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Refreshingly Thoughtful Commentary on "Lawyering Up for Autonomy" blog

Motor Trend logo Motor Trend 11/25/2014 Frank Markus

When colleague Jonny Lieberman posted my January Technologue blog link to his Facebook page, it touched off a remarkably thoughtful (for Facebook) dialogue between three of his smartest FB friends -- a second-year law student, an art director, and an environmental public relations professional. The insights and links they provided were so interesting to me that we obtained their permission to run the commentary stream with names and personal information redacted. Stay tuned for more news from the front lines of this legal debate as full autonomy draws ever nearer…


Commenter 1: I hope autonomous cars get here ASAP so the general (boring) populace all buy safe, autonomous Prii that know to stay in the right lane so I can blow past them with my foot controlled, smog-spewing, dino juice powered anachronomobile.

Commenter 2: If you think the autonomous-adopting public are gonna continue to let you put them in risk with your foot, you don't understand humans very well. You'll be limited to foot-driving as a leisure activity on privately owned "entertainment" roads for which you'll pay a pretty nice entry fee. Car Disneyland is the future of hoonage.

Commenter 1: I'm no constitutional scholar but I'd say that prohibiting owning a manually operated car and traversing public thoroughfares would be an unreasonable burden on commerce and my freedom of movement and unconstitutional.

Commenter 2: No more so than requiring you to have restraints and use them, or a million other safety laws. There is no way when autonomous cars are widely adopted that people will be able to operate cars that can still crash into other cars. A few big accidents in an era where accidents have almost disappeared, and laws will be passed. You might be able to have some kind of limited self-drive, but the minute you try to break the law the car will take over. And you wouldn't be able to afford a car that can break the law anyway, since you wouldn't be able to insure one. There is no right to privacy on public roads, and there is no right to operate a vehicle, constitutional or otherwise. Eventually all public roads will be managed by autonomous systems. It sucks for driving enthusiasts like us. For the 30 million people injured by cars every year, not so much.

Commenter 1: Interesting legal question now that I think about a bit. The state could hypothetically end renewing registrations on manually driven cars, like how CA mandates smog testing. This is a significant burden on the populace, like I said, and greatly restricts freedom of movement. So we would look to the Privileges and Immunities clause... Clause protects interests which are fundamental; which belong, of right, to the citizens of all free governments . . . protection by the government, enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety- subject to restraints government may prescribe for general good of whole. The last sentence could be the main basis for restriction. I'm not 100% sure, but I think it would receive intermediate scrutiny, in which the law would be upheld if it is substantially related to a compelling government purpose and narrowly tailored to meet that interest. I think a in hypothetical supreme court case, depends on what the makeup of the court is in 15-20 years, but I don't think "banning all self-driven cars" is narrowly tailored.

Commenter 1: Good point, I could see insuring self-driving cars being very expensive, like a classic car today. That would be my ideal way to phase out driving, through the market, not some intrusive system which won't let take control of the car.

Commenter 2: I know of no single case where automobile licensing has been held out as a constitutional right under that clause. The state takes away licenses every day. It refuses to license cars it considers unsafe every day. No one has ever successfully sued to prevent the state from, say, making them put bumpers on their car. Manual operating systems will become what standard glass or lap belts were; a reason for disqualification. Manufacturers would love, love to be able to exempt themselves from such rules, and if there was a legal argument they would have made it.

Commenter 2: Also, the whole argument would collapse as soon as a lawyer pointed out that they weren't limiting the "fundamental" right to drive (which doesn't exist), they were limiting the right to crash into other cars.

Commenter 1: The case wouldn't be worded in that way, and yes automobile licensing has not been held as a constitutional right and can be easily taken away. But the court has never held that X group of people cannot use this perfect legitimate, functional means of transport (i.e. the Amish and their buggies) traverse the public roads.

Commenter 2: X group of people in this case is people who want to be able to crash into other cars. They have no standing as an oppressed class seeking relief from the court. This is obviously and clearly an issue of public safety, which would trump that argument. 30 thousand dead Americans a year would be on the other side. The only way to do what you are suggesting would be through a specific constitutional amendment, a kind of 2nd amendment for cars. Good luck.

Commenter 1: Like I said, I can't predict the Supreme Court. I can just say that's how I would argue it, as an undue burden on freedom of movement, Privileges and Immunities clause, which is given intermediate scrutiny, and an outright ban on self-driven cars would never, ever, ever pass the prong of "narrowly tailored." Perhaps a restriction of self-driven cars within New York City, for example, would pass such a test.

Commenter 2: You want to talk about narrowly tailored? The court upheld the restriction on gay men donating blood, which was not only extremely narrowly tailored, but against an established minority which the court has ruled require heightened scrutiny, for reasons of public safety. The court upheld the internment of Japanese Americans for reasons of public safety. The right to travel is certainly only tenuously connected to the right to operate an unsafe car in an era where technology will be able to prevent that danger. Remember, this isn't a restriction of driving. It's a restriction of driving dangerous cars. Non-automated cars will be considered extremely dangerous in an era where they are practically the only cars that kill. People will look back on the pre-automated roadways with horror. How is any court going to stand against that kind of cultural shift?

Commenter 3: The interesting thing will be the ethics involved with programming the car to hit a car vs a pedestrian. Or maybe it chooses a motorcyclist over a pedestrian? What's the moral thing?

Commenter 2: Interesting in theory, yes, but the trolley problem is an infinitesimally unlikely event to happen in a car at any given moment (especially since the other car will also be avoiding you). And anyway, you'd hit the other car. That would be the ethical thing to do based on the fatality rates of auto-pedestrian accidents.

Commenter 2: Also, autonomous motorcycles!

Commenter 3: There's still going to be unexpected situations that involve choosing one bad option over another bad option. This utopia of every car talking to each other and no more non-autonomous vehicles is a pipe dream. See this article:

An ethical dilemma: When robot cars must kill, who should pick the victim? | Robohub

Commenter 2: Those situations will happen, and they will be blindingly rare. I'm sure there will be a pretty rigid hierarchy based on the different survivability profiles of different kinds of accidents, but still cars will continue to kill people. Probably hundreds of people! That's of course opposed to over a million a year at present.

Commenter 2: What's interesting about that article is that is postulates an unavoidable accident that isn't really that unavoidable. Any car detecting a child playing near a road is going to automatically take steps to avoid the possibility of them falling into the road. Slow down, change lanes, etc.

Lawyering up for Autonomy© Provided by MotorTrend Lawyering up for Autonomy

Commenter 3: That's not necessarily true, there will always be unavoidable incidents, have we ever built anything truly foolproof that didn't have an incident? The question is, do you have preferences selectable in the car based on what action you would take in you were in control of the car?

Commenter 3: Self-preservation vs saving a pedestrian?

Commenter 1: First, the Japanese internment camp cases are the only time SCOTUS has ever ruled in favor of the government in a case using strict scrutiny (the highest level). I'm not familiar with the gay-men donating blood ban, and no court would rule in favor of that on the sheer impossibility of enforcing it, but gay men are a small group (at least probably in the minds of the justices 30+ years ago) and not a protected class. I still believe an outright ban would not stand. The number of people's lives taken by a small number of future drivers versus the potential millions of people who would be forced to sell and scrap their cars (Being generous, 250m cars on the road today, let's say 1/10 in 30 years, so 25m, and I have no grounds for this estimate) are unable to use their perfectly good cars and forced to scrap them because they are "potentially" dangerous. This has shifted from an argument about law to one about.

Commenter 2: Foolproof is a false dilemma. When automation has eliminated 99% of fatalities, people will remember pre-automation as a horrifyingly brutal age. And my guess is that safety systems will be required to choose the least likely option to cause a fatality. The times people are actually facing death inside a modern car full of safety systems and hitting a pedestrian will be extremely rare. Also, almost all the decisions will be made so swiftly, that there really won't be a dilemma, since actions rarely actually happen simultaneously; we only experience them that way. The machine will process the first threat first and the second threat second. So if it veered to avoid your pedestrian first, it would deal with the tunnel second, however unsuccessfully.

Commenter 2: Just like most safety features, automation will be adopted gradually and there will be a long period while manual cars are slowly leeched from the market. During this period operating a manual car will become about as socially acceptable as smoking on a crowded street corner. The law will soon follow suit and end the licensing of reckless death machines of death. I fully hope to enjoy mine until then!

Commenter 1: Check out Rachael Roseman's article: When Autonomous Vehicles Take over the Road: Rethinking the Expansion of the Fourth Amendment in a Technology-Driven World

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