Autonomous Vehicle Regulation in the United States: The Road Ahead

Gerry Griffith, Articles Editor (‘20)

Autonomous vehicles (AVs) could make vehicle accidents a remnant of the past. According to a recent study by the United States National Highway Traffic Safety Administration, 94% of the 36,560 fatalities resulting from vehicle accidents in 2018 were due to human error.[1] Federal legislators have failed to construct a meaningful regulatory framework around autonomous vehicles that will both facilitate innovation and protect the public.[2] In 2018, the U.S. House of Representatives passed legislation designed to provide a comprehensive solution to the gap in autonomous vehicle regulation, but the measure ultimately failed in the Senate.[3] Now, legislative efforts appeared to have stalled on this important issue.

Any federal regulatory solution must address several contentious issues: the extent to which it will preempt state laws; the number and nature of autonomous vehicles exempted from federal rules; cybersecurity considerations; and balancing consumer privacy concerns against the desires of the auto industry and law enforcement for access to consumer data. The federal and state governments must also address practical highway safety issues to ensure highways are AV-accessible.

Cybersecurity and data privacy concerns are prominent considerations for federal legislators.[4] Because AVs provide constant feedback to third parties regarding vehicle location and driving patterns, legislators are struggling to balance the competing interests of consumers, manufacturers, and law enforcement.[5] Of paramount concern to all parties is AV’s susceptibility to hacking. Research indicates that “[h]ackers could use more than a dozen portals to enter even a conventional vehicle’s electronic systems, including seemingly innocuous entry points such as the airbag, the lighting system, and the tire pressure monitoring system.”[6] Industry experts also note that artificial intelligence-enabled algorithms could pose a particular security risk.[7] Similarly, an increase in automated vehicles will require a significant overhaul of the nation’s infrastructure.[8] Unlike traditional vehicles, AVs depend on technological sensors and require clear road signs, well-paved roads, and highway lines that are clearly lined at all junctures.[9]

Though bipartisan consensus initially existed at the beginning of the 2018 legislative session for the creation of a comprehensive regulatory framework, statutory efforts have since failed. In 2018, the U.S. House passed H.R. 3388, the SELF DRIVE ACT, by an overwhelming margin.[10] The House bill proposed broad preemption of state standards, barring states from regulating “the design, construction, or performance” of autonomous vehicles and limiting states to their traditional role of local traffic regulation.[11] The House bill also allowed for 100,000 autonomous vehicles to be exempt from current safety standards, an increase over the current limit of 2,500.[12] To address cybersecurity concerns, H.R. 3388 required a written cybersecurity plan developed by the manufacturer, as well as employee training to limit intrusions.[13] Similarly, under the bill, manufacturers were required “to develop written privacy plans concerning the collection and storage of data generated by the vehicles, as well as a method of conveying that information to vehicle owners and occupants.”[14]

Despite its success in the House, H.R. 3388 did not receive a warm reception in the U.S. Senate, and a dueling bill, S. 1885, the AV START ACT, emerged.[15] The Senate bill limited federal preemptive authority and reduced the number of exempt vehicles to 80,000 over a four-year period.[16] S. 1885 also required each manufacturer to write a cybersecurity plan and to hire or train a dedicated cybersecurity specialist.[17] The Senate bill, in contrast, did not require a written privacy plan but did impose privacy standards similar to H.R. 3388.[18]

Individual states have attempted to regulate the autonomous vehicle industry in a variety of ways. Underscoring the difficulty of establishing a uniform standard at the state level, twenty-nine states and the District of Columbia have enacted AV-related legislation; in eleven states, governors have issued executive orders; and in five states, governors have issued executive orders and the state legislatures have passed laws.[19] States have generally limited regulation to areas such as autonomous vehicle operation on public roads, operator requirements, commercial uses, and categorizing the types of vehicles subject to state regulation.[20] Missing from state efforts are issues only the national government is capable of dealing with, such as cybersecurity standards and privacy issues.

Congress must provide a regulatory framework that adapts to rapidly changing technology, protects public safety interests, and facilitates innovation. States have attempted to fill in the void left by a lack of federal guidance, resulting in a patchwork regulatory scheme that is unclear at best and inhibits innovation at its worst. Unfortunately, federal legislators have failed to reach a consensus for a regulatory framework, leaving automakers with an uncertain view regarding the road ahead.

———

[1] See Bill Canis, Cong. Research Serv., R45985, Issues in Autonomous Vehicle Testing and Deployment 1 (2020).

[2] See id. at 14–18.

[3] Edward Graham, Self-Driving Legislation Sputters in 2018, and 2019 Prospects Aren’t Much Better, Morning Consult (Dec. 20, 2018), https://morningconsult.com/2018/12/20/self-driving-legislation-sputters-in-2018-and-2019-prospects-arent-much-better.

[4] Canis, supra note 1, at 4.

[5] See id.

[6] See id.

[7] See A. Benjamin Klaber et al., Autonomous Vehicle Cybersecurity: What’s on Our LIDAR?, JDSupra (Nov. 8, 2019), https://www.jdsupra.com/legalnews/autonomous-vehicle-cybersecurity-what-s-20557.

[8] See id.

[9] See id.

[10] See Canis, supra note 1, at 14.

[11] See id. at 16.

[12] H.R. 3388, 11th Cong. § 6 (2017).

[13] See id.

[14] Canis, supra note 1, at 18.

[15] See id. at 1.

[16]S. 1885, 115th Cong. § 6 (2017).

[17] Id. at § 9.

[18] Id.

[19] Nat’l Conference of State Legislatures, Autonomous Vehicles | Self-Driving Vehicles Enacted (2020), https://www.ncsl.org/research/transportation/autonomous-vehicles-self-driving-vehicles-enacted-legislation.aspx.

[20] Canis, supra note 1, at 21.