By Bryant Walker Smith on September 6, 2016 at 7:16 pm
Michigan's Senate will soon consider, and I'm told will likely pass, several bills related to automated driving. SB 995, 996, 997, and 998 are now out of committee, and SB 927 and 928 are not far behind. These bills seem to be a mixed bag. Critically, they are in desperate need of clarification followed by thoughtful discussion. Briefly:
What's good: SB 995 would repeal the state's express ban on automated driving generally -- a three-year-old anachronism that has frustrated officials promoting Michigan to developers of automated driving systems and that could eventually frustrate early efforts to actually deploy those systems. At a minimum, this would return Michigan law to flexible ambiguity on the question of the legality of automated driving in general. The bill probably goes even further by expressly authorizing automated driving: It provides that "[a]n automated motor vehicle may be operated on a street or highway on this state," and the summary of the bill as reported from committee similarly concludes that SB 995 would "[a]llow an automated motor vehicle to be operated on a street or highway in Michigan." (This provision is somewhat confusing because it would be added to an existing statutory section that currently addresses only research and testing and because it would seem to subvert many proposed restrictions on research tests and "on-demand automated motor vehicle networks.") Regardless, this bill would also exempt groups of closely spaced and tightly coordinated vehicles from certain following-distance requirements that are incompatible with platooning. Furthermore, by using key definitions from SAE J3016, SB 995 would also help to align legal language with credible technical language.
What's weird: SB 995 and 996 may or may not give recognized manufacturers of motor vehicles a special driverless taxi privilege, and they may or may not disadvantage companies that cannot partner with such a manufacturer -- but they definitely do add unnecessary confusion. Together, these two bills expressly authorize "on-demand automated motor vehicle networks" that involve a recognized motor vehicle manufacturer in some capacity. Under the bills as originally drafted, only these manufacturers would have been eligible to "participate" in those networks. This would have meant that General Motors could run an "on-demand automated motor vehicle network" while Google and Uber could not. Although nothing in the original bills would have explicitly -- or even, at least arguably, implicitly -- prohibited other driverless taxi services, these services would not have qualified as "on-demand motor vehicle networks" and would not have benefitted from an express authorization. As revised, however, SB 995 now broadens the scope of "on-demand automated motor vehicle networks" to include both those in which a vehicle manufacturer is the only participant (still called a "SAVE Project") and those in which such a manufacturer merely "supplie[s] or control[s]" the vehicles used therein (not called a "SAVE Project").
Making sense of all this is difficult. The currently proposed language could mean that automated driving is lawful only in the context of research and development and "on-demand motor vehicle networks." Or it could mean that automated driving is lawful generally and that these networks are subject to more restrictive requirements. It could mean that any company could run a driverless taxi service, including motor vehicle manufacturers that might otherwise face unrelated and unspecified legal impediments. Or it could mean that a company seeking to run a driverless taxi service must partner with a motor vehicle manufacturer -- or that such a company must at least purchase production vehicles, the modification of which might then be restricted by SB 927 and 928 (see below). It could also mean that municipalities could regulate and tax only those driverless taxi services that do not involve a manufacturer. Or that any vehicle manufacturer that wants to run a "SAVE Project" may not bring on any other project partners. Or, because "on-demand automated motor vehicle network" and "participating fleet" are each defined by circular reference to the other, it could mean something else altogether. Clarifying these provisions is a necessary condition to evaluating them.
What's rough: Like earlier bills in Michigan and other states, SB 995 and 996 understandably struggle to reconcile an existing vehicle code with automated driving. Under existing Michigan law, a "driver" is "every person who drives or is in actual physical control of a vehicle," an "operator" is "a person, other than a chauffeur, who "[o]perates" either "a motor vehicle" or "an automated motor vehicle," and "operate" means either "[b]eing in actual physical control of a vehicle" or "[c]ausing an automated motor vehicle to move under its own power in automatic mode," which "includes engaging the automated technology of that automated motor vehicle for that purpose." The new bills would not change this language, but they would further complicate these concepts in several ways:
- SB 995 makes reference to "operation without a human operator" and to "[a]utomated technology ... that has the capability to assist, make decisions for, or replace a human operator."
- The bills specify that "[w]hen engaged, an automated driving system" (in SB 995) or "an automated driving system or any remote or expert-controlled assist activity" (in SB 996) "shall be considered the driver or operator of the [or a] vehicle for purposes of determining conformance to any applicable traffic or motor vehicle laws."
- The bills further provide that this system (plus, in the case of SB 996, "expert-controlled assist activity") "shall be deemed to satisfy electronically all physical acts required by a driver or operator of the vehicle."
- SB 995 provides both that "[a] person may operate a platoon ... if the person files a plan" with the state and that "the operator of a truck or truck tractor that is in a platoon shall allow reasonable access for other vehicles."
- The bill further provides that "an on-demand motor vehicle network may be operated."
- The bill additionally provides that developers of any "technology that allows a motor vehicle to operate without a human operator" shall ensure that the vehicle "is operated only by an employee" or other authorized person and imposes requirements on "[t]he individual operating the vehicle ... and the individual who is monitoring the vehicle" -- individuals who are, definitionally, the same individual.
- The bill also provides that a current prohibition on using mobile communications devices "while operating a motor vehicle that is moving" does not apply either to "a person using an on-demand automated motor vehicle network" or, in a particularly striking sentence, to "an individual who is using" that device to "operate ... an automated motor vehicle while ... operating the automated motor vehicle without a human operator." (Read that a few times.)
This is, collectively, a mess.
If these bills are enacted, drivers and operators could conceivably include companies running driverless taxi services, engineers who start automated vehicles, passengers who merely ride in them (since otherwise a mobile device exception would be unnecessary), companies that file platooning permits, and the automated driving systems themselves. The bills accordingly complicate rather than clarify the meaning of these two critical terms. These terms are critical because Michigan's current vehicle code places a wide array of rights and responsibilities on the driver or operator of a motor vehicle. Provisions such as the basic seatbelt requirement or the entire licensing regime make no sense when applied to something other than a natural person. And provisions that impose criminal penalties make no sense when applied to something, like an "automated driving system," that is not even a legal person. This is an important distinction between state vehicle codes, which necessarily treat drivers as legal entities, and the National Highway Traffic Safety Administration's Federal Motor Vehicle Safety Standards, which do not. (This is why NHTSA's suggestion that a "self-driving system" could be the "driver" in the limited context of the FMVSS is not as revolutionary as popularly reported.)
Consider the provision that "an automated driving system ... shall be considered the driver or operator ... for purposes of determining conformance to any applicable traffic or motor vehicle laws." This provision says nothing about who or what the driver is for purposes of determining liability for a violation of those laws, particularly when there is no crash. SB 996 does provide that "a motor vehicle manufacturer shall assume liability for each incident in which the automated driving system is at fault," subject to the state's existing insurance code -- but only for SAVE projects. (The additional qualification -- "during the time that an automated driving system is in control of a vehicle" -- is both unnecessary and insufficiently broad.)
Moreover, the provision that the automated driving system (or possibly the "expert-controlled assist activity") "shall be deemed to satisfy electronically all physical acts required by a driver or operator of the vehicle" is unclear. The drafters may have intended this to establish that an automated driving system that accomplishes the same ends as a human driver is not unlawful merely because it uses different means. The most natural reading of the actual words, however, is that an automated driving system is deemed to satisfy any and every requirement for physical action, even if it does not achieve an equivalent end.
Applying the existing vehicle code (and other related codes) in the context of automated driving requires much more careful thought. Potential approaches range from wholly revising these codes to accommodate both automated and conventional driving to wholly exempting automated driving and regulating it under a separate regime. Michigan's bills -- as well as inchoate efforts in other states -- attempt to take the middle ground by categorically mapping existing law onto automated driving. In 2012, I also attempted this by defining key terms such as driver and by specifying particular canons of interpretation; the result was far more systematic than Michigan's effort -- but still far from perfect. If the state's legislature wishes to continue with a middling approach, it should provide (or empower an agency to provide) much more clarity on the questions of who is and isn't a driver and how existing codes actually apply.
What's alarming: SB 927 provides that a person who "intentionally access[es] or cause[s] access to be made to an electronic system of a motor vehicle to willfully ... alter ... the motor vehicle" is "guilty of a felony punishable by imprisonment for life or any term of years." SB 928 accordingly, but inconsistently, amends the code of criminal procedure to specify that "access[ing] electronic systems of motor vehicle to obtain data [!] or control of vehicle" is a class A felony punishable by a statutory maximum of life imprisonment. The primary intent of these bills is, I would hope, to prohibit malicious interference with a vehicle. However, the broad language of SB 927 ("A person shall not intentionally access or cause access to be made to an electronic system of a motor vehicle to intentionally destroy, damage, impair, alter, or gain unauthorized control of the motor vehicle") goes far beyond any such aim. A literal interpretation would make criminals out of manufacturers that send over-the-air updates to their vehicles, vehicle owners who accept such updates, repair shops that run diagnostics checks while fixing vehicles, owners who install new stereos, automated driving startups that modify production vehicles, researchers who test the safety of vehicle electronics, and many others. These bills are particularly troublesome in light of the assertion by some automakers that they alone "own" the software on vehicles that they have already sold. If these bills move forward, they should be limited to instances in which a person acts in willful or wanton disregard for the safety of others.
What's left: Other provisions could, at a minimum, benefit from careful review. SB 995 adds to an existing requirement that any developer of relevant technologies submit proof of insurance even before "beginning research," which seems a bit premature. A provision in the same bill for academic and public research references earlier provisions in a way that makes their application unclear. On at least one reading of SB 995, the bill would not prohibit the wholly unsupervised operation of a lone commercial vehicle but would require a driver behind the wheel if that same vehicle is part of a platoon. Many issues like these might be caught and corrected in the normal legislative process (or not), but the cumulative effect at this point is to create unnecessary confusion about the actual content and effect of a potentially historic set of bills.
For steps that governments can take now to encourage the development, deployment, and use of automated driving systems, please see How Governments Can Promote Automated Driving, available at newlypossible.org.
Paul Godsmark September 8, 2016 at 2:42 pmPermalink
Great analysis Bryant!
In terms of the sanctity of the software code to tampering, I also think it is alarming that white hat hackers face, up to, life imprisonment if they do what they do best and seek to expose cybersecurity flaws. Obviously the black hat hackers face the same, but there is a strong argument that without the white hats that overall security is in fact compromised.
Cybersecurity for our vehicles should be paramount and closing the door on a proven method of improving security seems to be unwise in my personal opinion.
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