No longer a science-fiction fantasy, the car of the future will be driverless. In the US, in California and Nevada, test driving of automated vehicles has already begun. Closer to home, the UK and Sweden have announced plans to allow automated vehicles take to the roads. Given the casualties associated with driver error and fatigue and the environmental impact of traffic-filled roads, the prospect of safer, less congested highways is to be welcomed. However, as automated vehicles become a closer reality, the existing legal landscape will be challenged.

The Existing Legal Framework

The development of automated vehicles disrupts the rationale underpinning the regulation of vehicles. The legislative framework is constructed around the assumption of a responsible driver. Licensing and insurance obligations, taxation, civil and criminal sanctions attach to a human driver/owner of a vehicle. A degree of automation has already been incorporated into many vehicles, through the introduction of auto-braking, parking and cruise control features. However, the notion of an entirely automated vehicle has yet to be tested.

The 1949 Geneva Convention on Road Traffic (which has 95 Signatories, including Ireland) states, at Article 8.1, that [e]very vehicle or combination of vehicles proceeding as a unit shall have a driver. While conventionally, we would interpret a driver to be a human operator of the vehicle, there would appear to be scope for a reinterpretation of the notion of a driver. Prof Bryant Walker Smith of Stanford Law School has argued that the possibility for human intervention in the operation of a vehicle ought to be sufficient to satisfy this requirement.

Liability Challenges

The existing legal framework does not provide for artificial intelligence, nor responsibility for automated actions.

The challenge for legislators will be to develop a framework which is sufficiently flexible to adapt to rapidly changing technology while robust enough to protect the public interest. We may see a patchwork approach emerging – product liability could be extended, vehicle safety standards and the rules of the road could be modified.

In the criminal sphere, the issue of crimes of dangerous driving and driving while intoxicated will hopefully fall away. However, despite the elimination of driver error, dangers may remain. In the US, the FBI has raised concerns that automated vehicles may be used as weapons. Indeed, with the grave security challenges that hacking into a vehicle’s navigation system poses, new criminal offences or the amendment of existing computer crimes may be warranted. There is certainly precedent of this development. Famously, bank robbers were one of the most enthusiastic “early adopters” of the motor car, who used their increased mobility to quickly flee from the scene of the crime and often move beyond the jurisdiction of local law enforcement.

Privacy and Data Protection Challenges

Automated driving also raises a host of privacy issues. Computerised navigation will amass a wide range of location information which may be traced back to an individual passenger and thereby fall within the definition of protected personal data. Automated processing of this information by a car’s navigation system could well attract the application of data protection law.

The monetisation of such data could be a lucrative revenue source, while also providing valuable information to planning and environmental authorities to manage urban planning and congestion. Policing and security authorities may also have a keen interest in the use of such data when tracking down suspects or missing persons. Balancing these public and commercial interests against individual privacy will be a challenge for developers. The incorporation of robust anonymisation techniques from the outset may deserve consideration.

Regulatory Challenges

The prospect of fleets of driverless service vehicles may also negatively impact upon existing industries based on automotive transport, such as hauliers and taxi-operators. Given the potential disruptive impact that driverless cars could have on such industries, and the likely threat to employment, we would not be surprised to see a high degree of resistance to the roll-out of automated vehicles. Indeed, the (likely less disruptive) roll-out of rideshare services have already led to extensive litigation in a number of different jurisdictions.  We should expect to see similar (and possibly much more extensive) disputes arising during the roll-out of the “robotic car”.

Additionally, given the first-mover advantage in establishing technical standards and dictating interoperability requirements, anti-trust and competition authorities may keep a close watch on the developments in the area.

The unpredictable road ahead

The challenges associated with the regulation of self-driving cars illustrate the legal difficulties often encountered when trying to adapt existing legal norms to disruptive technologies. While Isaac Asimov may have been contented with Three Laws of Robotics, no such single instrument is likely to be able to cope with the myriad of challenges that automated driving will create. The legal landscape of the future may be more difficult to navigate than the roads.