Baby, You Can't Drive My Car
The "law-technology gap" is the no-man's land between the state of a technology and the state of the law scrambling to understand, catch up to, and regulate it. Examples abound in telecommunications, pharmaceuticals, medical devices, digital records, drones, and many more disruptive technologies. Regarding autonomous vehicles, the gap is a chasm, chock full of opportunity.
The Basic Premise
Technology moves ahead rapidly, at increasingly breathtaking speed, sometimes at literally the speed of light. Exponential advances now are the norm throughout the digital universe.
Meanwhile, law and regulation creep along very slowly, often at a snail's pace. One classic example: it took Congress 62 years to update the Communications Act of 1934, during which an increasingly obsolete law and set of regulations developed for radio attempted to cope with transformative innovations such as television, cable, the internet, and wireless mobile communication.
The gap created by the stark differences in the speed of advancement of technology and law is filled with attorney and law-related job and career opportunities. Doing a little bit of "legal career arbitrage" can identify them for you and help you determine which ones are the most promising. The difference between traditional arbitrage—identifying price differentials between the same security or currency trading in more than one market and moving quickly to take advantage of those price discrepancies in order to profit from them—and legal job and career arbitrage is that the latter is much easier.
The Autonomous Vehicle Gap
The Department of Transportation defines a driverless car as follows: the car's operation does not require driver input to control steering, acceleration, or braking. A further definitional refinement from the National Highway Traffic Safety Administration specifies five levels of automation:
No-Automation: The driver is in complete control of the vehicle.
Function-Specific Automation: A particular function, such as brake-assist technology, supplements the driver.
Combined Function Automation: Two functions work together, such as adaptive cruise control and lane centering.
Limited Self-Driving Automation: The driver relinquishes control of the car in certain scenarios, with sensors triggering the need to return control to the driver.
Full Self-Driving Automation: The car performs all driving functions and monitors road conditions absent any human input other than determining the destination.
This blog focuses on level 5.
State of the Art
Google was first past the post with respect to developing a driver-less car. However, encouraged by reports such as a recent one from the Boston Consulting Group that the potential autonomous vehicle market is worth more than $4 trillion, virtually every other major car company has jumped into the race to put a viable vehicle on the road and in the showrooms.
Google's autonomous cars have now logged more than 300,000 miles of road testing, with one mishap caused by human error. A driverless Audi recently drove itself 568 miles from San Francisco to Las Vegas for the 2015 Consumer Electronics Show. Another such vehicle drove from downtown Parma, Italy, to China (a human driver was needed to pay tolls in Moscow). Automakers anticipate that sales of these cars to consumers are only a few years away.
State of the Law
This is yet another classic example of technology racing full-speed ahead of the law's ability to cope. The U.S. government has nothing on the books at present, and to date there is little, if any, interest in the administration or Congress to legislate in this gap. To the extent that a handful of states have any laws at all regarding this technology, they only address the legality of road testing and nothing more.
What happens when a driverless car hits a pedestrian? Or a car that automatically parks itself bangs into another vehicle? Or parks in a no-parking zone? Should a driverless car be deemed a robot and accorded some degree of legal personhood? What about insurance? All of these questions remain to be resolved. To date, manufacturer and remote operator liability remain untouched.
Product liability laws, as they currently stand, can probably encompass this new technology. We currently do a decent job of regulating, constraining, and punishing lapses in operator judgment. But what happens when there is no operator, which will be the case with a lot of this technology? Who bears responsibility for what, in existing circumstances, is deemed driver error?
Potential Law Practice Downsides
While the law-technology gap is almost always a net plus for lawyers, there are some danger zones for certain practices. For example, if you specialize in DWI defense work, where might that leave you and your livelihood in a world of driverless cars? Similarly, if you work for any insurance company in claims or in a "captive" local law firm, will they still need you, will they still feed you when driverless cars hit the road?
Stay tuned. Meanwhile, attorneys who want to make their mark in a new, exciting, and potentially very lucrative practice area may wish to bone up on the technology and the legal issues surrounding its development and implementation. Here are several suggestions for doing that:
"Navigating Driverless Cars," WIPO Magazine, December 2014
Legal Aspects of Autonomous Driving, Center for Internet and Society at Stanford Law School
Products Liability and Driverless Cars: Issues and Guiding Principles for Legislation, Brookings Institution, April 2014