There’s been a lot of noise (and some signal) recently about NHTSA’s investigation into Autopilot crashes into emergency vehicles. CleanTechnica’s Johnna Crider wrote about the investigation in this article and this one, so I’ll only sum it up here. After that, I’ll discuss why I think NHTSA’s approach portends a potentially dangerous and stifling approach to regulation.
As long-time readers and anyone following Tesla much would know, Tesla’s Autopilot software and the limited release FSD Beta have been the subject of much hand-wringing. Among critics (and, of course, the haters–they are two different things) the most common approach has been to say that Tesla’s Autopilot and FSD Beta have predictable abuses, and that Tesla doesn’t do enough to prevent that abuse. In response to this criticism, Tesla has added a form of driver monitoring to many Tesla vehicles equipped with Autopilot and other level 2 features (as many as came equipped with the interior camera).
A second criticism I’ve seen (and engaged in myself) is that Tesla unintentionally encourages misuse through autonowashing. While there are definitely safety warnings, and the vehicles have always had a torque sensor system that helps remind drivers to keep their hands on the wheel, we do know that many users ignore the warnings and choose to believe that Autopilot is an actual autopilot system, and can safely drive unattended by a human.
The most troubling posts are on what appears to be his TikTok account. The posts show him using his Tesla's driving automation in traffic, describing it as "FSD" and "selfdriving," and describing his state has "tired" and "bored" https://t.co/D5UvMQM1Srhttps://t.co/TaywbHVq7V pic.twitter.com/Dt6AXDmPTj
— E.W. Niedermeyer (@Tweetermeyer) May 6, 2021
Earlier this year, a guy in California seemed to think his Tesla could be trusted to drive itself. In his Tik Tok videos, he had captions like “What would I do without my self driving Tesla after a long day at work?” along with indications that he was “#bored” and “#tired”. A few weeks later, his Model 3 slammed into the side of an overturned semi-truck on a California freeway. Officials initially said they believed Autopilot was in use, but later walked that back saying they weren’t sure, but we do know that he thought his Tesla was able to drive itself. That’s dangerous enough even if it didn’t cause his death.
NHTSA’s New Approach
Until now, NHTSA has been focused on whether a vehicle’s systems were a danger to the occupants. But as David Zipper at Slate points out, they’re focusing more on the vehicle’s danger to people outside of the vehicle.
“But there’s another aspect of NHTSA’s investigation that looks promising: It focuses on a specific group of people who were outside the Tesla during a collision. If an EMT has pulled over to check on people involved in a crash, there isn’t much she can do to protect herself from a Model Y bearing down on her.
“That same logic holds for cyclists and pedestrians, more of whom are being killed on American roads—by all kinds of automobiles—than at any time since George H.W. Bush was president. These “vulnerable road users” have no control over the design of American autos, which are growing heavier, taller, and more dangerous to people walking or biking. For years, the federal government has focused on automobile occupants, doing little to protect vulnerable road users beyond recommending that they “dress to be seen by drivers.”
It’s worth noting (as David did) that this is nothing new for other countries. In Europe, and in other places, cars aren’t just crash tested and rated for their protection of occupants, but also for their potential to injure pedestrians and cyclists. In the United States, government crash testing, and most regulation, focuses on the occupants of the vehicle only, everyone else be damned.
Why This Approach Could Prove Problematic, Even When Innocently Applied
Before I explain how this can become very problematic, I do want to say that I think David is a good guy. The goal of protecting pedestrians and cyclists is a worthwhile and worthy object of regulation, which I’ll get to further down. Stans, please don’t go blast him, because he’s largely correct and definitely has his heart in the right place.
Where I disagree is on how to accomplish better pedestrian and cyclist safety.
At present, it’s the driver’s responsibility to exercise a duty of care for others on the roadway, regardless of what mode of transportation they’re using. Hit a pedestrian who had the right-of-way? You’re going to be charged with some form of negligence or manslaughter (depending on whether they die) and then be liable for lawsuits on top of any criminal charges you face. The same is true for people on bikes and in other vehicles.
Think children’s playgrounds are lame compared to when you were a kid? Just wait until your whole life is run by the same ninnies who caused that.
Making manufacturers liable for the bad conduct of a product’s owner opens a can of worms that we really don’t want to open in a free society. It might sound good for cars, but what other products and durable goods do we have in our homes that have a potential for misuse? Do we need to do as British clergy suggest and ban pointed kitchen knives to avoid their misuse inside and outside of the home? We’ve had regulations for ammonium nitrate fertilizer in place in the US since the Oklahoma City Bombing, but should we take the next step and make manufacturers of fertilizers criminally liable in the event someone still collects enough to build an ANFO bomb and kills people with it?
Sorry, no more gardening for you unless you’re committed to strict organic growing.
If we apply this philosophy broadly enough, it would make it difficult or impossible for many common household items and chemicals we use every day to be manufactured. If a manufacturer has to be liable for every misuse of their products, they know they’ll be quickly bankrupted by the first few injuries or deaths. 99.9% of customers are good, responsible people who safely use these “dangerous” products for essential tasks and for the health and safety of their homes, but that rotten few who hurt other people would cause us all to pay exorbitant prices for those items at best, or get pushed back to the nineteenth century at worst.
In part 2 of this article, I’m going to explore how this approach to regulation and litigation hurts the economy, discuss how it’s often weaponized to intentionally harm a company or industry, and then go through some ways that we can actually improve cyclist and pedestrian safety without incurring all of these societal problems.