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Ethical Considerations in Driverless Vehicle Technology

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Many drivers at one time or another have encountered this problem: I’m going to hit someone or something, so what should I do right now? Do I hit the pedestrian? Or swerve into the truck? Do I steer to the ditch, or slam on the brakes and accept a likely rear-end collision? In the split second that a driver has to make these decisions, a whole range of ethical, tactical, legal and personal decisions must be considered and resolved. How will driverless vehicle technology address these issues?

Highly automated vehicles, or HAVs, will depend on probabilistic algorithms and artificial intelligence to make the life-or-death decisions that most drivers will confront eventually over a lifetime behind the wheel. While the assumptions and priorities that were fed into the algorithm will reflect the values of the programming team, the real-world actions taken by a driverless vehicle in an emergency will reflect its artificial intelligence capacity — its ability to sift through dozens or hundreds of factors and data inputs, all to minimize the damage of a crash. How should an HAV resolve a situation that has no ideal outcome?

Driver Opinion as to Ethical Priorities Is Mixed

A good starting point might be to find out how the general public wants autonomous vehicles to resolve the ethical dilemmas that can arise when a crash is imminent. In 2015, an academic research team surveyed American drivers about the ways they would like to see an automated vehicle behave in emergency situations, but the results were ambiguous. About 50 percent of the respondents preferred their own car to place passenger safety as its highest priority, while only 19 percent would buy a car that maximized overall safety at the possible expense of the car and its passengers. In general, respondents preferred that HAVs protect the most lives possible, but for their own cars, they wanted one that would protect themselves.

A Mercedes-Benz official told Car and Driver magazine in October 2016 that the German automaker’s driverless technology would place the highest priority on passenger safety, not the safety of other road users. A few days later, however, Mercedes-Benz backed away from this statement — the company pointed out that preferring any particular life over another’s would violate German law.

Federal Guidance on Ethical Considerations Is Vague

In the United States, there is no specific requirement that a driverless vehicle’s artificial intelligence point toward any particular outcome in an emergency. The only current direction is found in the Federal Automated Vehicles Policy, issued in September 2016, which is a non-binding guidance for manufacturers and software designers that will likely undergo further refinement as HAV technology approaches commercial deployment.

For the moment, ethical considerations are just one of fifteen separate safety and performance issues that are to be addressed in a Safety Assessment Letter prepared for the review of the National Highway Traffic Safety Administration (NHTSA). The Federal Policy observes that safety, mobility and legality are three broad objectives of driving in general, and these all can be satisfied easily most of the time. But what about choosing between a traffic violation or an accident? Or hitting a deer or a tree? The Policy does not require manufacturers to satisfy any particular standard with respect to ethical considerations like these. Instead, manufacturers are asked to describe how their HAV technology will resolve the occasional ethical conflicts that can arise between the sometimes conflicting driving objectives.

The Federal Policy also states rather vaguely: “Algorithms for resolving these conflicts should be developed transparently using input from federal and state regulators, drivers, passengers and vulnerable road users.” To the extent that artificial intelligence in driverless technology will eventually be covered in a Federal Motor Vehicle Safety Standard, it’s obvious that a good deal of work remains to be done before a given set of emergency priorities is codified into a regulation.

Even gathering the public input necessary to inform a manufacturer’s emergency priorities and ethical decisionmaking could prove to be difficult. As found in the survey mentioned above, drivers seem to want HAV technology to protect as many lives as possible as a general matter, but want their own cars to protect the drivers themselves.

If a given manufacturer presents its vehicles as placing the highest priority on self-preservation, it might do well in the market, but it might undermine the overall safety of an automated driving environment as other carmakers do the same. Prioritizing the safety of the general public will probably need to become the standard practice in the HAV industry, because individual carmakers and drivers will have no real incentive otherwise to adopt this value.

Will HAV Technology Doom Private Vehicle Ownership?

It’s possible, however, that as driverless technology takes hold, people’s attitudes towards cars and driving might change. Today, people own cars as prized possessions and it makes sense for drivers to emphasize their own safety and convenience over that of others.

In the future, private ownership of cars and trucks could substantially decline. Driverless vehicles could become a quasi-public utility, with many vehicles in nearly constant use by many different people. Especially in cities, people will probably prefer to have a car available on demand rather than assume the expense and responsibility of driving, fueling, maintaining and parking a car they might only need for an hour or so a day. Under that scenario, people might be more aware of traffic as a public system rather than a personal annoyance or threat, and it might make better sense to maximize the safety of everyone involved in the system.

Truly driverless vehicle options remain at least a decade away from daily reality. It just might take that long for the ethical implications of artificial intelligence in motor vehicles to be fully considered and resolved.

About the Author
Matthew Wright began his career representing insurance companies but quickly became disillusioned with how many companies cared little about the people who suffered catastrophic or life-altering losses. He now fights aggressively on behalf of plaintiff’s that have been injured as the result of unsafe practices by trucking companies. Matt’s goal is to encourage safer practices within the industry, and ultimately arrive at a point where only safe and compliant companies remain. He has written numerous articles on the future of self-driving trucks that can be found on his website discussing Truck Injury Law.

SCOTUS Strikes Down North Carolina Social Media Restriction for Registered Sex Offenders

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SCOTUS Exterior

In Packingham v. North Carolina, the United States Supreme Court invalidated a North Carolina statute prohibiting certain social media use by registered sex offenders. The decision is widely regarded as the Court’s acknowledgment that social media use is a practical necessity in 21st-century American society as well as a platform for the free expression protected by the First Amendment.

At the time of his sex offense in 2002, Lester Packingham was a 21-year-old college student who was convicted of indecent liberties with a child — he had sex with a 13-year-old girl. Packingham had no prior criminal record, and received a suspended sentence of 10 to 12 months of incarceration with a 24-month period of supervised release. He was, however, required to register as a sex offender for at least ten years.

In 2008, about halfway through Packingham’s minimum registration period, North Carolina enacted its social media restrictions for sex offenders. The new statute made it a felony for a registered sex offender, if aware that minors might use them as well, to use social media websites with the following characteristics: 1) generating revenue via advertising or otherwise, 2) facilitating contact between users, 3) allowing users to create profiles, and 4) providing ways for users to communicate with each other through message boards, chatrooms, e-mail, or other means. More than 1,100 people have been charged with violating this statute in North Carolina.

It is not known whether Packingham was specifically advised of this legislative action. He had completed his probation several years previously, and he apparently led his life as a law-abiding citizen until he was stopped and cited for a traffic violation in 2010. When he showed up for the hearing, he discovered to his delight that the charge had already been dismissed. So, there was nothing else to do but post this triumph on Facebook!

Unbeknownst to Packingham, a local police officer was monitoring the social media accounts of registered sex offenders and obtained a warrant to search Packingham’s computer. It was discovered that Packingham was in at least technical violation of North Carolina’s new sex offender social media restrictions, and he was indicted and charged accordingly.

Packingham challenged the prosecution on First Amendment grounds as an unreasonable restriction on his free speech rights. The trial court rejected the challenge, the state court of appeals upheld it, and the North Carolina supreme court rejected the First Amendment challenge again, upholding the state law as “constitutional in all respects.” Packingham was ultimately convicted and given a suspended sentence. The U.S. Supreme Court granted his petition for review, and unanimously struck down the North Carolina statute.

Justice Kennedy wrote the five-justice majority opinion, which essentially points out that so many websites offer the features North Carolina prohibits for sex offenders that the statute represented an unreasonable restriction on free expression rights. Justice Kennedy observed that the statute would prohibit a registered sex offender from visiting Amazon, WebMD, or the Washington Post online. The majority opinion specifically protected the ability of states to restrict sex offender Internet use more narrowly, thereby balancing the state interest in protecting minors with the interest of past offenders in legitimate Internet use.

One of the more interesting aspects of the Packingham decision is found in Justice Alito’s concurring opinion, joined by Chief Justice Roberts and Justice Thomas. While Justice Alito agreed with the result, he criticized the majority for its “undisciplined dicta” in the form of “musings that seem to equate the entirety of the internet with public streets and parks.” Then Justice Alito indulged in some undisciplined dicta of his own:

Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” (Citations omitted.)

This is simply not true, according to the Washington Post Fact Checker. Sex offenders are actually among the least likely felons to reoffend with a similar crime. Only 5.6 percent of those convicted of rape or sexual assault were arrested for another sex offense within five years after release, according to a 2014 Bureau of Justice Statistics report. Far more likely candidates for recidivism on similar charges are persons convicted of drug crimes (51.2 percent), larceny or car theft (41.4 percent) assault (34.4 percent), or fraud or forgery (29.7 percent).

If Justice Alito had used his own unrestricted access to the Internet to find this data, perhaps he would not have made such an undisciplined and ill-informed statement in his concurring opinion.

Attorneys Discuss Legal Ethics of Social Media Evidence

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But before the hegemonic rise of social media, lawyers couldn’t use all evidence available to them simply because it existed. There are ethical rules that attorneys must abide by, and that doesn’t change simply because social media marks new and untested territory. Writing for the New York Law Journal, Christopher Boehning and Daniel Toal point to three recent ethics decisions that may shed a light on the future of social media use for lawyers. These ethical quandaries include the debate over social media use among jurors, propriety issues surrounding social media, and the prospect of “friending” potential witnesses.

On the topic of juror monitoring, for example, the New York County Lawyers’ Association wrote an opinion affirming that “passive monitoring of jurors, such as viewing a publicly available blog or Facebook page,” is ethical conduct, as long as the lawyer doesn’t extend this reach to direct or even indirect social contact, meaning likely that lawyers cannot friend or follow current or potential jurors on Facebook, Twitter, and LinkedIn.

The New York City Bar is more accepting when it comes to the prospect of contacting potential witnesses via social networks. An attorney can, they ruled, “use her real name and profile to send a ‘friend request’ to obtain information from an unrepresented person’s social networking website without also disclosing the reasons for making the request.” NYC attorneys cannot, however, contact witnesses under a false name or create a profile “tailed to the background and interests” of the witness in order to gain information.

There’s another important social media and law dilemma that goes unmentioned in Boehning and Toal’s article: the question of whether lawyers should be permitted to connect with judges through social media. So far, this question has been monitored on a state-by-state basis, with little input from the American Bar Association (although, the ABA says it is weighing the issue carefully). Here in California, judges and lawyers don’t have much to work with, aside from a 2010 California Judges Association opinion, which warns judges to be careful. “In short, notwithstanding the explosion of participation in online social networking sites, judges should carefully weigh whether the benefit of their participation is worth all the attendant risks,” the opinion concludes.

Of course, that doesn’t mean lawyers have ceased debating the subject. “It’s a poor idea for judges to participate in social media because you don’t know who’s reading what you post,” says San Jose federal Judge Jeremy Fogel. Northern District Magistrate Judge Paul Grewal takes the opposite approach, and accepts social media as mostly harmless. “It allows you to personalize yourself and reveal facets of your life and personality to a broader range of people,” he says. “Judges, I think, are at an unfortunate disadvantage because we are somewhat constrained in taking advantage of reasons to be on a social network.”

Investigation into the defendant or plaintiff’s social networking profiles has notoriously become a part of divorce law and employment law. In the past, lawyers have been caught trolling a spouse’s profile for an indication of adultery, and employers have caught employees betraying their false use of sick days. Everyone should be careful when using social networks like Facebook and Twitter, understanding that nothing you post online is ever fully private. But that doesn’t mean that lawyers have full reign to collect evidence without regulations.

Photo Credit: GJELblogger

Role of Technology Debated in Distracted Driving Accidents

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If you drive, it’s likely that you’ve talked, texted, or typed on your smart phone while behind the wheel, and it’s even more likely that you’ve seen others drive distracted. But despite the overwhelming prevalence of technology, a new report by GMAC Insurance suggests that people are starting to get the message about the dangers of distracted driving. In fact, nearly 75 percent of teenagers, the demographic most likely to text and drive, have said they have stopped using their cell phones in the car altogether. The report credits awareness programs, state laws prohibiting distracted driving, and technology that have made cell phones safer.

Despite the reduction in distracted driving rates, though, about 50 percent of total drivers admit to using their cell phones behind the wheel. And as distracted driving causes nearly 6,000 car accident deaths and 500,000 injuries each year, it’s clear that state and national officials will need to get much tougher on distracted drivers in order to make a serious dent in the dangerous practice.

A new report by the Governors Highway Safety Administration notes that distracted driving is a leading cause in 25 percent of total car accidents nationwide, but questions whether state cell phone bans have contributed to a reduction in these accidents. That’s likely because many state laws against distracted driving list it as a secondary offense, meaning the driver must be pulled over for another infraction in order to get a citation for texting while driving. Many states have also implemented laws that only target the use of hand held phones. That means that drivers can continue to carry on conversations with their cell phones, which the National Highway Transportation Safety Administration has deemed nearly as dangerous as texting and driving.

To address this problem, safety advocates have said that police must get stricter on with multi-tasking drivers, and state laws should make it more difficult, not easier, to drive distracted. One example of an appropriate technology solution is a smart phone application that blocks incoming calls and text messages while the car is in motion, and sends an auto-reply that the driver will respond when he or she reaches the destination safely. Instead, many car companies and cell phone providers have jumped out ahead of the issue with dangerous distracted driving technologies that actually make it easier to talk or text while zooming down the highway.

OnStar has developed a clear example of technology that should be avoided: a voice-activated system that would update the driver’s Facebook status while in transit. And Ford has been an advocate for distracted driving laws as long as they include a loophole that allows hand-free tech devices – like their Ford Focus My Ford Touch system, which New York Times Personal Technology Editor Sam Grobart deemed even more distracting. Though they appear safe, tech-based distracted driving solutions should so far be avoided. “Studies show hands-free devices provide no safety benefit,” writes the anti-distracted driving group Focus Driven on its webpage. “It’s the conversation, not the device, that creates the danger.”

So while it’s incredibly tempting to text a friend, check email, or even talk on the phone while driving on city streets or highways, remember that you’re likely unaware of how distracting these innocent actions can be. No one thinks that they will become an accident statistic, but everyone can take steps to assure that their actions don’t lead to dangerous driving decisions. So instead of relying on technology to keep you safe in your car, putting down the phone is the best way to stay safe.

Visit Secretary of Transportation Ray LaHood’s Faces of Distracted Driving webpage for some true, tragic stories about the impact of distracted driving on real families across the country.

Photo credit: Lord Jim

LexisNexis Launches Evolution e-Discovery Program

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Since Google announced the launch of its social media platform Google+ only weeks ago, the internet has been abuzz with discussion of whether the search giant can overtake Facebook as the web’s most popular social hangout. Early July has also seen a major development in the realm of legal technology, which will surely receive less (much less, in fact) media attention. Legal research services company LexisNexis has announced the launch of its new e-discovery program for large projects, dubbed Confordance Evolution 1.0.

Evolution, which is based on Microsoft server databases, updates LexisNexis’ Concordance Classic e-discovery programs by including features like concept searching and clustering, and providing search alerts, reports Law Technology News. It also adds to features already present in some form in the older Classic versions, like e-mail threading and auditing. “People really want to do very different things,” said LexisNexis vice president of litigation tools Deborah Jillson. “We build a basic application…Everybody wants to review documents and get to relevancy, but they also want to do other things.”

Jillson added that the Evolution program will undergo additional changes in the coming years, as the company works out the kinks usually present with first editions. What’s certain is that LexisNexis Evolution will have a serious impact on the world of e-discovery for law firms that don’ have time to spend on technology training. Most lawyers didn’t have computer training in law school or in their early career, said e-discovery expert Diane Barry in an interview about ethics and e-discovery. “Many legal practicioners were not interested in technology and aren’t now,” she said. “But you must either have minimal competency or associate with someone who does.”

For lawyers and law firms without the technological competency to master e-discovery, LexisNexis Evolution could become one of the central resources for pre-trial data collection. And although it may not shake the web to the extent of the Google+ vs. Facebook war, it will no doubt have an impact.

Photo credit: Rutger de Moddertukker