Self-Driving Car Fatality No. 1: Joshua Brown Makes History

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On May 7 of this year, Joshua Brown, owner of a wireless-network technology company and Tesla car enthusiast, was riding in his Tesla Model S on a divided highway in Florida.  Mr. Brown loved his car and posted numerous YouTube videos that showed him using the autopilot function in the "look, Ma, no hands!" mode.  By all accounts, Brown was a generous, enthusiastic risk-taker (his specialty when he was in the military was disarming weapons, according to a New York Times report), and hands-free driving went against the explicit instructions Tesla provides for the autopilot feature.  But Tesla owners do it all the time, apparently, and until May 7, Mr. Brown had gotten away with it.

Then a tractor-trailer rig made a left turn in front of Mr. Brown's Tesla.  According to a statement by Tesla, the high ground clearance of the trailer and its light color, resulting in low visual contrast against the sky, failed to trigger the car's brakes.  The Tesla ran underneath the trailer, fatally injuring Mr. Brown.  A neighbor quoted Mr. Brown afterwards as saying in another context a few weeks before the accident, "For something to catch Elon Musk’s eye, I can die and go to heaven now."  No one knows how serious Mr. Brown was when he said that.  But he will go down in history as the first person in the U. S., and perhaps in the world, to die in a car that was operating in its self-driving mode.

Will this tragedy spell doom for self-driving cars?  Almost certainly not.  The first recorded steam-locomotive railway fatality was that of the English politician William Huskisson, who attended the opening ceremonies of the Liverpool and Manchester Railway on Sept. 15, 1830, which featured inventor George Stephenson's locomotive the Rocket.  Wanting to shake the hand of his former political enemy the Duke of Wellington, Huskisson walked over to the Duke's railway carriage, then saw that the Rocket was bearing down on him on a parallel track.  He panicked, tried to climb onto the carriage, and fell back onto the track, where the locomotive ran over his leg and caused injuries that were ultimately fatal.  Passengers had been warned to stay inside the train, but many paid no attention. 

If Huskisson's death had been mysterious and incomprehensible, it might have led to a wider fear of railways in general.  But everyone who learned of it took away the useful lesson that hanging around in front of oncoming steam locomotives wasn't a good idea, and railways became an essential feature of modern life.  Nevertheless, every accident can teach engineers and the rest of us useful lessons in how to prevent the next one, and the same is true in Mr. Brown's sad case.

It's not clear how long the Version 7.0 of the Model S software featuring the autopilot function has been available, but it's probably been out for at least a year.  Multiply that time by the number of Model S owners and how far they drive, and you have a track record that shows if anything much is wrong with the software, it's not very wrong.  Model S owners aren't dying like flies in autopilot accidents.  Still, telling drivers how great a self-driving feature is, and then expecting them to pay constant attention as though the car were a driver's ed student and you were the instructor, is sending a mixed message.

Tesla's own posting about the accident cites statistics that show if anything, Model S cars have a lower accident rate than average, and that may be true.  But as Tesla's public profile rises, the firm has some delicate maneuvering ahead of it to avoid becoming a target for lawyers who will want to portray Tesla in court as heedless of driver safety.

We've known since the earliest days of automobiles that they are dangerous in careless hands and require constant vigilance on the part of the operator.  Plenty of people ignore that fact and pay for it with injuries or their lives, and take the lives of others as well.  But everybody, whether safe or careless, still admits it's a good idea to pay attention while you're driving.

Now, however, something fundamentally new has been added.  When a car has a self-driving feature that nevertheless requires you to be ready to take command at a moment's notice, the driver is torn between letting the machine take over and keeping a constant lookout for trouble.  You can't both be constantly vigilant and also watch a Harry Potter movie, as Mr. Brown may have been doing at the time of the accident.  In most of us, especially guys, attention is a focused thing that has to be directed at one primary target at a time.   Even if I had a self-driving car (which I don't), and after driving it for a while and learning what it typically can and can't do, I wouldn't feel very comfortable just sitting there and waiting for something awful to happen, and then having to spring into action once I decided that the car wasn't doing the right thing.  That's a big change of operating modes to ask a person to do, especially if you've been lulled into a total trust of the software by many miles of watching it perform well.  Who wouldn't be tempted to watch a movie, or read the paper, or even sleep?

I'm afraid we've got some institutionalized hypocrisy here that most auto companies are fortunately free of.  But Tesla is a different kind of beast, founded at a time when anybody who ever installs software is either forced to lie, or actually has to read dozens of pages of legal gobbledegook before clicking the "I Agree" button.  The impression I have of the arrangement between Tesla and Model S owners is that Tesla pretends that  they have to keep their hands on the wheel, and the owners pretend that they're following instructions.  And the pretense has made the lawyers happy, I suppose—until now.

Now that the much-anticipated First Fatality has happened, things could go in any of several directions.  The National Highway Transportation Safety Administration, which is investigating the accident, could come out with a bunch of heavy-handed federal regulations that could squash or set back autonomous vehicles in the U. S. for many years.  Joshua Brown's relatives could mount a lawsuit that could cripple Tesla.  Or (and this is the one I'm hoping for), Tesla's engineers can learn what went wrong in Mr. Brown's case, fix it, and deliver clearer, more practical instructions to drivers, including some human-factors engineering that seems to be missing, about how to use the self-driving feature, so that the remaining Tesla drivers can lessen their chances of becoming Fatality No. 2.

Sources:  Many news outlets carried reports of Mr. Brown's death.  Tesla's own posting concerning the incident appeared June 30 at https://www.teslamotors.com/blog/tragic-loss.  I referred to reports on Fortune's online version at http://fortune.com/2016/07/02/fatal-tesla-crash-blind-spot/, the New York Times report on Mr. Brown's background at http://www.nytimes.com/2016/07/02/business/joshua-brown-technology-enthusiast-tested-the-limits-of-his-tesla.html, the Tesla press kit on its autopilot at https://www.teslamotors.com/presskit/autopilot, and the Wikipedia article on William Hoskisson.  Thanks to my wife for notifying me about the incident.

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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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