If you could identify one artificial intelligence or robotics technology that is at the leading edge of testing and at the cusp of mass-market popularization, it would be autonomous driving technology. Autonomous vehicles (AVs) have captured the imagination of the public with news stories, social media posts, and other forms of media. In the United States, which has the proverbial love affair with the automobile, highly automated vehicles and advanced driver assistance systems seem to be seen as the ultimate tech toy. Possible reasons include the ubiquity of automobiles in our society, the romanticizing of the automobile, and the admiration for new technology in this country.
Besides driverless cars, industry players are also working on freight truck automation. Some freight truck automation systems involve partial automated control. The key example here is “platooning” systems, in which freight trucks can form “platoons” — or groups of trucks traveling close together — on the highway. The lead truck in a platoon sets the pace, and the following trucks follow that truck’s lead with a system controlling the following trucks’ acceleration and braking. The trucks, however, still have human drivers to steer while operating in platoons. Other developers are working on fully-automated freight truck automation systems.
The public, however, understands automated vehicles are not foolproof. A few highly-publicized accidents have occurred that resulted in a number of deaths. These accidents raised sobering questions about the safety of highly automated vehicles and whether or not they are really ready for public roads.
In addition, autonomous vehicle technology raises ethical issues. In the past few years, popular magazines have published articles about the dilemmas faced by AV developers. If a driverless car is headed towards an inevitable collision with either a large group of people or a single individual, should the developer program the car to steer towards the single individual and possibly kill or injure that individual for the sake of avoiding the large group? The argument for such programming is it would end up saving more lives than if the car collided with the large group. The heightened interest in ethical dilemmas such as these have brought a renewed public interest to moral philosophy. Business and government professionals now also realize ethics is a major issue when it comes to automated driving and artificial intelligence in general.
These ethical issues do not exist in a vacuum. It is important to consider them in the context of laws, regulations, and legal doctrines that apply to autonomous vehicles. Law and ethics overlap. And often, when someone in the press talks about “ethical” issues from driving automation, they are actually thinking of both ethical and legal issues.
Given the life-or-death situations autonomous vehicles may encounter, the potential for damage, injury to people, and even death is significant. Whenever serious consequences from technology like these occur, legal issues will likely follow. Laws exist to protect public safety when it comes to selling vehicles and operating them. These general laws will set the direction for transportation automation and mobility-as-a-service companies. In addition, there are AV-specific laws creating compliance obligations. And any automated transportation company must consider a number of legal challenges when commercializing this exciting but potentially risky technology.
Silicon Valley Law Group Attorney Stephen Wu likes to tell the story about how he attended the AUVSI Automated Vehicle Symposium in Detroit in 2012. The conference organizers conducted a poll of the audience to ask what the members thought was the number one obstacle to the adoption of autonomous vehicle technology. “Legal issues” was the top answer. What he concludes from that poll is that people in the industry are worried about liability. If a company’s AVs have a large number of accidents, could it face crushing lawsuits and have to pay out so much in judgments or settlements it has to declare bankruptcy? The risk of company-ending lawsuits is perhaps the chief legal risk that a seller of automated transportation systems might face.
The root of the liability challenge, of course, is safety. Although forms of AV technology have been in existence for decades, the machine learning systems now being tested are still not ready for the mass market, as no manufacturer can be certain the promising technology being tested will hold up in the real world. Moreover, given the size of the market, cars that prove defective can create huge losses and result in costly recalls. If the Toyota sudden acceleration and GM ignition switch lawsuits are reasonable benchmarks, they may require huge outlays to investigate claims, settle suits, and remediate the vehicles. In both of these instances, the manufacturers had to spend over $4 billion to resolve claims.
The investigation of accidents and incidents alone is a challenging task. Unlike computers, which have standard means of storing data and interfacing with devices that can collect data, collecting data from a vehicle is more difficult. Moreover, reconstructing an accident that could have been caused by a vehicle’s automation systems, human operator actions, other drivers, and road conditions will be a challenge. It will be necessary to understand whether the automated vehicle was in automated mode at the time of the accident and, even if it were, other factors besides the vehicle design may have contributed to the event. Even the owner’s maintenance and upkeep of the vehicle may have played a role.
Sellers, testers, and operators of automated vehicles also face legal challenges from compliance requirements. There are international, federal, state, and local laws and regulations that limit what a business can do with AVs. Failing to follow these laws may lead to governmental investigations, civil penalties, and possibly plaintiff lawsuits.
In addition, AV businesses must enter into agreements in order to close their sales or obtain the systems and components they need to procure. Agreements in the automated transportation field are not simply hardware or software deals. And they are not simply IP licenses. They may include software, hardware, or IP aspects, but they must cover so much more. Indeed, parties selling or buying AV systems or fleets, or their component parts must consider the possibility of accidents and other real-world consequences of AV usage. Agreements must cover the key issues with AV operation such as autonomous behavior, the needs for certain standards of operation to meet, insurance coverage needed, and allocating risks of damage and third-party claims that may arise.
Moreover, companies selling or buying AV systems or components should have robust governance policies and procedures. Failing to have a plan for safety and assessing the risks of impacts on the community can lead not only to possible liability, penalties, and judgments, but may lead to public relations and public policy backlash. Also, in an era of emerging privacy and security requirements, with laws such as the California Consumer Privacy Act (CCPA) and the European Union’s General Data Protection Regulation (GDPR), businesses failing to protect user personal data may face governmental investigations, civil penalties, and possibly lawsuits from users claiming privacy or security violations. In the era of rampant data breaches the susceptibility to hacking and tampering is as much of a risk for an AV business as more traditional vehicle engineering safety design risks.
Manufacturers bear most of the risk of autonomous driving, at least when vehicles are operating in autonomous mode. Nevertheless, any business in the supply chain from component part manufacturers, to OEMs, distributors, retailers, and aftermarket parts suppliers are all potentially at risk. They can manage their risk through safety programs, education of their workforces, insurance strategies, and the careful negotiation of agreements.
Purchasers that operate AVs are also at risk. They must manage their own risks. Companies facing the most risk are transportation-as-a-service companies that will buy fleets of vehicles to operate on a mass scale. Before making any purchases of AV systems or components, businesses should ensure they undertake thorough due diligence of their vendors to make sure the products they receive meet the standards they want to impose. Failing to manage their vendors or to have safe operating environments or practices, again, could open up these purchasers to liability.
In today’s rapidly changing world with constantly advancing technology, it is becoming increasingly important to stay ahead of legal challenges involving data privacy and security for advanced robotics and artificial intelligence (AI) systems. Learn how you can proactively prepare for accidents and litigation today to put yourself in the best position to maximize product safety and minimize product liability tomorrow.
Silicon Valley Law Group attorney Stephen Wu is uniquely positioned to help companies selling or purchasing automated transportation systems and components. First, he has long experience in managing product liability litigation and liability risks since the early 1990s. He worked on product liability cases for clients such as Sherwin-Williams, Firestone, Scotts Lawn Care, and Sunbeam. Since 1996, he has been negotiating technology transactions in the hardware and software, and more recently for software-as-a-service vendors.
In addition to this general experience, Steve has been a thought leader in legal circles for 13 years in the areas of automated transportation, artificial intelligence, and robotics. In 2007, he helped form the Artificial Intelligence and Robotics Committee of the American Bar Association Science & Technology Law Section, in part to analyze and cover autonomous driving legal issues. He has collaborated with other thought leaders in programs and publications on autonomous driving.
In 2014, Steve began collaborating on a project to create the ultimate think piece showcase book on autonomous driving with an interdisciplinary group of industry luminaries. The Daimler and Benz Foundation supported the research leading to the publication of the book. The book is available in hardcover or as a free download here. Among his collaborators on the project were Professor Patrick Lin of Cal Poly, who has written frequently about autonomous driving ethical issues in the mainstream media, such as articles in Forbes, The Atlantic, and Wired, and Professor J. Christian Gerdes, who serves as Director of the Stanford Center for Automotive Research and served as the nation’s first Chief Innovation Officer for the United States Department of Transportation in the Obama Administration.
Steve has also presented the results of his research to industry conferences such as the American Bar Association Annual Meeting (big convention of the year) and the Transportation Research Board’s Automated Vehicle Symposium, as well as the AUVSI Automated Vehicle Symposium. He chaired a panel on autonomous driving for an American Bar Association-wide program that had over 1000 people in attendance. Finally, Steve chairs the American Bar Association Artificial Intelligence and Robotics National Institute and arranged for a panel to educate the audience on driverless cars and freight truck platooning. Professor Gerdes gave an immersive and engaging multimedia keynote address at the conference on automated transportation.
In recent years, Steve has helped clients in the automated transportation field with compliance, transactions, and liability risk management to start-up AV businesses. His strength is in helping companies in the design phase. He can work with companies developing AV technology from the time they are planning out the products and services they want to offer, all the way through the time in which products and services are completed and made available to customers. By providing strategic advice from the beginning of the design phase, he can help choose among design options in a way that will minimize a company’s legal exposure while maximizing its legal rights.
Failing to consider legal issues from the beginning of the design phase, and bringing in legal help at the end of the process may lead to unpleasant consequences if the company’s planned design fails to meet legal requirements or may lead to unacceptable liabilities. Last-minute legal reviews create the risk of needing costly design changes and delays in going to market. Involving Steve from the beginning of the process can prevent these problems.
If accidents or data breaches do occur, Steve can help your business investigate what happened. He works with data forensic professionals who, under his guidance, can collect evidence from AVs so that it is preserved and available for legal proceedings. He has also helped many companies with investigating data breaches and making appropriate responses including breach notifications.
Steve can also help AV companies draft and negotiate sales agreements, software licenses, technology transfer agreements, AV testing protocols, and data protection requirements. Unlike other lawyers that may be focused on the hardware, software, or IP aspects of a business deal, Steve’s long leadership position in autonomous vehicle technology enables him to incorporate issues of autonomy and AV behavior and risks into his contract drafting and negotiation practice.
Finally, Steve is uniquely positioned to help clients create data protection policies and procedures, automated transportation impact assessments, and AV governance programs. Steve has helped many companies create privacy and security programs to satisfy requirements and standards in the California Consumer Privacy Act (CCPA) and the European Union’s General Data Protection Regulation (GDPR). AVs must prevent, detect, and deter information security attacks. Steve has long experience in creating and maintaining information security programs.
With increasing attention paid to ethical issues of autonomous driving in addition to legal concerns, Steve has the unique perspective of someone who bridges the world of law and the world of ethics. Ethical and legally compliant governance of AV systems will require expertise in both law and ethics. In addition to Steve’s legal expertise, he has long experience with ethics and its intersection with law. Steve studied philosophy as an undergraduate student at the University of Pittsburgh, a leading philosophy academy in the United State, and he wrote his senior thesis on ethics. He headed the philosophy student group for two years. More recently, he has given presentations and published papers on the intersection of law and ethics as it relates to programming autonomous vehicles, such as his talk for the Automated Vehicles Symposium of the Transportation Research Board. The text of his talk is linked here.
In December 2019, Steve published his first academic article in a peer-reviewed philosophy journal on the interplay of law and ethics relative to developing autonomous driving systems. You can access the article at the link here. The basis of the article is exploring the legal consequences of implementing an ethical decision in programming AVs. If you would like a copy of the article, please fill out the web form here.
Accordingly, Steve can assist your business impact in creating a governance program. He can help your business with assessing the impact of AV technologies on consumers, fleet owners, pedestrians, members of the community, and the public. Moreover, he can help your business establish a program that accounts for both law and ethics in designing AVs and AV technology.