Driverless cars: steering into the future
Is no longer inappropriate to say that artificial intelligence is affecting this historical time.
If years ago, we would have watched a movie, played a videogame or read a book, fantasizing about a more technologically advanced future, we are slowly getting to know the daily implication of the Internet of things and we are becoming increasingly familiar with notions like machine learning.
Although there are going to be several problems if we not will be ready to find a suitable regulatory solution, is indisputable that the transport sector – in primis, the automotive division – is experiencing a continuous evolution.
In a similar way to what happened in the early twentieth century, lawmakers are called to the difficult challenge of setting the legal framework of the “new road traffic liability”.
Even if is particularly complex drafting a legislation with a high technical rate and capable of answering ethical, economic, legal and cybersecurity doubts, the prediction of reducing carbon dioxide emissions, drastically limiting car accidents and improving road traffic conditions, are opportunities to be seized as soon as possible.
- What driverless cars are?
On the background of the Vienna Convention on road traffic of 1969, new generation
vehicles have been divided on five different levels of autonomy (from the human driver).
The manufacturers of smart vehicles swear that their large-scale distribution will lead to a range of benefits:
- apart from the numberless commercial implications, a greater level of inclusiveness would be achieved allowing the commute or transportation for disabled people and citizen who cannot drive anymore;
- if self-driving cars will be well blended into an efficient public transport system – which also invests in car services, such as car sharing – the impact on traveled kilometres could be positive;
- the development of more efficent electric engines will boost the process forward self-reliance from fossil fuels and gradually decrease the environmental impact of road traffic;
- last but not least, an advanced operating system will harmonize the various systems to significantly diminish the number of road accidents: sensors ensure better reaction capacity than the human one in case of unexpected events.
Not all that glitters is gold, though:
- until national governments cease to consider mandatory for the driver to keep both hands on the wheel and agree on a large scale test phase, it will be challenging to provide engineers with reliable data on which build more safe and reliable cars.The administration’s delay in trying to renew their transport infrastructures causes further slowdowns in mapping the practicable areas and in developing proper solutions to the inconveniences arising from bad weather conditions;
- although communications vehicle to vehicle (V2V) are crucial to guarantee a cutting-edge service, there are also serious risks that intruders could hack driverless car’s devices to perform malicious acts. If this is not enough, the high technical rate of onboard instruments will make more demanding for the driver to prove that he has done everything possible to prevent an autonomous car from producing the accident;
- in the economic process of waiting for an affordable price to buy this brand-new product, distribution to the general public will also pass by the ability to convey a message of greater practicality and safety: in this regard, it is curious that the majority of (American) citizens express their preference  to still have accelerator and brake pedals into driverless vehicles.
- The grass is (not) always green on the other side
In the previous list of pros and cons, that must be weighed to have a sharper idea about implications that will be brought by the advent of completely autonomous machines, we intentionally did not mention  the current lack of a unitary regulatory framework .
The absence of an explicit reference to the presence of a human driver who maintains steering control, in statutes of the United States, has encouraged the creation of specifics laws in order to regulate the driverless car road traffic.
In the current system, laws which aimed to promote faster development of the new technology car – e.g. California, Colorado and Florida – and rules characterized by a more cautious approach (including, for example, the legislation adopted in 2017 by New York State), coexist.
In order to avoid that such an approach could jeopardize a coherent growth of the new technology, the National Highway and Transportation Safety Administration (NHTSA) and the U.S. Department of Transportation have announced a series of guidelines to allow, among other things, constant monitoring and facilitate experimentation on public roads.
On the other hand, the European Union has just recently shown an attitude interested in identifying a harmonized legal framework for highly automated cars: in particular, we are talking about those acts in which European institutions chronicled the long process which should lead to a general review of the insurance profiles of the topic.
In such a context, all that remains is to take a closer look at the efforts made in a) the United Kingdom, in b) Germany and c) in Italy:
- although the use of a case by case approach is not helping to draw uniform guidelines, it can’t be ignored that the British Government has regulated the minimum requirements of diligence and safety which must be followed by those who want to undertake tests.As a result of modification of the Vehicle Technology and Aviation Bill, insurance law has recently been redesigned: namely, after providing the general principle according to which the insurer is liable for the accident caused by the autonomous vehicle, in the following section – on the co-responsibility of the driver – the liability is limited or eliminated, depending on whether the driver has made a significant contribution for the verification of the claim or he/she allowed the activation of the system when it was inappropriate to do so;
- Germany has once again played the role of precursor in the regulation of the automotive sector as the first Member State to adopt specific and detailed legislation.The 2017 law subordinates the circulation of driverless cars on the condition that they implement a driver hand-over system, (…), that the vehicle must allow the manual activation/deactivation of the automated driving system by the driver, as well as recommend “with a sufficient time margin” the need to resume manual control of the vehicle.
The law does not steer toward the liability of manufacturers, because continues to be applied the traditional approach of strict diver’s responsibility: a choice that indeed leaves unsatisfied, considering that the owner of the vehicle finds himself playing the role of “scapegoat” in the event of a system malfunction over which he has no influence;
- in implementation of the 1959 Strasbourg Convention, the Italian Law n. 990 of 1969 make compulsory to sign an insurance contract, based on the idea that without the guarantee of a more solvable debtor (insurer) certain activities could not be carried out.In order to guarantee the alacrity of the compensation, art. 2054 of the civil code change the typical proof scheme theme because the driver will have to demonstrate that he has acted without fault and that he has done everything possible to avoid the damage.
The second paragraph of this article provides that, in the case of collision between vehicles, it is assumed, until proven otherwise, that each of the drivers has equally contributed to producing the damage suffered by the individual vehicles.
The struggle to reduce the potentially harmful consequences arising from road traffic can also be descended from the evolution of the crashworthiness doctrine: it is an approach that has strived to ensure that cars are equipped with those specific technical characteristics that can promote a reasonable level of safety to avoid accidents (active safety) and those that allow protecting passengers in the event of a collision (passive safety).
With the law on the Implementing Modalities and operational tools of the road testing of Smart Roads and connected and automatic driving solutions of 2018 Italy has also shown to take a serious position concerning the driverless car.The doctrine wondered about the possibility of considering the driver of a car with automation level 5 as a transported third party: apart from the cases in which the same person was responsible for the malfunction of the system and excluding those hypotheses in which he was not sufficiently diligent in regaining control when possible, it would be inconvenient to attribute to this subject also the compensation obligation deriving from the accident.
In this sense, while the frames of the strict responsibility for the circulation of vehicles in the Italian legal system remain the same, has been carried out researches to find another subject who could bear such a heavy burden: thus, art. 117 of the consumer code legitimizes the consumer to take action against the producer (no longer the seller) in the event of a product defect – intended as a lack of security that can legitimately be expected – on the basis that the big manufacturing companies can preventively weigh economic and legal costs and opportunities.
In this regard, the complaints of automotive big players are not worthy of acceptance because the promise of a drastic reduction in road accidents does not represent a suitable justification for guaranteeing their immunity from any form of compensation for damage.
- A new insurance contract and risk management
The incorporation of those provisions within the already cumbersome national transport system requires to revisit the contents of the civil liability insurance contract and the risk management.
About the first point, has to be specified that under product liability should be taken into account also the failure of the software products installed on the vehicle and the warning defects, that is, relating to all the shortcomings of information given concerning the product.
However, the most innovative aspect is the new IT risks’ dimension: indeed, it is not only a question of guaranteeing the correct functioning of IT equipment but also defining an insurance cover against hacking.
The reconstruction of insurance companies also passes from the endeavour to find alternative solutions to the traditional management and distribution of insurance products: to offset the loss due to a decrease in terms of insurance premiums it will possible to, for example, think about combines the main coverage with supplementary protections.
Not to mention that the recent widespread diffusion of car-sharing systems will compel the revisitation of the insurance company risk management since the driver is not always the owner of the vehicle. This means that it will be essential to choose whether keeping the driver as the risk imputation centre or switch this potential liability to other subjects.
 I, robot. Dir. Alex Proyas based on the book by Isacc Asimov, 2004.
 Think about the adventure game Detroit becoming human (2018), set in a hypothetical future in which androids live among humans.
 Think about the widespread availability of the virtual assistants sold by Amazon or Google: for a deeper knowledge of IoT implications see M. Longhin, IoT, Smart devices e Smart houses: vantaggi, criticità e assenza normative, available at https://www.iusinitinere.it/iot-smart-devices-e-smart-houses-vantaggi-criticita-e-assenza-normative-25618
 See A. Davola e R. Parolesi, In viaggio col robot: verso nuovi orizzonti della r.c. auto (“driverless”)?, in Danno e responsabilità 5/2017, pag. 617: “although reality still appears far from the dystopian vision of a society characterized by the perfect coexistence of artificial and “organic” intelligence, there is no doubt that the integration of such technologies leads us to carefully consider the implications and the legal (as well as ethical) consequences deriving from manifestations of artificial intelligence”.
 About the different geographical approach, Darrel M. West, Moving forward: Self-driving veichles in China, Europe, Japan, Korea, and the United States.
 E. Al Mureden, Autonomous cars e responsabilità civile tra disciplina vigente e prospettive de iure condendo, in Contratto e Impresa 3/2019, pag. 895-897.
 To understand the variety of ethical dilemmas, see the interactive link http://moralmachine.mit.edu.
 Art. 8 of Vienna Convention on road traffic:
- Every moving vehicle or combination of vehicles shall have a driver.
- It is recommended that domestic legislation should provide that pack, draught or saddle animals, and, except in such special areas as may be marked at the entry, cattle, singly or in herds, or flocks, shall have a driver.
- Every driver shall possess the necessary physical and mental ability and be in a fit physical and mental condition to drive.
- Every driver of a power-driven vehicle shall possess the knowledge and skill necessary for driving the vehicle; however, this requirement shall not be a bar to driving practice by learner-drivers in conformity with domestic legislation.
- Every driver shall at all times be able to control his vehicle or to guide his animals.
 For a summary on the topic, see S. Pillath, Automated vehicles in the EU, Briefing at the European Parliament, European Parliamentary Research Service (EPRS), PE 537.902, January 2016, pag. 4, available at http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/573902/EPRS_BRI(2016)573902_EN.pdf
 In this article, words like driverless car, autonomous vehicles and smart vehicle are used as synonyms.
 See note no. 6: “driving automation would allow at the same time an increase in safety and an improvement in economic efficiency”.
 Think about applications in transportations services: have a look at J. Vincent and C. Gartenberg, Here’s Amazon’s new transforming Prime Air delivery drone, June 5 2019, available at https://www.theverge.com/2019/6/5/18654044/amazon-prime-air-delivery-drone-new-design-safety-transforming-flight-video
 In an ideal fully connected system, the car should be able to communicate with intelligent traffic lights to avoid crowded intersections and figure the best road to pick, in term of minimum duration, city traffic and other useful information.
 L. Butti, Auto a guida autonoma: sviluppo tecnologico, aspetti legali ed etici, impatto ambientale in Rivista giuridica dell’ambiente 3/4-2016, pag. 448.
 Carbon dioxide emissions from cars are estimated to account for 30% of climate change.
 See note no. 5, pag.3: “light detection and ranging systems (known as LiDARs) and (…) high definition (HD) maps are crucial to autonomous driving”.
 See note no. 4, pag. 618.
 D. Cerini, Dal decreto Smart Roads in avanti: ridisegnare responsabilità e soluzioni assicurative, in Danno e responsabilità 4/2018, pagg. 401-409, “the Italian Smart Road Act (2018) on Dispositions provisions regarding risks of the person who carries out the experimentation of self-driving cars and the consequent coverage, offers a starting point for a broader reflection on the role of insurance law in a deep transformation phase of mobility”.
 Roffi Krikorian, ex Director of engineering, revealed that bridges, unlike normal streets, offer few environmental cues—there are no buildings, for instance—making it hard for the car to figure out exactly where it is: M. Chafkin, Uber’s First Self-Driving Fleet Arrives in Pittsburgh This Month, Agosto 2016 available here https://www.bloomberg.com/news/features/2016-08-18/uber-s-first-self-driving-fleet-arrives-in-pittsburgh-this-month-is06r7on
 See note no. 5, pag. 11: “heavy rain, large amounts of snow, or atmospheric smog obscure road signs and lane markings, and therefore raise the risk of driving accidents. It is difficult in these kinds of situations for autonomous vehicles to make good decisions”.
 For a thorough analysis on data processing by driverless car see A. Fonsi, Autonomous veichles vs the principles of Data protection law, Ottobre 2019, available here https://www.iusinitinere.it/autonomous-vehicles-vs-the-principles-of-data-protection-law-23645.
 Consult the Wired‘s report, A. Greenberg, Hackers Remotely Kill a Jeep on the Highway – With me in It, 2015, athttps://www.wired.com/2015/07/hackers-remotely-kill-jeep-highway/.
 See note no. 4, pag. 619: “in the context of driverless cars, the current formulation of the standard proves to be profoundly inefficient, since (…) the driver (…) does not even have the necessary skills to improve the software used to regulate driving automates; he is, in fact, extraneous to the dynamics of which he would be called to bear the risk, so that the civil liability rule cannot have the virtuous effect of promoting the constant improvement of driverless car technology, to achieve the most high level of security possible”.
 The sentence refers to the 2015 survey ran by Michigan University.
 For an overview of ethics dilemmas, please consult S. Godwnin, Ethichs and public health of driverless veichle collision programming.
M.G. Losano, Verso l’auto a guida autonoma in Italia, Diritto dell’Informazione e dell’Informatica 2/2019, pag. 430, “we can distinguish between an exceptionalist model of legislative intervention (which provides new laws to regulate the circulation of the driverless cars, such as in Germany or Great Britain, as well as in some states of the USA) and the assimilationist model (which provides for an extension of existing national legislation, such as in France)”.
 A fee is required to obtain authorization for the trial: these amounts should be redirected in the composition of a Fund to cover the costs in the event of a claim.
 Tests on public roads must be authorized and continuously monitored by law enforcement members.
 See note no. 6, pag. 907: “uniform rules capable of promoting experimentation and the subsequent diffusion of highly automated cars in a legal framework functional to reducing the divergences of the individual national laws to the maximum extent possible”.
 Originally regulated by the Road Traffic Act of 1998.
 See note no. 4, pag. 624: “the old doubts regarding the unsuitability of such a solution, on the one hand, to provide the driver with reasons for diligent behavior and, on the other, to affect the development in terms of reliability of the automated driving technology, given that in no case (…) the risk is carried by the person who is actually responsible for the functioning of the software”;
 For a detailed analysis, please consult M.G Losano, Il progretto di legge tedesca sull’auto a guida automatizzata.
 An indefectible precondition for allowing tests on public roads is the installation of a black box, M. Eccheli, Germania, prima legge europea su guida autonoma: la responsabilità e dell’automobilista, available at https://www.lastampa.it/motori/tecnologia/2017/05/17/news/germania-prima-legge-europea-su-guida-autonoma-la-responsabilita-e-dell-automobilista-1.34601678
 See note no. 4, pag. 622.
 See note no. 4, pag. 623.
 The Italian Private Insurance Code is from 2005.
 M. Franzoni, Diritto delle assicurazioni, pag. 179.
 See note no. 6, pag. 898-898.
 See note no. 18, 406.
 See note no. 18, pag. 403: “the insurance company (…) will have to deal with the new cognitive dimensions and the collection and management of big data, as well as with the risks of the so-called responsibility by algorithm, adopting the appropriate internal (…) solutions”.
 See note no. 18, pag. 409: “will have to choose whether to keep the owner of the vehicle as imputation center, with “all risks solutions” that include insurance packaging and direct damage including personal injury (…), or if passing (…), on the direct transfer of risk and the consequent insurance obligations to other subjects.”.
 At most, the owner-driver to the margin will bear an increased cost of the product-vehicle such as to include the insurance coverage of the manufacturer.
Foto: Google images.