Cruise control: MLaw conference highlights legal issues of driverless cars


Panelists at an MLaw conference on driverless vehicles included (l-r) Tim Johnson, director of vehicle crash avoidance and electronic controls research, NHTSA; Thomas Lue, corporate counsel, Google; Kirk T. Steudle, director, MDOT; and Eric Williams, senior regulatory counsel, Tesla Motors.

Photo courtesy of Alice Yu

By Katie Vloet
U-M Law

General Motors CEO Mary Barra recently said of the auto industry, “I think there’s going to be more change in the next five to 10 years than there’s been in the last 50.” One of the primary reasons for the rapid change is the development of automated and autonomous vehicles.

As the technology for such vehicles cruises forward, so, too, must the legal and regulatory issues—which were highlighted during a conference at the University of Michigan Law School on April 15. Attorneys, academics, insurers, and regulators from Google, Tesla Motors, Ford Motor Company, the National Highway Traffic Safety Administration (NHTSA), and more spoke about state and federal regulation of autonomous vehicles, industry coordination and technology integration, tort liability, and incentivizing innovation.

“We need to remember that current regulations were written at a time when self-driving cars were science fiction,” said Thomas Lue, corporate counsel for Google. “On the regulatory side, we face a growing patchwork of state laws … that has the potential to become unworkable.”

Lue pointed out that it will be difficult to create a car that meets as many as 50 different sets of state regulations. Lue said that uniformity across the country is something Google would welcome, as would other makers of autonomous and automated vehicles. He also said Google would like laws and regulations to accommodate the kind of fully self-driving vehicle—no steering wheel, no brake or accelerator pedals—that Google favors.

Tesla, meanwhile, is developing a system known as Autopilot, which is not a fully autonomous vehicle. “The onus is still on the driver, who has to be able to take over” control of the car, said Eric Williams, senior regulatory counsel at Tesla. The system relieves drivers of “the mundane tasks of driving,” with ultrasonic sensors around the vehicle, forward-facing camera and radar, and other features.

Williams pointed out that there are about 30,000 motor vehicle fatalities per year—a number that is not decreasing. To delay the technologies that could reduce the death toll because of regulatory issues is unacceptable, he said. The company supports no additional endorsements or recertifications for drivers from state governments, he said. “Tesla feels that states already have the tools necessary” to regulate autonomous and automated vehicles, Williams said.

The Obama administration, meanwhile, has proposed an investment of $3.9 billion over 10 years in automated safety technologies, noted Tim Johnson, director of vehicle crash avoidance and electronic controls research at NHTSA. “I think that alone shows how important this is at the federal level,” he said. Johnson spoke about other policy proposals and said the administration supports the development of automated vehicles. “One thing we don’t want to be at NHTSA is a roadblock for safety-enhancing technology,” he said.

Kirk Steudle, director of the Michigan Department of Transportation, spoke about the agency’s overriding principles: do no harm—that is, enable technology to go forward, without overregulating it; retain a self-certification model; allow platooning (the closing of the distance between automated vehicles to increase capacity on roadways); allow driverless operation of vehicles; and that potential hackers of automated vehicles should be held liable for their actions.

In regard to industry coordination and technology integration, Jennifer A. Dukarski, leader of Butzel Long’s connected car working group, spoke about the very different cultures of traditional automakers and suppliers versus the tech companies that have entered the field. “It’s fire and ice, a true Game of Thrones scenario. It’s going to be Detroit versus Silicon Valley. The war is on,” she said. Among the differences, she said: a three-year production cycle in Detroit, in contrast to a three-month cycle in Silicon Valley. “And tech companies can walk away from a deal if they aren’t comfortable with it.”

Emily Frascaroli, counsel at Ford Motor Company and an adjunct professor at Michigan Law who is teaching the school’s first-ever autonomous vehicle course, spoke about industry coordination as well as the risks involved with connected vehicles. “There are a lot of issues that have to be balanced,” she said. “The issue of inconsistent requirements at any level is the biggest risk.”

Speaking about risk, Bryant Walker Smith—assistant professor of law at the University of South Carolina School of Law—pointed out that automated vehicles have not been proven to be safer. “The hope is that in the future automation will cut down on some of these crashes. A key point: This has yet to be demonstrated,” he said. Automated driving systems might perform worse than humans, and automated driving systems could interact poorly with users or with other systems, he said.

Ryan Gammelgard, counsel at State Farm, said that “insurance is going to be impacted by and will impact the development of this technology.” He added that we don’t currently have data to support ideas such as incentives for people who buy automated vehicles. “Technology is outpacing regulation; I don’t think there’s any question about that.”

Chan Lieu, senior legislative adviser at Venable LLP, said the new approach in automaking is a shift from ensuring that a vehicle is crash-worthy to trying to prevent accidents altogether with vehicle-to-vehicle (V2V) technology. He added that the costs of individual ownership of automated vehicles likely will be prohibitive in the early years of self-driving car production, so a fleet model—in which ride-sharing programs such as Uber and Lyft own and operate many driverless vehicles—is more likely to happen first. “It’s mobility as a service, not so much car ownership,” he said.

Richard A. Walawender, ’86, principal and corporate group co-leader at Miller Canfield, predicted that states will require vehicle-to-infrastructure (V2I) technologies in cars and on the road. He said the federal government’s role in V2I is likely to include the setting of standards and some funding; state and local governments, meanwhile, will upgrade roads, improve pavement markings, create new signs, and regulate the vehicles, he said.

Walawender, who is the director of Miller Canfield’s International Practice and Automotive Practice, said automakers will have to convince financers that there is a sure stream of revenue. “Obvious sources of potential revenue include user fees, license or permit fees, and monetization of data,” he said. Walawender also spoke about the international interest in automated vehicles, such as in China, which is “betting on this as a solution to traffic congestion.”

Professors at Michigan Law, meanwhile, are researching issues such as these along with law students in order to develop a comprehensive report about the legal and regulatory issues involved with automated vehicles.

“We are seeing rapid changes in mobility due to the development of autonomous and connected vehicles. These new technologies raise regulatory and liability questions that will impact which business models prevail and how soon we experience the resulting societal benefits, such as improved safety, reduced fuel consumption, better access to mobility, and increased productivity,” said Bryce Pilz, ’00, clinical assistant professor of law in the Law School’s Entrepreneurship Clinic and a conference organizer. “The widespread use of autonomous vehicles might be available faster than anyone thought, so the laws need to be sorted out quickly.” Pilz organized the conference and is overseeing the research along with Daniel Crane, associate dean for faculty and research and the Frederick Paul Furth Sr. Professor of Law, and Kyle D. Logue, the Wade H. and Dores M. McCree Collegiate Professor Law.

The report, due later this year, and the conference were funded in part by a grant from the University’s Mobility Transformation Center (MTC). MTC is a public-private partnership that includes a test track in Ann Arbor, known as Mcity, for automated and connected vehicles. “Why are people so excited” about self-driving cars?, MTC Director Huei Peng said at the conference. “Driving a car has literally been the same, even though they look different, for about 100 years.” Currently, he added, robots are not safer than humans, but they have potential, while humans in some ways are becoming less safe, due to texting while driving or driving drunk. MTC and other efforts are helping the University of Michigan to become an epicenter of automated-vehicle research and testing, he said.

Reprinted with permission from U-M Law