By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently working on a book about textile artisans.
A piece in today’s Ars Technica, Senators probe driverless car testing amid lax Trump oversight, highlights an effort by two Democratic Senators, Richard Blumenthal, and Edward Markey, to learn more about how companies test self-driving vehicles on public roads:
In the last couple of years, companies like Uber, Waymo, and GM’s Cruise have been testing more and more self-driving vehicles on public roads. Yet important details about those tests have been kept secret.
Two Democratic senators are determined to change that. Last Friday, they sent out letters to 26 car and technology companies seeking details about their testing activities—part of a broader investigation into the safety of driverless vehicles. [Jerri-Lynn here: the complete text of the letter sent to Uber can be found in the previous link. The companies the letter was sent to can be found in this Markey press release.]
The Ars Technica piece notes that some of the requested information has already been provided to regulators in California– which regulates of self-driving vehicles somewhat more stringently than do other states, such as Arizona, for instance– where extensive testing is being done and where a self-driving vehicle killed a pedestrian in March.
Other than state regulation, companies have largely been left to their own devices in constructing and implementing self-driving testing protocols, without federal oversight by the National Highway Traffic Safety Administration (NHTSA), the relevant federal regulatory authority. The agency released a preliminary report on this accident last week.
One major quibble with the Ars Technica piece is it suggests that lax oversight of by the NHTSA is a uniquely Trumpian defect:
The [NHTSA)] has broad authority to seek this kind of information from companies in the car business. But under the Trump administration, NHTSA has taken a hands-off approach. Companies have been free to test self-driving cars on public roads without significant federal oversight.
NHTSA’s primary transparency effort has been to ask companies to voluntarily submit “safety reports” detailing the safety features of their vehicles and how those vehicle deal with a number of safety issues.
But as far as we know, only two companies—Waymo and Cruise—have submitted safety reports to NHTSA. And while these reports do provide a significant amount of information about their testing programs, they are fundamentally marketing documents. Unsurprisingly, for example, they don’t include information about “concerns raised by employees about your company’s safety protocols.” By explicitly asking for this kind of information, the senators could help bring to light potential problems with companies’ testing programs—and perhaps help prevent another avoidable deadly crash.
Ineffective Auto Safety Regulation Long Predates Trump
First, as I discussed in this post from last year, Unsafe at Any Speed Redux: Pinto and Takata Recalls Compared, auto safety has for at least fifty years been woefully deficient in the US– long before Ralph Nader published Unsafe at Any Speed: The Designed-In Dangers of the American Automobile, in 1965. My earlier post discusses how Congress has largely eschewed effective criminal penalties for auto safety defects and also mentions some of the NHTSA’s well-known deficiencies– some of which were harshly discussed in a a report issued by the Department of Tramsportation’s Inspector General in June 2015 (see INADEQUATE DATA AND ANALYSIS UNDERMINE NHTSA’S EFFORTS TO IDENTIFY AND INVESTIGATE VEHICLE SAFETY CONCERNS).Both publications long predate Trump taking office.
Despite this sad and sorry history of inadequate federal oversight, I certainly hope the Markey/Blumenthal effort shakes out some information on the testing procedures companies are using to assess their self-driving vehicles– although I’m not holding my breath. In fact, to the extent that Congress has concerned itself with self-driving vehicles at all, the emphasis has been more on reducing corporate accountability, rather than on making sure companies hold themselves to transparency and safety standards.
Mandatory Arbitration and Self-Driving Vehicles
Even more important than this basic transparency issue is the extent to which self-driving car companies will be able to limit legal liability via mandatory arbitration clauses. The House last year passed legislation to exempt self-driving car companies from lawsuits, and instead require mandatory arbitration, according to CNN Tech, Loophole would protect self-driving car companies from lawsuits. A related measure, The AV START Act, measure has been unanimously reported out of the Senate Commerce, Science, and Transportation Committee; the full Senate has yet to take action. If such legislation is passed, it would reduce the deterrent effect that possible lawsuits might have on self-driving car companies.
On the Senate side, there’s no unanimity on the mandatory arbitration issue; the Detroit Free Press reports ten Senators have written to companies seeking clarification on this issue in, Could self-driving car companies stop you from suing?. The ten are all Democrats and include Markey and Blumenthal.
Regular readers know that mandatory arbitration is a key priority for business interests that seek to escape legal liability. Companies include “voluntary” clauses in their contracts, and consumers or potential employees have no choice but to comply– if they want to avail themselves of the service, product, or job. Agreeing to mandatory arbitration means surrendering the ability to participate in litigation, such as class actions.
The financial industry recently succeeded in invoking Congressional Review Act (CRA) procedures to overturn the Consumer Financial Protection Bureau’s ban on mandatory arbitration clauses in consumer financial contracts (as I discussed most recently here; the post links to my previous discussions of mandatory arbitration as well as the CRA). The United States Supreme Court has upheld such clauses in a string of cases, the most recent being this month’s Epic Systems v. Lewis, a 5-4 decision upholding such clauses in a major employment law ruling. In April, the Court added another Federal Arbitration Act case to next term’s docket, Lamps Plus Inc. v Varela. The trend of these cases suggests that if Congress were to exempt self-driving companies from litigation, this use of mandatory arbitration clauses would be upheld (absent a major shift in the Court’s composition).
With legal challenges unlikely to overturn such clauses, the best hope– albeit, perhaps a forlorn one– is to fight such clauses at the political level. With self-driving vehicles, Ralph Nader– at 84 years old– is still on the case, according to CNN:
“Going back 50 years, I’ve never seen a more brazen attempt to escape the rule of safety law, and the role of the courts to be accessible to their victims,” longtime consumer advocate Ralph Nader told CNN. “With their unproven, secretive technology that’s fully hackable, the autonomous vehicle industry wants to close the door on federal safety protection and close the door to the court room.”
Will they succeed? On mandatory arbitration, alas, I hope the answer is no, but fear it will be yes.