Two Roadblocks

“Every once in a while a new technology, an old problem and a big idea turn into an innovation.”

Applying Dean Kamen’s adage to the integration of automated vehicle (AV) technology into our transportation, the new technology is sophisticated driving systems that allow the vehicle to respond to external conditions that a human driver would manage, the old problem is a lack of global privacy regulation for emerging technologies, and the big idea is forming a global legal framework to foster AV development and “driver” safety.

AVs, also known as driverless cars or self-driving cars, have the ability to sense the environment and operate with minimal to no human input. Assessing a multi-layered framework and how it needs to adapt to accommodate AV technology is a major task for regulators across the globe and does not fit well with technologies which have a tendency to evolve quickly. Therefore, without a global standard for autonomous vehicles, legal obstacles to deploying new technologies and legal grey areas causing uncertainty for developers and manufacturers alike will persist.

Automakers and technology companies have invested billions of dollars into researching AVs. But the industry has two big challenges it needs to overcome before self-driving cars become widespread: the technology and global regulatory approach.

Technology: the driving force

Many of the sensors and automated components providing functions now handled by the driver will generate large amounts of data about the vehicle, its location at precise moments in time, driver behavior, and vehicle performance. As vehicle technologies advance, the security of data collected by vehicle computers and the protection of on-board systems against intrusion are becoming more prominent concerns. Aside from hackers, many legitimate entities would like to access vehicle data, including vehicle and component manufacturers, the suppliers providing the technology and sensors, the vehicle owner and occupants, urban planners, insurance companies, law enforcement, and first responders (in case of an accident). Issues pertaining to vehicle data collection include vehicle testing crash data (how it is stored and who gets to access it); data ownership (who owns most of the data collected by vehicle software and computers); and consumer privacy (transparency for consumers and owner access to data).

Personal data privacy will be among the most serious impediments to AV technology progress. Privacy preferences and rules affect transportation, but privacy policies and concerns are broader than international road traffic and road transport agreements. For example, they affect medical or financial regulation. Although there are common technical protocols governing the flow of traffic, interconnections, and data transfers across networks, there is no single set of international rules that govern key AV issues, such as cross-border data flows, and the topic is treated inconsistently, if at all, in road transport agreements.

The privacy implications of AVs transcend borders, as the industry relies on collaboration and sharing of data among companies to build the technology. For example, despite several Chinese companies, including Baidu, Pony, TuSimple, and AutoX, operating in Silicon Valley, California to advance their AV capabilities, the ongoing trade tensions between the U.S. and China prevent firms from sharing geography-specific datasets. The lack of multilateral rules governing the autonomous vehicle sector has led to, on the one hand, countries creating diverging national policies and, on the other hand, efforts to establish common global rules.

Who’s in the Driver’s Seat?

The different national regulations represent an additional challenge. In many jurisdictions, an entire overhaul of traffic law is needed to move from provisions focused on the driver’s conduct towards provisions that address the vehicle instead. Autonomous vehicles may not have standard features of today’s cars, such as steering wheels and brake pedals, as there will not be a driver. Some governments are taking the lead by modifying vehicle requirements for purposes of pilot programs and tests. Permanent changes in global regulation will be necessary if autonomous vehicle technologies are to be commercialized.

At the international level there are several agreements that specify the legal framework for national road traffic legislation. One of the most important is the 1968 Vienna Convention on Road Traffic. However, automated systems had not been developed yet and consequently, no framework was defined accordingly. Renata Jungo Brüngger, a member of the Board of Management of Daimler AG for Integrity and Legal Affairs, has stressed that “[p]rogress must not stop at national borders. Legislation must keep up with technical progress otherwise paramount innovations for automated and autonomous driving cannot be brought to the road. Legal certainty is a prerequisite for the acceptance of autonomous driving within society. For this reason, we quickly need an international harmonization of the legal framework.”

A globally consistent approach to regulation, such as the Automated Lane Keeping Systems (ALKS) Regulation adopted by the United Nations Economic Commission for Europe (UNECE) in June 2020 with a view to promoting international alignment on the use of advanced lane keeping systems on public roads, is necessary to take full advantage of the industry. The standard enables a driver – for the first time – to delegate driving tasks to the vehicle. Under the international standard, ALKS can be activated under certain conditions on roads where pedestrians and cyclists are prohibited. With different jurisdictions at varying stages of implementation and potentially adopting inconsistent regulatory regimes, running legally compliant tests and developing legally compliant vehicles will be a challenge for many businesses operating across borders.

The Road Ahead

The global autonomous cars market is expected to grow at a compound annual growth rate of 12.7% in 2021 and reach $1,191.8 billion in 2023. The development and mass production of driverless cars has the potential to revolutionize transportation mobility and safety. While undoubtedly promising, the new technology comes at some risk, which the global community must address before autonomous vehicles will be widely seen on the roads.

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Baily Martin is a 2L Global Law Scholar at Georgetown University Law Center. She graduated summa cum laude from The University of Alabama in May 2019 with a triple major in international studies, political science, and Spanish. At Georgetown Law, Baily prepares country of origin packets for attorneys handling pro bono asylum cases and serves on the Appellate Advocacy Division of Barristers’ Council. She is a staff editor for the Georgetown International Law Journal and the Georgetown Technology Law Review. Baily is particularly interested in the intersection of law and technology.