Autonomous cars and the law

Eric Hilgendorf, 04 Feb 2015

Largely as a result of the motor car, roads and highways have been subject to extensive legal codification. This has been on the basis of driver control. As autonomous technology gradually erodes driver control, the law must be altered in its code and its implementation. It is a significant challenge; but not an insurmountable one.

1. The technological challenge

Motor vehicle transport is facing a fundamental change: the transition from vehicles driven by human beings to largely autonomous “robot cars“. Semi-autonomously functioning systems began many years ago with the introduction of air bags and anti-blocking systems. Today, there exist systems for semi-autonomous parking assistance, lane departure assistants and traffic jam assistants.

In the near future it will be technically possible to transfer control of a car for longer periods to an autonomous system, which can drive independently, brake and also overtake other vehicles. The final goal of this technological development will be robotic vehicles, steered verbally or by gestures, which will bring their passengers to their destinations, while their occupants watch traffic passing, read, play or sleep.

Use of the term 'autonomous' in connection with motor vehicles has sometimes been misunderstood because in some areas of law the concept of 'autonomy' is associated with broad philosophical concepts. In contrast, the word 'autonomous' in a technical context simply means (more or less) that it works independently of human input while driving.

An 'autonomous system' is therefore a technical unit which fulfills certain tasks without being dependent regular human commands. Just as a Mars space probe is able to function without the need for constant (much delayed by the distances involved) steering by humans, the autonomous vehicle should be able to independently fulfill more and more tasks.

The social impact of the development of autonomous driving promises to be overwhelmingly positive. The great majority of road accidents are the result of human error. When the technology has matured, machines have the potential to drive much more safely than people. This fact is already visible: recent declines in traffic fatalities can to a large extent be attributed to the use of semi-autonomous devices like airbags and anti-blocking systems. It is expected that there will be further reductions in fatalities with the spread of new semi-autonomous technologies.

2. Constitutional provisions

Constitutions are not well adapted to dealing with technical innovation, and how legal systems should respond to dealing with new technology. Terms such as 'technical equipment', "technology" or "technical progress" do not appear in constitutional texts. Moreover, the constitutions do not include any provisions at all on managing technology.

It is undisputed that technological research is covered by the guarantee of freedom to conduct research (contained for example in Art. 5 of the German Constitution). Previously developed technologies are frequently protected as a kind of property (eg Art. 14 of the German Constitution). The protective duty of the state with respect to potentially harmful effects of new technologies may be derived mainly from the objective guarantees of fundamental rights. This is particularly the case for technologies with high risk of causing injury. It is therefore not surprising that road transport has always been highly regulated; and that the risks created by it are subject to constant state control.

The following principles can also be applied to the development of autonomous and semi-autonomous cars and their increasing use:
•    The principle of research is free and constitutionally protected.
•    Because of the inherent hazard potential of vehicles, research on autonomous vehicles has
always been subject to legal constraints, aimed at reducing possible risks created by the new vehicles
•    In the case of injury, rules provide for adequate compensation to be granted.
•    The description of motor vehicle transport as 'safe and efficient' expresses particularly clearly the two necessary conditions which the state must ensure.

The popular phrase 'the law always lags behind the development of new technologies', is therefore false, or, at best gross reduction. The law is always exists before any given technology. It is true, that the law has been inadequately prepared for the technical developments outlined above. The problem areas most notably include: road traffic law; civil liability for injuries (including the relevant insurance law); criminal law related to dangerous driving; product liability; and data protection.

The problems can be complex, ranging from simple issues of practical application to fundamental legal questions. On occasion it is possible to solve the problems by extending our interpretation of existing law; but sometimes far reaching changes in the existing law are necessary, if the new technologies and business models based on them are not to be relegated into some legal grey area or even prohibited because they are illegal.

3. Road Traffic Law

European road traffic law is based in large parts on the Vienna Convention on Road Traffic of 1968 (VC). Two provisions in particular are under discussion in connection with the introduction of semi-autonomous systems into the law:

•    Art. 8 VC stipulates the requirement that a vehicle must have a driver;
•    Art. 13 states that a driver must be in control of his vehicle in all circumstances.

The prevailing view, drawing conclusions based on these two provisions, is that vehicles must be steered under the control of a human driver; and that the driver must be able to control the vehicle at all times.

In the spring of 2014, the governments of Belgium, France, Germany, Italy, Russia and Sweden initiated a change in VC which was interpreted as a breakthrough towards the unconditional approval of the use of autonomous cars and trucks. The gist of the scheme is that driver assisted systems, which are accepted as technically sound by a specific UN body, would also be deemed to meet the requirements of Arts. 8 and 13 VC. Of course, it should be born in mind that the VC, as an international agreement, is not directly applicable to motorists and car manufacturers in a given European nation state.

The admissibility for road use of semi-autonomous systems in cars is regulated instead by the provisions of national law contained in specific national road traffic acts and highway codes. These regulations will initially remain unchanged by an amendment to VC, and reflect the principle that a vehicle must be under the control of a human driver. An amendment of VC would in itself alter nothing in this national legal position. Until the formal amendment procedures both for VC and for national road traffic law have been completed, the compatibility of semi-autonomous and autonomous vehicles with current legal requirements could only be achieved on the basis of a broad and technology-friendly interpretation of the relevant current provisions.

4. Civil Liability

Liability for possible damage occurring in the road transport context is primarily liability in tort (eg under §§ 823 German Civil Code, BGB), which under certain circumstances may be augmented by contractual liability. In addition, there exists strict liability designed specifically to cover road traffic, under which the owners of vehicles may incur liability, which for drivers is supplemented by a specially devised form of fault based liability. The above mentioned rules apply regardless of whether the vehicle causing damage has any autonomous functions.

In the first instance, there is no need for legislative change. The integration of autonomous functions would indeed lead to an expected fall in the overall accident rate fell; but the number of cases in which the manufacturer could be sued, rather than the owner or the driver, would go up. This is because the functioning of the autonomous system could be seen as the cause of the accident, rather than the behavior of the driver. The liability for failures of the autonomous system would be attributed to the manufacturer of the system. This phenomenon could have substantial ramifications in the area of insurance.

5. Criminal Law

Criminal liability could also arise for conduct fulfilling the factual requirements of criminal offences. The driver would incur the primary liability for criminal charges; but the seller and the manufacturer of autonomous vehicles could also face liability.

The relevant legal code is the offense of causing bodily harm by negligence (eg under § 229 German Criminal Code, StGB). One example of this would be an injured toddler, hit by a parking assistant because of dirt on the sensor of the on-board computer. All the elements of the offense would be fulfilled, namely an 'action' (allowing the computer to park the car), 'result' (the injury to the child) and 'causation' (if not for the parking, the child would not have been injured).

What is unclear is whether the driver acted negligently in connection with parking the car. A person is negligent who fails to exercise reasonable care. What constitutes reasonable care for the driver? With respect to personal injuries, one may assume that for quite some time the law will tend to demand high levels of care and high levels of monitoring and control.

Thus, in our hypothetical case, the driver would have had to have checked themselves whether the parking space was actually empty as the car was being parked. In addition, the functioning of the elements of the car’s autonomous systems would have to be checked at regular intervals. The driver might be blamed because he failed to examine properly whether the sensors were functioning correctly before the car was parked.

This results in the following dilemma: autonomous systems are installed into the car to relieve the driver of various driving tasks; however, the driver remains responsible for monitoring that the autonomous system is performing the driving tasks correctly, and, where necessary, taking corrective actions. Therefore, the driver is not allowed to pursue other activities like reading an email or watching a film, let alone work or sleep at the same time he is 'in control' of the car. The potential utility of the autonomous system for the driver (but not for road safety in general) is therefore significantly reduced. This might be referred to as the 'dilemma of control'.

A change in the duty of care required can then only be expected after autonomous systems have been used successfully and without any negative effects in cars and trucks over a long period of time. Systems can be proved to be reliable, and which function perfectly, do not need to be constantly monitored. Supplementary devices, which report to the driver any problems in the autonomous driving systems, could reduce the duty of care requirements further. However, reaching the point where certain autonomous functions can be entrusted to the onboard-computer without reservation, ie, without the need for a duty of constant monitoring, could take many years, indeed possibly even decades.

6. The liability of providers

There has been little discussion of the liability of providers in connection with new forms of future transport. Vehicles are not only becoming increasingly autonomous, but are also increasingly interconnected and exchange data with each other and with data storage sites far removed from the road traffic network. New vehicles habitually download information for directions or road conditions while on the road.

Currently drivers are still legally obliged to devote their attention to driving their vehicle.  However, as soon as it is possible and legally permissible for drivers to be exempted from specific driving and monitoring tasks, the demand will go up for entertainment software – from music and films all the way to online games. It will probably still take several decades for drivers to be freed so extensively from their driving duties.

Even today, however, the question is being raised of what criminal liability exists, for example, where traffic and weather information is downloaded from distant servers which are infected with malicious software. Such malicious software could, for example, make it possible to block a vehicle’s on line access, influence the route the vehicle drives, or even cause an accident. In principle, the person who wrote the malicious software would be responsible for any damage caused.

As usual, when the Internet is used as an instrument to commit crimes, questions arise about the responsibility of whoever is giving Internet access to the perpetrators; or whoever has the malicious software on their servers which is made available for download to the car drivers.

Based on the European E-Commerce Directive, most national telemedia acts (and similar provisions) stipulate that whoever stores their own data on their own servers and makes it available for users, incurs unlimited liability. Whoever stores third party data on his own server and makes it available for users, only incurs liability if he/she positively knew that the stored data was malicious software. Simply providing Internet access does not in principle incur liability for unlawful contents, unless he/she is acting in collusion with the originator of the unlawful content.

These principles automatically apply to both networked (partially) autonomous vehicles as well as to data downloaded by such vehicles from external servers. It still needs to be clarified whether the privileged status, which access providers enjoy, continues to protect them in the event that a third party informs them about the illegal and possibly criminal behavior of one of their customers.

7. Data Protection Law

Data protection will face particularly large challenges from the use of autonomous vehicles. To the extent to which vehicles are controlled and steered less and less by humans, the greater will be the need for reliable data, by means of which the car or truck will be able to successfully carry out the driving tasks it encounters on the road. The vehicle will therefore require a large number of sensors that receive data continuously. It can be said with certainty that the data collected will include a large amount of personal data or person related data. Autonomous vehicles will be highly efficient mobile data collection stations.

It is still unclear how vehicles deal with the personal data they have recorded. Will it be allowable to store data about past driving situations? If so, who will have access to the data stored in the vehicle – the driver, the owner, the manufacturer or someone else? Under what circumstances will the state prosecutor be able to gain access to the data stored in a vehicle?

Collecting and collating data could be a very valuable proposition to third parties, both public (transport authorities to improve road use, for example) and private (eg analysing customer traffic into a supermarket, or actuaries at insurance companies). However, personal information can be obtained from almost all data. The practice of 'big data' in this context runs contrary to the most fundamental principles of European data protection law, for example, data minimisation and purpose limitation of data. Whether it will be possible to bring the new generation of data-collecting vehicles into conformity with European data protection law, is still an open question.

8. The algorithms of death

Finally, special problems arise where autonomous systems exist to help the driver manoeuver through accident situations.  When a collision is about to take place autonomous systems can gather the relevant information and then decide on possible courses of action much more quickly than a human being. Take the hypothetical situation where a car equipped with an autonomous accident avoidance system car is driving on the highway at high speed.

Suddenly it faces the following dilemma: it can stay in its lane and kill the two children who have appeared as if from nowhere in front of it on the road or it can swerve to the right and damage the guardrail.  Fundamentally, the principle of causing the least harm applies; the on-board computer must be programmed so that it chooses the lesser harm over the greater harm, here causing damage to property.

Deciding which outcome is worse can certainly pose significant problems, for example when personal injury to two different persons must be weighed against each other. The problem has not yet been resolved. Consider, for example in our hypothetical case, that now the computer must decide which of the two persons will be struck and killed, and which will survive.

German and Swiss law takes the unequivocal position that human lives cannot be weighed against one another and that every human life represents the highest value so that one life cannot be 'worth more' than any other life. However, should this principle apply where one life would need to be weighed against five lives, or even against twenty-five lives? These are highly uncommon driving situations; but not entirely unknown. A human can justify actions on a case-by-case basis and instant moral judgement; a computer can only function according to its interpretation of its programmers' instructions.

9. Summary and outlook

In summary, the development of semi-autonomous and autonomous vehicles presents the law with considerable challenges. These can, however, be overcome. The first step is to identify relevant areas of law, a task which at least in part has already been attempted. The law is faced with the task of applying existing legal norms to new legal situations. This, too, should not pose insurmountable problems; in areas of civil liability, criminal liability and provider liability, there is no need for legislative change for the time being. In certain areas, notably criminal law, it may take many years of acceptance of autonomous systems to overcome the 'control dilemma'.

In contrast, road traffic law requires certain provisions either to be changed or clarified. The German Highway Code, for example, as it stands now, does not allow the registration and use of partly autonomous or autonomous vehicles. In order to amend the Code, as well as other provisions of national road traffic law, the Vienna Convention on Road Traffic of 1968, the international agreement upon which national law is based, would also (first) need to be amended.

Data protection law is another area of current European law which presents problems. Cars and trucks of the future will collect and store immense amounts of data, which, because of interconnectedness, could be exchanged between vehicles or stored on external servers. This presents a very tough test for data protection. New technologies, as currently under discussion in connection with 'big data', are not compatible with European data protection law as it has developed over decades.

In conclusion: lawyers still have a lot to do before autonomous cars can be used without legal problems.

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Author

Eric Hilgendorf

Professor of Law; Chairman of the Department of Criminal Law, Criminal Justice, Legal Theory, Information and Computer Science Law, Julius-Maximilians-Universität Würzburg

Eric Hilgendorf holds a degree in philosophy, modern history, and law from the University of Tübingen (BA/MA equivalent). He attained a PhD in philosophy for work entitled Argumentation in Jurisprudence and a PhD iur. in law for work entitled Criminal Law Liability for Producers in the Society of Risk, which was honored with a prize from the Reinhold und Maria-Teufel-Stiftung. Mr Hilgendorf's fields of expertise and interest are mediacriminal law, especially computer- and internet-criminal law, the protection of personal honor in criminal law, European criminal law, the history of law and legal philosophy. In 2001, he became the Chair of the Department of Criminal Law, Criminal Justice, Legal Theory, Information and Computer Science Law at the Julius-Maximilians-Universität in Würzburg. From 2010 to 2012, he served as the Dean of the Law Faculty there. In 2012, Mr Hilgendorf founded the Würzburg Center for Robot Law.

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