By: Mary Kate Campbell

Self-driving cars, a once Jetson’s-esque fiction, is now a reality and at the center of government discourse. Elon Musk, the well-known engineer, designer, and entrepreneur has said that, “self-driving cars are the natural extension of active safety and obviously something we should do.”

It appears the United Kingdom agrees and may bring level 3 self-driving technology to roads by 2021. The UK Department for Transport and the Center for Connected and Autonomous Vehicles announced on August 18, 2020, a consultation aimed at defining, regulating, and understanding autonomous vehicle technology within the current legal framework, as well as creating proposed rules and Highway Code modifications. While the envisaged goal of automated systems in cars is to increase the safety on roads, this innovation raises practical legal issues.

The consultation is primarily seeking information on Automated Lane Keeping Systems, defined as a system capable of taking control of the vehicle at low speeds and keeping it in the lane. When the system is active, it controls the car’s movement for periods of time without driver assistance. However, the driver should be ready and able to resume control when necessary. This could be the first time that UK drivers are legally able to drive hands-free. Currently, drivers are allowed to use level 2 auto-piloted cars, where they are required to keep their hands on the wheel at all times.

Under this ALKS umbrella, one of the main questions is how to legally define these systems and whether or not they constitute an automated vehicle. This is critical because, in the event of an accident, it will determine if the technology provider or the driver is liable. Under current legislation, The Automated and Electric Vehicles Act (2018), a vehicle is “autonomous” when it is operating such that it is not being controlled and does not need to be monitored by the driver. If vehicles with ALKS systems are to be defined as “autonomous,” then the technology providers will be held liable when the system is being used.

A pro of defining ALKS systems as “autonomous” is to keep providers accountable. If they know they will be held legally liable for accidents when their system is engaged, then it may push them to ensure their systems are competent and productive before putting it on the market. However, it should be on a limited liability basis. The provider should not be held wholly accountable when the driver is not holding up their end of the “level 3 bargain,” wherein which they need to be able to take control within seconds of being prompted by the ALKS. For example, Volvo has promised that they will take full responsibility if one of their self-driving cars causes an accident while the automatic mode is engaged and it is proven their system caused the accident. Nevertheless, the company has also stated that if a third party causes the crash or the customer is using the technology inappropriately, then the respective driver is liable.

In June 2020, the United Nations approved ALKS technology and so far 60 countries have adopted the Regulation. The UN suggested requirements including maximum speeds of 37mph (current British highways have speeds up to 70mph), a data-storing black box in the car, the driver always wear a seatbelt and system activation only on roads that have a division between traffic moving in opposite directions and only on roads where pedestrians and cyclists are prohibited. The Regulation also sets out requirements manufacturers must meet in order to sell their ALKS vehicles. This includes technical requirements, auditing, testing, reporting, and compliance with software security. This is the first binding international regulation on level 3 automated vehicles and a major step toward the legalization and normalization of automated vehicles on the road.

The National Highway Traffic Safety Administration says that automated vehicles create top safety benefits because 94% of major crashes are due to human error. Mike Hawes, Chief Executive of the UK’s Society for Motor Manufacturers and Traders has stated that ALKS technology will be “life-changing” in making long journeys safer and reducing the number of accident-related fatalities and injuries. However, many experts criticize the idea that automated vehicles will be safe, capable, and functional as early as 2021, describing the technology as flawed and riddled with technical and legal hurdles.

For example, in 2018 a driver was killed after his Tesla struck a highway barrier while the Autopilot system was engaged. The National Transportation Safety Board said that both the Autopilot driver-assistance system and the driver who relied too heavily upon the technology are likely to blame for the crash. After the accident, the board initiated an investigation and found the Autopilot failed to keep the car in its lane and the collision-avoidance feature failed to detect the highway barrier. Additionally, the driver was too distracted by playing a game on his phone and did not respond quickly enough to the system alerts. Ultimately, the board concluded that auto manufacturers need to do a better job at clearly explaining how the systems work and the role expected of the driver, as well as creating systems that better force drivers to maintain adequate attention on the road.

Systems like ALKS, which can self-drive but also require an alert to the driver, are the most feasible and safest options to consider right now while still attempting to push innovation further. The solicitous steps the UK and UN are currently taking with conversations and policy are in the right direction, but drivers are not yet entirely trustworthy with level 3 automation as there have been issues with following level 2 protocol. While the future of driving technology is upon us, it is vital to ensure that policy and law are just as up to speed to ensure safety for all.

Student Bio: Mary Kate Campbell is a second-year law student at Suffolk University Law School and a current staff member on the Journal of High Technology Law. Mary Kate received a Bachelor of Business Administration in Finance from Cleveland State University.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.