Ethics Commission Report

Automated driving remains one of the current ‘hot topics’ in discussions regarding emerging and disruptive technologies. Its development raises many issues surrounding the ethical principles and use of decision-making software in road going vehicles.

In June 2017, an Ethics Commission (appointed by the German government’s Federal Ministry of Transport and Digital Infrastructure) published its report on the algorithms of automated and connected driving systems in the form of 20 ethical rules for automated and connected vehicular traffic (the “Ethical Rules”). Whilst these Ethical Rules currently have no legally binding effect, the German government welcomed the findings of the report and intends to assist with the evolution of the technology, setting out in its action plan how it plans to implement the findings.

These documents offer some clarity for both developers and consumers when considering the ethical principles that should guide machines reacting to different situations that impact on human life. The Ethics Commission report states that the fundamental questions to consider are:

  1. How much dependence on technologically complex systems – which in the future will be based on artificial intelligence, possibly with machine learning capabilities – are we willing to accept in order to achieve, in return, more safety, mobility and convenience?
  2. What precautions need to be taken to ensure controllability, transparency and data autonomy? and
  3. What technological development guidelines are required to ensure that we do not blur the contours of a human society that places individuals, their freedom of development, their physical and intellectual integrity and their entitlement to social respect at the heart of its legal regime?

Key findings

The Ethics Commission places the reduction of harm and the increasing of safety at the core of the Ethical Rules, and states that due regard for “human dignity, personal freedom of choice and data autonomy” is key when considering the ethical implications. Its report suggests that using the technology’s potential for damage limitation will encourage social engagement and acceptance.

The Ethics Commission believes the protection of individuals takes precedence. Its report acknowledges that whilst these automated systems are likely to significantly reduce the probability of accidents, it is not possible (at this stage) to entirely prevent them and therefore sets out guidelines for what developers should ensure is captured in the technology.

For example, the technology must prevent accidents wherever it is practically possible to do so. Where it is not possible, the vehicle’s computer must “decide” to do the least amount of harm, e.g. systems should be programmed to accept damage to animals or property over risking human life. If it is unavoidable that a human will be harmed, the computer should not discriminate based on any personal features (age, gender, physical or mental constitution). All human life is to be considered equal and victims cannot simply be numerically offset against one another in dilemmatic situations.

It is yet to be seen how this will actually play out in practice and the Ethics Commission has acknowledged that further studies and ongoing monitoring are required. It is not currently clear how a vehicle will be able to adhere to the Ethical Rules and accurately calculate the damage or harm that is likely to be caused (and to whom) in an accident, or how it will react if it reaches the decision that two humans are equally likely to suffer the same level of harm.

The Ethical Rules state that accountability should lie with the manufacturers and operators of these systems and that statutory liability regimes should adapt to this transition of liability away from individual owner-operators. Essentially, liability for damage should be governed by the same principles as other product liability, and manufacturers and operators should be obliged to continually develop and improve their systems.

Further, the third Ethical Rule states that the public sector is responsible for guaranteeing the safety of the automated and connected systems in the public street environment, thus requiring new official licensing and monitoring. To that end, the German government intends to adapt its existing Road Traffic Act to cover the operation of Level 3 and 4 automated driving functions, as defined on page 14 of the report, on the roads.

The Ethical Rules state that it must be possible to clearly distinguish whether the driverless system was in control of the vehicle at the time of an accident in order to attribute appropriate levels of accountability to the parties involved. The distribution of responsibility between machine and driver must be clearly apparent and recorded; in essence, a similar system to an airplane’s ‘black box’. International standardisation of this documentation process should be sought to allow the ‘rules of the robot road’ to apply across jurisdictions, the feasibility of which is questionable but arguably necessary for the technology to succeed.

Other key areas addressed in the Ethical Rules include consideration of: i) data protection issues; ii) continual development of the technology with the aim of enhancing road safety as the primary focus; iii) how data generated by the technology should be made available (including as open source data); and iv) a suggestion that use of automated systems should form part of general digital education.

Countries that have designs on leading the way on autonomous vehicles will have to develop ethical principles regarding their use at some stage. In adopting the expert guidance afforded by the Ethical Rules, Germany has placed itself at the forefront in this area of technology in the international marketplace, and it will be interesting to see if others will follow suit with similar guidelines or if they will choose to implement an entirely different regime. Undoubtedly there will be further questions requiring answers as the technology becomes ubiquitous, but Germany has taken a timely and considered first step in attempting to start to regulate this sector.