In defense of autonomous vehicle law

Government has a duty to regulate what happens on its infrastructure

A RECENT Barron’s article by the Brookings Institution’s Clifford Winston brought to mind two aphorisms: “If it sounds too good to be true, it probably is,”and “pay no attention to the man behind the curtain.”

Winston wrote to decry what he fears is the emergence of a new body of law, “autonomous vehicle law,” a broad descriptive term that encompasses what some might consider the most noble of legal callings: protecting people from the negative externalities of a combination of technologies that seek to provide driverless mobility to a breathlessly awaiting American public. The general public, by my observation, is not exactly clamoring for a brave new world of ubiquitous, unaccountable, algorithm-driven, multi-ton vehicles that, in the wrong circumstances, can become lethal weapons. But if they must live with them, many would like to have some basic protections against potential harm.

There’s a lot to unpack in his article but let me focus here on three points:

  • The importance of lawyers and the law as a proven bulwark against unbridled and unaccountable private sector innovation;
  • The unambiguous negative externalities of autonomous mobility:
  • The importance of a proper government role in the regulation of the roll out and deployment of these vehicles before their proliferation.

Winston frames his argument by setting up a fictional, certainly unproven, autonomous vehicle future where vehicular mobility is safer, speed is prized over access, and employers and their generic “workers” (he doesn’t explain which cohorts of “workers” he’s referring to) benefit from reduced travel costs and higher productivity. The proposed benefits are compelling, but the facts and details remain scanty.  Alas, this is the burden of the auto-centric visionary – the rosy future they promise requires a giant leap of faith.  As I said earlier, if it sounds too good to be true, it probably is.

Using this speculative automobility nirvana as his platform, Winston proceeds to attack the lawyers who dare to intrude on unbridled private sector action in a publicly subsidized domain. These autonomous vehicles will be using publicly-funded infrastructure and will inevitably come into contact with actual human beings, people walking, cycling, riders on buses, or people still driving their own cars.

One might legitimately believe that the government has the obligation to regulate what happens on the infrastructure it owns and pays for, and that the people potentially impacted by the introduction of autonomous mobility deserve some protection against harm that may be caused by the deployment of driverless vehicles.  There has been a framework for liability in place from the earliest days of auto mobility, and while there have been abuses of that system (as there are abuses in any regulatory framework applicable to literally millions of people), few have questioned the importance or appropriateness of public and consumer protection laws.

Winston frames his complaint as one against lawyers and the legal profession, but he’s really upset at government regulation of private sector innovation. It’s his way of saying “pay no attention to the man behind the curtain.”

The deployment of autonomous vehicles at scale may have consequences that cause a variety of potential harms, ranging from intrusions into personal privacy, to monopolization of the (publicly funded) urban public realm, to personal injury and death.  Shouldn’t there be a public policy framework, tied to appropriate legal enforcement, to protect people against these harms?

Government has a legitimate and important role to play in protecting the general public from the negative externalities of emerging innovations in the transportation sector. Indeed, we should applaud government efforts to get ahead of the innovation adoption curve rather than play “catch up,” as happened following the rapid emergence of “mobility companies” like Uber and Lyft.

Antipathy toward the law is antagonism to any regulatory framework that would protect people against unintended effects of technologies that may do more harm than good to the quality of their lives. Good regulation can also promote the competitiveness that provides better value to consumers. Consider also the negative externalities of autonomous vehicles, unrelated to their actual operation on the road.  I’m referring here to the potentially devastating effects on the workplace, a future where more people are displaced from work by robots and artificial intelligence, a future of HAL 9000s that are largely unaccountable to the law, and therefore unaccountable to the people.

If we value social cohesion and true social equity, we should value government regulation that serves the needs of public protection in the fullest sense of the term. The private sector certainly has the right, and should be encouraged, to innovate, but government exists in part to ensure that innovation does not come at the expense of serious and irremediable harm to people who have no choice, no voice, no agency in the rapidly changing worked we live in.

James Aloisi is a former Massachusetts secretary of transportation who serves on the board of TransitMatters.