Musings on Autonomous Vehicles
Recently, I attended an event at The George Washington University School of Law called Driverless Cars: The Legal Landscape. The event brought together government officials, industry players, insurance companies, lawyers, and public advocacy organizations to consider the exciting prospect of Highly Autonomous Vehicles (HAVs) as well as the tangled questions and issues that will accompany this new technology.
The most prominent thought in my mind as I left the Jack Morton Auditorium on GW’s campus was the overwhelming complexity and difficulty of the questions raised by HAV technology. Questions surfaced that I had never considered before. One audience member asked one panel what the deployment of HAVs would do to performance car manufacturers like Ferrari or Porsche. Generally the individuals who purchase those cars do so because they have a passion for driving and want to do it themselves rather than have an autonomous system do it for them. Will cars like that still be allowed on the roads when most people own HAVs? What about motorcycles? Questions like these show that new autonomous technology will have far-reaching, societal ripples.
Some of those ripples will be in sectors outside the auto industry. One of the panelists in the morning stated that personal injury lawyers will take an almost $3.5 billion hit annually due to fewer injuries from crashes. He also said deployment of HAVs is likely to exacerbate the organ shortage since a large number of organs comes from crash victims. And autonomous technology is likely to have other, unanticipated consequences just as disruptive technology has caused for centuries.
That said, the event only confirmed my belief that this technology will save lives and should be pursued. Ralph Menzano, an adjunct professor at the Graduate School of the University of Pennsylvania and former Oracle Corporation official, pointed out that almost 1.2 million people worldwide die each year due to roadway crashes. HAV technology, which has the potential to greatly reduce that number, is a true good in a lot of ways. The goal should be the safety of the consumer and questions about the safety of HAVs ought to be asked. Yet these questions must constantly be asked in the context of that 1.2 million number. How safe is safe enough for this technology? Because the current state of affairs isn’t all that safe.
The Permission Question
One of the earlier panels of the day focused on the current stage of HAV deployment: the testing phase. The big question at this stage, highlighted by standoffs between Uber and municipalities like San Francisco, is whether companies seeking to test HAVs must obtain permission to do so and from whom. Since there was more than one lawyer in the room, there was, naturally, more than one opinion on the question.
Several participants seemed wary of allowing, in general, individuals or firms to create strikingly new technology in the absence of explicit governmental approval to do so. As an example, John Simpson of Consumer Watchdog said in an offhand comment that Uber never plays by the rules. But that statement is only true if you interpret “playing by the rules” to mean “only attempting activities that are explicitly sanctioned by law.” There was no law prohibiting ride sharing and there was no law prohibiting the creation and testing of HAVs. Mr. Simpson makes the subtle, and I think dangerous, point that the absence of a law condoning an action is de facto a prohibition on that activity.
In my view, the problem with Mr. Simpson’s viewpoint is that it undermines the principles on which limited government is based. Alexander Hamilton was concerned about exactly this belief when he argued against James Madison’s Bill of Rights. He argued that a prohibition on powers never given to the government would tempt that government to believe it had more power than it did. Why prohibit the government from abridging the freedom of the press when the Constitution never grants government any power to do this? Every power of government has been given to it by the people, whose right it was originally. And the people retain all rights not granted to government. Mr. Simpson seems to have this relationship backward.
I anticipate that Mr. Simpson and those who share his view might reply that HAVs present a special case because they are dangerous and threaten other people’s right to life. First, the potential for danger is not an adequate reason to cede more power to government. The state should concentrate on addressing actual harms rather than potentialities. This is why, for the most part, we don’t incarcerate people who show the potential for violence until they actually act on that potential. Furthermore, the U.S. has developed a highly effective tort and liability system to deal with harms done to citizens by their fellow citizens. This is what we currently rely on to sort out crashes and product defects in our automobile industry and the afternoon panelists agreed that this model has worked quite well overall. This system, with a few tweaks like instituting a loser pays rule, will serve HAVs equally well.
In policy, as in medicine, it is important to “First, do no harm.” Banning or otherwise severely restricting the proliferation of HAVs will harm those individuals who will die on the world’s roadways who could have been saved by a HAV. Oversight of the industry ought to be undertaken (though this doesn’t necessarily need to be done by government), but reactionary policies enacted out of a vague fear voiced by the public must be resisted. Car companies constantly compete on safety and have serious incentives not to release unsafe products to the public. Allowing them to proceed with this new technology and taking action through recalls, lawsuits, or investigations when needed will help ensure that the massive benefits of HAVs reach consumers as quickly as possible.