to maintain the state’s role in creating insurance and liability premiums.
On questions related to liability, I asked her if the Uber crash which killed Elaine Herzberg in 2018 would be used as precedent. She said, “This was one of the earlier cases and this will be used as a precedent so if cases occur in the future, lawyers are going to point back to this.” I agree this will probably be the case, but this particular case has not yet been resolved completely. The vehicle operator has been charged with criminal negligence, but the court date for her trial is not until February 2021. While I hope that accidents do not happen, further cases may be necessary to establish a clearer precedent.
States have been called the “Laboratories of Democracy” by US Supreme Court Justice Louis Brandeis. He was channeling a sentiment from the Federalist Papers written over one hundred fifty years ago in 1788 when he made this ruling. These “laboratories” are valuable for testing laws. Because autonomous vehicles represent a new, and potentially dangerous and even fatal technology, states serve a critical role before things like safety standards are established at the national level.
Former internet pioneer and current autonomous vehicle advocate Brad Templeton compared the current test programs in Arizona and Silicon Valley to student drivers. He reported, “The driving-instructor is there to grab the wheel or hit the brakes if the teenager does badly. And the cars do make mistakes because they are just prototypes.”
This could be cause for concern because student drivers can be erratic and unpredictable. Mr. Templeton also said the accident record is actually quite good. The hesitation to impose safety standards at the national level was echoed by Dr. Sven Beiker. He pointed out safety regulations should also concern traffic safety. This would include such things as how fast they drive and not necessarily just the vehicle safety. Therefore, it may be slightly premature to create regulation at the national level. It will be necessary in the long run for the industry to advance.
While states serve as the “Laboratories of Democracy,” autonomous vehicle companies need clearer guidelines from the national government about how to test these vehicles. Different interpretations of guidelines cannot occur if goods or people are driven between different states. The task force Mr. Kelin works on provides an interesting way for cooperation to happen to achieve the best possible policy outcome. This is unlikely to work at the national level, however, where different factors need to be considered.
In my next article, I will discuss issues creating and passing laws in Congress related to autonomous vehicles. I will also describe problems related to executive agency in-fighting which could disrupt the smooth roll-out of autonomous vehicles in the US.
If you are interested in the political process of getting laws passed related to new technology like the autonomous vehicle, please buy my book The Future s Autonomous in the link below! I also discus new proposed business models for AVs, the impact of the current trade , security, and economic tension between the US and China on the autonomous vehicle industries in both the US and China, and the different government-industry dynamics in both countries.
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