Preview of Automated Vehicle Regulations in Germany

by Dechert LLP
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Germany’s Federal Ministry of Transport and Digital Infrastructure formally presented last week ethical guidelines that affirm that governments are focusing on similar themes in designing their regulatory approach to the automated vehicle industry.1 In keeping with proposed legislation and regulatory guidance in the United States, the guidelines recommend regulatory changes to address accident prevention, product liability, cybersecurity, data privacy, and public disclosure of programming methods.2

Although the guidelines demonstrate a certain harmony with other regulatory proposals, their lack of a binding legal framework demonstrates that all participants – big and small – in this growing industry potentially will face a patchwork of regulatory obligations.

Accident Prevention & Response

The most headline-grabbing aspect of the guidelines is their attempt to grapple with the question of how to weigh the value of human life in accident situations. In this respect, the guidelines provide entirely predictable answers: human life should be favored over property; accident responses should generally be designed to minimize the number of fatalities; and an automated vehicle should not choose between human victims based on characteristics like race, gender, or age.

The guidelines defer to the government to improve automated safety measures that will protect human life in less clear-cut scenarios. They propose creating a new “independent public sector agency” to review accident situations, assess the automated vehicle’s decision-making, and recommend improvements to guarantee more morally appropriate outcomes in the future. Such a regulatory response would expand upon existing accident-reporting regimes and establish an ongoing feedback loop in which industry provides data to the government, the government formulates best practices, and the government imposes those best practices on industry.

Expanded Product Liability

It is foreseeable that once manufacturers and programmers – and not drivers – make the underlying decisions that lead to accidents, the liability for those accidents will also shift. The guidelines anticipate that introducing automated vehicles will lead to increased product or personal injury liability for manufacturers, programmers, and telecommunications providers. They also suggest that an essential requirement for manufacturers to avoid such liability is to develop a robust program to monitor, assess, and improve their existing accident prevention measures.

The guidelines recognize that the responsibility for coordinating communications among automated vehicles will not lie with the private sector alone. Automated public transportation infrastructure and traffic control systems will inevitably interact with private vehicles, and the guidelines anticipate that “a neutral organization” might be better-equipped than manufacturers to manage vehicle telecommunications. As a result, some responsibility for accidents might shift not to the manufacturer but to the government body that dictates a certain approach to accident prevention. This view opens the door to designing safe harbor provisions that could absolve a manufacturer from accident liability if the vehicle is programmed to act in a specific manner that the government has determined should maximize safety.

Cybersecurity

The guidelines preview a world in which the interconnectedness of automobiles and transportation infrastructure could render individual vehicles controllable by a centralized authority. To preserve the integrity of these systems, the guidelines challenge the private and public sectors to develop measures to avoid hacks or other computerized “attacks”: “the cyber security of these systems has to be more strongly promoted by the manufacturers and the state.” This endeavor is consistent with recently proposed federal legislation in the United States, which would require manufacturers to submit cybersecurity plans as a prerequisite to regulatory approval.

Data Privacy

In keeping with strong German and European legal commitments to individual privacy, the guidelines highlight the need to restrict manufacturers from automatically disseminating consumer data. They propose default “privacy-friendly factory settings” that require consumers to opt in to disclosure of any data not strictly necessary to maintain vehicle safety. The guidelines further suggest that the government condition regulatory approval on manufacturers demonstrating that they can sufficiently anonymize consumer data, and they call upon the industry to develop new methods of anonymization. This approach echoes privacy concerns in the United States, which plans to require automated vehicle manufacturers to submit detailed privacy plans enforceable by the Federal Trade Commission.

Potential Disclosure of Programming Methods

The guidelines urge that ethical rules, including rules governing accident response, be developed and implemented in a manner “that is as transparent as possible” and “communicated in public.” They recommend that automated vehicles’ decision rules be “reviewed by a professionally suitable independent body,” thereby suggesting the creation of a new government-sponsored body if not new government agencies. The guidelines’ commitment to transparency resembles the approach taken by NHTSA in the United States, which has recommended that “[a]lgorithms for resolving [ ] conflict situations should be developed transparently using input from Federal and State regulators, drivers, passengers and vulnerable road users.”3

As industry participants are no doubt aware, achieving this laudatory goal of transparency can entail both competitive and public relations risks. Any program that anticipates and responds to the myriad of potential accident situations would certainly be costly to produce, and its application in certain scenarios would undoubtedly spark public criticism. Manufacturers must work diligently to meet their disclosure obligations while protecting their vital business interests.

Implementation

The German Federal Government recently issued a high-level “action plan” outlining its approach to shaping the guidelines’ principles into law.4 This plan will involve reviewing Germany’s Road Traffic Act, which was recently amended in June 2017 to authorize the use of automated vehicles, to propose further legislative amendments. Additionally, the Federal Government “will expedite the development of” new regulations governing accident responses. The Government will ensure that these legislative and regulatory measures conform to European data privacy requirements and generally foster uniformity among other countries regulating automated vehicles. Finally, the Government plans to create two new entities:

  1. A “public sector institution” to monitor the efficacy of vehicle responses in accident scenarios.
  2. “A neutral entity (yet to be determined)” to promulgate further guidance on inter-vehicle communications primarily addressing cybersecurity and data privacy.

Although the Government has pledged to “speedily implement” this action plan, it has not yet set a specific time table.

Footnotes

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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