Ten legal issues in self-driving cars and their brave new world

By Saad Gul

Poyner Spruill LLP

Self-driving vehicles give a whole new meaning to the term “backseat driver.” Self-driving vehicles, or autonomous vehicles (AVs), permit passengers to get from one point to another with no human driver in control of the vehicle. Passengers are spared the aggravation of gridlock, navigating stop-and-go traffic, and decision-making.

That said, the autonomy in AVs also upends a century of motor vehicle jurisprudence. The current system is designed to promote safety by holding the driver responsible. But this responsibility becomes a lot more nebulous with AVs.

After all, who is the AV driver?

As of writing, 40 states have sought to address these questions with some AV-specific framework. Some rely on state administrative regulations or administrative orders from the governor. Others, like North Carolina, have enacted legislation. These state laws are subject to federal preemption.

Indeed, Congress has recently contemplated several federal AV statutes. Even so, no federal law passed in the last session, and the prospects of passage in the current session appear increasingly doubtful. Absent federal guidance, state laws fill the void for the time being.

The North Carolina law (N.C.G.S. § 20-400—403 et seq.) reflects a graduated approach to AV regulation. An AV is an automobile that does not require any human occupant to control the vehicle when in operation. Simply put, like KITT in Knight Rider, the car drives itself.

North Carolina law establishes several standards for AVs that use North Carolina roads.

First, the AV must otherwise comply with applicable law. This includes federal motor vehicle safety standards. Put another way, an AV must be capable of being approved for street use if operated by a human driver. The AV capability will not offset other requirements.

Second, the vehicle must be covered by an automobile insurance policy that tracks North Carolina insurance requirements. As with cyber insurance, the insurance industry will be expected to develop new products that meet this need. Ultimately, North Carolina only requires that AVs be insured the same as any other car: an example of extending an existing legal requirement to cover the new, AV, scenario.

Third, the vehicle must be a good citizen in a crash. In the event of a collision, it must stop. It must report the incident to law enforcement. It must summon medical responders. And it must remain at the scene until released. In other words, the AV must behave in a manner that the law expects a law-abiding driver to in a similar situation.

Fourth, AV vehicles do not require a driving license in the state. N.C.G.S. § 20-401(a) provides that the AV driver need not be licensed to drive. The caveat is that the autonomous driving system must be fully engaged i.e., in complete control of the vehicle at all times the AV is operational. If the operator takes even partial control of any function for any length of time, this safe harbor disappears.

Fifth, an AV has age restrictions, N.C.G.S. § 20-401(c) requires that a passenger travelling alone in an AV must be aged at least 12 years. It is unlawful for the guardian of a child younger than 12 to permit the child to be the sole occupant of an AV in operation. The child must be accompanied by a responsible, older person aged 18 or older.

Sixth, the law preempts local legislation. N.C.G.S. § 20-401(f) bars municipal governments from passing laws directed at AVs. This provision does not nullify traditional local regulations. Municipalities may continue to regulate all vehicle operations as usual. The only restriction is that AVs may not be singled out for special treatment.

Seventh, the legislation recognizes that this is an area in flux. For that reason, it establishes a Fully Autonomous Vehicle Committee within the North Carolina Department of Transportation. The Committee reviews technical and legal developments in the field. It evaluates the efficacy of current law, and makes recommendations to policy makers intended to address newly evolved issues. The intention is to ensure that the law keeps apace of, rather than lag behind, developments in the field.

Eighth, the law, like jurisprudence in other states, clarifies the “driver” or “operator” of an AV for legal purposes. As for responsibility and insurance, the AV owner, or the individual who turned control of the vehicle over to the AV control system, is the driver. In an age of drones and remote technology, this simple principle makes sense. However, it does mean that at some point in the future, an individual will be held responsible for an incident when they were miles, and perhaps continents, away from the site. Court management of this principle will be a fascinating exercise.

Ninth, the North Carolina legislation may still be preempted by federal law. Washington legislators considered several bills regulating AVs in the last session. None of these were passed into law. All the same, the interest across a divergent political spectrum, and the economic implications of widespread adoption of AV technology suggest that comprehensive federal legislation is only a matter of time.

Finally, like all technologies, constitutional issues will arise. For example, in Mobley v. State, the Georgia Supreme Court recently held that the retrieval of data from a car without a warrant was a seizure under the Fourth Amendment. Since the ultimate AV infrastructure will depend on gargantuan quantities of data for smooth operations, this is an issue that will arise again. Moreover, as cars become increasingly sentient, the issues of data transfer, access, transfer, and ownership will be increasingly critical, and therefore contentious.

Whatever the future may hold, defendant Mobley will not be the last litigant to step into the footlights.

Saad Gul (@NC_Cyberlaw) is a partner at Poyner Spruill LLP. An appellate and regulatory litigator, he is co-chair of the Privacy and Cybersecurity Practice.