contributed by Matt Campbell, Law Clerk
The future is now: autonomous vehicles (otherwise known as AVs) are driving passengers all over the world. But one thing remains at a stalemate: the law surrounding self-driving cars. The legal world may not be ready for this evolution of technology, and that means that a burden may be placed on everyday citizens.
While traffic stops and searches/seizures clearly will deviate from the norm, the introduction and proliferation of autonomous vehicles will present novel legal questions in negligence, product liability, and even under the Americans with Disabilities Act. These changes may stretch legal analogies and doctrines to their breaking points and yield unpredictable outcomes in litigation, however, Miller Butler has attorneys familiar with the above-mentioned areas of law surrounding AVs, and we are ready to defend your fundamental rights.
Autonomous Vehicles and Constitutional Rights
When one thinks of AVs, they likely envision themselves enjoying a nice snooze as their Tesla drives them to their destination. This isn’t the full picture though, as many AVs are operated by a remote operator. In 2021, Arkansas’ legislature passed into law Ark. Code Ann. § 27-51-2002, which enables a person to operate a fully autonomous vehicle that is not equipped with seatbelts, a steering wheel, or rearview mirrors, effectively blurring the law even more. If a cop pulls over a car without a physical person within the vehicle, what happens? If the vehicle swerves all over the road while operated by a remote driver who is intoxicated, can that remote drive escape a DWI? And what if police agencies themselves use a remote driving undercover police car?
Certainly, many questions remain unanswered surrounding privacy and Fourth Amendment rights in autonomous vehicles. According to Waymo, one of the first commercial AVs, their self-driving cars can detect the sirens and emergency lights used by police cars, and if the vehicle detects those lights flashing behind it, the vehicle will immediately begin scanning for a safe space to pull over and stop. Once safely on the side of the road, the self-driving car will unlock its doors and roll down its windows. Effectively, by rolling down all the windows, the once cozy self-driving vehicle exposes all the secrets of the driver and can potentially allow the officer to legally search the vehicle. Additionally, if the car remains in park and open to observation the entire time the police car’s lights are on, the officer has time to request a drug sniffing dog without unreasonably prolonging the traffic stop; one study revealed up to 64% of searches prompted by drug dogs have come up with false positives, but no matter, as soon as a drug dog alerts, officers have probable cause to search.
Furthermore, autonomous vehicles retain data of every variable, data that may be considered extensive and personal, and all this data is processed on board the vehicle with much of it transmitted back to the manufacturer. Waymo’s concept of automatically alerting their headquarters about an accident came under question, with legal scholars purporting this may amount to an invasion of privacy on behalf of the vehicle’s riders. For
decades, it has been common police practice to download the contents of the event recorder (“black box”) in an accident investigation. Is this practice still constitutional, given the quantity and quality of captured data? In Riley v. California, the Court reasoned that police need a warrant to search a cell phone, with only a few specific exceptions; with an autonomous vehicle that retains not only travel information, but also conversations that happen within the vehicle, this practice of downloading the “black box” is likely to expose passenger information that far exceeds the particular information sought with the warrant.
AVs and the Americans with Disabilities Act
Autonomous vehicles serve as excellent alternatives for those disabled individuals who are unable to drive to the grocery store. However, companies that deliver with autonomous vehicles, or even with drones, are not readily complying with the Americans with Disabilities Act (ADA). The ADA is a federal civil rights act that prohibits discrimination against people with disabilities in everyday activities. This act has been advanced and applied to technology, namely websites and mobile apps, as in the case of Robles v. Domino’s Pizza, LLC (the case alleges the Domino’s website and mobile application were not accessible to blind or visually-impaired individuals using screen readers). The confusion for some stems from the fact that the ADA was created before the modern web and hasn’t been updated to mention specific rules for web accessibility. But the Court stated that the ADA applies to the services of a public accommodation, not services in a public accommodation. Therefore, it’s safe to assume that courts will apply the ADA to even bigger technological advances, including commercial delivery of goods and services by autonomous vehicles and drones.
An autonomous vehicle that stops at the curb and notifies the customer to come outside and grab the groceries from the trunk may be liable to a customer who has no use of their legs, and who clearly falls within the parameters of the ADA. Walmart’s drone delivery service recently started and one of the drone companies that works with Walmart “parachutes” the goods into the customer’s yard, another potential violation of the ADA. Companies must find ways to make every aspect of AV and drone delivery equally accessible to disabled individuals or eventually, the law will catch up to them.
The ‘irony of automation’ is an observation of the tensions emerging therein; for example, that the computationally superior and efficient machine actually needs human operators to ensure that it is working effectively, and that the human is inevitably held accountable for errors, even if the machine is more efficient or accurate. This irony applies to the legal landscape surrounding AVs, as massive quantities of data and information contained within the vehicle often serves the passengers well but may actually deplete one’s autonomy; whether it be law enforcement, manufacturers, or other parties, the law will be enforced and hold humans accountable. An overhaul of legal changes are overdue, and attorneys at Miller Butler are here to advocate for you and protect your interests.