The momentum around autonomous or self-driving vehicles is dizzying. Each month brings new technological breakthroughs and initiatives for joint ventures. Companies like Audi, Google, Uber, Volvo, Delphi and Tesla, among others, have been intensely working on improving and testing their autonomous cars. So what is the short-term future of autonomous cars?
This year started with representatives from Google, Ford, Delphi and the US Secretary of Transport, Anthony Foxx, announcing that $4 billion was earmarked in the 2017 budget for automated vehicle research and development. Two weeks later, the UK government announced a 20 million Pound injection into research and development into autonomous vehicles. Several days later, the US government wrote a lengthy letter to Google, cited above, in which it offered an interpretation of the crucial term "driver," though many issues still need to be dealt with in formal regulations.
“We agree with Google, its SDV (self-driving vehicle) will not have a driver in the traditional sense that vehicles have had drivers during the last more than one-hundred years… If no human occupant of the vehicle can actually drive the vehicle, it is more reasonable to identify the driver as whatever (as opposed to whoever) is doing the driving. In this instance, an item of motor vehicle equipment, the SDS (self-driving system), is actually driving the vehicle.”
NHTSA (National Highway Traffic Safety Administration) February 4, 2016
Whereas technological developments move ever more quickly, legislators are struggling to keep up. This article will discuss the most important legal issues surrounding autonomous cars, and summarize the current legislation in several EU countries and the US. Finally, it will look at the road ahead for legislators. Legal issues surrounding autonomous cars Despite the ever-increasing capabilities of autonomous cars, in many respects superior to human drivers, the law treats the two differently and, in most cases, prohibits or fails to facilitate autonomous cars. The best-known obstacle, until recently, was article 8 of the Vienna Convention on Road Traffic (1968), which demanded that:
"Drivers shall at all times be able to control their vehicles or guide their animals."
It effectively blocked the introduction of autonomous cars into Europe, where most countries had ratified the convention and put the US and the UK at an advantage, as they never signed up to it. Under pressure from Germany and several other EU countries, the article was amended, and it now allows the car to drive itself as long as the system "can be overridden or switched off by the driver." A driver must thus be present and able to take the wheel at any time. Though this appears to be an improvement, it also blocks cars from being truly autonomous. Added to this, article 1 still defines a driver as a natural person driving the vehicle. These articles pose the biggest legal hurdle to the smooth development of autonomous cars, and their introduction on the market. Other legal issues concern the definition of criminal and civil liability, in the event of accidents with autonomous cars. As automation increases, liability could gradually shift from drivers to manufacturers and Original Equipment Manufacturers (OEMs). Furthermore, driving licenses will need to be adapted to the reality of autonomous cars. Drivers with impairments may be granted licenses specifically for highly-automated cars.
As far as fully-autonomous cars are concerned, it is undecided whether any license is actually needed when the "driver" is the SDS. And regulatory authorities have to decide whether to issue context-dependent operating licenses for specific vehicles and road classes, more general licenses, or in fact both. Finally, from a perspective of privacy, regulators need to deal with the sheer unlimited amount of data gathered by autonomous cars and exchanged with car manufacturers and others.
Current legislation in the EU
A patchwork of legislative approaches dominates the EU, as the EU itself cannot dictate general rules, except for the homologation of vehicles. Some examples will be briefly looked at here. First of all, the UK, which has not signed up to the Vienna Convention and strives to be part of the vanguard of the future of autonomous cars. In 2014, it launched a driverless cars competition, inviting cities to join together with businesses and research organizations to host vehicle trials locally. In 2015, the Department of Transport published an overview of regulations, and stated that those wishing to test automated and highly-autonomous vehicles are not limited to test tracks or specific geographic areas, nor are they required to obtain special certificates or permits.
In Sweden, automated vehicles can be allowed, provided there is a driver in the vehicle. The Swedish Transport Agency can give permission for vehicles to be used in testing. In 2017, the Drive Me project starts, in which 100 autonomous vehicles will be released onto public roads in Gothenburg. The project is a collaboration of the Swedish government, Volvo and others, and is the largest project of its kind in the world. The Netherlands also aims to be at the forefront of developments around autonomous cars, and has eased regulations as of July 1, 2015 to enable different kinds of tests on public roads. Furthermore, Tesla's "Autopilot" system was approved in October 2015. As in other European countries, however, a driver still needs to be present who is in control of the vehicle. In Germany, highly-automated and autonomous cars do not comply with German law, according to the Federal Highway Research Institute. However, the different federal states can grant exemptions and allow testing of autonomous vehicles, as long as a driver is in the driver's seat, who has full responsibility for the safe operation of the vehicle. In France, PSA Peugeot Citroen got permission to test four autonomous cars on the motorway from Paris to Bordeaux. On October 2, 2015 they made the 580 km trip entirely in autonomous mode. However, new legislation to enable the big car manufacturers to speed up the testing and development of autonomous cars is not yet in place.
The situation in the US
Regulation of autonomous cars in the US is different in each state. Only four states have actually passed legislation: California, Nevada, Florida and Michigan. In eleven states, attempts to regulate failed, and in fifteen states legislation is currently under consideration. California, home to Google, Tesla and others, announced new proposed legislation in December 2015. The new law would still require a driver who can intervene at any moment, as well as a steering wheel and pedals. This actually makes the truly autonomous car an illusion. At the federal level, the National Highway Traffic Safety Administration responded positively to some questions from Google about the definition of "driver." Federal rules, however, are lacking, and leave car manufacturers with the jumble of state rules (or lack thereof).
The road ahead
Despite the difference in speed between the automotive industry and legislators, progress is evident, and helps to facilitate the tests of autonomous cars and paves the way for their future introduction onto public roads. To continue in the right direction, the Vienna Convention should be further amended, and define anew what is considered a "driver," and ideally include an SDS in this definition. In fact, only when an SDS is included, can one really speak about an autonomous or self-driving vehicle.
And these amendments are not far away. Dr. Stefan Knirsch, who is in charge of development at Audi, told Plugin at the Geneva Motor Show that their A8 will be able to drive autonomously next year – with the car, not the driver, being in control, from legal standpoint. Drivers will be able (and will be allowed) to read newspapers, for example, while the car is moving. When we asked about possible political delays, he was clear: "We believe it will happen next year!" In this context, national legislators will also have to provide clarification about liability, data protection, driving licenses and insurance issues. And at least as important, keep an eye on harmonizing all regulations between EU states and other important market countries. At the same time, legislation should not hinder development. The Amsterdam Declaration, signed by the transport ministers of EU countries in Amsterdam in the middle of April is the first big step in this direction.
In it, EC, EU member states and the transport industry agreed to prepare rules and regulations that will allow autonomous vehicles to be developred to a single standard and to be used on the roads.
(Edgar Tijhuis, photo: manufacturers, Profimedia)