Much and little has been made of the House’s move to finally examine the intricacies surrounding legislating self-driving cars. The 14 bills proposed have primarily shirked responsibility from legislative oversight to the NHTSA and automotive and technology companies themselves.

Responsibility for driverless cars at the federal level is going to remain a problem whether Congress recognizes it or not.

Because while it has been the federal government’s job to regulate automobiles, there is no legal precedent for self-driving cars. Current law did not anticipate the arrival of these vehicles.

In fact, the government regulates the cars themselves. It regulates issues like emissions and safety features. But as for the way cars are driven, the federal government leaves issues like fault and dangerous driving up to the states.

However, liability is about to become another problem because liability will no longer lie on the man but on the machine – or so one can assume.

To consider the complexity of this issue, look no further than the Trolley Problem.

The Trolley Problem asks this:

You’re driving a trolley. As you come around a corner, you see there are five men working on the track. To avoid hitting the men, you need to step on the brakes. But the brakes do not work. The only other way to avoid hitting and killing the men is to turn on the spur leading to the right, but there is another man working on that track.

Continuing on the current track will result in the death of five workers. Turning will kill one worker. Is it morally acceptable to turn the trolley to the right thereby killing one worker?

According to current law, the driver of the trolley would be doing their best to avoid a greater number of deaths. It is highly unlikely they would be prosecuted for a crime or reckless driving.

  • But what happens when the trolley driver is not a person at all but a machine?
  • How does a machine decide who to kill and who is liable for the machine’s decision?

According to Nick Johnson, who writes for the Auto Industry Law Blog run by Foley and Lardner LLP, making the decision requires a legal flip of the presumption of liability. It’s an issue that manufacturers, consumers, legislators, ethicists, and eventually the courts will need to try to work out for a long time.

The current bills do not address this problem at all. But they do produce a wrinkle that could make it difficult for watchdogs, ethicists, and ultimately consumers to make informed decisions on the subject.

It comes in the form of the “Guarding Automakers Against Unfair Advantages Reported in Public Documents Act” or the “Guard Act”.
The Guard Act allows for “the treatment of information related to highly automated vehicles as confidential business information, and for other purposes.”

Information that would remain confidential includes:

  • “Any report or data relating to the testing and validation of an event, incident, and crash data of automated driving systems.
  • Any report or data relating to the design and validation processes of electrical, electronic, communication, or mechanical functions of automated driving systems.
  • Any report or data relating to the testing and validation of cybersecurity in automated driving systems.
  • Any report or data relating to the assessment, testing, and validation of human machine interfaces.
  • Any report or data relating to the testing and validation of the fallback of an automated driving system.
  • Any report or data relating to the testing and validation of the object and event detection response capabilities of automated vehicles.”

Essentially, this bill would allow auto manufacturers and tech companies to treat all the information related to the Trolley Problem as confidential business information.

From crash information to any function of the driving system to the fallback of the system and event capabilities, auto manufacturers would be allowed to keep this information secret.

While the bill cites proprietary information, it does leave regulation hanging in the balance. It will likely be difficult to regulate how the machine will drive if everything related to how the machine drives is proprietary and confidential information.

Both Congress and the states will have a long way to go before any of the proposed legislation is useful for auto manufacturers or consumers.

However, it may be up to the automotive industry itself to force stronger, more consistent regulations through the legislative process. Hopefully, it will be a task that the industry is willing to embrace.