No newspaper reading, please – Dobrindt’s bill puts legal limits on fully autonomous cars

Creating a fully autonomous robotic car is a major technological challenge for car manufacturers, suppliers and software makers, despite all the progress made so far. What’s more, the law still currently sets clear limits on self-driving cars – which Germany’s Federal Transport Minister Alexander Dobrindt now intends to overcome with a new draft law. The only problem is that his courage failed him towards the end of the bill. Fully automated driving is only to be permitted if the driver permanently monitors the vehicle.

Drivers are not passenger in their own cars

This can be seen by looking at the bill to amend the German Road Traffic Act. According to Sec. 1b of the new version of this Act, vehicle drivers may turn their attention away from traffic and from controlling the vehicle when in self-driving mode. But they must be alert enough to intervene and take over control if requested to do so by the system or if there is a technical fault. So they are not allowed to go to sleep. Contrary to some initial enthusiastic reports in the press, drivers are also not allowed to read a newspaper, watch films on their tablet or compose tweets on their phone. Anything which could undermine their latent perception ability (e.g. by distracting them) leads the driver back to negligence under liability law if there is a preventable accident in self-driving mode.

The provision in Sec. 1b shows that the lawmakers have limited their bill to a high degree of vehicle assistance; it is not about autonomous driving to the extent that drivers are passengers in their own cars. This automatic mode will therefore only really be of interest in stop-and-go traffic jams.

Regrettably, the bill lacks any technical obligation (e.g. as a requirement for registering the car) to have the car show any sign to other road users and the outside world as a whole that it is in self-driving mode. However, for societal acceptance in mixed traffic this is key information which the self-driving car owner should supply. One option might be an all-round LED light in a colour suitable for use internationally (in other words not a flashing blue light, for example).

The bill also fails to take the radical course of abolishing owner liability (absolute liability) under Sec. 7 German Road Traffic Act. This is correct at the moment; after a maximum of 20 to 30 years’ operating experience with this technology and statistical assessment of future causes of accidents, it will be necessary to discuss whether the political justification for this absolute liability (which classifies each car itself as a particular source of danger) still applies and can still justify this owner liability.

Because liability is limited in terms of the amount under Sec. 7 German Road Traffic Act, this upper limit will now be manually cancelled in the bill. Owners of such cars will therefore have to adjust their insurance cover in future.

Cars to testify against their drivers

What is extremely problematic is the proposal in Sec. 63a of the bill regarding integrated data collection and processing. Strictly speaking, the provisions have nothing to do with automated driving itself. The legislator may consider the telemetric recording of motion and system data necessary for other reasons too; the corresponding legal provisions on event data recorders (EDR) in the US have shown for years that driving function data has nothing to do with the driving mode.

Sec. 63a(2) stipulates that the data currently recorded “...is to be made available upon request by the competent supervisory authorities”. Here it is totally unclear who this legal instruction is aimed at: at the driver who has no technical access to readout devices and codes? At the manufacturer which has no ownership-based right to any type of access to a private car? Here we can see the longstanding problem that a car generates data without it being clear who has access to it by law. The problem continues in subsection 4, which orders that the “data is to be deleted after three years”. By whom and how? What is particularly questionable and a decisive passage is Sec. 63a(3) of the bill: “Third parties are to be granted access to this data if they credibly demonstrate that the data is required for the assertion of, satisfaction of or defence against legal claims.”

This makes a nightmare come true: A car which can, and must, testify against the driver! And even in civil proceedings, because the third parties mentioned will primarily be insurers of the opposing side: Data saved in a driver’s own car can therefore be requested to help convict the driver. The opponent’s insurance company must only demonstrate that it needs the data to assert claims. In terms of evidence, this means you are driving a ticking time bomb because the car records how greatly the driver’s poor response time in taking over control again contributed to the accident.

The bill seems to have been cobbled together very hastily. The newly proposed Sec. 1a tries for the time to make a legal definition of what is described here as “vehicles with an automated driving function”, consisting of two elements:

• “which can be driven automatically by in-vehicle technology lengthways and crossways for a certain period of time and in certain situations” and
• “which can identify and articulate the need for the vehicle driver to take over the driving of the vehicle”

The first element describes secure forward travel; unfortunately there is no mention of braking in either element. Braking in particular (not the lane guidance mentioned) will have to be a technological component implemented to keep an automatic stopping distance from the car in front as well as for safely driving round bends or taking evasive action. The Ministry must urgently make improvements.

Despite the drawbacks listed, the bill represents great progress politically. For the first time it allows fully automated cars on the road without a special permit.