Regulating The Future: Autonomous Vehicles And The Role Of Government PDF

N3_ROTH (DO NOT DELETE) 3/20/2020 1:29 PM Regulating the Future: Autonomous Vehicles and the Role of Government Matthew L. Roth* ABSTRACT: Within the next decade, society will be revolutionized by the presence of almost completely autonomous vehicles on our roadways. The amount of traffic fatalities will decrease, road congestion will disappear, and people will be able to watch their favorite Netflix show while on the way to work. This Note critically analyzes the current regulatory gap in autonomous vehicle technology, with a focus on problems arising from a patchwork of state laws and the lack of federal regulation. At this critical juncture in time, consumers are distrustful and hesitant of the technology. This Note argues that the National Highway Traffic Safety Administration should pass new manufacturing and safety standards to fill the regulatory gap and assure consumers that autonomous vehicles are both viable and safe. Failure to create national regulation will see the dream of robotic cars filling the roads go up into smoke. I. INTRODUCTION ........................................................................... 1412 II. AVS: THE HISTORY, THE FUTURE, AND HOW THEY RELATE TO STANDARD VEHICLES ............................................................. 1414 A. B. C. III. WHAT DOES “SELF-DRIVING” MEAN? ..................................... 1415 THE HISTORY AND FUTURE OF AUTONOMOUS VEHICLE TECHNOLOGY ....................................................................... 1418 REGULATION OF STANDARD AUTOMOBILES ............................. 1420 1. Federal Oversight of Vehicle Safety and Manufacturing ............................................................. 1420 2. Regulatory Role of the States ..................................... 1423 THE CURRENT GAP IN AV REGULATION AND PUBLIC PERCEPTION ............................................................................... 1425 A. THE PATCHWORK OF STATE AV LAWS .................................... 1426 1. State Traffic Law Exemptions for AVs ....................... 1426 * J.D. Candidate, The University of Iowa College of Law, 2020; B.A., Drake University, 2016. 1411 N3_ROTH (DO NOT DELETE) 1412 3/20/2020 1:29 PM IOWA LAW REVIEW B. C. [Vol. 105:1411 2. State-Level Preemption of Municipal AV Regulation.................................................................... 1427 3. AV Maintenance and Liability .................................... 1427 4. Differing Legal Definitions of AVs ............................. 1428 THE LACK OF COMPREHENSIVE FEDERAL REGULATION ............ 1429 1. The NHTSA’s Yearly Non-Regulatory Reports on AVs .......................................................................... 1430 2. Inaction in Congress and the White House .............. 1433 CONSUMER CONFIDENCE IN AV TECHNOLOGY......................... 1434 1. Deaths Caused by AV Technology ............................. 1435 2. Measuring Consumer Skepticism in AVs................... 1436 IV. TURNING VOLUNTARY NHTSA GUIDELINES INTO ROBUST FEDERAL REGULATION ................................................................ 1438 A. AVOIDING A PATCHWORK OF STATE LAWS THROUGH NHTSA REGULATION ........................................................... 1438 B. MANDATORY REGULATIONS, NOT VOLUNTARY GUIDELINES .... 1440 1. Issuing New Federal Regulations for AVs .................. 1440 i. AVs: A New Category of Automobiles ........................ 1441 ii. Preempting State Regulation of AVs.......................... 1442 iii. Expanding Testable Unit Amounts and Easing Exemption Requirements .......................................... 1443 2. Improving Consumer Confidence Through Education and Pre-Market Approval ......................... 1444 i. Creating an AV Advisory Council ............................ 1445 ii. Adopting a Pre-Approval Regime for AV Components ............................................................. 1446 V. CONCLUSION .............................................................................. 1446 I. INTRODUCTION “Every once in a while a new technology, an old problem and a big idea turn into an innovation.” -Dean Kamen1 1. Chloe Sorvino, One of America’s Most Successful Inventors Dean Kamen Talks Segway, Clean Water and Robotics, FORBES (June 9, 2016, 10:11 AM), https://www.forbes.com/sites/chloe sorvino/2016/06/09/dean-kamen-inventor-success-segway-water-purification-toyota [https:// perma.cc/M4MT-FEH8]. Dean Kamen, known by many for inventing the Segway, is an entrepreneur that has helped pioneer technologies in other industries. See Chris Morris, Legendary Inventor Dean Kamen Jumpstarts Human Organ Manufacturing in the US, CNBC (Apr. 19, 2018, 9:16 AM), https://www.cnbc.com/2018/04/19/legendary-inventor-deankamen-jumpstarts-human-organ-manufacturing-in-the-us.html [https://perma.cc/R2UU-4LAX] (noting how Dean Kamen recently founded a new company to mass produce biofabricated human organs for transplants and previously had developed a “drug infusion pump for N3_ROTH (DO NOT DELETE) 2020] 3/20/2020 1:29 PM REGULATING THE FUTURE 1413 In the next few years, the introduction of fully autonomous vehicles (“AVs”) onto American roadways will revolutionize how people drive, will hopefully reduce traffic fatalities, and will trigger a litany of legal questions. For example, how should they be regulated? In 2017, over 37,100 people were killed in driving-related accidents in the United States.2 The U.S. Department of Transportation (“DOT”) estimates that human error while driving caused 94 percent of those fatal accidents.3 At least one study has indicated that introducing an early form of autonomous vehicle technology onto American roadways could reduce traffic deaths by ten percent.4 However, once truly autonomous vehicles hit the roads, traffic deaths could be reduced by as much as 90 percent.5 But given the nascency of the AV industry, it is difficult to precisely determine to what extent driverless vehicles will reduce the amount of yearly fatalities.6 Nonetheless, industry experts and the federal government both agree that AVs will still save lives.7 The lifesaving potential of AV technology increases as the dependency on human decision making while driving decreases.8 “[I]mpaired driving, distraction, . . . speeding or illegal maneuvers[,] . . . [and] drinking and driving” caused an estimated 25,000 of the traffic deaths in 2017.9 Computer programming does not succumb to these factors affecting human decision making.10 diabetics”); see also Sorvino, supra (noting how Dean runs a nonprofit foundation “focused on exciting students ages 6 to 18 around the globe about robotics, engineering and math”). 2. U.S. DEP’T OF TRANSP., PREPARING FOR THE FUTURE OF TRANSPORTATION: AUTOMATED VEHICLES 3.0, at 1 (2018) [hereinafter REPORT 3.0]. 3. Aarian Marshall, To Save the Most Lives, Deploy (Imperfect) Self-Driving Cars ASAP, WIRED (Nov. 7, 2017, 12:01 AM), https://www.wired.com/story/self-driving-cars-rand-report [https:// perma.cc/X7J3-YU9T]. 4. Id. The researchers found that current AVs are “about 10 percent safer” as compared to the average human driver. Id. 5. Adrienne LaFrance, Self-Driving Cars Could Save 300,000 Lives Per Decade in America, ATLANTIC (Sept. 29, 2015), https://www.theatlantic.com/technology/archive/2015/09/selfdriving-cars-could-save-300000-lives-per-decade-in-america/407956 [https://perma.cc/CQ43Y4TR]. 6. AV technology is largely still in the testing phase. See infra notes 41–44 and accompanying text (explaining that current AVs are between the 1–2 Level, with Level 3s about to roll out into commercial markets). Once fully autonomous driving systems are developed, testing may provide a more accurate measure of how many lives can be saved. Marshall, supra note 3. 7. Marshall, supra note 3; REPORT 3.0, supra note 2, at 41. 8. REPORT 3.0, supra note 2, at 3. 9. Id. 10. See Marshall, supra note 3 (noting how AVs will not “drink or text or yell at their kids in the backseat”). However, traffic deaths involving AVs are inevitable. See infra notes 179–88 and accompanying text (detailing the three AV-related deaths so far). Computer programming is not perfect, and AVs will need programming dictating how the vehicle responds to an unavoidable collision. See Bryant Walker Smith, The Trolley and the Pinto: Cost-Benefit Analysis in Automated Driving and Other Cyber-Physical Systems, 4 TEX. A&M L. REV. 197, 200–01 (2017) (describing the ethical thought experiment of the Trolley Problem as applied to AVs). The Trolley Problem involves an ethical dilemma where a trolley is destined to hit several pedestrians standing on the N3_ROTH (DO NOT DELETE) 1414 3/20/2020 1:29 PM IOWA LAW REVIEW [Vol. 105:1411 Thus, applying Dean Kamen’s adage to the present issue, the new technology is sophisticated driving systems that can respond to their environment, the old problem is human error causing thousands of accidents yearly, and the innovative solution is reducing deaths through AVs. Nonetheless, the use of AV technology to save lives raises the question of how this technology should be regulated. The federal government—aware of the tide of change that AV technology will usher in—has yet to craft any regulations or pass any legislation affecting AVs. In this regulatory wake, the states have taken the initiative to pass similar and conflicting AV laws. This Note argues that the lack of legal uniformity will hurt consumer receptiveness to the technology. Specifically, problems arise when it comes to how AVs are legally defined, the requirements to possess and operate them, and who bears the responsibility to fix and maintain AVs. If the federal government continues to treat AVs as being of the same legal species as standard automobiles, the potential lifesaving benefits of the technology may suffer. Rather, the federal government—through the National Highway Traffic Safety Administration (“NHTSA”)—should pass regulations to address these legal issues. Much like how NHTSA currently only regulates certain aspects of standard automobiles, AVs should be regulated just the same, but as a distinctive legal creature. Part II of this Note provides an overview of AV technology, detailing the different levels of automation, exploring the past and future of the industry, and noting how the federal government currently regulates standard automobiles. Part III investigates the problems of the current regulatory gap of AVs and the federal government’s insufficient attempts to address it. In response to this issue, Part IV argues NHTSA should pass new safety regulations to quell consumer fears in AV technology. Specifically, this Note advances three essential regulations NHTSA must promulgate before autonomous vehicles hit the roadway. If AVs are truly going to solve the old problem of traffic fatalities, the technology’s inevitable rollout needs sensible governmental oversight. II. AVS: THE HISTORY, THE FUTURE, AND HOW THEY RELATE TO STANDARD VEHICLES The full implementation of AV technology on public roadways will revolutionize the transportation industry. The major benefits include a dramatic reduction in driving-related fatalities, more free time while riding in current track unless the trolley is diverted to another track where it will only kill one individual. Id. at 198. The moral choice of who to kill is left to the switch worker. Id. In the context of AVs, the choice is left to the computer programming if the AV will impact another vehicle—killing those other people—or divert and kill the AV’s own occupants. Id. at 199. N3_ROTH (DO NOT DELETE) 2020] 3/20/2020 1:29 PM REGULATING THE FUTURE 1415 an autonomous vehicle, and highway systems with less congestion.11 These advantages are promising but the concept of AVs is limited by the current state of the technology and uncertainty in the commercial future of AVs. AV technology exists on a spectrum differentiated by the degree of autonomy of the driving system.12 Section II.A establishes what “self-driving” means and details the different tiers of autonomy. Section II.B continues by providing a brief historical overview of AV technology and what the commercial future looks like. Lastly, Section II.C analyzes how standard automobiles are regulated under a state and federal framework. It is important to understand how normal vehicles are treated under the law to determine at which points AV technology may require similar or different regulatory treatment. A. WHAT DOES “SELF-DRIVING” MEAN? The word “automotive”—derived from Latin roots—means self-moving.13 From the word’s etymological meaning, it would seem that the concept of autonomous vehicles is almost inevitable. When someone thinks of a selfdriving vehicle, instinctually he or she may imagine reclining back into a comfortable leather seat, watching a movie or reading a book while an advanced computer driving system safely escorts them from point A to B —with no human intervention. While this level of sophistication of AV technology is in the works,14 the above definition fails to capture the dynamics of AV technology. Autonomous vehicles exist as a taxonomy, from no automation at the base (level 0) to full automation at the top (level 5).15 This categorical scheme, promulgated by an industry leader in mobility engineering, the Society of Automotive Engineers International (“SAE”),16 has formally been adopted by NHTSA as the system to distinguish between different levels of AV technology.17 The need for this scheme arose out of the 11. See Cadie Thompson, The 3 Biggest Ways Self-Driving Cars Will Improve Our Lives, BUS. INSIDER (Jun. 10, 2016, 4:04 PM), https://www.businessinsider.com/advantages-of-driverlesscars-2016-6 [https://perma.cc/V8Q5-NHTQ]. 12. See NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEP’T OF TRANSP., AUTOMATED DRIVING SYSTEMS 2.0: A VISION FOR SAFETY 4 (2017) [hereinafter REPORT 2.0] (listing the six different levels of automation from no automation to fully automated). 13. About SAE International, SAE INT’L, https://www.sae.org/about/history [https:// perma.cc/NL4X-PZRB]. 14. See infra notes 40–44 and accompanying text. 15. Sam Abuelsamid, SAE International Ready to Tackle Automated Vehicle Safety Testing Standards, FORBES (Aug. 1, 2018, 7:27 AM), https://www.forbes.com/sites/samabuelsamid/ 2018/08/01/sae-international-ready-to-tackle-automated-vehicle-safety-testing-standards [https:// perma.cc/S3QL-M6WH]. 16. Id. SAE was formed in 1905 with the mission of collaboration—especially within the automotive industry—and has served as a generator of best practices and standards to be followed in the industries it operates within. See About SAE International, supra note 13 (detailing the founding of SAE and its involvements with the automotive industry). 17. REPORT 2.0, supra note 12, at 4. N3_ROTH (DO NOT DELETE) 1416 3/20/2020 1:29 PM IOWA LAW REVIEW [Vol. 105:1411 problem of evaluation.18 “[T]here [we]re . . . no commonly accepted methods of even evaluating this [AV] technology” until SAE presented this framework.19 As the SAE scheme is catching traction as the standard for the industry, it shall be the language for AV discussion in this Note. Figure 1 details SAE’s categorical scheme. Figure 1. Levels of Autonomy for Self-Driving Vehicles20 Level of Automation Defining AV Technology 0- No Automation The driver performs most tasks 1- Driver Assistance Steering or braking assistance, but not both 2- Partial Automation 3- Conditional Automation 4- High Automation 5- Full Automation Steering and braking assistance Complete automation of a simple driving task, Automated Driving System-L3 Full automation in pre-planned driving scenarios, Automated Driving System-L4 Automated Driving System-L5 Examples Features like cruise control and crash assistance are still a part of the vehicle system Advanced cruise control that will brake when possible collision detected Maintaining driving position while on the highway AV likely able to drive from a simple point A to B AV can accomplish all driving tasks, including parking A driver is no longer needed Most vehicles on American roadways today fall within Level 0, with many newer models featuring some basic assistance features, like lane-centering assist, adaptive cruise control, and blind-spot warnings, placing these models more appropriately in Level 1 or sometimes even Level 2.21 A major distinction between the lower and upper levels is the requirement of occupant 18. Abuelsamid, supra note 15. 19. Id. 20. See id.; see also REPORT 2.0, supra note 12, at 4 (adopting the SAE scheme but altering the language used to describe each level). 21. See Cars with Advanced Safety Systems, CONSUMER REPORTS, https://www.consumer reports.org/car-safety/cars-with-advanced-safety-systems [https://perma.cc/Q472-N5ZB] (last updated Aug. 12, 2019) (listing the many new safety features released with commercial vehicles). N3_ROTH (DO NOT DELETE) 2020] 3/20/2020 1:29 PM REGULATING THE FUTURE 1417 supervision of the driving environment.22 Beginning with Level 3, a human occupant only needs to take control if there is an emergency or an unexpected issue with the driving system.23 At Level 4, the role of the human occupant is even further reduced to driving only when the driving system is not active.24 At Level 5, theoretically the only time the human occupant—if there even is one—would have to drive is when he or she wants to.25 As noted in Figure 1, the defining AV technology for Levels 3–5 is the designated Automated Driving System (“ADS”) level: [This] computer system[] that drive[s] cars consist[s] of three modules. The first is the perception module, which takes information from the car’s sensors and identifies relevant objects nearby. . . . The readings from these sensors are combined to build a model of the world, and machine-learning systems then identify nearby cars, bicycles, pedestrians and so on. The second module is the prediction module, which forecasts how each of those objects will behave in the next few seconds. Will that car change lane? . . . Finally, the third module uses these predictions to determine how the vehicle should respond . . . : speed up, slow down, or steer left or right.26 The successful programing and implementation of these three modules separates the Level 0–2s on the roads today from the 3s, 4s, and 5s of tomorrow.27 When AV industry leaders talk about getting AVs onto the American roadway, they mean the Level 3–5s that “[are] capable of sensing [their] environment and navigating without human input.”28 Likewise, when this Note references AVs in Parts III and IV, it means the higher level of AVs that are near perfecting their ADSs. 22. Robert J. Szczerba, Rise of the Machines: Understanding the Autonomy Levels of Self-Driving Cars, FORBES (July 19, 2018, 11:43 AM), https://www.forbes.com/sites/robertszczerba/2018/ 07/19/rise-of-the-machines-understanding-the-autonomy-levels-of-self-driving-cars/#30774aab 9593 [https://perma.cc/AA75-SV36]. 23. Id. 24. A Level 4 AV “can drive itself full-time under the right circumstances. The car is expected to have backup systems so that if one technology fails, it will still be operational[, and] [i]f the car encounters something it can’t handle it will ask for driver assistance.” Id. 25. Abuelsamid, supra note 15. 26. T.S., Why Uber’s Self-Driving Car Killed a Pedestrian, ECONOMIST (May 29, 2018), https://www.economist.com/the-economist-explains/2018/05/29/why-ubers-self-driving-carkilled-a-pedestrian [https://perma.cc/KM2K-ZLZ2]. 27. Id. The most difficult module to perfect is the perception module, because current computer programs are unable to consistently identify “rarely-seen items such as debris on the road, or plastic bags blowing across a highway.” Id. 28. Shima Rayej, How Do Self-Driving Cars Work?, ROBOHUB (June 3, 2014), https:// robohub.org/how-do-self-driving-cars-work [https://perma.cc/CYJ9-AE3U]. N3_ROTH (DO NOT DELETE) 1418 3/20/2020 1:29 PM IOWA LAW REVIEW [Vol. 105:1411 B. THE HISTORY AND FUTURE OF AUTONOMOUS VEHICLE TECHNOLOGY The concept of a self-driving vehicle has entertained the thoughts of engineers and entrepreneurs for almost a century.29 This fantasy car came closer to reality in the 1980s with various institutes conducting driving tests with semi-autonomous vehicles.30 In the 1990s, the industry saw the achievement of several milestones: a 2,800 mile cross-country trip of a semiautonomous vehicle,31 a test on European roads of a semi-autonomous vehicle reaching speeds of up to 80 miles per hour “with an onboard computer . . . controlling the steering wheel, the gas pedal and the brakes,”32 and the introduction of the first commercial driver-less vehicle in the world.33 The 2000s brought with it an increased collaboration between governmental funding and market development.34 For example, “[i]n 2002, DARPA35 [the Defense Advanced Research Projects Agency] announce[d] its Grand Challenge, offering researchers from top research institutions a $1 million prize if they [could] build an autonomous vehicle able to navigate 142 miles through the Mojave Desert.”36 When the challenge occurred in 2004, all 15 29. Alanis King, The Fascination with Self-Driving Cars Started Nearly 100 Years Ago, JALOPNIK (June 26, 2016, 4:20 PM), https://jalopnik.com/the-fascination-with-self-driving-cars-startednearly-1-1782241743 [https://perma.cc/R6V3-ZXNH] (describing the testing of a vehicle that “will start its own motor, throw . . . its [own] clutch, twist its [own] steering wheel, [and] toot its [own] horn” being controlled by a machine behind it using radio waves). 30. See generally Richard Wallace et al., First Results in Robot Road-Following, CARNEGIE MELLON U.: ROBOTICS INST. 1089 (1985), available at https://www.ijcai.org/Proceedings/85-2/Papers/ 086.pdf [https://perma.cc/VYF5-7TD4] (describing the first demonstrations of semiautonomous vehicles using visual signals to maintain stable driving on the road); Navlab: The Carnegie Mellon University Navigation Laboratory, CARNEGIE MELLON U.: ROBOTICS INST., http://www.cs.cmu.edu/afs/cs/project/alv/www/index.html [https://perma.cc/TSA4-C7K6] (detailing how the lab has conducted testing on AVs since 1984); Janosch Delcker, The Man Who Invented the Self-Driving Car (in 1986), POLITICO (Apr. 19, 2019, 1:49 AM), https:// www.politico.eu/article/delf-driving-car-born-1986-ernst-dickmanns-mercedes [https://perma.cc/ 6LYV-CCHZ] (noting the first vehicle to drive autonomously was tested in 1986). 31. Mike Freeman, The Long Road to Autonomous Vehicles, PHYS.ORG (Apr. 9, 2017), https://phys.org/news/2017-04-road-autonomous-vehicles.html [https://perma.cc/5CX8RH65]. The trip began in Pittsburgh and ended in San Diego, with “[t]he vehicle navigat[ing] itself, without intervention from a human driver, for 98 percent of the . . . journey.” Id. 32. Delcker, supra note 30. 33. See Dick van Sluis, Operations Contract of Driverless Parkshuttle Extended with 2 Years, 2GETTHERE, https://www.2getthere.eu/driverless-parkshuttle [https://perma.cc/67AD-ZSQK] (describing the use of a driverless public transit system in the Netherlands). 34. Luke Dormehl & Stephen Edelstein, Sit Back, Relax, and Enjoy a Ride Through the History of Self-Driving Cars, DIGITAL TRENDS (Feb. 3, 2019, 9:00 PM), https://www.digital trends.com/cars/history-of-self-driving-cars-milestones [https://perma.cc/7ALR-7DJD]. 35. “DARPA [is] the central research and development organization of the Department of Defense.” Annie Jacobsen, Engineering Humans for War, ATLANTIC (Sept. 23, 2015), https:// www.theatlantic.com/international/archive/2015/09/military-technology-pentagon-robots/ 406786 [https://perma.cc/62MJ-TCQU]. While DARPA’s funding interests have expanded to included AVs, its original mandate “focused on developing vast weapons systems.” Id. 36. Dormehl & Edelstein, supra note 34. N3_ROTH (DO NOT DELETE) 2020] 3/20/2020 1:29 PM REGULATING THE FUTURE 1419 participants failed to reach the 142-mile mark, with the winner achieving fewer than eight miles before starting on fire.37 This “damaging blow to the goal of building real self-driving cars” proved to be non-fatal.38 The current buzz over AV technology began in 2009, when massive tech giants like Google began announcing that they were investing research and development into self-driving cars.39 Dubbed “Waymo,” Google’s AV project unveiled an AV design in 2014 that lacked “any steering wheel, gas pedal or brake pedal, thereby being 100 percent autonomous.”40 In the years to follow, “General Motors, Ford, Mercedes Benz, BMW, and other[]” companies announced their efforts to develop AV technology.41 Projects like Waymo and Tesla are on the threshold of Level 2 to 3 at their commercial state.42 While prototypes have been pitched that may appear to be a Level 5, the actual ADSs may still be years from reaching commercial application.43 In fact, only one car to date has officially achieved the rank of Level 3. The 2018 Audi A8 was unveiled to allow autonomous driving up to 37 miles per hour, allowing the driver to “zone out” and not requiring the driver maintain contact with the steering wheel.44 37. Id. 38. Id. Congress, for instance, has continued to fund the research, development, and testing of AV technology indirectly through funds allocated to NHTSA and direct funding attempts that have thus far stalled in the legislature. See infra notes 165–70 and accompanying text. See also David Shepardson, U.S. Spending Plan Include $100 Million for Autonomous Cars Research, Testing, REUTERS (Mar. 21, 2018, 9:01 PM), https://www.reuters.com/article/us-autos-selfdriving-congress/ u-s-spending-plan-include-100-million-for-autonomous-cars-research-testing-idUSKBN1GY074 [https://perma.cc/HUE4-JAGX] (detailing how the distribution of funds would allocate $60 million to test safety and $38 million towards research into issues like cyber-security). Nonetheless, this spending bill, like other omnibus AV bills, failed to pass through Congress. See infra notes 165–70. 39. Dormehl & Edelstein, supra note 34. 40. Id. This article notes that “[b]y the end of [2017], more than 2 million miles had been driven by Google’s autonomous car.” Id. 41. Id. 42. See Sean O’Kane, How Tesla and Waymo Are Tackling a Major Problem for Self-Driving Cars: Data, VERGE (Apr. 19, 2018, 8:00 AM), https://www.theverge.com/transportation/2018/4/19/ 17204044/tesla-waymo-self-driving-car-data-simulation [https://perma.cc/QP4G-7ZZG] (describing Tesla’s autopilot mode as “still only a semi-autonomous feature” and noting Waymo’s self-driving vehicles are currently designed for testing, not commercial application). 43. See Fred Lambert, Tesla’s Software Timeline for ‘Enhanced Autopilot’ Transition Means ‘Full Self-Driving Capability’ as Early as Next Year, ELECTREK (Oct. 20, 2016, 4:31 PM), https:// electrek.co/2016/10/20/tesla-enhanced-autopilot-full-self-driving-capability [https://perma.cc/ Q7AL-46Z4] (stating Tesla claims to have the hardware required to reach Levels 3–5 but “the technology is now a software problem”). Tesla expected to have this software update out to Tesla vehicles within 2–3 months back in 2016 but has yet to complete this goal. Id. 44. Philip E. Ross, The Audi A8: The World’s First Production Car to Achieve Level 3 Autonomy, IEEE SPECTRUM (July 11, 2017, 5:00 PM), https://spectrum.ieee.org/cars-that-think/transportation/ self-driving/the-audi-a8-the-worlds-first-production-car-to-achieve-level-3-autonomy. Other Level 1–2 brands like Tesla require contact with the steering wheel and will sound an alarm if the driver fails to do so. Fred Lambert, Tesla Is Updating Autopilot’s ‘Hold Steering Wheel’ Alert After Complaints, N3_ROTH (DO NOT DELETE) 1420 3/20/2020 1:29 PM IOWA LAW REVIEW [Vol. 105:1411 Nearing almost 100 years of engineering, many industry experts think developers are on the cusp of finally realizing the dream of Level 4–5 AVs populating our roadways within a few years. Many companies have posited 2020 (or sometime in this decade) as the hopeful timeframe where at least Level 4s will emerge into commercial markets.45 Level 4s are currently in the testing phase,46 but this optimism of hitting rubber to the market has fizzled in the past. Radio-controlled cars were predicted to dominate our interstate systems by 196047 and smart roads were to be constructed by 1975 to send electrical signals to vehicles to guide their steering.48 Neither of these ambitious projects were realized. Nonetheless, the future of the AV industry has never looked more promising. Major AV industry participants have invested billions in either research and development or acquisitions.49 Even absent government funding of AV technology, the momentum from private market forces alone likely ensures the ambitious goal of Level 4 commercialization by 2020 or at least that the early 2020s will not fall victim to the same failure of the 1960 and 1975 fantasies. C. REGULATION OF STANDARD AUTOMOBILES 1. Federal Oversight of Vehicle Safety and Manufacturing The regulation of automobiles is directed by the federal government through NHTSA in setting safety and manufacturing standards applicable to all commercial vehicles,50 with the remainder left to the police power of the Says Elon Musk, ELECTREK (June 13, 2018, 6:12 AM), https://electrek.co/2018/06/13/teslaautopilot-hold-steering-wheel-alerts-complaints [https://perma.cc/4Q45-R6LV]. 45. See, e.g., Philip E. Ross, CES 2017: Nvidia and Audi Say They’ll Field a Level 4 Autonomous Car in Three Years, IEEE SPECTRUM (Jan. 5, 2017, 2:30 PM), https://spectrum.ieee.org/cars-thatthink/transportation/self-driving/nvidia-ceo-announces (announcing plans by Nvidia and Audi to have Level 4s out by 2020); Jon Walker, The Self-Driving Car Timeline—Predictions from the Top 11 Global Automakers, EMERJ, https://emerj.com/ai-adoption-timelines/self-driving-car-timelinethemselves-top-11-automakers [https://perma.cc/8UZE-VELK] (last updated May 14, 2019) (listing Honda, Toyota, Hyundai, and Renault–Nissan as companies planning to roll out Level 4s by 2020); David Welch & Elisabeth Behrmann, Who’s Winning the Self-Driving Car Race?, BLOOMBERG (Oct. 4, 2018, 8:49 AM), https://www.bloomberg.com/news/features/2018-0507/who-s-winning-the-self-driving-car-race [https://perma.cc/568U-B5W6] (predicting that developer Zoox Inc. will have its AVs ready by 2020). 46. Welch & Behrmann, supra note 45 (noting how companies like Waymo—a Google subsidiary—and others are testing Level 4 AVs with non-company passengers). 47. NORMAN BEL GEDDES, MAGIC MOTORWAYS 56 (1940). 48. Joseph C. Ingraham, Electronic Roads Called Practical, N.Y. TIMES (June 6, 1960), https:// www.nytimes.com/1960/06/06/archives/electronic-roads-called-practical-new-system-of-guidingcars-safely.html [https://perma.cc/7RZY-SC3K]. 49. See Walker, supra note 45 (describing how 11 major automakers are aggressively pursuing AV technology). 50. See 49 C.F.R. § 1.94 (2012) (stating in section 1.94(b) that the NHTSA has the responsibility of “establishing and enforcing safety standards and regulations for the manufacture . . . of motor vehicles”). N3_ROTH (DO NOT DELETE) 2020] 3/20/2020 1:29 PM REGULATING THE FUTURE 1421 states.51 NHTSA has been granted broad authority to “set[] uniform guidelines for a coordinated national highway safety formula grant program carried out by the States.”52 This federal agency (subsumed within the larger DOT) was founded in 1970 to actualize the safety program goals of laws enacted by Congress in the 1960s.53 It achieved these goals in part “by promoting vehicle safety innovations, . . . setting safety standards for cars and trucks, and educating Americans to help them make safer choices when driving.”54 NHTSA sets manufacturing regulations that motor vehicle producers must follow but it works in conjunction with states to “deliver congressionally allocated funds” to solve individual traffic safety concerns.55 Federal law dictates strict guidelines for what federal grant funding can be used for and when grant funding can be used.56 The “costs must be necessary, reasonable, and allocable and Federal funds must be used in accordance with the appropriate statute and implementing grant regulations or guidance.”57 Programs already in place include funding for occupant protection laws to reduce traffic deaths, programs aimed at reducing crashes caused by intoxicated drivers, laws related to using a cell phone while driving, increasing seat belt usage, and encouraging the adoption of graduated driver license laws.58 The funds can be awarded directly to the State, universities or another private institution consulting on behalf of the state, but may not be granted for the basic “construction, maintenance, or design . . . of highways.”59 For a private manufacturer to sell a motor vehicle, the vehicle must comply with all Federal Motor Vehicle Safety Standards (“FMVSS”) issued by NHTSA.60 The first rule was FMVSS No. 209 for Seat Belt Assemblies.61 The range of rules has grown expansively to include braking systems, poweroperated windows, windshields, transmissions, general controls and displays, 51. See U.S. CONST. amend. X (“The powers not delegated to the United States . . . are reserved to the States respectively . . . .”). 52. 49 C.F.R. § 1.94(a). 53. Understanding the National Highway Traffic Safety Administration (NHTSA), U.S. DEP’T TRANSP., https://www.transportation.gov/transition/understanding-national-highway-trafficsafety-administration-nhtsa [https://perma.cc/ZU56-YL75]. 54. Id. 55. Id. 56. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., HIGHWAY SAFETY GRANT FUNDING GUIDANCE 1 (2013), available at https://www.nhtsa.gov/staticfiles/administration/programs-grants/Highway _Safety_Grant_Funding_Guidance.docx [https://perma.cc/U7SH-X4NF]. 57. Id. 58. Id. at 2–4. 59. Id. at 10–11. 60. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., QUICK REFERENCE GUIDE (2010 VERSION) TO FEDERAL MOTOR VEHICLE SAFETY STANDARDS AND REGULATIONS ii (2011), https:// www.nhtsa.gov/sites/nhtsa.dot.gov/files/fmvss-quickrefguide-hs811439.pdf [https://perma.cc/ 28XT-ZTXH]. 61. Id. N3_ROTH (DO NOT DELETE) 1422 3/20/2020 1:29 PM IOWA LAW REVIEW [Vol. 105:1411 and a litany of other automobile components.62 These regulations are “written in terms of minimum safety performance requirements for motor vehicles or items of motor vehicle equipment.”63 The underlying safety goal in implementing these standards is to protect society from an “unreasonable risk of crashes occurring as a result of the design, construction, or performance of motor vehicles and” against serious injury or death if such crashes occur.64 Setting Federal Motor Vehicle Safety Standards operates as the formal and lengthy rule-making process for NHTSA.65 In conjunction with the power to set new federal standards, NHTSA can exempt safety and manufacturing requirements.66 Congress granted the exemption power to the Secretary of Transportation,67 but through an agency rule the power was delegated to NHTSA.68 A manufacturer may seek a temporary exemption from a safety standard “on terms the Secretary [of the NHTSA] considers appropriate.”69 A basis for granting an exemption includes promoting the public interest and the development of vehicle safety features.70 The manufacturer must submit an initial application and subsequent applications for each renewal, as exemptions only last two to three years.71 An applicant must include “a record of the research, development, and testing establishing the innovative nature of the safety feature and a detailed analysis establishing . . . the safety level of the feature” for every sought exemption.72 A further restriction is placed on how many vehicles may be exempted.73 62. See id. at 1–6. 63. Id. at ii. 64. Id. 65. 49 C.F.R. § 553.1 (2018). 66. 49 U.S.C. § 30113 (2012). 67. Id. ( “The Secretary of Transportation may exempt, on a temporary basis, motor vehicles from a” FMVSS). 68. 49 C.F.R. § 1.94 (2012); see also Temporary Exemption from Motor Vehicle Safety and Bumper Standards, 83 Fed. Reg. 66,158 (Dec. 26, 2018) (to be codified at 49 C.F.R. pt. 555) (“The Secretary has delegated the authority for implementing [FMVSS exemptions] . . . to NHTSA”). 69. 49 U.S.C. § 30113(b). 70. Id. § 30113(b)(3). Other bases include: Enforcing a FMVSS would cause “substantial economic hardship” and compliance with a certain FMVSS would make the vehicle less safe overall. Id. 71. Id. § 30113(e). 72. Id. § 30113(c)(2). 73. Id. § 30113(d). An exemption based on economic hardships permits sales of no more than 2,500 vehicles in the United States every twelve months, while the safety exemptions only allow production of up to 10,000 vehicles. Id. A recent example of a temporary and non-AV related exemption is in 2014 when NHTSA approved for Aston Martin to continue exporting luxury vehicles to the United States despite not complying with a new safety rule (testing how the vehicle would impact a pole). Karla Sanchez, Aston Martin Gets Temporary Exemption from New NHTSA Safety Rules, MOTORTREND (Oct. 31, 2014), https://www.motortrend.com/news/astonmartin-gets-temporary-exemption-from-new-nhtsa-safety-rules [https://perma.cc/58Q5-U547]. N3_ROTH (DO NOT DELETE) 2020] 3/20/2020 1:29 PM REGULATING THE FUTURE 1423 Aside from setting safety standards, NHTSA can also exercise authority through its self-certification program74 or through its defects and recall power.75 Under the current legal framework, NHTSA is not responsible for testing every new automobile before it enters the market. Rather, every manufacturer is individually liable to ensure that its product meets all applicable FMVSS standards.76 Under this regime, NHTSA can shift the onus of inspection costs to the manufacturer and issue appropriate penalties for a failure to achieve full compliance.77 Alternatively, if NHTSA identifies a flaw within the vehicle design or the vehicle is found to not comply with federal safety standards, it cannot be sold.78 If that defective or non-complying automobile reaches the market, the manufacturer may have to recall it.79 Another means the agency has to incentivize the auto industry to carefully follow federal safety standards and other NHTSA guidelines is NHTSA’s power to invoke and enforce a burdensomely expensive recall for manufacturers.80 2. Regulatory Role of the States Aside from NHTSA rulemaking and the corporate grant programs, the remainder of legislative power is left to the states, if they are not preempted by federal regulation.81 The National Traffic and Motor Vehicle Safety Act of 1966 provided an express pre-emption for federal agency regulative authority within the auto industry: Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of The NHTSA accepted Aston Martin’s economic hardship argument, reasoning enforcement of the safety rule on Aston Martin would cause significant financial strain on the foreign car manufacturer. Id. 74. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEP’T OF TRANSP., FEDERAL AUTOMATED VEHICLES POLICY: ACCELERATING THE NEXT REVOLUTION IN ROADWAY SAFETY 11 (2016) [hereinafter REPORT 1.0]. 75. See 49 U.S.C. §§ 30102(a)(8), 30116(a), 30120(a) (2012). 76. REPORT 1.0, supra note 74, at 11. 77. Consequences for violating a FMVSS can include a recall of the unit(s) or hefty civil fine. 49 U.S.C. §§ 30116, 30165. 78. Id. § 30116. 79. Id. 80. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEP’T OF TRANSP., MOTOR VEHICLE SAFETY DEFECTS AND RECALLS: WHAT EVERY VEHICLE OWNER SHOULD KNOW 1, 8–10 (2016) (explaining the recall process). 81. See Caleb Nelson, Preemption, 86 VA. L. REV. 225, 225–26 (2000). N3_ROTH (DO NOT DELETE) 1424 3/20/2020 1:29 PM IOWA LAW REVIEW [Vol. 105:1411 performance of such vehicle or item of equipment which is not identical to the Federal standard.82 Nonetheless, in interpreting this Act the Supreme Court held “that the absence of regulation itself” does not necessarily “constitute[] regulation.”83 In Freightliner Corp. v. Myrick, the plaintiffs brought a common law design defect suit against truck manufacturers that had failed to install antilock braking systems (“ABS”) in their vehicles.84 The defendants argued that the express pre-emption clause of the 1966 Act precluded the plaintiffs from being able to raise a common law suit.85 The Court reasoned that because “no express federal [safety] standard[s] addressing stopping distances or vehicle stability for trucks or trailers” were in effect “with respect to ‘the same aspect of performance’ regulated by a state standard,” there was no federal regulation to trump the state action.86 In the absence of a direct FMVSS regulation, the 1966 Act permits states “to ‘establish, or to continue in effect,’ their own safety standards.”87 States can regulate many aspects of automobiles, aside from FMVSS regulations. There is near uniformity in the aspects of automobiles that states will regulate—like vehicle registration requirements—but there is some variety in what those regulations look like. In Alaska, vehicles are registered for a two-year period and the owner must hold a liability insurance policy of 50/100/25.88 In Maine, the registration must be renewed every year,89 but the insurance minimums are like that of Alaska—50/100/25.90 Wisconsin also requires yearly renewal of the registration,91 yet the insurance minimums are a smaller 25/50/25 scheme.92 NHTSA, while not specifying registration 82. 15 U.S.C. § 1392(d) (1988). 83. Freightliner Corp. v. Myrick, 514 U.S. 280, 286 (1995). 84. Id. at 282. 85. Id. at 283. 86. Id. at 286 (citing 15 U.S.C. § 1392(d)). 87. Id. 88. General Vehicle Registration, ALA. DIV. MOTOR VEHICLES, http://doa.alaska.gov/dmv/ reg/require.htm [https://perma.cc/82VY-9F79]. The 50/100/25 figures are a shorthand way of saying that liability minimum must be $50,000 for injury or death of one person, $100,000 for injury or death resulting from a single accident, and $25,000 for property damage. Understanding Minimum Car Insurance Requirements, INSURANCE.COM (May 16, 2018), https://www.insurance.com/ auto-insurance/coverage/understanding-minimum-car-insurance-requirements.html [https:// perma.cc/UC7S-Z2SZ]. Almost all states have insurance minimums in the 50/100/25 format, with the exact figures being different. Id. 89. How to Register a Passenger Vehicle, ME. BUREAU MOTOR VEHICLES, https://www.maine.gov/ sos/bmv/registration/passenger.html [https://perma.cc/P5XE-XUPA]. 90. Mila Araujo, Understanding Minimum Car Insurance Requirements, BALANCE, https:// www.thebalance.com/understanding-minimum-car-insurance-requirements-2645473 [https:// perma.cc/ML5D-UYZP] (last updated Apr. 10, 2019). 91. Vehicle Registration, WIS. DEP’T TRANSP., https://wisconsindot.gov/Pages/dmv/vehicles/ title-plates/registration.aspx [https://perma.cc/77RR-P5YN]. 92. Araujo, supra note 90. N3_ROTH (DO NOT DELETE) 2020] 3/20/2020 1:29 PM REGULATING THE FUTURE 1425 requirements that states must follow, has still released recommended guidelines for states to adopt.93 A model registration program requires that: all vehicles are registered, relevant information of the vehicle and the owner should be compiled into a records system, and the program should be regularly evaluated with reports provided to NHTSA.94 III. THE CURRENT GAP IN AV REGULATION AND PUBLIC PERCEPTION The regulatory framework for AVs is a nascent area of law that has yet to fully emerge.95 The legal landscape—encompassing everything from copyrights of driving program software, questions of liability in an AV-related accident, or how AVs may change police enforcement and search and seizure doctrines—is largely undefined.96 Several states have passed a litany of statutes and executive orders, shaping the future of the technology in different ways.97 NHTSA on top of these state regulations, has thus far only issued recommended policies for the states to adopt, not mandatory administrative rules.98 Many of the more nuanced issues arising from AV technology cannot be addressed until higher amounts of AVs hit the road, problems arise, and a body of common law emerges, but governmental regulation could anticipate and resolve some of these issues. Nonetheless, Section III.A critically analyzes the patchwork of states’ laws to see the potential danger in a lack of uniform regulation. Section III.B continues by deeply exploring the recommendations 93. See Uniform Guidelines for State Highway Safety Programs, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., https://one.nhtsa.gov/nhtsa/whatsup/tea21/tea21programs/index.htm [https:// perma.cc/JWK4-B3VK]. 94. Id. 95. See Brian Fung, The Big Question About Driverless Cars No One Seems Able to Answer, WASH. POST (Feb. 17, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/02/17/ the-big-question-about-driverless-cars-no-one-seems-to-have-an-answer-to [https://perma.cc/ 8AK9-W2VT] (listing liability for an accident involving an AV as an unsettled area of law). 96. See, e.g., Frank Douma & Sarah Aue Palodichuk, Criminal Liability Issues Created by Autonomous Vehicles, 52 SANTA CLARA L. REV. 1157, 1158 (2012) (stating “the criminal liability regime will have to significantly change in order to accommodate [AV] technology”); Mark A. Geistfeld, A Roadmap for Autonomous Vehicles: State Tort Liability, Automobile Insurance, and Federal Safety Regulation, 105 CALIF. L. REV. 1611, 1616–17 (2017) (discussing who to hold responsible for AV-related accidents—a manufacturer or driver—is still a contested legal point); Paul J. Pearah, Opening the Door to Self-Driving Cars: How Will This Change the Rules of the Road?, 18 J. HIGH TECH. L. 38, 48 (2017) (suggesting that the intellectual property of “software algorithms and sensor systems that will replace human judgment, perception and attention” may not automatically be patentable as trade secrets); Bryant Walker Smith, Automated Driving and Product Liability, 2017 MICH. ST. L. REV. 1, 71 (concluding “that [AVs] and product liability can coexist”); Lindsey Barrett, Note, Herbie Fully Downloaded: Data-Driven Vehicles and the Automobile Exception, 106 GEO. L.J. 181, 184 (2017) (arguing “the privacy interests implicated by data-driven vehicles should mandate that a warrant is required” whereas one is not required for the automobile exception). 97. Autonomous Vehicles: Self-Driving Vehicles Enacted Legislation, NAT’L CONFERENCE STATE LEGISLATURES (Sept. 9, 2019), http://www.ncsl.org/research/transportation/autonomousvehicles-self-driving-vehicles-enacted-legislation.aspx [https://perma.cc/7U4Z-BADP]. 98. See REPORT 3.0, supra note 2, at ii (stating NHTSA offers only a non-regulatory approach to AV technology). N3_ROTH (DO NOT DELETE) 1426 3/20/2020 1:29 PM IOWA LAW REVIEW [Vol. 105:1411 thus far issued by the NTHSA and how they fall short of adequately providing the direction and uniformity that the industry needs, and how the gap in regulation is a serious obstacle towards accomplishing the social goal of eliminating as many traffic deaths as possible. Section III.C explores the tentative trust and interest the public currently has in AVs. A. THE PATCHWORK OF STATE AV LAWS By the end of 2017, almost 33 state governments had enacted some form of regulation or issued an executive order relating to AVs.99 Nevada was the first state to act, statutorily permitting the testing of AVs in 2011.100 What is striking, aside from the amount of states taking regulatory action since 2011, is the sheer divergence of law. This is in regards especially to (1) the special exemptions AVs are being granted from normal traffic laws, (2) whether a state preempts local municipalities from regulating AVs, (3) how altering or performing maintenance on an AV affects liability, and (4) the difference in how AV technology is statutorily defined by states. 1. State Traffic Law Exemptions for AVs These statutory exemptions beg the question of how future AVs will be treated under the law. Will AVs receive relevant exemptions from normal motor vehicles laws, like in the above instances, or will they eventually become viewed as a distinct species under the law?101 For example, Alabama has granted an exemption for duck platoons102 that are “engaged in electronic brake coordination” for receiving traffic citations from following each other too closely on a highway.103 Georgia recently passed a law exempting the necessity to hold a driver’s license when occupying a Level 5 or when “the automated driving system [is] engaged.”104 99. Autonomous Vehicles: Self-Driving Vehicles Enacted Legislation, supra note 97. 100. See NEV. ADMIN. CODE § 482A.110 (2017). 101. In the arena of tort liability of AVs, legal scholarship has already put forward new ways of thinking to conceptualize how automated driving systems should not be held liable as a “standard vehicle,” but under a new standard of negligence. See Ryan Abbott, The Reasonable Computer: Disrupting the Paradigm of Tort Liability, 86 GEO. WASH. L. REV. 1, 7 (2018) (arguing the computer programming in an AV should “occupy[] the position of a reasonable person in the traditional negligence paradigm”); John W. Zipp, Note, The Road Will Never be the Same: A Reexamination of Tort Liability for Autonomous Vehicles, 43 TRANSP. L.J. 137, 141 (2016) (suggesting that AV software be conceptualized as a legal fiction of an actual driver, requiring tort victims “to file a claim against the [AV] itself”). 102. A “duck platoon” is a group of self-driving trucks that move together “like a mother duck and her ducklings,” hence the nickname. Lauren Barack, Tesla’s Autonomous Semi Trucks Reportedly Move in “Platoons,” GEARBRAIN (Aug. 10, 2017), https://www.gearbrain.com/tesla-talks-autonomoussemi-trucks-2471182093.html [https://perma.cc/P9KS-EKDR]. 103. ALA. CODE § 32-5A-89(d)(1) (2018). 104. GA. CODE ANN. § 40-5-21(a)(13) (West 2018). N3_ROTH (DO NOT DELETE) 2020] 3/20/2020 1:29 PM REGULATING THE FUTURE 1427 2. State-Level Preemption of Municipal AV Regulation At least four states (Illinois,105 Texas,106 Tennessee,107 and North Carolina108) have preempted local governments from taking certain actions regarding AVs. These states have recognized that AV technology is best regulated by a central state government. Even among this group, there is variety in the degree of preemption. North Carolina dictates “[n]o local government shall enact any local law or ordinance related to the regulation or operation of fully autonomous vehicles”109 whereas Illinois forbids “[a] unit of local government . . . [to] enact an ordinance prohibiting the use of [AVs]” but still allows for local regulation of “[AVs] for traffic control purposes.”110 If the dichotomy between North Carolina and Illinois were enlarged to include every state—assuming every state addresses the issue—the consequence would be a patchwork of law. A manufacturer, when rolling out commercial Level 4s, could look at a state like North Carolina, see what the state code and regulations are and push forward. Yet, this same company would incur increased transaction and compliance costs when encountering the divergent local rules in Illinois and of the other 48 states.111 From the vantage point of the manufacturer, the source of where to look for governing law is further complicated by states that have voluntarily relinquished regulatory authority to the federal government.112 3. AV Maintenance and Liability Additionally, like the Level 0s on the road today, future Level 4s and 5s will still require vehicle maintenance. The question becomes who is responsible for maintaining upkeep of the AV and if there will be different maintenance requirements for the software of the vehicle versus physical 105. 106. 107. 108. 109. 110. 111. 625 ILL. COMP. STAT. ANN. 5/11-208(e-10) (West 2019). TEX. TRANSP. CODE ANN. § 545.452(b) (West Supp. 2018). TENN. CODE ANN. § 55-30-105 (2017). N.C. GEN. STAT. ANN. § 20-401(i) (West 2018). Id. 625 ILL. COMP. STAT. ANN. 5/11-208(e-10). See JAMES M. ANDERSON ET AL., RAND CORP., AUTONOMOUS VEHICLE TECHNOLOGY: A GUIDE FOR POLICYMAKERS 53 (2016) [hereinafter RAND STUDY] (“Inconsistent state laws might increase costs and hinder the use of [AV] technology . . . .”). 112. See CAL. VEH. CODE § 38750(g) (West 2019) (stating any “[f]ederal regulations promulgated by the [NHTSA] shall supersede the provisions of this division when found to be in conflict with any other state law or regulation”); FLA. STAT. ANN. § 319.145 (West 2018) (requiring that AVs registered in the state must continue to meet applicable federal standards and regulations). This statute is unclear by what “federal standards” are meant. FLA. STAT. ANN. § 319.145. To infer federal law would make the “and regulations” part of the statute redundant. Id. Thus, it could be interpreted to mean recommended federal standards, like those pitched by NHTSA. See REPORT 3.0, supra note 2, at ii. N3_ROTH (DO NOT DELETE) 1428 3/20/2020 1:29 PM IOWA LAW REVIEW [Vol. 105:1411 components (tires, alignment, etc.).113 Two states have already attempted to answer these questions statutorily. In Florida, if a third party converts a vehicle “into an autonomous vehicle,” then the original manufacturer “is not liable . . . [for] any legal action” arising from harm caused by that modified vehicle.114 A plain reading of the statute is straightforward, but ambiguity emerges when a mechanic works on a Level 3 or 4. Florida defines an AV as “[a]ny vehicle equipped with an automated driving system.”115 The statute goes further to define “automated driving system” as “the hardware and software that are collectively capable of performing the entire dynamic driving task of an autonomous vehicle on a sustained basis.”116 Say a situation arises where the hardware required to run the software of the AV driving system needs to be replaced. A mechanic in Florida determines that the hardware piece needs to be replaced and installs a new hardware part that is of a different brand than what the manufacturer originally built into the car. Has this mechanic “converted” the Level 3 or 4 AV under Florida law? Michigan addresses this problem by making the mechanic liable if he or she modifies the AV “without the manufacturer’s consent,”117 unless the fix is made “according to [the] specifications from the manufacturer.”118 From the consumer perspective, the statutory gap creates a daunting challenge to determine where to take an AV to get fixed. Under the current, disjunctive scheme a customer must ask if their AV has to be sent to a repair facility run by the manufacturing company or if the local auto mechanic can look under the hood. 4. Differing Legal Definitions of AVs How AVs are defined can determine if and how AV laws apply. Illinois defines AVs’ driving systems as “hardware and software that are collectively capable of performing the entire dynamic driving task on a sustained basis.”119 113. See Sasha Kucharczyk, How Will Maintenance Change with the Autonomous Vehicle?, READWRITE (Apr. 18, 2017), https://readwrite.com/2017/04/18/maintenance-and-theautonomous-vehicle-tl1 [https://perma.cc/Y5TN-ML5V] (describing how some tech start-ups are researching ways “to allow [AVs to] self-diagnose future and upcoming issues”); Lewis Diuguid, With Race to Build Driverless Cars, Where Will We Go for Repairs?, GOVERNMENT TECHNOLOGY (May 27, 2016), http://www.govtech.com/fs/perspectives/With-Race-to-Build-Driverless-CarsWhere-Will-We-Go-for-Repairs.html [https://perma.cc/9XPX-FZXT] (noting how the introduction of commercial AVs is “creating an entirely new industry in the auto repair market”). 114. FLA. STAT. ANN. § 316.86 (West 2019). 115. Id. § 316.003. 116. Id. 117. MICH. COMP. LAWS ANN. § 257.665a (West 2019). 118. Id. § 600.2949b(3). 119. 625 ILL. COMP. STAT. ANN. 5/11–208(e-10) (West 2019). N3_ROTH (DO NOT DELETE) 2020] 3/20/2020 1:29 PM REGULATING THE FUTURE 1429 Other states have adopted similar language.120 The transient occupant of an AV need not fear how states have thus far defined the technology that allows the car to drive autonomously, but there is contrast in how autonomous vehicles themselves are defined. In Florida, an AV is any vehicle capable of driving without human control,121 in Nevada AVs are any vehicle equipped with “an automated driving system” that is also a Level 3–5,122 in Colorado and Connecticut an autonomous vehicle is only in refence to Level 4s and 5s,123 and in Texas an AV is considered any “motor vehicle on which an automated driving system is installed.”124 A major issue with these definitions, aside from the variety itself, is the incorporation of the SAE’s categorial language when the utilization of that scheme is entirely voluntary. The AV laws of Colorado may not apply to the driver of a Level 3 who is passing through the state, despite the Level 3 still possessing semi-autonomous features.125 Lack of uniformity underlies all of these issues: legal exemptions for AVs, preemption of regulation, maintenance of AVs, and even the technology’s legal definition. As a 2016 study by Rand Corporation on AV technology noted, the complication of a patchwork of laws by the 50 states may “hinder the use of this technology in a way that harms [the] social [benefits].”126 To better achieve the social goals of reducing traffic fatalities and eliminating barriers created by inconsistent state laws that may hinder AV market growth and application, AV technology standards, much like normal vehicle production standards, are best left to the federal government. B. THE LACK OF COMPREHENSIVE FEDERAL REGULATION NHTSA and the federal government have yet to enact any regulations specific to AV technology.127 Instead, NHTSA has used its FMVSS exemption power for companies like Waymo and Tesla for limited AV testing.128 NHTSA has issued over 70 federal safety regulations and “[m]any innovative AV designs [will] not comply with” all of them.129 This forces any AV 120. See CONN. GEN. STAT. ANN. § 13a–260(a)(2) (West 2019); COLO. REV. STAT. § 42-1102(7.7) (2018) (specifying this definition only applies to SAE’s 2016 categories of Level 4s and 5s only, not Level 3s); GA. CODE ANN. § 40-1-1(5.1) (West 2018). 121. FLA. STAT. ANN. § 316.003(3). 122. NEV. ADMIN. CODE § 482A.015 (2019). 123. COLO. REV. STAT. § 42-1-102(7.7); CONN. GEN. STAT. ANN. § 13a-260(a)(2). 124. TEX. TRANSP. CODE ANN. § 545.451(2) (West 2018). 125. See supra Figure 1 (displaying how Level 3 AVs are the first tier to have an automated driving system). 126. RAND STUDY, supra note 111, at 53. 127. See infra notes 165–70 and accompanying text. 128. See LAURA FRAADE-BLANAR & NIDHI KALRA, RAND CORP., AUTONOMOUS VEHICLES AND FEDERAL SAFETY STANDARDS: AN EXEMPTION TO THE RULE? 1 (2017), available at https:// www.rand.org/content/dam/rand/pubs/perspectives/PE200/PE258/RAND_PE258.pdf [https://perma.cc/8GYZ-TZSQ]. 129. Id. N3_ROTH (DO NOT DELETE) 1430 3/20/2020 1:29 PM IOWA LAW REVIEW [Vol. 105:1411

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