The old joke in my family is that my Mom, Sandy Wagner, was generations ahead of her time when it came to the now ubiquitous Google Maps and Garmin direction devices. “Shelly! Turn here! NO, not here, there! In 100 feet! Turn around! You missed the turn, now we’ll have to recalculate!” Mom really should have applied for a patent.
Now, of course, we are witnessing nothing short of a revolution in driverless or autonomous vehicle technology. Last week, U.S. Department of Transportation Secretary Anthony Foxx took advantage of the Transportation Research Board (TRB) Annual Meeting and the North American International Auto Show to announce his agency’s commitment to assist remarkably fast-moving autonomous vehicle innovations.
Secretary Foxx said that the Administration would request $4 billion (to be spent over 10 years) to finance research projects and infrastructure improvements related to driverless cars. In addition, the National Highway Transportation Safety Administration (NHTSA) will propose best practice guidance in the next six months for “establishing principals of safe operation for fully autonomous vehicles.” The Secretary also asked the automobile industry to partner with NHTSA to seek ways that the agency can update its regulations to keep up with current and imminent technology advances.
All this is welcome news. New technology has the potential to make our roads safer and more accessible for all generations of drivers. As Chris Urmson, the Director of Google’s Self-Driving Car Program, reminded an audience of hundreds of transportation experts at the TRB meeting, the number of automobile fatalities in the U.S. (averaging just under 35,000 per year over the last two decades) is the rough equivalent of 5 airliners falling from the sky – every week. We would never tolerate that kind safety performance in our aviation industry; how can we tolerate it on our roads and highways? (World-wide, the statistics are staggering – over 1.2 million deaths per year.)
As I heard and read all this news last week, I was forced to confront a hard question for the legal profession: will lawyers be an impediment to this rapidly changing technology?
Our usual system of rulemaking and regulation will simply not keep up with the speed and creative energies of automotive vehicle developers such as Google, Apple, Carnegie Mellon, Stanford, MIT, and others. No sooner would a regulation be drafted, commented on, and approved by the Office of Management & Budget, than it would be woefully out-of-date. Even agency guidance, like the best practices guidance we expect from NHTSA this year, could never anticipate completely the broad spectrum of possibilities that technology will afford.
Consider too our current legal system of tort liability and insurance, or even more basic rules governing drivers licenses or speed limits. All these will need to change to some degree, and in some cases, change radically. As you know, lawyers tend not to react well to change, never mind radical change.
I believe lawyers need to throw off the shackles of our training to be risk averse and embrace the same spirit of innovation taking off in the automotive industry. Let’s not wait to rewrite our driving laws until vehicles are ready to be brought to market; let’s do that now. Let’s consult with states, autonomous vehicle innovators, and traditional automobile manufacturers to create brand new liability frameworks and then partner with the insurance industry to see what can work. Let’s offer our ideas to jurisdictions willing to take risks to implement autonomous technology first and then be humble enough to change our work product to reflect how technology actually performs in the real world.
The Code of Federal Regulations, in this field, will not be our friend. Eventually, we will be able to rewrite safety and other regulations to accurately reflect what will soon be accepted technology. Lawyers adapted and recodified law and regulation after the fact to accommodate the breakneck pace of new Internet technologies (as opposed to standing in the way of progress), and we can do the same with autonomous vehicles.
If she were alive today and sitting in the driverless Google car, my Mom would still be telling it where to turn and to “slow down, Shelly, for crying out loud!” (She’d definitely call the car Shelly.) But her son will not be the one telling technology to slow down. I’m ready to hop on board.