As the Portland Tribune noted last month, our city recently hosted a major media event in which “a fleet of high-tech electric vehicles were road-tested in downtown Portland by more than a dozen automotive journalists.”
The Tribune reported that “all of the drives went smoothly, with cars easily weaving through midday traffic, even over the Hawthorne Bridge with its notoriously slippery steel grating and the Morrison Bridge with its deteriorating decking.” The test event comes at a moment when self-driving technology is still far from mainstream, but is clearly moving in that direction. Tesla (which, the Tribune reports, did not participate in the Portland event) and Google have both received huge amounts of publicity for the self-driving cars they are working to develop.
That fact, however, makes it all the more important that we use this moment to begin a serious conversation about the legal issues that self-driving cars will inevitably raise. The question is especially timely because it was barely two months ago that “the driver of an all-electric Tesla car was killed in a crash while driving on the manufacturer’s ‘Autopilot’ system.” As the Tribune goes on to note: “”(T)he ‘Autopilot’ name gave the impression the systems – which have never been approved by the federal government – could drive the cars safely by themselves.”
As a detailed analysis by Stanford University’s Center for Internet and Society shows (see link below) the legal and regulatory framework around self-driving cars barely exists. According to the center only four states (California, Nevada, Michigan and Florida) have passed any sort of law addressing self-driving cars. As the site outlines, Oregon is one of 16 states where laws or regulations regarding self-driving cars have been considered by state legislatures but have failed (17 states have not even considered the issue at all). According to the Stanford analysis the Oregon House looked at this issue in 2013 (HB 2428) while the Senate took up a similar bill in 2015 (SB620). Both sought to define the terms “autonomous system”, “autonomous vehicle” and “manufacturer” and to set regulations around the testing or sale of such vehicles, or to delegate authority over them to the Oregon DOT. Both bills failed to make it out of committee.
This issue is the essence of public policy – the sort of unglamorous, often boring, work that occupies most of a legislator’s time but which is crucial to the everyday lives of so many people. It is important because the technology for self-driving cars is clearly just around the corner but our legal system has barely begun to catch up. To raise only the most obvious issues: in a crash involving a self-driving car where the self-driving car appears to be at fault, with whom does that fault lie? The car’s manufacturer? The maker of the software that controls the car? Perhaps it lies mainly with some third party that integrates the two or provides data to one or the other? Where does the human using the vehicle come in? If the auto-drive system can be turned on and off (as is the case with current Tesla models) is engaging or disengaging that system an act that by its nature puts responsibility on the car’s operator? If, for example, one should reasonably know that the auto-drive system does not function at its best in poor weather would a driver take on heightened liability for choosing to use it in those circumstances anyway? And what of truly driverless cars – something that does not exist today but almost surely will in the not-too-distant future. If the car’s owner is only ever a passenger, what responsibility does he or she bear for an accident? Beyond that, how do all these questions impact someone who is a passenger in (as opposed to the driver/operator of) such a car?
As a Portland attorney with a practice that focuses on car accidents this is a question I hope our lawmakers will treat seriously in the coming legislative session, with an eye toward protecting Oregonians first rather than car makers or software companies.
Portland Tribune: Not self-driving yet, but getting closer
Stanford Center for Internet & Society: Autonomous Driving: Legislative and Regulatory Action