Essays

Cite as: Raphael Beauregard-Lacroix, (Re)Writing the Rules of The Road: Reflections from the Journal of Law and Mobility’s 2019 Conference, 2019 J. L. & Mob. 97.

On March 15th, 2019, the Journal of Law and Mobility, part of the University of Michigan’s Law and Mobility Program, presented its inaugural conference, entitled “(Re)Writing the Rules of The Road.” The conference was focused on issues surrounding the relationship between automated vehicles (“AVs”) and the law. In the afternoon, two panels of experts from academia, government, industry, and civil society were brought together to discuss how traffic laws should apply to automated driving and the legal person (if any) who should be responsible for traffic law violations. The afternoon’s events occurred under a modified version of the Chatham House Rule, to allow the participants to speak more freely. In the interest of allowing those who did not attend to still benefit from the day’s discussion, the following document was prepared. This document is a summary of the two panels, and an effort has been made to de-identify the speaker while retaining the information conveyed. 

Panel I: Crossing the Double Yellow Line: Should Automated Vehicles Always Follow the Rules of the Road as Written?

The first panel focused on whether automated vehicles should be designed to strictly follow the rules of the road. Questions included – How should these vehicles reconcile conflicts between those rules? Are there meaningful differences between acts such as exceeding the posted speed limit to keep up with the flow of traffic, crossing a double yellow line to give more room to a bicyclist, or driving through a stop sign at the direction of a police officer? If flexibility and discretion are appropriate, how can this be reflected in law? 

Within the panel, there was an overall agreement that we need both flexibility in making the law, and flexibility in the law itself among the participants. It was agreed that rigidity, both on the side of the technology as well as on the side of norms, would not serve AVs well. The debate was focused over just how much flexibility there should be and how this flexibility can be formulated in the law.

One type of flexibility that already exists is legal standards. One participant emphasized that the law is not the monolith it may seem from the outside – following a single rule, like not crossing a double yellow line, is not the end of an individual’s interaction with the law. There are a host of different laws applying to different situations, and many of these laws are formulated as standards – for example, the standard that a person operating a vehicle drives with “due care and attention.” Such an approach to the law may change the reasoning of a judge when it would come to determining liability for an accident involving an AV. 

When we ask if AVs should always follow the law, our intuitive reaction is of course they should. Yet, some reflection may allow one to conclude that such strict programming might not be realistic. After all, human drivers routinely break the law. Moreover, most of the participants explicitly agreed that as humans, we get to choose to break the law, sometimes in a reasonable way, and we get to benefit from the discretion of law enforcement. 

That, however, does not necessarily translate to the world of AVs, where engineers make decisions about code and where enforcement can be automatized to a high degree, both ex ante and ex post. Moreover, such flexibilities in the law needs to be tailored to the specific social need; speeding is a “freedom” we enjoy with our own, personal legacy cars, and this type of law breaking does not fulfill the same social function as a driver being allowed to get on the sidewalk in order to avoid an accident. 

One participant suggested that in order to reduce frustrating interactions with AVs, and to overall foster greater safety, AVs need the flexibility not to follow the letter of the law in some situations. Looking to the specific example of the shuttles running on the University of Michigan’s North Campus – those vehicles are very strict in their compliance with the law. 1 1. Susan Carney, Mcity Driverless Shuttle launches on U-M’s North Campus, The Michigan Engineer (June 4, 2018), https://news.engin.umich.edu/2018/06/mcity-driverless-shuttle-launches-on-u-ms-north-campus/. × They travel slowly, to the extent that their behavior can annoy human drivers. When similar shuttles from the French company Navya were deployed in Las Vegas, 2 2. Paul Comfort, U.S. cities building on Las Vegas’ success with autonomous buses, Axios (Sept. 14, 2018), https://www.axios.com/us-cities-building-on-las-vegas-success-with-autonomous-buses-ce6b3d43-c5a3-4b39-a47b-2abde77eec4c.html. × there was an accident on the very first run. 3 3. Sean O’Kane, Self-driving shuttle crashed in Las Vegas because manual controls were locked away, The Verge (July 11, 2019, 5:32 PM), https://www.theverge.com/2019/7/11/20690793/self-driving-shuttle-crash-las-vegas-manual-controls-locked-away. × A car backed into the shuttle, and when a normal driver would have gotten out of the way, the shuttle did not.

One answer is that we will know it when we see it; or that solutions will emerge out of usage. However, many industry players do not favor such a risk-taking strategy. Indeed, it was argued that smaller players in the AV industry would not be able to keep up if those with deeper pockets decide to go the risky way. 

Another approach to the question is to ask what kind of goals should we be applying to AVs? A strict abidance to legal rules or mitigating harm? Maximizing safety? There are indications of some form of international consensus 4 4. UN resolution paves way for mass use of driverless cars, UN News (Oct. 10, 2018), https://news.un.org/en/story/2018/10/1022812. × (namely in the form of a UN Resolution) 5 5. UN Economic Commission for Europe, Revised draft resolution on the deployment of highly and fully automated vehicles in road traffic (July, 12, 2018), https://www.unece.org/fileadmin/DAM/trans/doc/2018/wp1/ECE-TRANS-WP.1-2018-4-Rev_2e.pdf × that the goal should not be strict abidance to the law, and that other road users may commit errors, which would then put the AV into a situation of deciding between strict legality and safety or harm. 

In Singapore, the government recently published “Technical Reference 68,” 6 6. Joint Media Release, Land Transport Authority, Enterprise Singapore, Standards Development Organization, & Singapore Standards Council, Singapore Develops Provisional National Standards to Guide Development of Fully Autonomous Vehicles (Jan. 31, 2019), https://www.lta.gov.sg/apps/news/page.aspx?c=2&id=8ea02b69-4505-45ff-8dca-7b094a7954f9. × which sets up a hierarchy of rules, such as safety, traffic flow, and with the general principle of minimizing rule breaking. This example shows that principles can act as a sense-check. That being said, the technical question of how to “code” the flexibility of a standard into AV software was not entirely answered. 

Some participants also reminded the audience that human drivers do not have to “declare their intentions” before breaking the law, while AV software developers would have to. Should they be punished for that in advance? Moreover, non-compliance with the law – such as municipal ordinances on parking – is the daily routine for certain business models such as those who rely on delivery. Yet, there is no widespread condemnation of that, and most of us enjoy having consumer goods delivered at home.

More generally, as one participant asked, if a person can reasonably decide to break the law as a driver, does that mean the developer or programmer of AV software can decide to break the law in a similar way and face liability later? Perhaps the answer is to turn the question around – change the law to better reflect the driving environment so AVs don’t have to be programmed to break it. 

Beyond flexibility, participants discussed how having multiple motor vehicle codes – in effect one per US State – makes toeing the line of the law difficult. One participant highlighted that having the software of an AV validated by one state is big enough a hurdle, and that more than a handful of such validations processes would be completely unreasonable for an AV developer. Having a single standard was identified as a positive step, while some conceded that states also serve the useful purpose of “incubating” various legal formulations and strategies, allowing in due time the federal government to “pick” the best one. 

Panel II: Who Gets the Ticket? Who or What is the Legal Driver, and How Should Law Be Enforced Against Them?

The second panel looked at who or what should decide whether an automated vehicle should violate a traffic law, and who or what should be responsible for that violation. Further questions included – Are there meaningful differences among laws about driving behavior, laws about vehicle maintenance, and laws and post-crash responsibilities? How should these laws be enforced? What are the respective roles for local, state, and national authorities?

The participants discussed several initiatives, both public and private, that aimed at defining, or helping define the notion of driver in the context of AVs. The Uniform Law Commission worked on the “ADP”, or “automated driving provider”, which would replace the human driver as the entity responsible in case of an accident. The latest report from the RAND Corporation highlighted that the ownership model of AVs will be different, as whole fleets will be owned and maintained by OEMs (“original equipment manufacturers”) or other types of businesses and that most likely these fleet operators would be the drivers. 7 7. James M. Anderson, et. al., Rethinking Insurance and Liability in the Transformative Age of Autonomous Vehicles (2018), https://www.rand.org/content/dam/rand/pubs/conf_proceedings/CF300/CF383/RAND_CF383.pdf. ×

Insurance was also identified as a matter to take into consideration in the shaping up of the notion of AV driver. As of the date of the conference, AVs are only insured outside of state-sponsored guarantee funds, which aim to cover policy holders in case of bankruptcy of the insurer. Such “non-admitted” insurance means that most insurers will simply refuse to insure AVs. Who gets to be the driver in the end may have repercussions on whether AVs become insurable or not. 

In addition, certain participants stressed the importance of having legally recognizable persons bear the responsibility – the idea that “software” may be held liable was largely rejected by the audience. There should also be only one such person, not several, if one wants to make it manageable from the perspective of the states’ motor vehicle codes. In addition, from a more purposive perspective, one would want the person liable for the “conduct” of the car to be able to effectuate required changes so to minimize the liability, through technical improvements for example. That being said, such persons will only accept to shoulder liability if costs can be reasonably estimated. It was recognized by participants that humans tend to trust other humans more than machines or software, and are more likely to “forgive” humans for their mistakes, or trust persons who, objectively speaking, should not be trusted.

Another way forward identified by participants is product liability law, whereby AVs would be understood as a consumer good like any other. The question then becomes one of apportionment of liability, which may be rather complex, as the experience of the Navya shuttle crash in Las Vegas has shown. 

Conclusion

The key takeaway from the two panels is that AV technology now stands at a crossroads, with key decisions being taken as we discuss by large industry players, national governments and industry bodies. As these decisions will have an impact down the road, all participants and panelists agreed that the “go fast and break things” approach will not lead to optimal outcomes. Specifically, one line of force that comes out from the two panels is the idea that it is humans who stand behind the technology, humans who take the key decisions, and also humans who will accept or reject commercially-deployed AVs, as passengers and road users. As humans, we live our daily lives, which for most of us include using roads under various capacities, in a densely codified environment. However, this code, unlike computer code, is in part unwritten, flexible and subject to contextualization. Moreover, we sometimes forgive each others’ mistakes. We often think of the technical challenges of AVs in terms of sensors, cameras and machine learning. Yet, the greatest technical challenge of all may be to express all the flexibility of our social and legal rules into unforgivably rigid programming language. 

By David Redl

Cite as: David Redl, The Airwaves Meet the Highways
2019 J. L. & Mob. 32.

I applaud and congratulate the University of Michigan for launching the Journal of Law and Mobility. The timing is perfect. The information superhighway is no longer just a clever metaphor. We are living in an era where internet connectivity is a critical part of making transportation safer and more convenient.

Internet connectivity has powered the U.S. and global economies for years now. In the early stages, dial-up connections enabled users to access a vast store of digital information. As the internet and its usage grew, so did the demand for faster broadband speeds. Finally, wireless networks untethered the power of broadband Internet so consumers could have fast access when and where they want it.

We are now seeing technology advances in the automotive sector begin to better align with what has occurred in the communications space. The possibilities for what this means for human mobility are truly exciting. Challenges abound, however, with questions around the security and safety of self-driving vehicles and how to create the infrastructure and policies needed for vehicle connectivity. While many of these will be sorted out by the market, policy levers will also play a role.

In the late 1990s, the Federal Communications Commission (FCC) agreed to set aside radio frequencies for intelligent transportation systems (ITS), persuaded that emerging advances in communications technologies could be deployed in vehicles to increase safety and help save lives. 1 1. Amendment of Parts 2 and 90 of the Commission’s Rules to Allocate the 5.850-5.925 GHz Band to the Mobile Service for Dedicated Short Range Communications of Intelligent Transportation Services, Report and Order, 14 FCC Rcd. 18221 (Oct. 22, 1999). × Specifically, the FCC allocated the 75 megahertz of spectrum between 5850-5925 MHz (5.9 GHz band) for ITS. 2 2. Id. × The automobile industry’s technological solution was to rely primarily on a reconfiguration of IEEE Wi-Fi standards 3 3. The Working Group for WLAN Standards, IEEE 802.11 Wireless Local Area Networks, http://www.ieee802.org/11/ (last visited Oct. 31, 2018). × suitable for ITS (802.11p) so vehicles could “talk” to one another and to roadside infrastructure. 4 4. Accepted nomenclature for these communications include vehicle-to-vehicle (V2V), vehicle-to-infrastructure (V2I), or more generally vehicle-to-x (V2X). Other applications include vehicle-to-pedestrian. × The FCC in turn incorporated the Dedicated Short Range Communications (DSRC) standards into its service rules for the 5.9 GHz band. 5 5. Amendment of the Commission’s Rules Regarding Dedicated Short-Range Communication Services in the 5.850-5.925 GHz Band (5.9 GHz Band), 19 FCC Rcd. 2458 (Feb. 10, 2004). ×

The National Telecommunications and Information Administration (NTIA), by statute, is the principal advisor to the President of the United States on information and communications policies, including for the use of radiofrequency spectrum. NTIA also is responsible for managing spectrum use by federal government entities. As such, NTIA seeks to ensure that our national use of spectrum is efficient and effective. Over the past two decades, innovations in wireless technologies and bandwidth capacity have completely changed what is possible in connected vehicle technology. 2G wireless evolved to 3G, and then 4G LTE changed the game for mobile broadband. 5G is in the early stages of deployment. Meanwhile, Wi-Fi not only exploded in usage but in its capability and performance. Many vehicles in the market today are equipped with wireless connectivity for diagnostic, navigation and entertainment purposes. Yet DSRC as a technology remains largely unchanged, notwithstanding recent pledges from proponents to update the standard. 6 6. See IEEE Announces Formation of Two New IEEE 802.11 Study Groups, IEEE Standards Association (June 5, 2018), https://standards.ieee.org/news/2018/ieee_802-11_study_groups.html. × This stasis persists despite the technological leaps of advanced driver assistance systems, enhanced by innovations in vehicular radars, sensors and cameras.

This situation is not new or novel as traditional industries continue to grapple with the pace of technological change in the wireless sector.  In fact, the automotive sector has faced the challenge of wireless technological change before, struggling to adapt to the sunset of the first generation of analog wireless networks.  This leads to the question of whether, as some promise, DSRC effectively broadens a vehicle’s situational awareness to beyond line-of-site as the industry creeps toward autonomous driving – or has innovation simply left DSRC behind? The answer is important to the question of whether it makes sense to continue with DSRC for V2X communications.  Regardless of how the question is answered, we must address who should answer it.

One distinction between V2X communications for safety applications and most other communications standards choices is that a fragmented market could have drastic consequences for its effectiveness, given that vehicles must be able to talk to each other in real time for the entire system to work. This is why the National Highway Transportation Safety Administration (NHTSA) initially proposed a phased-in mandate of DSRC beginning with cars and light trucks. 7 7. See Federal Motor Vehicle Safety Standards; V2V Communications, 82 Fed. Reg. 3854 (Jan. 12, 2017). ×

This question of whether to mandate DSRC has also been complicated by inclusion in 3GPP standards of a cellular solution (C-V2X), first in Release 14 for 4G/LTE, 8 8. Dino Flore, Initial Cellular V2X Standard Complete, 3GPP A Global Initiative (Sept. 26, 2016), http://www.3gpp.org/news-events/3gpp-news/1798-v2x_r14. The updates to the existing cellular standard are to a device-to-device communications interface known as the PC5, the sidelink at the physical layer, for vehicular use cases addressing high speed and high density scenarios. A dedicated band is used only for V2V communications. × and continuing with Release 15 and especially Release 16 for 5G, targeted for completion in December 2019. 9 9. Release 16, 3GPP: A Global Initiative (July 16, 2018), https://www.3gpp.org/release-16. × It raises the legitimate question of whether leveraging the rapid innovation and evolution in wireless communication technology is the right way to ensure automotive safety technology benefits from the rapid pace of technological change, and what role the federal government should play in answering these questions.

Despite the federal government’s legitimate interest in vehicle safety, as is true in most cases I question whether the federal government should substitute its judgement for that of the market. A possible solution that strikes a balance between legitimate safety needs and technological flexibility are federal performance requirements that maintain technological neutrality.

Moreover, because the spectrum environment has changed drastically since the 1990s many are questioning whether protecting this 75 megahertz of mid-band spectrum for ITS use is prudent. The 5.9 GHz band is adjacent to spectrum used for Wi-Fi 10 10. Table of Frequency Allocations, 47 C.F.R. § 2.106 (2018). × , which makes it unsurprising that some are calling for access to 5.9 GHz spectrum as a Wi-Fi expansion band. 11 11. Sean Kinney, Is DSRC Dead? Cable cos want FCC action on 5.9 GHz, RCR Wireless News, (Oct. 17, 2018), https://www.rcrwireless.com/20181017/policy/dsrc-fcc-cable-companies. × Other still question whether V2V safety communications require protected access to all 75 megahertz. NTIA, the FCC, and the Department of Transportation continue to study the feasibility of whether and how this band might be shared between V2V and Wi-Fi or other unlicensed uses and remain committed to both the goal of increased vehicle safety and the goal of maximum spectrum efficiency. 12 12. See DSRC and U-NII-4 Prototype Device Testing, Federal Communications Commission, https://www.fcc.gov/oet/unii-4banddevice (last visited Nov. 1, 2018). ×

While I am optimistic that wireless technologies will bring a new level of safety to America’s roadways, a number of other policy and legal issues, including user privacy and cybersecurity, will persist as challenges despite being addressed in current solutions. If we are to see the kind of adoption and reliance on V2X safety applications and realize the systemic improvements in safety they portend, Americans must have trust in the security and reliability of these technologies.

The marriage of communications technology with transportation will help define the 21st century, and potentially produce enormous benefits for consumers. A lot of work remains, however, to ensure we have the right laws, regulations and policy frameworks in place to allow private sector innovation to flourish. This forum can play an important role in moving the dialogue forward.


David Redl is the Assistant Secretary for Communications and Information at the U.S. Department of Commerce, and Administrator of the National Telecommunications and Information Administration.