California Puts the Brakes on Autonomous Vehicles

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The California Department of Motor Vehicles (CDMV) has issued proposed regulations for self-driving cars (also known as autonomous vehicles, or AVs), and what they are planning wasn't all good news, at least to hopeful AV developers such as Google.  Last Wednesday, the CDMV released a draft version of rules that would apply to AVs used not for experiments and tests (these have been allowed for some time already), but by paying customers.  They are pretty restrictive.

For one thing, the CDMV doesn't want anybody selling AVs yet—only leasing.  For another thing, a specially licensed person has to be in the vehicle whenever it's operating, and able to take over manual control at any time.  These restrictions rule out some of the most commercially promising potential applications for AVs, namely, driverless delivery vehicles.  In its defense, the CDMV says that more testing is needed before such vehicles can be let loose on California freeways.  And having driven on California freeways myself, I have to say they may have a point.

You can't blame the CDMV for being cautious.  So far, the testing Google and automakers such as Mercedes and Tesla Motors have done has not turned up any show-stopper problems with autonomous vehicle systems.  But effects that don't show up in small-scale tests can raise their ugly heads later.  I'm not a traffic engineer, but there may be new types of problems that don't arise until the percentage of AVs on the road rises above a certain threshold.  Despite all the manufacturers' efforts, AVs will act differently than human-driven cars, and depending on the programming, sensor layout, and other factors, there may be some unknown interactions, perhaps between cars of different makes, that will lead to weird and possibly hazardous problems that nobody could have suspected in advance.  We simply don't know.  So going slow in the largest automotive market of any state is perhaps a good thing.

On the other hand, history shows that government restrictions on new technology can quickly become absurd and even obstruct progress.  Historians of the automobile are familiar with the "red flag laws" that the English Parliament enacted in the latter part of the 1800s.  A typical law of this type required any "powered locomotive" on a public road to be accompanied by a person walking at least sixty yards (55 m) ahead of the vehicle, holding a red flag to be used as a signal to the operator to halt, and also to warn passersby of the machine's approach.  Despite rumors that these laws were passed specifically to slow down the spread of self-powered passenger vehicles, they were actually aimed at steam tractors, which were mobile steam engines used to operate agricultural machinery.  Steam tractors were developed as early as the 1860s, and the larger ones could do considerable damage to the roads of the day and frighten horses, so the regulations were appropriate at the time they were first passed.

However, when the newer, smaller passenger automobiles of the 1890s came along, the 4-miles-per-hour speed limits and other restrictions that were appropriate for steam tractors made little sense for autos, and it took some time for popular demand and pressure from automakers to change the red-flag laws.  Something similar happened in a few U. S. states, but by 1900 most red-flag laws had been repealed or transformed into regulations more suitable for internal-combustion cars.

There are a couple of lessons here for what could happen next with regard to AV regulations.

First, we should expect some overreacting on the part of government regulators.  No regulator I know of ever got fired for being too vigilant.  Unfortunately, very few regulators get fired for not being vigilant enough, either, but the tendency of a bureaucracy whose mission is to regulate an industry, is to do more than necessary rather than less, up to the limit of the resources the regulator has at hand.  Some commentators have said that what's bad for California is going to be good for Texas, which has taken a much more laissez-faire attitude toward AV experiments by Google and others.  So we can thank what remnants of federalism remain in the U. S. for the fact that if one state passes excessively restrictive laws on an activity, companies can simply pull up stakes and go to a more friendly state.

The second lesson is more subtle, but has deeper and broader implications.  It has to do with the gradual but pervasive spread of what is called "administrative law."  To explain this problem, we need another historical detour.

Those familiar with the U. S. Constitution know that the powers of the federal government were purposely divided into three parts:  the legislative branch for making the laws on behalf of the people it represents, the executive branch for enforcing the laws, and the judicial branch for judging whether citizens have violated the laws.  This was done in reaction to the so-called "prerogative" that the English kings of the 1600s and earlier liked to exercise.  In those bad old days, a king could haul off and make a law (legislative power), have his royal officers drag a subject in off the street (executive power), and pass judgment on whether the guy had broken the King's law (judicial power).  Combining these distinct powers in one person was a great way to encourage despotism and tyranny.  The authors of the U. S. Constitution had enough of that, thank you, so they strictly divided the operations of government into three distinct branches corresponding to the three basic functions of government, and made sure that new laws could be originated only by representatives elected by the people.

But over the last century or so, the dam holding back government by prerogative has sprung lots of leaks in the form of administrative laws.  Nobody elects anyone who serves in the California Department of Motor Vehicles.  It's just a bunch of bureaucrats who can make up regulations (legislate), pronounce penalties for violation of those regulations (execute), and in some cases even decide on whether a party is guilty or innocent of violating the regulations (judge).  Yes, the California Senate, a representative body, asked the CDMV to do this, but in turning over the power to make laws to the CDMV, the Senate abdicated its legislative function and handed it over to a non-representative body.

This is an oversimplified version of a huge and pervasive issue, but once you understand the nature of the problem, you can see versions of it everywhere, especially in the alphabet soup of federal agencies:  OSHA, FDA, FCC, etc.  At least in the case of the red-flag laws, it was Parliament itself which passed the laws, and which modified them in response to public demand when the time came.  But if the voters of California don't like what the CDMV does, they don't have a lot of options.

Perhaps the streets of Austin will see lots of consumer-owned AVs before you can find any in Los Angeles.  That's fine with me, as long as they drive at least as well as the average Texas driver.  And that shouldn't be too hard.

Sources:  I learned about the proposed CDMV regulations from an article by Kevin Williamson "The Long Road to Self-Driving Cars" in National Review at http://www.nationalreview.com/article/428715/california-self-driving-car-regulations.  I also referred to an article in Fortune's online edition at http://fortune.com/2015/12/16/google-california-rules-self-driving-cars/and Wired at http://www.wired.com/2015/12/californias-new-self-driving-car-rules-are-great-for-texas/.  A summary of the proposed CDMV regulations can be found at https://www.dmv.ca.gov/portal/wcm/connect/dbcf0f21-4085-47a1-889f-3b8a64eaa1ff/AVRegulationsSummary.pdf?MOD=AJPERES.  I also referred to the Wikipedia article "Locomotive Acts."  I am currently reading law scholar Philip Hamburger's lengthy tome Is Administrative Law Unlawful?(Univ. of Chicago Press, 2014), which contains hundreds of arguments against administrative law.

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Driverless Cars: Good News for Whom?

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After some cautious toe-dipping by Google in a well-publicized series of experiments on public roads in California and Nevada, other more serious players are now eyeing the waters of driverless cars.  According to a recent New York Times report, automakers including General Motors, Volvo, Infiniti, Mercedes-Benz, and Tesla have either already fielded limited-capability "lane-keeping" features in their high-end models, or plan to unveil more advanced systems soon that will allow complete hands-off driving under a wide variety of conditions.  Absent a flood of new restrictive legislation, which hasn't happened so far, it is fairly safe to say that the autonomous vehicle is just a few blocks down the road and heading this way.  Is this a good thing, and if so, for whom?

Danny Crichton, a Ph. D. student in the Harvard John F. Kennedy School of Government, thinks it is.  Writing in a recent issue of National Review, he waxes rhapsodical over the benefits of automation past and future, and has this to say about driverless cars:  "Perhaps no technology has more potential to improve our quality of life than the autonomous car.  We will be able to relax during our commutes, reducing our stress and improving our health.  Autonomous cars could almost instantaneously deliver a greater number of goods and services, such as meals, household supplies, and home-maintenance services, giving us more leisure time."

Crichton clearly writes from a perspective in which driving is just one more daily chore we have to put up with on our way to our real job of teaching or administrating or studying for our Ph. D. from Harvard.  Rather oddly for a person who researches labor economics, he never once mentions an occupation by which about one out of every forty employed persons (2.4%) in the U. S make their living:  professional truckdriving.

If you are a sober, responsible family man (or woman) who couldn't cut the grade in college but want to make a decent living by working hard, truckdriving is one of the more attractive jobs.  Especially with the recent oil boom fueled by fracking technology, truckdrivers have been in great demand.  For a while there were billboards on I-35 in Central Texas advertising large signing bonuses for truckdrivers willing to go to work in the oil fields.  While the hours are long, the work stressful and sometimes dangerous, and time at home is limited, millions of truckdrivers earn enough to support a family.  Many of them are members of minority grouns, and quite a few own their trucks, making them entrepreneurs.  Almost every dump truck I see servicing a construction site around Central Texas has a sign on it with the Hispanic surname of the owner-operator. 

I don't know when, or if, trucking companies will go to autonomous driving systems.  Because of their specialized skills and responsibilities, long-distance and heavy-equipment truckdrivers may be the last cadre of humans to yield the driver's seat to a robot, long after all passenger cars have turned into mobile Internet lounges.  But operators of delivery fleets would like nothing better than to turn their personnel headaches into autonomous-vehicle maintenance accounts.  There remains the question of who or what picks up the package from the back of the UPS truck and carries it to your door, but quadcopters are waiting in the wings for that.  I'm not sure how a quadcopter will ring a doorbell, but by then maybe we'll have wireless doorbells.  Local delivery service is one of the applications that Mr. Crichton explicitly envisions as being done by autonomous vehicles.

Human beings have an obscure but persistent longing for permanence.  If we find a good thing, we want it to go on indefinitely, and that goes for jobs as well as other things.  But it's generally a bad thing to use legislation or union muscle to artificially preserve specific categories of jobs in the face of technological changes.  This kind of thing carried to an extreme produces the antique-car museum that is Cuba, and stifles the increasing technology-fueled productivity that Crichton praises in his article.  If increased productivity means we can do more with less, the economy as a whole benefits, but some people stand more of a chance to benefit than others.

Today's truckdriver in an earlier time might have been my grandfather's iceman, who routinely lugged 300-pound blocks of ice around in a horse-drawn wagon and hauled chunks of it into kitchen iceboxes.  The electric refrigerator eliminated those jobs by the 1950s, but at the same time the trucking industry grew and eventually supplanted rail as a dominant form of goods transport.  And it takes a lot more truckers than it does railroad workers to deliver the same amount of stuff. 

So far, autonomous-driving technology is expanding into what the New York Times terms a regulatory vacuum.  A few states have passed laws either licensing or restricting such cars, but in most states it is still neither prohibited nor explicitly allowed.

Eventually, a driverless car will be involved in a fatal accident.  We may or may not hear about it, depending on the skill of the automaker's PR people.  But whenever such an accident becomes public knowledge, the National Highway Traffic Safety Administration will then receive its legal warrant to examine the whole issue of autonomous vehicles.  The outcome of its study will be critical to the question of whether the technology will continue to be deployed smoothly and cautiously, or whether labor groups such as truckdrivers who feel threatened by it will seize on the incident to mount a crippling regulatory attack that will stop the technology in its tracks.  If that happens, the nation as a whole may end up the loser.

The growth of a new technology is a fascinating thing, bound up in both technical and social issues that can hinge on small but critical events.  The next few years will show whether driverless cars make it big and relieve most of us from what is often a burden—and whether they relieve thousands or millions of professional drivers of their jobs.

Sources:  Danny Crichton's article, "Fear Not the Robot," appeared in the May 4, 2015 edition of National Review, pp. 34-35.  The May 2, 2015 online edition of the New York Times carried the article "Hands-Free Cars Take Wheel, and Law Isn't Stopping Them," by Aaron M. Kessler, at http://www.nytimes.com/2015/05/03/business/hands-free-cars-take-wheel-and-law-isnt-stopping-them.html.  The statistic about the number of professional truckdrivers in the U. S. was from the website http://www.alltrucking.com/faq/truck-drivers-in-the-usa/.  And my grandfather really did run an ice plant for a number of years in the 1930s.

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Who Wazed the Sheriff?—Traffic Apps and Law Enforcement

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Google's traffic app called Waze allows users to tell each other about traffic-related issues such as construction zones, tie-ups, and speed traps.  It uses a phone's GPS system to locate an icon on a map of the area that everyone using Waze can see.  Google bought Waze from its Israeli developers for a billion dollars in 2013, and it is now one of the most popular free apps on Apple's rankings.  But the National Sheriffs' Association (NSA) is not happy about it.

In a widely publicized statement, the NSA's Deputy Executive Director John Thompson said "we are . . . concerned this app will have a negative effect on saving lives and with public safety activities."  The app's little police icons can show locations of speed traps and other law-enforcement operations.  The sheriffs cite recent ambush attacks on law enforcement, such as the killing of New York City patrolmen Rafael Ramos and Wenjian Liu last December, as examples of hostile actions that could be aided by Waze.

An Associated Press report of the reactions to the NSA statement includes a response by a Google spokesperson, who pointed out that most users tend to drive more carefully when they believe law enforcement is nearby.  Free-speech advocates oppose any restrictions on locating law-enforcement operations via Waze as long as the operations are clearly visible on public property. 

Traffic-law enforcers face a problem that is in some ways paradoxical.  Sometimes they want to be highly visible simply because of the deterrent effect on most law-abiding citizens.  After all, the overarching goal of law enforcement is to encourage obedience to the law.  This goal would be achieved with respect to speed laws if everyone obeyed the speed limits.  And most drivers (but not all) who become aware of a potential speed trap will slow down.  So letting folks know that Smokey is hiding over that next ridge on the interstate will probably lead to fewer speeders, which is what we want, isn't it?  That doesn't take into account the other aspect of the paradox, which is that sometimes traffic cops want to hide, too.

I think it may be significant that the National Sheriffs' Association, but no other major law-enforcement organization, has come out in opposition to Waze.  In small towns in rural areas, and in larger Western counties where the main law enforcement is by sheriffs and not town or city policemen, a considerable fraction of the sheriff's office revenue may come from speeding tickets.  If a deputy has found a nice concealed location where drivers who are just passing through frequently get ticketed for speeding, the last thing he or she wants is for this prize fishing hole to show up on Waze.  Local circumstances such as these can create perverse incentives which encourage law enforcers to rely on a certain number of speeders to show up, just to keep them in business. 

The problem of publicizing law-enforcement operations and locations should not simply be brushed off.  You can imagine a months-long sting operation by police that would climax in a stealthy approach to a crime organization's secret hideout.  But if some clueless driver comes along and posts a lot of cop icons on Waze, and one of the crooks happens to be looking at his phone at the time, the whole operation could come unglued, with dire consequences up to and including bloodshed.

Back in the slow-media days when newspapers were the main forum of public information about law enforcement, reporters would sometimes get wind of secret police operations in advance.  It was a part of the journalistic code of ethics not to spill such beans when it would cause major problems to the police, even though it would make a scoop that would sell papers.  Editors have sat on such hot news many times until after the police have had time to spring their traps.  While such measures could have been viewed as press self-censorship, most observers would agree that it was done in the public's best interest in most cases.  The public's right to know is not absolute, and must be tempered by other considerations such as the safety of law-enforcement officials when publicity would put their lives at risk.

But this is 2015, not 1935, and the age of citizen-journalists.  Instead of fedora-wearing photographers armed with big Graflex cameras, we have baseball-capped passersby armed with iPhones linked to Facebook and Waze.  We can no longer count on the reasoned restraint of professional journalists who can view the larger picture and weigh the consequences of their actions in the long run.  If a Waze user sees a cop and posts the sighting on Waze, the user has no idea whether the cop is there for a routine speed trap or for more specialized and delicate reasons. 

So far, there have been no major incidents to my knowledge in which Waze data on law enforcement personnel locations has led to a major miscarriage of justice or harm to an officer.  But in the present atmosphere of tension between police and many citizens, I can understand why the National Sheriffs Association is touchy about the popularity of Waze, and why they have asked Google to do something about it.

Unfortunately for the NSA, chances are not good for that to happen.  While Google could conceivably run interference between the raw data coming from observers and the displays of police icons, it would be a resource-intensive and probably manual process, which would slow down the edited displays and diminish what is one of the main attractions of Waze in the first place:  its timeliness.  Public-access apps that let the public post information directly depend on that same public not to lie or manipulate their inputs in a nefarious way.  Fortunately for law enforcement, and everybody else, most people at most times are simply trying to get along and help others when it's not too much trouble.  Waze helps them do that, and it looks like the speeding-deterrent effects of posting speed-trap locations will outweigh the possible negative consequences, at least in Google's view.  And in this case, unless some more powerful force intervenes, it's Google's view that counts.

Sources:  The Associated Press article by Eileen Sullivan describing reactions to the National Sheriffs' Association press release was carried by numerous outlets such as the Chicago Tribune at http://www.chicagotribune.com/business/sns-bc-us--police-tracking-app-20150128-story.html.  The NSA statement itself can be found at http://www.sheriffs.org/content/waze-concerns-sheriffs.  I also referred to Wikipedia's article on Waze. 

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How Neutral Is the Net?

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Earlier this month, President Obama asked the U. S. Federal Communications Commission (FCC) to classify the Internet as a public utility in order to preserve net neutrality.  While in principle the FCC is an independent regulatory authority, it usually takes the President seriously, and this proposed action led to both cheers and boos. 

The cheering came from mostly liberal observers who see threats to the Internet coming from internet service providers (ISPs), who have expressed a desire to discriminate (either favorably or unfavorably) among their customers.  One form of discrimination that has come up for discussion is that a big outfit such as Google or Facebook would pay ISPs for preferential treatment—a "fast lane" on the Internet so their websites would work faster compared to everyone else's.  Another idea, one that Comcast actually tried to implement a few years ago, is that certain types of Internet services that hog bandwidth (such as file sharing of music and videos) could be artificially slowed or discriminated against.  In that case, the FCC told Comcast to quit discriminating, and it did.  But more recently, similar attempts on the part of the FCC to enforce net neutrality have been struck down by federal courts, which said that the FCC doesn't have the legal authority to regulate the Internet in that way.  Hence the President's call to reclassify the Internet as a Title II public utility, which refers to a section in the FCC's enabling legislation that was originally intended to cover things like the telephone network.

And that leads to the boos, coming mainly from conservatives who see danger in letting the FCC treat the Internet basically the same way it treats the phone network.  Hidden on your phone bill is a little item called the Universal Service Fee.  On my cellphone bill it's $2.22 a month.  It was originally intended to provide subsidies for rural telephone service, but like most government fees and taxes, once it was planted as a tiny seed it put down roots and is now a mighty oak of revenue for the FCC, which supports itself entirely on fees.  If the phone network was not classified under Title II, the FCC could not assess this fee.  But such fees can be charged to a Title II service, which the Internet would become if the FCC does what the President asked it to.  That doesn't mean we would instantly start paying fees as soon as the FCC reclassified the Internet, but it does mean that they would have the legal right to.

From the viewpoint of consumers, it's hard to make an argument that a non-neutral net would be anything but bad.  The net (so to speak) effect of a non-neutral net would be to restrict access to something or other—either the firms that couldn't afford the extra fees that the ISPs want to charge the Googles for fast-lane services, or the types of services that cause ISPs headaches such as certain file-sharing activities.  But how neutral is the net today?

The picture is sometimes painted of a happy, absolutely free Internet world where equality reigns, versus a dismal, corporate-dominated few-rich among many-poor non-neutral Internet that the liberals warn us may happen if we don't guard net neutrality.  The facts are otherwise.  Right now the Internet is a great deal less neutral than it used to be.  If you don't belong to Facebook, for instance (as I don't), access to that world within a world of social media is highly restricted from you.  This has come about not because of anything an ISP has done, but because Facebook, in order to operate, requires certain information from you before you join, and hopes your signing up and consequent Facebook profile will attract other viewers.  Many of the various Google accounts and services work the same way.  My point is that there are huge regions on the Internet that are closed to you unless you pony up something to get into them (not necessarily cash), which is basically what the net-neutral advocates say will happen unless we preserve net neutrality.  But it already happens.

And what about people who live in areas that have slow or no access to the Internet?  It's not neutral to them.  Nobody has gone so far as to say every citizen of the U. S. has a right to X megabits per second access to the Internet.  But there was a time when the idea that everyone should have access to a telephone was a radical notion that telephone companies fought against, until the Bell System decided to join instead of fight and willingly put itself under the supervision of government authorities in exchange for promoting universal access. 

As I blogged in this space a few years ago, when you have a large network that thrives on maximizing the number of people connected to it, any artificial attempt to limit that access damages the system.  And over time, most such systems have ways of figuring this out, and tend to rid themselves of such restrictions.  But government fees and regulations are another matter.  It took years of court battles to free up the phone system from the old-style regulated monopoly pattern that was appropriate to the technology of 1945, but by 1980 was outmoded and needed to change. 

By and large, the Internet has stayed fairly neutral, not so much because the players all have a principled commitment to net neutrality, but because restrictions that move it in the non-neutral direction tend to harm the system as a whole.  My own inclination is to let things more or less alone, rather than reclassifying the Internet into a category that would make it vulnerable to a whole array of regulations that might be well-intended at the time, but could become albatrosses around the neck of a technology that has so far proved to be quite agile and dynamic.  But whatever happens, we should all realize that net neutrality is an ideal that has never been completely realized in practice.

Sources:  President Obama's statement on favoring FCC action to preserve net neutrality was announced on Nov. 10, 2014, and is available at http://www.whitehouse.gov/net-neutrality.  I referred to the conservative National Journal's piece on his move at http://www.nationaljournal.com/tech/obama-s-net-neutrality-plan-could-mean-new-internet-fees-20141120.  I also referred to the Wikipedia articles on network neutrality and the Federal Communications Commission.  My blog "Will the Net Stay Neutral if Google Doesn't Want It To?" appeared on Aug. 9, 2010.

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