Tesla’s Autopilot Cleared by Government Investigation, but Questions Remain About Liability for Accidents Involving Self-Driving and Safety Technology

–by Aya Hoffman

Citations:

https://www.wired.com/2017/01/car-dealers-dangerously-uneducated-new-safety-features/; http://fortune.com/2016/07/11/tesla-autopilot-joshua-brown/;

http://jalopnik.com/the-latest-tesla-lawsuit-proves-how-important-human-dri-1790904371; https://www.nytimes.com/2016/09/15/business/fatal-tesla-crash-in-china-involved-autopilot-government-tv-says.html;

http://www.forbes.com/sites/omribenshahar/2016/09/22/should-carmakers-be-liable-when-a-self-driving-car-crashes/#1e0645771f40;

http://www.greencarreports.com/news/1104183_lets-be-clear-teslas-autopilot-is-not-a-self-driving-car;

http://money.cnn.com/2016/07/07/technology/tesla-liability-risk/;

https://www.scientificamerican.com/article/who-s-responsible-when-a-self-driving-car-crashes/;

https://www.scientificamerican.com/article/who-s-responsible-when-a-self-driving-car-crashes/

Abstract: Just a day after the National Highway Traffic Safety Administration (“NHTSA”) closed its investigation into Tesla Motors’ autopilot technology, Chinese media reported another fatal collision involving a Model S sedan. Currently, victims face significant challenges in holding automakers liable for accidents involving assistive technology, but the market may be moving toward a strict liability standard as true self-driving cars become more widely available.

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Although the NHTSA ended its investigation into Tesla Motors’ autopilot system without requiring a recall or fine, questions about the safety of such systems remain. Tesla, based in Palo Alto, California, manufactures an all-electric line of vehicles, including the Tesla Roadster, Model S, Model X, and Model 3. When it was introduced in 2015, Tesla’s autopilot system was the first of its kind in consumer vehicles.

The NHTSA investigation was initiated after a fatal crash in May 2016, involving a Tesla Model S sedan. Joshua Brown was killed after the autopilot system installed in his vehicle failed to recognize a turning tractor-trailer. On January 19, 2017, the NHTSA reported that the system was not defective at the time of the crash. The agency noted that Tesla’s autopilot system was designed to prevent rear-end collisions, and still required a driver’s full attention while in operation. Brown’s family hired a law firm with experience in product defect litigation to conduct its own investigation into the crash.

However, Tesla came under renewed scrutiny the following day, when another fatal collision involving a Model S was reported in China. On January 20, 2017, Gao Yaning was killed when his vehicle collided with a road-sweeping truck. In-car video suggests that the brakes were not applied prior to impact with the rear of the truck, but it is unclear whether the autopilot system was activated.

If the families of Brown and Yaning file suit against Tesla, they will face significant challenges. Despite the modern technology at issue, the available legal theories for product liability and accident compensation claims are traditional – strict liability, negligence, design-defects law, failure to warn, and breach of warranty. However, Tesla requires buyers to consent to contract terms which require drivers to keep their hands on the steering wheel at all times, including when the autopilot system is engaged. And technically, Tesla’s current autopilot technology is not “self-driving.” Although it can steer a car in traffic and make passing maneuvers, it is not connected to a navigation system and requires an alert and responsible human driver.

Interestingly, as truly autonomous vehicles enter the mainstream, it may become easier for drivers to hold car manufacturers liable for accidents involving self-driving technology. Currently, carmakers are not liable for most accidents, which are attributed to driver behavior. While fully autonomous vehicles are still in development, some carmakers, including Volvo, Google, and Mercedes-Benz, have already pledged to accept strict liability for resulting accidents. Although it may seem counter-intuitive, these companies are betting that advanced safety programming will significantly decrease the rate of accidents. Of course, the costs of liability will be passed onto consumers by way of increased car prices. However, some legal scholars suggest this increase may be offset by a decrease in the cost of insurance premiums for self-driving vehicles.

As is common with emerging technologies, early adopters face the most risk. It may be difficult to hold carmakers liable for accidents during this transitional period, compared to when fully self-driving cars are established in the market. This problem is compounded by the fact that car dealers may be uninformed about the technologies inside the vehicles they sell. In the spring of 2016, researchers from the Massachusetts Institute of Technology’s Agelab conducted interviews at car dealerships in the Boston area. The researchers went to the dealerships undercover and asked salespeople questions about common automated driver assistance programs, including adaptive cruise control, blind spot monitoring, and collision avoidance. Of the eighteen salespeople interviewed, only six provided “thorough” explanations of the technologies. According to the researchers, four salespeople gave “poor” explanations and two provided incorrect information that was potentially dangerous. Although this was a small study, it reinforces the need for consumers to educate themselves on the operating requirements and limitations of the technologies installed in their vehicles.

Even when cars are equipped with advanced technology, old-school methods still provide drivers the best protection against potentially fatal accidents – education and constant vigilance.

Arkansas Prosecutor and Amazon at War Over Release of Device’s Data Recordings; Consumer Privacy Rights in Question

–by Samantha Pallini

Sources: http://www.cnbc.com/2016/03/29/apple-vs-fbi-all-you-need-to-know.htmlhttp://www.nbcnews.com/news/other/government-can-grab-cell-phone-location-records-without-warrant-appeals-f6C10803204http://www.cnn.com/2016/12/28/tech/amazon-echo-alexa-bentonville-arkansas-murder-case-trnd/http://fox40.com/2016/12/28/amazon-echo-may-be-the-key-to-solving-a-murder-case/https://epic.org/privacy/internet/ftc/EPIC-Letter-FTC-AG-Always-On.pdf

Abstract: An Arkansas prosecutor believes that a murder suspect’s Amazon Echo data recordings could be used as evidence in the case. However, Amazon continues to refuse to comply with requests for the data.

***

“Alexa, how did Victor Collins die?”

On November 21, 2015, James Bates, Victor Collins, and two other friends watched a football game together in Bates’s home in Bentonville, Arkansas. According to an affidavit, Bates went to bed around 1 a.m., leaving Collins in the hot tub. When he awoke the next morning, Bates found Collins floating face down, deceased.

Bates called 911 to report Collins’s death, but police suspected foul play. The Arkansas chief medical examiner ruled Collins’s death a homicide by strangulation with a contributing cause of drowning. Police obtained a search warrant for Bates’s home thereafter.

Inside, detectives found several smart devices, including an Amazon Echo. An Echo is a speaker device that is activated by the wake word “Alexa.” According to Amazon, when a user states the wake word “Alexa,” the Echo device starts recording the audio and streams it into the Amazon cloud. In the cloud, a processor analyzes the user’s request and determines how to respond. The audio recordings are thereafter stored remotely by Amazon, while still allowing for review or permanent deletion by the user at any time.

In the search warrant, investigators stated that they believe the recordings and data of Bates’s Echo could be evidence because “the device is constantly listening for the ‘wake’ command of ‘Alexa’ [which] records any command, inquiry, or verbal gesture given after that point, or possibly at all times without the ‘wake word’ being issued.”

On two occasions, Prosecutor Nathan Smith attempted to obtain the data from Amazon, but Amazon refused, stating that it “will not release customer information without a valid and binding legal demand properly served on [it]” and that it “objects to overbroad or otherwise inappropriate demands as a matter of course.” A discovery hearing is scheduled for March 2017.

With February’s FBI-Apple battle over unlocking the iPhone of the San Bernardino shooter, Prosecutor Smith’s request for Bates’s Echo data ushers out 2016 with yet another privacy concern that leaves consumers wondering where the line between privacy rights and disclosure is drawn. However, the Echo’s data retention also invites questions of whether “always on” devices cross a line of their own.

The Echo is one of several new “always on” devices. Google, Samsung, Nest, Canary, Microsoft, and Mattel have also created “always on” devices, which can be activated by phrases such as “Ok Google,” “Hello Barbie,” or “Xbox on.” While these companies assert that their devices only begin audio recordings after the wake command is said, many consumers and advocacy groups complain that wake commands as simple as “ok” and “hello” easily confuse devices into recording at times when they should not be.

The Electronic Privacy Information Center (EPIC) wrote a letter to the Department of Justice in July 2015 requesting that the Federal Trade Commission “determine whether these devices violate federal wiretap laws that prohibit the unlawful interception of private communications. 18 U.S.C. 2510 et seq.”

EPIC argues that Amazon, specifically, has not disclosed their data collection practices, which involve interconnection with a range of third-party companies. Consequently, EPIC asserts that “[b]y introducing ‘always on’ voice recording into ordinary consumer products . . . companies are listening to consumers in their most private spaces.”

While the outcome of Amazon’s refusal to provide Prosecutor Smith with Bates’s Echo data is undetermined, surely 2017 and the growing “always on” market will invite more legal analysis and policy-making in the year to come.

New York State Senate Seeks to Stop Scalpers

—by Conor Tallet

Sources: S.B. S6931C, 2015-2016 Reg. Sess. (N.Y. 2016); Andrew J. Lanza, Senate Passes Lanza’s Bill to Help Stop “Bots” from Ruining Consumers’ Chances of Buying Concert and Other Event Tickets (May 25, 2016) https://www.nysenate.gov/newsroom/articles/andrew-j-lanza/senate-passes-lanzas-bill-help-stop-bots-ruining-consumers-chances; Jim Zarroli, Can’t Buy A Ticket To That Concert You Want To See? Blame Bots, NPR.ORG, (Jan. 28, 2016) http://www.npr.org/sections/thetwo-way/2016/01/28/464708137/cant-buy-a-ticket-to-that-concert-you-want-to-see-blame-bots.

Abstract: Ticket bots pose a threat to the music and entertainment industry because they allow individuals to purchase mass quantities of tickets and sell them at a large premium above face value on secondary websites such as StubHub. This creates artificially inflated ticket prices for concerts and events that is threatening the entire way an average consumer can get their hands on tickets. In order to combat this, the New York State Senate passed a bill in an attempt to eliminate the unfair competitive advantage that ticket bots possess over the average consumer.

***

Have you ever attempted to buy on-sale tickets for the Rolling Stones, World Series, or any other popular event? If yes, then chances are you have encountered the difficulty and frustration associated with purchasing tickets through Live Nation or Ticketmaster. The normal fan would ideally like to get the closest seat to the game or concert that they can, but often wind up getting nosebleed seats through the on-sale period. Why is it just so difficult and competitive to get your hands on good seats for the hottest band or sporting event? Ticket bots.

Ticket bots are a type of computer software that allows individuals to circumvent security measures on ticket retailing websites and scoop up the best seats in the house. These individuals are not only getting the best tickets, but ticket bots also allow the user to purchase large quantities of the best tickets in the venue. According to National Public Radio, when a bot bypasses the security measures on a site like Ticketmaster, the “[v]endors can acquire large numbers of tickets quickly by using multiple IP addresses.” This is an enormous problem plaguing the music and entertainment industry that is artificially driving up prices to events. For example, in some instances a single bot can acquire as many as 1,000 tickets at a time and sell each ticket at a steep premium on resale websites like StubHub. As a result, ticket scalpers are reaping serious profits from this devious tactic at the expense of die-hard fans.

This isn’t your typical case of supply and demand economics, but is a “fixed game,” according to New York Attorney General Eric Schneiderman. Thus, the New York State Senate is attempting to deter the use of bots in the ticket business by passing bill S6931C. Senator Andrew Lanza (R-C-I, Staten Island) first introduced this bill in May 2016 to level out the playing field and give every buyer a fair shot at purchasing tickets for an event. Specifically, the bill seeks to “[p]rohibit the use or sale of computer software to circumvent security measures or access control systems that ensure equitable consumer access to tickets for a particular event.”

Put simply, the goal of the bill is to stop unfair competitive advantages of ticket bots by imposing civil and criminal penalties. The criminal penalties associated with this bill include “a Class A misdemeanor charge for first time offenders, followed by a Class E felony for repeat offenders.” In addition, fines imposed for violation of this bill run from $750 to $1,500 for each violation. The bill has been passed by the Senate and now rests in the hands of the Assembly and ultimately Governor Cuomo.

Bill S6931C is just beginning to scratch the surface on this new and important issue affecting the music and entertainment industry. It will be interesting to see this bill in effect if it passes through the Assembly and aligned into place by Governor Cuomo in New York. Will it be enough to deter ticket bots and give all consumers a fair chance at purchasing tickets for the next big Carrier Dome event? Or will the interstate commerce nature of ticket and event sales snowball into a more prominent problem best equipped by the federal government to address? Only time will tell.