Self-Driving Cars And Legalese

Elon Musk announces Tesla plan for autonomous cars in months. But are they legal?, Slate, March 21, 2015
“The CEO of Tesla Motors says the next big software update for the Model S will roll out in 90 days with an auto-steering function that will make the cars largely autonomous on the highway.” Sounds awesome, but not so fast:
“The feature will be pretty basic—keeping the car within its lane at an appropriate speed—so it’s no big leap. Every Model S built since October has the radar, sonar and other hardware needed to pull this off, and the ability to combine all that data with navigation, GPS, and real-time traffic systems. All that’s missing is the software needed to tie it all together.”
Ah yes, and the loop-holes begin. Cue the engineers to stay quiet, building away, and the lawyers to coach Elon Musk as to what he should say to qualify for legality:
“[T]here’s certainly an expectation that when autopilot on the Model S is enabled, that you’re paying attention.””

Now, why would Mr. Musk say something like that? Pretty sure the guy who wants to colonize Mars would want to shout from the rooftops that he’s the guy who finally got us the cars out of “Minority report” (Alex Davies’s brilliant comparison). But here’s why he would be so coy:
The NHTSA ranks “from Level 0 (you don’t even get cruise control) to Level 5 (think Minority Report). Level 2 cars offer some automation, including the combination of adaptive cruise control and lane centering.. . . But if the software lets the Model S operate like a Level 3 car, letting the human ‘cede control of all safety-critical functions’ to a machine that can, say, change lanes on its own, then it’s illegal.”
Yes, there it is: Mr. Musk likely wants his cars to be legal. But here’s the thing, no matter how much public relations coaching you have going for you, it’s hard to imagine that there’s really an “expectation . . that you’re paying attention” when your car can:
“steer to stay within a lane, change lanes with the simple tap of a turn signal, and manage speed by reading road signs and using active, traffic aware cruise control.”
Yeah, that’s right. Try to not text and drive now. So Slate was kind enough to go digging through regulations across the country, and consult legal experts, basically doing my work for me (Thanks Slate!). They oh-so-eloquently explained:
“We asked a few experts if any of this is legal. And the general consensus was ¯\_(ツ)_/¯.”
For realz. I am quoting an emoticon.

So brace yourself, here’s the fun gathering of relevant law, courtesy of Slate, Stanford Law School’s Center for Internet and Society, and University of South Carolina School of Law:
“Only California, Nevada, Michigan, Florida, and Washington, D.C. govern how the vehicles can be tested. “
California: “the technology can only be tested, and is not allowed for consumer use until further notice.”
Nevada: “requires a special license and registration, but that only applies to cars sold in the state.”
Florida: “basically legalized it, saying it ‘does not prohibit or specifically regulate the testing or operation of autonomous technology.’”
Washington, D.C.: has regulated autonomous vehicles.
New York: “requires drivers keep at least one hand on the wheel at all times) there’s no law against Tesla flipping a switch making it possible for the Model S to chauffeur itself down the highway.” So here’s some nice loop-holing for you: in New York, the Model S might be legal “if you’re super literal and keep a hand on the wheel without actually doing anything.”
Well played legal scholars & Slate, well-played.
As for the rest, “[a]ccording to Stanford Law School’s Center for Internet and Society, 14 more states are working on regulations” and a dozen states have voted down regulations.

Slate remains optimistic
“[T]his is America, whatever’s not illegal is legal”. Nevertheless, this being America and all, regulators tend to ruin all the fun:
“The cars could, however, be kicked off the road if regulators aren’t thrilled with the idea of autonomous vehicles roaming the country’ says 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, who studies self-driving vehicles”
Yes, that’s right. The man studies self-driving vehicles. Is this a sub-specialty? Not that there isn’t plenty to have to know (my goodness just look at the length of this blog piece). But still. That seems like an awfully specific thing to study. Maybe Slate just needed the quote to look really legit.
So what bad-ass, evil rules could the regulators use to get in the way of watching Netflix on Highway 101 in bumper-to-bumper traffic?
“[L]aws prohibiting reckless driving. . . [in that] ‘a state or local law enforcement agency could use these provisions to target’ the cars ‘if they believed the vehicles to be dangerous.’ That could lead to a revoked registration, or refusal to register cars going forward.”

There’s also public opinion to take into account
“In those states that haven’t yet moved to regulate autonomous cars . . . the reaction of regulators likely will depend on how the cars are received by the public, and how well Tesla communicates its intentions.” Ha, yes, back to that public relations fun. A little bit of Olivia-Pope style spin never hurt anybody, since apparently “[a]t this point broad public attitudes will matter as much if not more than particular legal language”, and I really want a self-driving car someday.

Essentially, this whole thing comes down to the loop-holes within the loop-holes
“Tesla already has gone to legislative war with states that don’t let it sell its cars through stores rather than independent dealerships” and as always, because we all know that it’s really the only way you ever get to have any fun:
“[I]t looks like this might be one of those times when seeking forgiveness beats asking for permission.”

Via @Slate, Alex Davies

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