When Technology Outpaces the Law: The Driverless Car Problem

Fact: Technology is moving faster than many of us can fathom. This is, of course, news to no one. The laptop I bought just one year ago is now a “dinosaur,” and I could probably buy a brand new one with the same specs for roughly half of what I paid last year.

Fact: The law has not kept up with the quick pace of technology. This is also news to no one. Privacy concepts have been turned on their heads by the Facebook/MySpace/Twitter social media explosion. Entirely new concepts of law have also developed over the past few years; “e-discovery” has raised the stakes – and the cost – of litigation dramatically.

The ABA Journal provided another example of technology outpacing law in its newsletter last week: the driverless car, citing a recent New York Times article on the same subject. Apparently, Google has developed technology that can drive a car with minimal human input. In fact, the only accident that occurred during testing of the vehicle was caused by human, not car, error. This is a huge jump even from the Lexus LS460 that can park itself.

As both the ABA Journal and the New York Times point out, the obvious question is this: Who is liable for an accident caused by a car that is driving itself – the person sitting in the driver’s seat of the car who isn’t actually driving, or the manufacturer of the driverless car itself?

We don’t have an answer yet, because it’s all hypothetical at this point, and “the law” hates hypotheticals. But my point is this: Do we really want “the law” to keep pace with technology?

Technology always asks “Can we?”, but in my experience, sometimes fails to consider the better question of “Should we?” For my part, I’m not sure a driverless car is a good idea. Thus, I disagree with Kenneth Anderson of The Volokh Conspiracy, who recently opined that “[t]he idea of robotic cars that drive themselves is a good one, I think, and one whose time is rapidly coming.” But the law is different. It must always ask, what “should” the law be? And if that means that it moves slowly, even glacially, while it considers the answer to that question in a new situation, then that’s okay. Or maybe I’m just old [fashioned].

For my part, I’m still waiting for someone to sell me my own personal Rosie.