December 2021

Recreation transportation is an entire industry. We seek different and exciting forms of transportation all the time, and often it’s just for fun. Whether it’s ATVs, jet skis, horseback riding, biking, or walking around a new city to see the sights, transportation is part of all of our recreational activities. This blog will explore how amusement parks design transportation systems, how transportation throughout American amusement parks as a microcosm of innovative transportation policy, and if any lessons can be learned by society from amusement park transportation for implementing new transportation technologies. 

Earlier this year, Vox published an article about how the story of amusement parks is the story of America. Many American amusement parks were inspired by the World’s Columbian Exposition of 1893. For the sake of context, the 1893 World’s Fair was specifically organized to celebrate the 400th anniversary of Christopher Columbus’s voyage and eventual ravaging of North and South America, not the culture of Colombia as the term “World’s Fair” might suggest to many people. The fair was held in Chicago in no small part because Chicago was accessible by railroad. 

The focal point of the Columbian exposition was the White City, which was a huge exhibit of buildings depicting an interesting and (at the time) futuristic community obsessed with transportation, electricity, manufacturing, and living on the go. With all the white and gold structures showcasing technologically advanced processes, “[t]he Columbian Exposition, like the amusement parks and theme parks it inspired, was inspired by the America for which its people longed, not necessarily the America they encountered”.

Amusement parks are a unique recreational experience because they offer an opportunity for people to test their individual limits in a safe, confined, and regulated environment. It’s a form of entertainment that requires participation by those seeking amusement. Margaret King, the director of the Center for Cultural Studies and Analysis, stated, “Theme parks are all about us…. It’s the museum of us, of America. It’s a distillation of the qualities we most value and like about ourselves. [Visiting the Disney Parks] is like going back to your hometown. It’s the hometown that is shared by everyone in the country”. This explanation is eerily similar to how Americans describe driving a car.

This blog has previously considered how to make transportation more equitable, so it is important to briefly note that this feeling of Disney World being the hometown of all Americans is far from reality. Racism, elitism, and exclusion are at the heart of many American pastimes, including visiting amusement parks. Race, Riots, and Roller Coasters by Victoria W. Wolcott explores the history of amusement parks prohibiting Black patrons and the subsequent civil rights initiatives. 

Walt Disney has been accused of being a violent antisemite and passionate racist. Although there is no single example of Disney being a bigot and many claim he was a “product of his time”, it is undoubtable that Disney’s legacy has inspired modern conversations about problematic imagery in the parks. (Though specific attractions are outside the scope of this blog, I encourage any readers who are interested to read a few newspaper articles about the Splash Mountain controversy). Likewise, transportation inequality is an undertone of innovation even when the technology’s inspiration is fanciful. 

Circling back to what amusement parks mean for recreation transportation, the most iconic example may be the Disney monorail. Before Walt Disney’s death in 1966, Disney dreamed of building a city of tomorrow full of futuristic transportation called Project X, which eventually became EPCOT (Experimental Prototype Community of Tomorrow). When Disney World was being constructed in central Florida, transportation infrastructure became a bit more complicated than its California predecessor, Disneyland (which was the first ever American monorail), because the parking lot and the Magic Kingdom park were separated by a lake. Though a boat was probably the obvious choice (and a boat exists today), Disney felt the pressure to deliver an exciting, innovative transportation experience on a monorail. 

Before Project X could be actualized, Disney died and “EPCOT Died Ten Minutes After Walt’s Body Cooled” as newspapers headlined.  On his deathbed, Disney cautioned his successors to make use of the lake so the purpose of the monorail could be to make people feel like they were leaving their real life behind as they were transported into the amusement park. 

Believe it or not, the monorail system in Las Vegas is the same as the one in Disney as the city contacted Bombardier Transportation to build an identical system to the one in Orlando. All this to say that the monorail concept is clearly beloved by vacationers and recreation companies.

If everybody loves the monorail because it’s such an efficient, enjoyable way to travel, why do we not have a larger scale version of the monorail to serve communities’ daily needs when they’re not on vacation? Well, first of all, building the monorail was not as simple as it might seem, even though Disney already owned the land. Difficult construction will never be made easier by a densely populated urban center, for example; adding a monorail in the middle of San Francisco would be quite the feat. 

While there are monorails that operate outside the wonderland of recreational settings, most of those monorails are located in urban centers throughout Asia and can only seat a couple dozen people at a time. Additionally, because a monorail is only a single track, it is difficult for users to switch tracks. For short lines, the monorail works but is not ideal for complicated, city-wide commutes. 

Maybe more importantly, transportation agencies do not like systems that are more expensive than they are useful. A monorail, as stated before, is only one track that runs circularly. For large cities, it makes much more sense to invest in a large, multitrack fleet train. (In all fairness, we still don’t see enough trains in the United States, but that is a different blog). It is more efficient and cost effective to maintain traditional buses or multitrack train fleets that have the same maintenance needs, rather than several single track monorails with different nuances. 

The ultimate question is whether the concept of the monorail would serve the general public’s transportation needs, or if the monorail is best suited for recreational services. The Infrastructure Investment and Jobs Act (known as the Infrastructure Bill or IIJA) approportioned $1.2 trillion to repair and reimagine the deteriorating American infrastructure. This includes $39 billion for modernizing public transit and $66 billion for railways. 

The idea of these two earmarks is to modernize infrastructure, improve accessibility, service Amtrak in the Northeast corridor, and bring rail services to the rest of the country. While the Disney monorail has long been a symbol of Tomorrowland, Walt Disney’s original concept of futuristic transportation is ironically outdated. By nature, tomorrow becomes today which becomes yesterday. The monorail that Walt Disney imagined, which became an iconic symbol of leisure and whimsy, is not necessarily the modern transit system the IIJA is meant to inspire.

Because of the aforementioned shortcomings of monorails, maybe a monorail system is not worth trying to force into typical American infrastructure after the hardfought IIJA has brought some hope back to the transportation industry. A monorail may serve its purpose in Las Vegas and Disney World, but perhaps it is not innovative enough for daily life. However, transportation recreation is valuable for the joy it brings vacationers, even if its utility probably ends with the thrill of escaping reality. 

One thing is for certain: transportation innovation and amusement parks clearly have a long, intertwined history beginning with the Columbian Exposition of 1893. Its clean, white city full of futuristic transportation concepts that inspired amusement parks to become a place where we can live in the future and the past at the same time. Recreation transportation is an opportunity to experience the excitement of innovation even when that innovation isn’t practical because it gets us excited about all the potential of transportation.

Five years to the day after I criticized Uber for testing its self-proclaimed “self-driving” vehicles on California roads without complying with the testing requirements of California’s automated driving law, I find myself criticizing Tesla for testing its self-proclaimed “full self-driving” vehicles on California roads without complying with the testing requirements of California’s automated driving law.

As I emphasized in 2016, California’s rules for “autonomous technology” necessarily apply to inchoate automated driving systems that, in the interest of safety, still use human drivers during on-road testing. “Autonomous vehicles testing with a driver” may be an oxymoron, but as a matter of legislative intent it cannot be a null set.

There is even a way to mortar the longstanding linguistic loophole in California’s legislation: Automated driving systems undergoing development arguably have the “capability to drive a vehicle without the active physical control or monitoring by a human operator” even though they do not yet have the demonstrated capability to do so safely. Hence the human driver.

(An imperfect analogy: Some kids can drive vehicles, but it’s less clear they can do so safely.)

When supervised by that (adult) human driver, these nascent systems function like the advanced driver assistance features available in many vehicles today: They merely work unless and until they don’t. This is why I distinguish between the aspirational level (what the developer hopes its system can eventually achieve) and the functional level (what the developer assumes its system can currently achieve).

(SAE J3016, the source for the (in)famous levels of driving automation, similarly notes that “it is incorrect to classify” an automated driving feature as a driver assistance feature “simply because on-road testing requires” driver supervision. The version of J3016 referenced in regulations issued by the California Department of Motor Vehicles does not contain this language, but subsequent versions do.)

The second part of my analysis has developed as Tesla’s engineering and marketing have become more aggressive.

Back in 2016, I distinguished Uber’s AVs from Tesla’s Autopilot. While Uber’s AVs were clearly on the automated-driving side of a blurry line, the same was not necessarily true of Tesla’s Autopilot:

In some ways, the two are similar: In both cases, a human driver is (supposed to be) closely supervising the performance of the driving automation system and intervening when appropriate, and in both cases the developer is collecting data to further develop its system with a view toward a higher level of automation.

In other ways, however, Uber and Tesla diverge. Uber calls its vehicles self-driving; Tesla does not. Uber’s test vehicles are on roads for the express purpose of developing and demonstrating its technologies; Tesla’s production vehicles are on roads principally because their occupants want to go somewhere.

Like Uber then, Tesla now uses the term “self-driving.” And not just self-driving: full self-driving. (This may have pushed Waymo to call its vehicles “fully driverless“—a term that is questionable and yet still far more defensible. Perhaps “fully” is the English language’s new “very.”)

Tesla’s use of “FSD” is, shall we say, very misleading. After all, its “full self-driving” cars still need human drivers. In a letter to the California DMV, the company characterized “FSD” as a level two driver assistance feature. And I agree, to a point: “FSD” is functionally a driver assistance system. For safety reasons, it clearly requires supervision by an attentive human driver.

At the same time, “FSD” is aspirationally an automated driving system. The name unequivocally communicates Tesla’s goal for development, and the company’s “beta” qualifier communicates the stage of that development. Tesla intends for its “full self-driving” to become, well, “full self-driving,” and its limited beta release is a key step in that process.

And so while Tesla’s vehicles are still on roads principally because their occupants want to go somewhere, “FSD” is on a select few of those vehicles because Tesla wants to further develop—we might say “test”—it. In the words of Tesla’s CEO: “It is impossible to test all hardware configs in all conditions with internal QA, hence public beta.”

Tesla’s instructions to its select beta testers show that Tesla is enlisting them in this testing. Since the beta software “may do the wrong thing at the worst time,” drivers should “always keep your hands on the wheel and pay extra attention to the road. Do not become complacent…. Use Full Self-Driving in limited Beta only if you will pay constant attention to the road, and be prepared to act immediately….”

California’s legislature envisions a similar role for the test drivers of “autonomous vehicles”: They “shall be seated in the driver’s seat, monitoring the safe operation of the autonomous vehicle, and capable of taking over immediate manual control of the autonomous vehicle in the event of an autonomous technology failure or other emergency.” These drivers, by the way, can be “employees, contractors, or other persons designated by the manufacturer of the autonomous technology.”

Putting this all together:

  1. Tesla is developing an automated driving system that it calls “full self-driving.”
  2. Tesla’s development process involves testing “beta” versions of “FSD” on public roads.
  3. Tesla carries out this testing at least in part through a select group of designated customers.
  4. Tesla instructs these customers to carefully supervise the operation of “FSD.”

Tesla’s “FSD” has the “capability to drive a vehicle without the active physical control or monitoring by a human operator,” but it does not yet have the capability to do so safely. Hence the human drivers. And the testing. On public roads. In California. For which the state has a specific law. That Tesla is not following.

As I’ve repeatedly noted, the line between testing and deployment is not clear—and is only getting fuzzier in light of over-the-air updates, beta releases, pilot projects, and commercial demonstrations. Over the last decade, California’s DMV has performed admirably in fashioning rules, and even refashioning itself, to do what the state’s legislature told it to do. The issues that it now faces with Tesla’s “FSD” are especially challenging and unavoidably contentious.

But what is increasingly clear is that Tesla is testing its inchoate automated driving system on California roads. And so it is reasonable—and indeed prudent—for California’s DMV to require Tesla to follow the same rules that apply to every other company testing an automated driving system.

This blog post is written by Akshaya Kapoor, who is a fourth year student in the B.B.A LL.B (Hons.) Programme at the Jindal Global Law School (O.P. Jindal Global University, Sonipat, Haryana, India).

From an International Law perspective, the Vienna Convention on Road Traffic of 1968, which is an international agreement binding over 70 States to uniform traffic legislations, mandates that the driver must be in control of the car at all times. To account for changing trends, the treaty was amended first in 2014 and thereafter in 2016 allowing for automated driving technologies so long as such systems could be overridden or switched off by the driver. Consequently, SAE level 5 vehicles are still impermissible because of the abovementioned prerequisite. That said, several countries have formulated unique regulations for the testing and operation of AVs in their pursuit of embracing the automated future. Admittedly, India is still lacking as against its western counterparts.

One of the largest in the world, the Indian automotive sector contributes a whopping 7.1% to its GDP, in addition to creating jobs, exports and bringing FDI into the nation. Only recently, even Tesla Motors entered the Indian market. However, the country neither has any AV-specific legislations nor is the existing framework very AV friendly or ready. The Motor Vehicles Act, 1988 (“Act”) and its adjoining rules are the principal legislation governing transportation and operation of automobiles in India. The Act does not permit any form of transportation without a human operator. Although the draft Motor Vehicles (Amendment) Bill of 2017 had proposed AV testing, it is pending assent till date. The bigger problem is the apportionment of liability. Currently, the claimant is awarded compensation from the defendant for death or permanent disablement arising out of a road accident, based on the principle of ‘no fault liability’. Being a welfare legislation, the Act ensures the victim receives statutory relief irrespective of contributory neglect or default. 

However, with AVs it will be very difficult to gauge and assess liability going by the aforementioned formula. An accident involving a driverless car may be caused by various reasons such as design and manufacturing defects, software malfunctions and hacking. In such scenarios, the manufacturer or the relevant third-party must be held liable for compensation rather than the owner/operator. Reference can also be made to The Consumer Protection Act, 2019. As per the provision on product liability therein, the manufacturer would be liable to compensate for a faulty product or any deficiencies in service. However, clarifications on the legal personality of AI and whether the technology is a product or a service would be needed. Apart from this, provisions in the Act regarding licensing, testing, and vehicle registration would also require an overhaul. To deal with data protection and cybersecurity, the scope of Section 66 of The Information Technology Act, 2000 (Computer Related Offences) would have to be enlarged to account for AI systems in AVs. 

Keeping aside the legislative hurdles, India faces several grassroot issues as well. Firstly, the country has poor road and transport infrastructure. Secondly, discussions on AI in the automobile industry are in a nascent stage. NITI Aayog’s policy paper titled “National Strategy for Artificial Intelligence”, merely provides that the existing legislations would require sector-specific system considerations, without mentioning the contours. More importantly, Mr. Nitin Gadkari, the Hon’ble Road Transport and Highway Minister, has explicitly declared that he shall not permit fully autonomous vehicles in India. Reason being AVs would lead to unemployment of lakhs of drivers and automotive workers. All these roadblocks make AVs a distant pipe dream in India.

Innovation and technology can be termed as a necessary evil to human progress. The game-changing abilities of AV technology have been discussed at length. On the downside, the transition into the driverless future would be laden with cultural, ethical, social and legal challenges. To develop comprehensive and fair legislations, central governments must collaborate with technology companies and automakers. As a starting point, reliance can be placed on recommendations of the U.S. DOT and the EU Parliamentary assembly, which propose for protecting and promoting core ethical principles of transparency, justice, responsibility, safety and privacy in all AI-related laws.

As for India, insurance, contract and motor vehicle legislations would need serious reconsideration. Furthermore, the country must work on its transport infrastructure besides gauging public interest. Inspiration can be taken from the models in the U.S. and UK to deal with the liability aspect. While employment concerns seem to be another major obstacle, technological advancements can be viewed as an alternative opening to more skilled jobs in the country. Notwithstanding government policy, manufacturers must continue harnessing AI, albeit responsibly.