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Looking under the hood

So driverless cars are to be street legal in California!

I thought it would be fun to look “under the hood,” so to speak, at the text of the legislation that Governor Jerry Brown signed this week, California Senate Bill 1298.

At the outset, we should note that the new law doesn’t exactly legalize the widespread manufacture and distribution of driverless cars to ordinary people, at least not today. Rather, the law might be fairly said to be structured in the negative:

“Except as provided in subdivision (b), an autonomous vehicle shall not be operated on public roads until the manufacturer submits an application to the department, and that application is approved by the department pursuant to the regulations adopted pursuant to subdivision (d).”

This language is from subdivision (c) of the law, sitting between subdivision (b), the exception to the general prohibition, and subdivision (d), a provision that calls upon the California Department of Motor Vehicles to write implementing regulations “[a]s soon as practicable, but no later than January 1, 2015.”

What the law appears to permit, more immediately, is the testing of “autonomous vehicles.” Here is that subdivision (b), in pertinent part:

“An autonomous vehicle may be operated on public roads for testing purposes by a driver who possesses the proper class of license for the type of vehicle being operated if all of the [three, spelled-out] requirements are met.”

The three requirements to be met, in summary, are: (1) the vehicle must be operated by someone “designated by the manufacturer of the autonomous technology,” (2) a “driver” who is “capable of taking over immediate manual control” of the vehicle must be in “the driver’s seat,” and (3) the manufacturer must have $5,000,000 in insurance, and provide evidence of the fact “in the form and manner required by the department pursuant to the regulations adopted pursuant to subdivision (d).”

Now, I know I just implied that that a rulemaking process was going to hold up every day use of driverless cars for ordinary people — perhaps as far out as 2015 — but that driverless cars could hit the road, for testing purposes, right away. But look what’s in that third requirement: a statutory possibility that immediate testing of driverless cars in California could be held up for lack of regulations specifying what will count as proof of insurance.

A challenge with statutory law — not encountered in the development of common law, which emerges only slowly over the case by case course of court decisions — is in fixing, at the get go, language to circumscribe the behavior meant to be approved, permitted and/or regulated. The terms newly coined by a legislature in a statute are meant to have immediate legal effect.

You’ll note that the term “driverless car” does not appear in any of the legislative text quoted so far. In fact, the adjective “driverless” is a misnomer. At least for purposes of the testing exception, the vehicle must have a driver sitting in the driver’s seat and capable of taking back manual control, either from the computer or the operator with a joystick at the Googleplex. And at least the “driver” of the car (I’m not sure about the remote operator) must possess a driver’s license.

For this statute, the key defined term is not “driverless car” but instead “autonomous vehicle.”

The statute defines “autonomous vehicle” as “any vehicle equipped with autonomous technology that has been integrated into that vehicle.” “Autonomous technology,” in turn, “means technology that has the capability to drive a vehicle without the active physical control or monitoring by a human operator.”

There’s more fun and strange parsing to be had in this statute, and no doubt we’ll return to the subject as the regs develop and other states consider similar legislation. I’ll leave you with this inventory, from the new California law, of other automated features of the 21st Century automobile which are not, in and of themselves, indicia of an “autonomous vehicle.”

“An autonomous vehicle does not include a vehicle that is equipped with one or more collision avoidance systems, including, but not limited to, electronic blind spot assistance, automated emergency braking systems, park assist, adaptive cruise control, lane keep assist, lane departure warning, traffic jam and queuing assist, or other similar systems that enhance safety or provide driver assistance, but are not capable, collectively or singularly, of driving the vehicle without the active control or monitoring of a human operator.”

Oh the irony! The autonomous vehicle doesn’t need you, driver, by its very definition; but it won’t be legal for testing purposes unless you’re sitting in the driver’s seat, ready to make like Captain Sullenberger and flip off the autopilot.

Attorney William Carleton is a member of McNaul Ebel Nawrot & Helgren PLLC, a Seattle law firm. He works with startups and emerging tech companies, their founders and investors. He posts regularly about tech-related legal issues on his blog.

Photo: US National Archives / Flickr.

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