The Fuse

Legal Experts Disagree on Uber’s Actions in San Francisco

by Matt Piotrowski | December 20, 2016

A legal clash over autonomous cars has emerged in California, as ride-hailing service Uber last week kicked off a program in San Francisco to allow customers to ride in driverless cars. The company has not, however, acquired a special permit to operate an autonomous vehicle.

A legal clash over autonomous cars has emerged in California. Ride-hailing service Uber last week kicked off a program in San Francisco to allow customers to ride in driverless Volvo XC90s, similar to the pilot it launched in Pittsburgh in September. Uber says that its opportunity in San Francisco will help the company “to continue to improve our technology through real-world operations.” But the program is now part of a legal spat between the company and California. The state, unlike some others Uber has operated in, requires a special permit to operate a driverless vehicle, but Uber has gone around this requirement by saying that the cars are not yet fully autonomous. California argues the opposite, and the DMV is reportedly threatening legal action.

Legal experts disagree on whether Uber is in the right here.

“The California DMV encourages the responsible exploration of self-driving cars,” the DMV said in a statement. “We have a permitting process in place to ensure public safety as this technology is being tested. Twenty manufacturers have already obtained permits to test hundreds of cars on California roads. Uber shall do the same.”

Here is what Uber, in a press release, has said regarding the Golden State’s regulations, arguing that they undermine innovation.

“We understand that there is a debate over whether or not we need a testing permit to launch self-driving Ubers in San Francisco. We have looked at this issue carefully and we don’t believe we do. Before you think, ‘there they go again’ let us take a moment to explain: First, we are not planning to operate any differently than in Pittsburgh, where our pilot has been running successfully for several months. Second, the rules apply to cars that can drive without someone controlling or monitoring them. For us, it’s still early days and our cars are not yet ready to drive without a person monitoring them.”

It added: “But there is a more fundamental point—how and when companies should be able to engineer and operate self-driving technology. We have seen different approaches to this question. Most states see the potential benefits, especially when it comes to road safety. And several cities and states have recognized that complex rules and requirements could have the unintended consequence of slowing innovation. Pittsburgh, Arizona, Nevada and Florida in particular have been leaders in this way, and by doing so have made clear that they are pro technology. Our hope is that California, our home state and a leader in much of the world’s dynamism, will take a similar view.”

Uber is not challenging the California law, but simply saying that as long as it has a person in the driver’s seat—which it is required to do—the company isn’t operating fully driverless cars and shouldn’t be subject to the regulation requiring a permit.

Uber is not challenging the law, but simply saying that as long as it has a person in the driver’s seat—which it is required to do—the company isn’t operating fully driverless cars and shouldn’t be subject to the law requiring a permit. Uber has also noted the contradiction with regards to Tesla, which has vehicles that hold autonomous capability but are not asked to fulfill the same legal requirements.

Mark Goldfeder of Emory University says that it looks like the law shouldn’t apply to Uber because it has a person in the driver’s seat, making the vehicle not fully autonomous. In fact, though, he points to a bigger problem regarding California: The state is “thinking old fashionably” about the rules for autonomy. Goldfeder believes that California should revamp the rule entirely since a human in the driver’s seat makes any situation more dangerous since he or she can’t take over the steering wheel quickly enough to handle any problems. “The question is: Why does California have this law in the first place?” Goldfeder asked.

“The question is: Why does California have this law in the first place?”

On the other hand, Bryant Walker Smith, writing in a blog post for Stanford Law School’s The Center for Internet and Society, says that Uber is in the wrong in this instance. “The DMV is correct,” Smith wrote. “Uber’s argument is textually plausible but contextually untenable.” He added: “The testing provisions of the statute even require a human to actively monitor a vehicle that, by definition, doesn’t need active human monitoring.”

He points out that the California law was written for “aspirational” autonomous driving. If Uber is not subject to the law, then no car anywhere in the state would be under this statute since all self-driving vehicles need to have someone in the driver’s seat to take over. Smith understands why Uber is in dispute about being treated differently than Tesla, but there’s a big difference. “Uber calls its vehicles self-driving; Tesla does not. Uber’s test vehicles are on roads for the express purpose of developing and demonstrating its technologies; Tesla’s production vehicles are on roads principally because their occupants want to go somewhere.”

“Testing autonomous vehicles on public roads and allowing members of the public safely to experience the technology are essential steps in the deployment of AVs and unlocking the great safety and energy security benefits they offer society.”

It’s important that testing of autonomous vehicles occurs smoothly so they are not held back by unfortunate accidents, or overbearing regulations. “Testing autonomous vehicles on public roads and allowing members of the public safely to experience the technology are essential steps in the deployment of AVs and unlocking the great safety and energy security benefits they offer society,” said Amitai Bin-Nun, Director of the Autonomous Vehicle Initiative at Securing America’s Future Energy. “Ideally, these steps would occur with local community buy-in and within a cooperative, constructive regulatory environment, so it is our hope that California and Uber can resolve their differences and allow continued progress towards the broad use of AVs.”

The spat in California highlights the lack of clarity for regulating the new technology. Industry is concerned about laws stifling innovation, while at the same time worried that a lack of guidance from the federal government will lead to a patchwork of state regulations. The National Highway Traffic Safety Administration (NHTSA) says that active federal rules pre-empt state ones. But since federal tolerance of autonomous vehicles stems from the absence of specific rules against the technology, this issue becomes more ambiguous and confusing.

It’s not clear yet how far California will take this fight. If a judge issues an injunction, it could lead to Uber or its contractors receiving fines, misdemeanor charges, or jail time. Since the required cost of a certificate to test driverless vehicles is so low—just $150—it’s clear that Uber is avoiding compliance with the law in order to make a statement to California, and any other state that should follow its example with what the ride-hailing service believes are onerous laws. This is another gamble where the company wants others to bend toward its way of thinking and operating, rather than the other way around.

 

 

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