Technology tends to explode out of the box at warp speed, with laws addressing new technology trying to catch up at a comparative glacial pace. There are various reasons for the slow pace of legal regulation. Often the impacts and ultimate consequences of new technology are not immediately known. In addition, it takes time for lawmakers to truly understand new technology before they can even contemplate how to go about regulation. And in certain instances, lawmakers want certain technologies to have the opportunity to grow and flourish unfettered by legal restrictions.

With respect to the last reason, in the mid-1990s, Congress wanted the emerging commercial internet to grow exponentially to the perceived benefit of the U.S. economy. Accordingly, in Section 230 of the Communications Decency Act, Congress provided immunity to internet service providers with respect to third-party content posted on their sites. This enabled social media companies like Facebook to become some of the most valuable companies in the world.

Fast-forward to now. Self-driving cars are a new and advancing technology. Are self-driving cars facing imminent federal regulation? While the concept of self-driving cars is relatively easy to understand and the impacts of self-driving cars are not impossible to imagine, tremendous legal regulation, at least at the federal level, appears not to be immediately forthcoming.

Elaine Chao, the U.S. Transportation secretary, was a keynote speaker at CES 2020. At CES, Secretary Chao outlined the AV 4.0 Plan of the Department of Transportation and the National Highway Traffic Safety Administration. The plan is quite light in terms of regulating self-driving cars.

The position of the federal government appears to be that rigorous regulation of the self-driving car industry would thwart development in an area where the U.S. wants to be a world leader. Therefore, self-driving car developers should be permitted a great degree of freedom.

But not so fast. This plan is in contravention of recommendations made by the National Transportation Safety Board. And, of course, the NTSB is the investigating body when it comes to self-driving test car crashes. The NTSB has condemned the Trump administration and various state governments for not investigating self-driving cars more thoroughly. Indeed, the NTSB reportedly said that the development of self-driving cars is being prioritized over human life. Yet, it is not evident yet whether there currently is a significant threat to human life.

Self-driving cars are being developed and tested in several states, including California, Florida, Arizona and Pennsylvania. Thus, to the extent the federal government does not act to regulate self-driving cars, it will be worth watching whether and to what extent these states and perhaps others jump in.