In law, Tomorrowland’s another day – Part I

Back when the Space Age was just getting underway a media-induced frenzy was going on about the future and it was promised to be 'just around the corner', including automobiles that drove themselves.

There'd be pictures of chromed-up, streamlined vehicles, with nicely dressed people relaxing on seats facing each other. No need for anyone's eyes to be on the road because the robotic car had it all under control. 

Jump ahead a half century or so, and with nearly all the big carmakers testing autonomous vehicle designs, the real holdup for turning round that corner may not be technological but rather regulatory. The dirty little open secret that keeps the timeline inflated is that there is an almost complete absence of any legal or regulatory framework that specifically addresses driverless vehicles. 

Just four US states, Nevada, California, Florida, Michigan plus the District of Columbia, have enacted laws to legalise their testing on public roads.

The California state code alone includes more than 40,000 different provisions regarding motor vehicles. They will all have to be looked at and there’s no telling how many will need to be amended. It's the same story in the other 49 states and in other parts of the world as well.

The reason this has not become an issue sooner, is that none of the driverless cars so far being tested on American highways are actually driverless. There is always someone aboard who can take over operation should anything go wrong.

Google does operate actual driverless vehicles at its Mountain View, California, campus. But these vehicles are operating in special environments under highly circumscribed, closely monitored conditions, which cannot be compared to real-world conditions. And sooner or later, the training wheels will have to come off.

Having four states legalising driverless testing might seem like an important step forward in filling this massive regulatory vacuum but it may actually be a step in the other direction, suggests Bryant Walker Smith, a fellow at Stanford University's Center for Internet and Society. He closely monitors developments in the driverless car and assisted driving space. Smith maintains that since there aren't any laws expressly forbidding the testing of driverless cars, testing them is probably de-facto legal. All the new laws really do, he says, is create restrictions that didn't previously exist.

“The states that have acted to expressly regulate automated vehicles have dealt with these issues in only a very limited way,” says Smith. “They aren't legalising the testing. For the most part, they're just recognising the legal uncertainty and even the legality of testing, and moving to regulate it and, in some cases, moving to restrict it by requiring more approval and more documentation.” 

According to Smith, the only states that could be seen as frustrating driverless car testing, might be New York, where the language stipulates that drivers must have both hands on the wheel at all times.

“If you're driving a driverless vehicle across Arizona, which has no automated vehicle legislation, you're just going to have a normal driver in a normal seat in a normal vehicle supervising the operation,” says Smith. “Once they cross the line into Nevada, which has passed the Bill, they're going to have to make sure that vehicle has been registered, that the driver has specific permission to operate and, actually, they're going to face more onerous restrictions.”

Smith notes that Michigan recently passed legislation regulating driverless vehicle testing. “Michigan has always had vehicle testing for obvious reasons,” he says. “But this goes a step further. It prohibits the general consumer operation of automated cars. It says you can only test them. So, Michigan is taking a step back from a background of presumption of legality.”

Meanwhile, California is getting closer to having operational rules, according to Richard Wallace, director, transport systems analysis for the Center for Automotive Research (CAR) in Ann Arbor, Michigan. Wallace adds, “They’ve been working on that within the Department of Motor Vehicles there. There have been some hiccups, some missed deadlines. It’s a little contentious but, yeah, it’s going to happen anyway.”

Liability plays a major role in the American legal system. When it comes to driving, responsibility for a motor vehicle's safe operation rests with the driver. When there is an accident, liability normally goes to the owner or operator of the car considered to have been the cause. If it turns out to be a systems failure, then liability starts pointing at the manufacturer. Either way, the liability is not strict. It gets measured out according to circumstances surrounding the accident.

Recently, while explaining the capabilities of Tesla's new 'Auto Pilot,' driver assistance technology which promises to be on the market by 2017, Elon Musk was asked what would happen if one of these systems caused an accident. Would Tesla be responsible?  “No,” said Musk. “We're not asserting that the car is capable of operating in the absence of driver oversight. We're not yet at the point where you can go to sleep and wake up at your destination. If that was the case, we would have called it 'Autonomous' instead of 'Auto Pilot.'  We're going to be quite clear with customers that the responsibility remains with the driver.”

But what will happen when there is no driver other than a guy who'd fallen asleep three hours before the accident, after telling the car to drive him to Allentown? What happens when there is no conceivable way that person can be considered liable?

Envision tomorrow's car at TU-Automotive Detroit 2015. Limited tickets remain. See the agenda here.