Kamila Benzina

Federal Legislation Paves the Way for Driverless Future

While autonomous and semi-autonomous cars are hitting the pavement for testing at a dizzying pace in states across the nation,1 the industry remains subject to a patchwork of incongruous state laws, as well as federal safety standards that were drafted with human—not machine—drivers in mind. Given the rapid acceleration in the testing and deployment of autonomous vehicle systems, comprehensive federal legislation is critical for removing barriers to deployment and providing much needed certainty for industry and consumers alike.

Early this month, the House passed the Safety Ensuring Lives Future Deployment and Research in Vehicle Evolution Act (SELF DRIVE Act), which promises to lay the foundation for a federal framework for autonomous vehicle regulation.2 If the bill becomes law—which still requires passage through the Senate and the President’s signature—it will clear the way for the manufacture of thousands more autonomous vehicles and position the federal government squarely in the driver’s seat in regulating the rapidly emerging autonomous vehicle industry.

The SELF DRIVE Act answers this call most immediately by increasing the allowable number of experimental vehicles that may be exempt from federal safety standards.3 Authorizing the National Highway Transportation Safety Administration (NHTSA) to grant more exemptions from the Federal Motor Vehicle Safety Standards removes an enormous barrier to deployment, allowing for the manufacture of thousands more autonomous vehicles in the next year alone.4 For example, the Act would allow more companies like Ford Motor, who want to manufacture vehicles without steering wheels and brake pedals,5 to get exemptions from the standing federal laws that require these features.

Traditionally, the federal government regulates automotive vehicles, while states regulate the driver and operation of vehicles. As the vehicle-driver distinction becomes less clear, these old jurisdictional boundaries are more difficult to apply. The SELF DRIVE Act clarifies state and federal roles, preempting any state laws that regulate design, construction, and performance, while maintaining states’ authority to regulate registration, licensing, and insurance.6 Notably, the legislation avoids addressing the controversial question of liability, stipulating that compliance with the new federal standards does not exempt a person from liability at common law.7

The legislation charges the Department of Transportation (DOT) with updating federal safety standards to account for the novelties of a driverless world.8 It gives the DOT one year to submit a rulemaking and safety priority plan for new and updated standards, and mandates the DOT establish safety certification requirements within two years.9

When it comes to privacy and cybersecurity, however, the Act leaves it largely to industry to determine best practices and set standards.10 It requires manufacturers submit a cybersecurity policy that identifies the manufacturer’s process for taking preventive and corrective action to mitigate against foreseeable cyber attacks.11 Similarly, it mandates companies submit “privacy plans,” describing how they will collect, use, and store data.12 The Act authorizes the Federal Trade Commission to bring enforcement actions to enforce the privacy related sections of the Bill.13

The SELF DRIVE Act passed the House of Representatives with a rare glimmer of bipartisan support, but the Senate will need to pass its own bill before any sort of comprehensive federal framework becomes law. If it does pass, the real heavy lifting will come in how the NHTSA carries out the law’s directives. While many questions about the future of regulating autonomous vehicles remain unanswered, this is an important first step in ensuring our federal laws properly facilitate the life-changing innovation that is just on the horizon.

Legal News & Developments Editor; Georgetown Law, J.D. expected 2019; University of Virginia, B.A. 2013. ©2017, Kamila Benzina.