Legal Hurdles Complicate Driver Assistance Systems

Just as with any new technology that is starting to go mainstream, advanced driver assistance systems (ADAS) are starting to raise legal questions. This is especially true in systems where the driving is pretty much automated, rather than simply giving a driver more information about his surroundings or in systems that are easy to override. Such legal issues are a hurdle that ADAS systems will need to overcome.

One of the biggest regulatory hurdles when it comes to ADAS is the issue of liability or, quite simply, who gets the blame for an accident when the car pretty much drives itself. A victim in a traffic accident today can file a claim directly with the insurance company of the driver at fault. Governments have made it mandatory to have car insurance to ensure that the victim is protected, and that there is enough money to cover the damages.

The issue of liability is not a problem if the accident compensation scheme used is “traffic insurance.” In this scheme, the insurance company is required to pay for any damages done by the insured vehicle.

In a fault liability scheme, however, you would need to prove that the driver was at fault before you could be compensated. You could see at how murky it would be when an ADAS fully takes over the driving, or when the driver would not have time for corrective action. It would be easy for the driver to argue an “absence of fault” defense.

Then you have the strict liability scheme. This scheme is more sympathetic to the victim than fault liability, in that the driver of the car would be liable for the damages except in cases of force majeure (forces beyond the control of either party). In this case, would the failure of the ADAS or its support systems be considered force majeure? For example, if your intelligent speed adapter failed, and you got into an accident because of that, would you not be liable for the damage?

Product liability puts the liability on the shoulders of the manufacturer. In Europe, if the manufacturer fails to inform or educate the users about ADAS, or if it used wrongly or without proper care, the manufacturer would be liable for any damages caused by these systems. Manufacturers can also be liable if they do not use the best technologies available when the ADAS was released. In this case, a driver using an ADAS system in the intended manner can pass the liability of the accident to the manufacturers. This is very much like how manufacturers are often held liable for failures in today ABS (anti-lock braking systems) and ACC (adaptive cruise control) systems.

There are other regulatory hurdles that ADAS must overcome, as well. The thing with ADAS is that it needs data to work properly, and much of this data gets stored. Like airplanes, cars might soon see black boxes or event data recorders in them. Recorded data can lead to privacy issues.

Privacy issues with car systems are nothing new at all; they are already a top issue in the field of usage-based insurance (UBI). But unlike UBI, where you can opt not to participate, ADAS might be something that comes with your new car in the future. These devices communicate with satellites and other infrastructures, such as those used for law enforcement. So if the thought of the police using your ADAS data to check whether you are paying the right amount of taxes is horrifying to you, then you should know that the Dutch highway patrol does this.

Should it be illegal to use ADAS information in this way? How about with informed consent? As with any other technologies, it would be a necessary challenge to educate consumers about how their information is gathered and stored, who would be accessing it, and what would be done with it.

Legal implications surrounding ADAS maybe a thorny and murky area, but they must be addressed to avoid uncertainties in the future. The rules of the road are pretty much very flexible and can accommodate the rise of new systems such as ADAS. That may be good news in the sense that today’s legal framework is proving flexible enough to accommodate the changes that are brought about by ADAS.

However, this also leads to uncertainties and vagueness as to what types of personal information we are giving away or how much liability we have when driving these cars. Both considerations might help consumers decide whether they are willing to take on the added risks and responsibilities for the benefits and comforts of owning a car with ADAS. As such, it is also a prime concern for automakers. Having these legal questions answered would help them have a security and safety framework. One of the best first steps to addressing these legal concerns is to invest time, money, and effort into building a knowledge base so that the public, the government, and other stakeholders are educated about the capabilities and myths surrounding ADAS.

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