Driverless cars offer new blueprint for safety regulators

New federal guidelines for driverless cars may set the stage for how the government approaches emerging technologies in the future.

Washington has long wrestled with how to keep pace with Silicon Valley, and federal regulators sought out a different and more flexible approach for automated vehicles.

{mosads}The Department of Transportation (DOT) decided to craft voluntary, non-binding guidance, which was widely applauded across the industry for leaving room for innovation.

It could also serve as the new federal model for years to come.

“For better or for worse, this is the world we now live in,” Adam Thierer, a senior research fellow at George Mason University, said during a Capitol Hill panel this week. “Guidance documents like this are going to be a regular thing.”

Automated vehicle technology has been a top priority for the administration, but it was initially slow to step into the arena. 

A number of states began drafting their own laws, raising concern about whether there would be a messy patchwork of state regulations by the time self-driving cars hit the roads.

The DOT finally unveiled the highly anticipated guidance in September. It includes a 15-point safety assessment asking developers to certify that they are considering things like privacy, cybersecurity, fall-back mechanisms and data sharing.

The guidelines also seek to clarify the state versus federal role by outlining model state policy.

Officials are now seeking public feedback on the document, which the department plans to update annually.

“It’s really the first time that I know of that the department has had a chance to be at the ground floor of an emerging mode of transportation,” DOT Secretary Anthony Foxx said during a pen and pad with reporters this week.

Although the 15-point checklist is voluntary, Foxx has said that the goal is to take the safety assessment through the lengthy rulemaking process.

In the meantime, however, the document outlines the federal expectations for the design, testing and deployment of driverless vehicles.

The guidance can also grow with the emerging technology, since it doesn’t tell developers how to meet each standard but instead just asks companies to verify that they are addressing the 15 categories included the safety assessment.

“This has been a dynamic and evolving area, and we need to be nimble and flexible as we try to evolve with it,” Foxx said.

When pressed by The Hill on whether the agency’s model could be the new norm, Foxx expressed confidence.

“I don’t see another way to do it,” he said. “You can’t define something so specifically as it’s evolving that you eliminate options.”

Other experts, like Thierer of George Mason University, believe that the U.S. has already entered an era of so-called “soft law.”

“Every field of emerging technology policy I cover, the whole name of the game today is soft law,” he said. “And this is because… technology grows exponentially, policy grows incrementally and the gap between the two grows every single year.”

But whether the government sticks with a flexible, non-prescriptive approach may depend on how the guidelines actually pan out in the real world, especially as more driverless cars are developed, tested and deployed on U.S. roads.

Some safety advocates have questioned whether the DOT has enough enforcement power to protect consumers if the guidelines are merely voluntary, and called on the agency to go much further in its guidance.

“We are pleased that DOT is planning to address these issues and seeking public comment for this new system of transportation, but it must not shy away from assuring public safety with minimum federal vehicle safety standards,” said Joan Claybrook, former administrator of NHTSA. “It should not rely instead on mere guidance.”

The guidelines specified that the National Highway Traffic Safety Administration (NHTSA) has enforcement and recall authority over self-driving vehicles, while Foxx has emphasized that the safety assessment will eventually go to rulemaking.

But other industry experts have said that the guidelines – while a step in the right direction – have created a lot of ambiguity and vagueness.

Hilary Cain, director of technology and innovation policy at Toyota, said during a Capitol Hill panel that she thinks the document could use “more meat on the bones” in certain areas, especially if manufacturers are going to be held accountable for not following the guidelines.

She also blasted a California proposal that would require automakers to submit the DOT’s safety assessment, which is supposed to be voluntary, before they can test driverless cars in the sate.

“That is preposterous,” Cain said. “And that means testing that’s happening today could be halted, and that means testing that’s about to be started could be delayed as we sit here and wait for NHTSA to figure out what exactly they want from us as far as these assessments go.”

President Obama, in a recent interview with Wired’s Scott Dadich and MIT’s Joi Ito, acknowledged that figuring out the right regulatory approach to new technologies – including automated vehicles and artificial intelligence – is a challenge. But he said that going forward, the government’s role should be a “relatively light touch.”

“As technologies emerge and mature, then figuring out how they get incorporated into existing regulatory structures becomes a tougher problem, and the government needs to be involved a little bit more,” Obama said. “Not always to force the new technology into the square peg that exists, but to make sure the regulations reflect a broad base set of values.”