Innovation, Safety, and Self-Driving

Analysts predict that by 2030, autonomous vehicles will achieve a level of reliability, affordability, and commonality capable of replacing human driving.

Despite the U.S. Congress’s failed attempts to pass autonomous vehicle legislation, U.S. Department of Transportation Secretary Pete Buttigieg has indicated his intention to regulate autonomous vehicles.

Human error causes between 92 percent and 96 percent of auto accidents, according to the National Highway Traffic Safety Administration (NHTSA). Autonomous vehicles could improve safety on the roads by eliminating the impact of human error. Autonomous vehicles, however, introduce their own safety concerns. For example, in 2018, an autonomous vehicle struck and killed a pedestrian in Arizona, despite the presence of safety sensory technology in the vehicle. This accident marked the first pedestrian fatality caused by an autonomous vehicle, and it led to widespread public safety concerns.

Consumer safety advocates have argued that the United States needs to implement regulations for autonomous vehicles to ensure public safety and build trust. Others, such as members of the auto and tech industry, want to limit regulation to maximize their ability to innovate.

Recently, NHTSA issued a final rule that will allow companies to manufacture and sell autonomous vehicles as long as these vehicles meet other safety standards. Instead of implementing new standards upon autonomous vehicles, this rule updates the language of the Federal Motor Vehicle Safety Standards to account for vehicles without manual controls such as steering wheels. Secretary Buttigieg stated that this rule “is an important step” but that the Department of Transportation must continue to “ensure safety standards keep pace with the development of automated driving and driver assistance systems.” This first regulatory step will likely further the integration of autonomous vehicles on U.S. roads, however, this integration will likely expose new issues that regulators will need to address.

How can U.S. regulators continue to build a regulatory framework that effectively balances innovation and safety? In this week’s Saturday Seminar, we feature the work of experts who discuss the future of autonomous vehicle regulation.

• Governments can play a role in autonomous vehicle innovation that goes beyond regulation, argues Daniel Schepis of the University of Western Australia and several coauthors. Schepis and his team studied the efforts of government officials in Australia and the United Kingdom. They note that these officials facilitate autonomous vehicle innovation and production through funding programs. Schepis and his team argue that governments can help shape autonomous vehicle innovation. For example, governments can adopt transportation programs that use autonomous vehicle technologies. The authors claim that three main government roles—regulator, facilitator, and participator—can help officials achieve their policy goals for the autonomous vehicle industry.
• The autonomous vehicle industry faces an ethical dilemma, William H. Widen of the University of Miami claims in a forthcoming article. Widen explains that there is pressure for autonomous vehicle companies to scale their production, even before these companies have evidence suggesting that their technologies are sufficiently safe. But Widen emphasizes that the potential harm from autonomous vehicles must be central to any debate about the technology’s deployment. Widen suggests that there is a case for greater regulation of the autonomous vehicle industry, especially if greater public debate surrounding the ethical issues does not arise.
• Manufacturers, suppliers, and sellers of autonomous vehicles should proactively mitigate their risk of liability, argue Barbara Harding and several coauthors from Jones Day. In a white paper, Harding and her coauthors note that current regulations were designed without autonomous vehicles’ functions or passenger expectations in mind. They emphasize that this regulatory structure could lead to liability claims for autonomous vehicle companies involving manufacturing, quality control, and false advertising. To mitigate these risks, the Harding team recommends companies take steps such as working with other stakeholders to develop industry standards and surveying consumers about their views and expectations about autonomous vehicles.
• In a Congressional Research Service report, analyst Bill Canis discusses key issues for regulating the testing and deployment of autonomous vehicles. These policy issues include protecting cybersecurity and data privacy, relaxing federal safety standards, and dividing safety and licensing regulation between federal and state authorities. Canis explains that, despite bipartisan consensus in Congress that legislation should promote safety and innovation while not favoring particular technologies or business models, several policy disagreements have prevented Congress from passing legislation governing autonomous vehicles. Canis notes that the Biden Administration has promised to prioritize safety and certainty for autonomous vehicle manufacturers and asked Congress to establish a regulatory framework to support those priorities.
• Autonomous vehicles could worsen aggressive policing against marginalized communities at traffic stops, concludes Jordan Blair Woods of the University of Arkansas School of Law. In an article in the North Carolina Law Review, Woods explains that race and class-based structural inequities will inhibit the most overpoliced communities from owning autonomous vehicles. Because autonomous vehicles will likely avoid most traffic violations, Woods argues that traffic enforcement will increasingly target drivers of conventional vehicles. To prevent this targeting from falling on communities that are already overpoliced by traffic enforcement, Woods urges policymakers to adopt reforms that reduce police involvement in routine traffic stops and that enable more equitable access to autonomous vehicles.
• Because traditional sources of regulation cannot keep pace with new technologies, Jeremy Carp of Perkins Coie recommends more flexible regulation of autonomous vehicles. In an article in the University of Pennsylvania Journal of Law & Public Affairs, Carp proposes that regulators should periodically adjust their approach in response to independent recommendations based on data about vehicle sales and performance. Carp argues that this adaptive approach properly balances safety and innovation, allows regulators to adapt to evolving technology, and promotes public trust in autonomous vehicles.