A Comparative Look at Various Countries’ Legal Regimes Governing Automated Vehicles

Introduction

News and commentary about automated vehicles (AVs) focus on how they look and appear to operate, along with the companies developing and testing them. Behind the scenes are legal regimes—laws, regulations, and implementing bodies of different kinds—that literally and figuratively provide the rules of the road for AVs. Legal regimes matter because public welfare hinges on aspects of AV design and operation. Legal regimes can provide gatekeeping for AV developers and operators seeking to use public roads, and they can allocate liability when something goes wrong. Guiding and complementing legal regimes is public policy. Policy documents such as articulations of national strategies are sometimes used to address issues related to legal regimes and to demonstrate a jurisdiction’s support for AV development.

Building on its long history analyzing AV policy issues, RAND (with support of its Institute for Civil Justice) collaborated with the University of Michigan Law School’s Law and Mobility Program to study the nature of different AV legal regimes around the world. It selected countries known to be active in this domain. The research team reviewed and shared scholarly and gray literature (which is a type of scholarship produced by an entity in which commercial publications are not the primary focus, such as white papers from a government agency), and it also consulted experts in these regimes from the public and private sectors. Under the supervision of the Law and Mobility Fellow (a lawyer), law students collected and studied materials associated with country-specific legal regimes and drafted summaries guided by RAND’s enumeration of key factors. Availability of information about legal regimes varies—access to documentation, especially in English, is uneven, even for officials in different countries working collaboratively on these issues. That constrained availability is reflected in published legal comparisons, and it motivated the research team’s systematic research, which drew from materials in English and other languages. This article summarizes the makeup of AV legal regimes of Australia, China, France, Germany, Japan, and the United Kingdom. It highlights some key contrasts, which will be developed further as the project continues. It focuses on law and policy relating to highly to fully automated vehicles (SAE Levels 4 and 5). Although guided by a common set of topics for each country, each profile reflects the material available and the factors that differentiate national approaches.

The remainder of this article introduces the legal regimes of the covered countries in turn. It then provides an overview of key points of comparison and outlines future work.

II. Australia

Australia has recently embarked on a path to develop an end-to-end regulatory framework for the commercial development of AVs. “This framework [will] consist[] of existing Commonwealth and state and territory frameworks, frameworks already agreed by ministers as part of [AV] reforms, and recommendations for in-service safety.”^{1Nat’l Trans. Comm’n, The Regulatory Framework for Automated Vehicles in Australia 2 (2022), https://www.ntc.gov.au/sites/default/files/assets/files/NTC%20Policy%20Paper%20-%20regulatory%20framework%20for%20automated%20vehicles%20in%20Australia.pdf [hereinafter NTC Regulatory Framework].} The goal is to codify this framework into statute by 2026 via the Automated Vehicle Safety Law (AVSL).^{2Id. at 10.} The regulatory framework breaks down AV regulation into 3 areas: first-supply, in-service, and state/territory road transport.^{3Id. at 14.} Each of these areas is described below, followed by a discussion of privacy and testing requirements.

1. Market Entry, In-service Operation, and Exit

AVs enter the market via the current first-supply methodology, which means the regulatory process occurs when a vehicle enters the commercial market for the first time. The first-supply framework is further broken down into type-approval (which is a process that certifies a particular product has met the technical and safety requirements) and non-type-approval.^{4Id. at 22.} The majority of vehicles will enter the market using the type-approval process, with non-type-approval being employed on a small-scale vehicle-to-vehicle basis.^{5Id. at 24.} When an automated driving system entity (ADSE) applies for type-approval with the National Transport Commission (NTC), it also becomes the responsible ADSE over the vehicles’ operating life, which also subjects the ADSE to the in-service requirements under the AVSL.^{6Id. at 48.} “Applicants for type approval must submit an application to [Department of Infrastructure, Transport, Regional Development and Communications] that demonstrates how their vehicle meets all applicable [Australian Design Rules (ADRs)].”^{7Id. at 22.} The ADSE pursuing type-approval self-certifies by providing information that demonstrates that the vehicle will meet the ADR requirements.^8Id. Requirements are broken down into 11 categories: safe system design and validation process, operational design domain, human-machine interface (HMI), road law compliance, interaction with governmental and emergency services, minimizing risk conditions, on-road behavior competency, installation of system upgrades, verifying for the Australian road environment, cybersecurity, and education/training.^9Id. In addition, a first-supply applicant must demonstrate that they intend to support the vehicle over a minimum of seven years.^{10Id. at 23.} To do so, they must have an established corporate presence, meet certain minimum financial obligations, and have continued data recording and sharing capability.^11Id.

Once an AV is approved via its first-supply type approval, it generally has access to the entire road network within its declared first-supply operational design domain (ODD).^{12Id. at 29.} States and territories have discretion to limit an AV’s usage in their jurisdictions.^13Id. Since AVs can be upgraded or modified over time, the obligations of the ADSE extend to the maintenance of in-service safety of AVs. While the AV is in-service, “[t]he ADSE will be subject to a general safety duty to ensure the safe operation of its automated vehicles.”^{14Id. at 31.} The standard of the general safety duty will be that which is reasonably practicable or reasonably foreseeable.^15Id. “General safety duties place the onus of identifying and mitigating risks onto the regulated party, who is likely to have the expertise to identify and solve problems.”^{16Nat’l Trans. Comm’n, A national In-service Safety Law for Automated Vehicles 26 (2021), https://www.ntc.gov.au/sites/default/files/assets/files/2021-06-22%20NTC%20Policy%20Paper%20-%20A%20national%20in-service%20safety%20law%20for%20automated%20vehicles.pdf [hereinafter NTC In-service Safety].} In addition, an ADSE must produce a statement of compliance that provides evidence demonstrating its “safety-case” and adherence to the relevant ADR.^{17Id. at 27.} ADSEs must also comply with prescriptive safety duties that attempt to define the bounds of the general safety duty.^18Id. While these prescriptive duties have not yet been defined, the duties will likely encompass “safety management, preventing unsafe operation, notification of safety risks, data recording, providing education and training, and compliance with road traffic laws.”^{19Id. at 28.} Finally, it remains a possibility that the in-service regulator of AVs (which, like the approval system, is the responsibility of the NTC because of its end-to-end regulatory authority) will implement legislation and regulation based on additional requirements.

An ADSE may also transfer the in-service responsibility of an ADS to another ADSE.^{20Id. at 43.} To perform this transfer, the ADSE must notify the in-service regulator of the conditions in which it will no longer support the ADS.^21Id. If it has not already been certified, the new ADSE must gain certification and demonstrate the capability of maintaining the in-service ADS.^{22See id. at 43-49.} Once certified, the new ADSE will be subject to the standard requirements of in-service regulation.^23Id. It will not be required to demonstrate any requirements that were previously approved during the first-supply process.^24Id.

Once a vehicle is no longer supported by an ADSE, the vehicle is considered to have reached its end-of-life and is no longer allowed to operate with the engagement of automated features on public roads.^{25NTC Regulatory Framework, supra note 1 at 34.}

2. Driving and On-road Interaction

A human driver of an AV is currently subject to the standard licensing requirements of a conventional vehicle.^{26See id. at 41-42.} A human driver is subject to the standard obligations under the Australian Road Rules and the additional state and local rules.^{27Id. at 42.} For human drivers operating Level 3 vehicles, the driver also has a legal duty to “remain sufficiently vigilant to respond to ADS requests, mechanical failure or emergency vehicles and regain control of the vehicle without undue delay when required.”^28Id.

Some AVs may also have the technical option of being driven remotely.^29Id. There is no plan to incorporate additional licensing requirements in the AVSL for remote drivers, but this area is still under consideration and will develop based on how similar countries develop their requirements. In addition, legal duties for remote drivers are still under development.^{30See id. at 42-44.}

The ADSE has an obligation to ensure that the ADS complies with all road rules, including jurisdictional differences, for the duration of its Dynamic Driving Task (DDT).^{31Id. at 43.} In addition, the AVSL will provide the regulator with the authority to create additional prescriptive rules and obligations that the ADSE must follow, according to AV development and national harmonization of regulations relating to the DDT.^{32Id. at 19.} The creation of new regulations defining ADSE obligations aligns with the requirements of the first-supply and in-service framework. Additional state and local regulatory amendments are also necessary to ensure that engagement of the ADS is not interpreted to create an obligation on a “human” driver.^{33See id. at 41-44.} Said differently, unambiguous statutory language is required to avoid confusion about when a driver needs to be alert and engaged.

3. Vehicle Modification

An AV may be modified while in-service in response to any changes that are deemed necessary for performance, safety, or similar reasons. Modifications of the AVs are characterized by the NTC as either minor or significant. Minor modifications may be made to the AV without notice to the in-service regulator.^{34Id. at 51-52.} An example of a minor modification would be a software update that does not change the level of automation of the vehicle, does not change the ODD, and does not significantly alter the safe operation of the AV. In contrast, when the ADSE desires to make a significant modification, it must self-certify to the in-service regulator by proving that the modification meets the safety standards declared during the first-supply process.^{35Id. at 52.} What constitutes a “significant modification” will be defined in the AVSL.^36Id. However, potential examples of what could constitute a significant modification include an update that changes the level of automation of the vehicle, changes the ODD, or significantly alters the safe operation of the AV. In addition, an ADSE will not be strictly liable for modification to hardware by the user that may affect the ADS.^37Id. However, modification of this hardware will fall under the general safety duty of the ADSE.

4. Privacy, Data, and Cybersecurity

Australia’s regulation of AVs requires a balance between data access, data security, and data privacy. “The in-service regulator will require access to information about compliance with the general safety duty, the operation of [AVs] and regulated parties to effectively perform its role of ensuring the in-service safety of [AVs].”^{38NTC In-service Safety, supra note 16 at 120.} Data will be collected from ADSEs to ensure compliance to the general safety duty, and this data could include information on the AVs’ safety management system in relation to the safety case.^{39Id. at 122.} The regulator may also obtain information related to the operation of the AV, such as the identifying information of the driver, remote driver, or occupants.^{40Id. at 122.} In addition, the regulator may collect vehicle performance data, such as acceleration and braking, for real-time review of vehicle operation.^41Id.

Collection of information must comply with the Privacy Act 1988 and any additional state or local laws.^{42NTC Regulatory Framework, supra note 1 at 58.} The AVSL will be written to comply with the Australia Privacy Principle 3 (which is part of the principles-based privacy law) requires that the gathering of personal information be through lawful and fair practices.^{43NTC In-service Safety, supra note 16 at 131.} The AVSL will authorize the collection of data for both primary and secondary uses.^44Id. An important consideration for secure access to data is to ensure that unauthorized third parties cannot access the vehicle’s operating system.^{45See NTC Regulatory Framework, supra note 1 at 32.} A regulatory solution to this problem could be the inclusion of an event-data recorder within the AV.^{46NTC In-service Safety, supra note 16 at 96.} However, although EDRs are common in conventional vehicles, it is unclear if this will be a regulatory requirement.

The AVSL will require the sharing of data between the ADSE, the regulators, and other relevant entities, such as a local road agency or law enforcement.^{47NTC Regulatory Framework, supra note 1 at 40.} “During the life cycle of the ADS, the ADSE will . . . need to report to the in-service regulator any significant safety incidents, breaches of . . . traffic law when the ADS was engaged,” cybersecurity threats and attempts to access the vehicle system, and additional regulatory requirements.^48Id. Compliance with this reporting could mandate the sharing of the vehicle data associated with the incident.^49Id. In addition, the AVSL will establish protocols for the sharing of data with emergency services.^{50Id. at 45.} These protocols may require that emergency services have the option to disable the ADS under certain conditions.

In order to address privacy concerns, the NTC ordered a Privacy Impact Assessment (PIA) to identify and recommend policies and principles for adoption within the AVSL.^{51HWL Ebsworth, In-Service Safety Regulation for Automated Vehicles: Privacy Impact Assessment (PIA) 5 (2021), https://www.ntc.gov.au/sites/default/files/assets/files/In-service%20privacy%20impact%20assessment%20-%20HWL%20Ebsworth%20report.docx.} The report, which was written by HWL Ebsworth Lawyers, found that the AVSL is likely to have a significant privacy impact, the extent of which will depend on the way the law is implemented.^52Id. The in-service regulator will have the authority to access information, audit, inspect, and enter/seize AVs to ensure compliance with regulation.^{53Id. at 12-13.} Inherent in this is the authority to access and collect data from the AV. Regulatory action with this data may include collection, use and disclosure of information including that which might be sensitive.^{54NTC Regulatory Framework, supra note 1 at 24.} The Privacy Act considers personal information to be information or an opinion about an identified individual (or individual who could be reasonably identified) and considers whether the information or opinion is true as well whether the information or opinion is somehow physically recorded.^{55Privacy in Practice Module 1: Introduction to the Privacy Act and key concepts, Off. Austl. Info. Comm’n, https://education.oaic.gov.au/elearning/privacy-in-practice/module1.html#top (last visited Apr. 21, 2023).} “Sensitive information includes information or opinion about an individual’s racial or ethnic origin, political opinion, religious beliefs, sexual orientation or criminal record, provided the information or opinion otherwise meets the definition of personal information.”^{56Sensitive Information, Austl. L. Reform Comm’n (Aug. 16, 2010), https://www.alrc.gov.au/publication/for-your-information-australian-privacy-law-and-practice-alrc-report-108/6-the-privacy-act-some-important-definitions/sensitive-information/ (last visited Jan. 28, 2023).} The PIA noted that in-vehicle cameras and biometric sensors pose significant threats to privacy related to personal and sensitive information that will be novel with the continued introduction of AVs.^{57Office of the Australian Information Commissioner, supra note 55.} This information will likely have some inherent worth, and the control of this information will likely form a significant part of the relationship between the individual and the regulator. Finally, the report notes that the regulator must establish a privacy policy that provides a notice of data breach, a mechanism for privacy complaints, and methods of contacting the Office of the Australian Information Commissioner.^{58HWL Ebsworth, supra note 51 at 22.}

The NTC identified three technologies that may generate new privacy challenges and will likely be common in AVs: internal video recording, external vehicle-to-anything (V2X) communication, and biometric, biological, or health sensors.^{59Nat’l Trans. Comm’n, Regulating Government Access to C-ITS and Automated Vehicle Data 2 (2019), https://www.ntc.gov.au/sites/default/files/assets/files/NTC-Policy-Paper-Regulating-government-access-to-C-ITS-and-AV-data.pdf.} These novel privacy challenges include “new data captured by [AV] technology,” “[w]idespread direct collection of location data by government,” and “[g]reater breadth and depth of data.”^{60Id. at 3.} Existing law may not be suitable to capture the challenges posed by these categories. Therefore, the NTC recommends reforming existing law to incorporate new, agreed-upon principles aimed at limiting government action regarding AV data.^{61Id. at 3-4 (discussing the reasons by Australia’s existing framework may be insufficient to mitigate the challenges posed by the new technology).}

5. Vehicle Testing

Australia has implemented a set of guidelines constructed to facilitate the trialing (testing) of AVs. When applying for a vehicle trial, a trialing organization (TO) must explain to government agencies, ADSEs, and the public how the proposed trial meets each specified criteria or affirmatively explain why a given criterion is not applicable to the trial.^{62Natl Trans. Comm’n, Guidelines for Trials of Automated Vehicles 1 (2020), https://www.ntc.gov.au/sites/default/files/assets/files/AV-trial-guidelines-2020.pdf.} The required criteria that must be addressed in each trialing application are as follows: purpose of the trial, the location of the trial, a description of the technology that is the focus of the trial, a traffic management plan, infrastructure requirements, public notice, change management, and safety/accessibility.^{63Id. at 7-8.} A TO is required to obtain insurance that provides appropriate protection against the risks linked with the trial.^{64Id. at 9.} In addition, a TO must create a safety management plan that addresses each of the following topics in relation to the proposed trial: occupant risk, risk based on interaction with other road users and emergency services, automated system security, risk to infrastructure, system failure, ODD, human-automated operation transition, pre-trial closed course testing, type of driver, driver training, fitness of driver, and vehicle identification.^{65Id. at 11.} Finally, “[TOs] must comply with all relevant Australian laws unless a specific exemption or permit has been granted by the relevant road transport agency.”^{66Id. at 6.}

In addition, the trialing guidelines include robust requirements for data privacy, collection, and security. The TO must include information in the application that demonstrates the types of data that will be collected, how that data will be stored, and how the TO will provide the data to required third parties.^{67Id. at 13.} The TO must also comply with all data privacy requirements set forth in the Privacy Act of 1988.^68Id. If a serious accident occurs, the TO must submit an incident report that includes all data related to the incident within a period of seven days.^69Id. TOs must also submit a monthly report that provides information related to any non-serious accidents.^{70Id. at 14.} Finally, at the conclusion of the trialing period, the TO must create a summary of the research that includes discussion of the results of the trial.^71Id.

III. China

1. Comprehensive Legislation and Goals

China’s main goals in the AV space derive from Made in China 2035,^{72Yi Wu, China Standards 2035 Strategy: Recent Developments and Implications for Foreign Companies, China Briefing from Dezan Shira & Associates, (July 26, 2022), https://www.china-briefing.com/news/china-standards-2035-strategy-recent-developments-and-their-implications-foreign-companies/.} the industrial policy framework that is part of China’s broader strategic technology plan. Key goals include having vehicles with some level of automation make up half the vehicles on the road and offering Level 4 AVs for consumer purchase by 2025.^{73Shunsuke Tabeta, China wants self-driving tech in half of new cars by 2025, Nikkei Asia (Nov. 12, 2020) https://asia.nikkei.com/Business/Automobiles/China-wants-self-driving-tech-in-half-of-new-cars-by-2025.} These goals are clear increases from previous targets, suggesting that China is accelerating its testing and production plans.^74Id. Over a dozen domestic companies are currently running experimentation projects across China to help meet these goals.^75Id.

While China became active in the world of AVs in 2015, it did not pass a comprehensive legislative framework for testing and use until 2021 with the release of the Road Traffic Safety Law revision and the Shenzhen Draft Regulations.^{76Rita Liao, Real driverless cars are now legal in Shenzhen, China’s tech hub,TechCrunch+ (July 25, 2022), https://techcrunch.com/2022/07/25/real-driverless-cars-legal-in-chinas-shenzhen/; Huang Yanling &CJO Staff Contributors Team, Road Traffic Safety Law of China (2021), China Justice Observer (Sept 9, 2021), https://www.chinajusticeobserver.com/a/road-traffic-safety-law-of-china.} The amendments to the Road Traffic Safety Law lay out a vague path to integration for AVs. A test vehicle must pass a series of closed road tests before progressing to open road testing.^{77King & Wood Collesons, China’s Legislation on Autonomous Cars Rolls Out, China Law https://www.chinalawinsight.com/2021/04/articles/corporate-ma/chinas-legislation-on-autonomous-cars-rolls-out/#_ftn3.Insight (April 9, 2021)} If a vehicle passes its open road tests it can be manufactured and sold.^78Id. The amendments to the Road Traffic Safety Law also briefly address issues of liability, which will be discussed in a subsequent section of this paper.

         The Shenzhen Draft Regulations address some of these questions in greater detail. Because the Shenzhen region is a testing hub, there are more rigidly defined rules due to the volume of testing.^{79Fan Feifei, Nation released first draft of rules on self-driving vehicles in public, ChinaDaily.com (Aug. 10, 2022) https://global.chinadaily.com.cn/a/202208/10/WS62f2e7bda310fd2b29e71420.html.} The draft regulations notably allow vehicles to be tested without a safety driver physically onboard if they pass a safety assessment (though a safety driver or remote driver is still required for fully automated deployment).^80Id. The rules “stipulate that the routes [of] AVs should be far away from densely populated areas such as schools, hospitals, and large shopping malls.”^81Id. Driverless tests began prior to the release of the draft regulations, but the rules provide some standardization to the practice of issuing permits. Local governments including Beijing, Wuhan, and Chongqing have issued licenses to operate driverless robotaxis for commercial purposes to Baidu (a leading AI company), which is currently the only license of its kind.^82Id.

         China is still early in its development of comprehensive legislation. It has identified five categories for regulatory frameworks: basic, general specification, test method, limited-scenario application, and key function.^{83UNECE, Informal document GRVA-11-21 (Sept-Oct 2021), https://unece.org/sites/default/files/2021-09/GRVA-11-21e.pdf.} As displayed below, each of these categories has several specs for ongoing or future standards development. China has numerous working groups that engage in public-private partnerships, each of which has broad authority to develop standards and best practices in each of these five categories.^{84WANG Zhao, Deputy Director
Auto Standardization Research Institute, CATARC 2020.12.04 https://www.jasic.org/j/14_automated-driving/pdf/sympo7.pdf} An informal document submitted to the United Nation’s Working Party on Automated/Autonomous and Connected Vehicles, known as GRVA, by the participating expert from China included the following chart^{85UNECE, supra note 83.} to illustrate each category:

Category – Basic

1 – Taxonomy of driving automation for vehicles
2 – Intelligent and Connected Vehicle—Terms and Definitions
3 – Intelligent and connected vehicle—Operational design condition for automated driving system

Category – General Specification

4 – Intelligent and connected vehicles—General technical requirements for automated driving system

Category – Test Method

5 – Intelligent and connected vehicles—Methods and requirements of simulation test for automated driving functions
6 – Intelligent and connected vehicles—Methods and requirements of track test for automated driving functions
7 – Intelligent and connected vehicle—Methods and requirements of road test for automated driving functions

Category – Limited Scenarios Application

8 – Intelligent and connected vehicle—Technical requirement and test methods for automated parking system
9 – Intelligent and connected vehicle—Technical requirement and test methods for automated driving limited scenario application—Part 1: Port
10 – Intelligent and connected vehicle—Technical requirement and test methods for automated driving limited scenario application—Part 2: End delivery

2. Automated Driving Taxonomy:

China elected to develop its own taxonomy for AVs in an attempt to clarify the ambiguity in SAE definitions, providing similar but more detailed explanations of each level of automation.^{86Dashveenjit Kaur, Everything about China’s self-driving vehicle standards, Techwire Asia, Oct 4, 2021), https://techwireasia.com/2021/10/everything-about-chinas-self-driving-vehicle-standards/.} The levels developed in China are a collaborative effort between the government, domestic manufacturers, and foreign vehicle suppliers.^87Id. A Level 0 system is one in which the automation is only for emergency assistance systems.^88Id. Automated driving begins at Level 3, which is called “conditional autonomous driving”, and can perform automated driving in specific scenarios.^89Id. In Level 3 automation, the driver only needs to function as a safety officer who can intervene during an emergency or if the vehicle is no longer in its identified ODD.^90Id.

A vehicle with Level 4 (highly automated driving) capabilities can perform the DDT as well as make decisions about the safest way to proceed under operating conditions.^91Id. At Level 4, the ADS must be able to constantly maintain control and respond appropriately with a failsafe system to avoid accidents when the ADS fails.^92Id. This is a step down from the final taxonomy level, which can perform all of the DDT in any driving conditions.^93Id. At the highest level of automation defined by the Chinese taxonomy, a driver may be present to address malfunctions, but the vehicle is able to decide the safest maneuver and proceed regardless of whether the driver responds to a request to take control.^94Id.

3. Liability for Accidents:

         The existing liability framework does not include much information regarding AVs. By contrast, the Ministry of Public Security (MPS) Proposed Amendments are more comprehensive.^95Id. The MPS is an agency in China that is tasked with public security. Vehicles that have manual control functions are the responsibility of the driver or system developer in accordance with existing laws, though the rules have not yet defined if “supplier” or “developer” refers to auto manufacturers.^96Id. For AVs that do not have any manual driving features, liability will be determined by the central government. It is important to note that the amendments hold the driver (or automated system developer) of the ADS liable when the vehicle maintains manual features, but without defining the system developer this allocation of liability is practically useless because it remains unclear if the driver or ADSE can be liable or if a corporate entity can ever be liable for defects in a vehicle without manual options.^97Id.

         The Shenzhen guidelines for new driverless testing split liability as well. When a vehicle has a driver, the driver is responsible for traffic incidents, and, if the car is driverless, liability falls to the “controller or owner.”^98Id. “For violations and accidents that occur during the continuous execution of all dynamic driving tasks by the automated driving system and during the time when taking over of the dynamic driving task, then the controller of the vehicle shall bear corresponding liability.”^99Id. Despite the immense amount of liability endured by the driver, if the accident is the result of a defect, the injured party can seek compensation from the manufacturer.^100Id. The Shenzhen Legislative Drafting Department explains that the division of liability has roots in the principle of “one who benefits bears responsibility” and further emphasizes how placing liability on the driver may make people behave more responsibly while better maintaining their vehicles.^101Id. Another reason for the guideline is efficiency, as officials worry that determining liability would be too complicated and inefficient for traffic officers in instances of technical failures.^102Id.

4. AVs and Access to Transportation:

China is currently testing automated public transportation systems such as buses and taxis on predetermined and light-traffic roadways in the Shenzhen region.^{103Zhang Yan & Brenda Goh, China Draft Rules on Use of Self Driving Vehicles for Public Transport, Reuters (2022).} This is a major step towards more equitable transportation. The decision to automate public transportation, however, seems to be part of the broader initiatives to accelerate the deployment and adoption of automated driving rather than a push for equity.^{104Iris Deng, China steps up autonomous driving development with new guidelines on operating driverless vehicles for public transport, South China Morning Post (Aug. 9, 2022) https://www.scmp.com/tech/policy/article/3188314/china-steps-autonomous-driving-development-new-guidelines-operating?module=perpetual_scroll_0&pgtype=article&campaign=3188314.} China has overwhelming transportation equity and traffic congestion problems, notably exacerbated by excessive commute times and uncomfortable modes of transportation,^{105Xiaoyun Li, Hongsheng Chen, Yu Shi, & Feng Shi, Transportation Equity in China: Does Commuting Time Matter?, 11 MDPI Sustainability 1, 1-2 (2019).} which AVs could help alleviate. With the ongoing experiments in the public transportation sector, these shared vehicles could help reduce the amount of traffic, transportation injustice, and pollution.^{106Id. at 14-15.}

Micromobility is another piece of the AV discourse in China because of the obstacles created by population density. A 2019 study found that people who commuted by bike or foot were more likely to be members of marginalized communities and therefore more vulnerable than those with vehicles.^107Id. By providing a robust connected public transport system, China may be able to reduce the barriers to accessing transportation among various classes of urban residents.^{108Deng, supra note 104.} However, there are still many unanswered questions in the micromobility initiative. The study concluded that commuters who biked or walked often spent more time commuting than people using private vehicles.^{109Li et al., supra note 105.} Biking and walking also tend to be less safe due to a lack of pedestrian and biking infrastructure.^{110Id. at 2, 13.} However, despite the identified challenges, automated public transportation systems can help reduce inequity and increase access to transportation whether it is a stated goal of the project or not. 

5. Data and Cyber Security:

While the regulations concerning liability are somewhat limited, the regulations on data security are extensive. Chinese privacy law defines “personal data” to include any information such as details of the passenger or driver, location, direction, driving history, speed, mileage, etc.^{111Kaur, supra note 86.} Data that does not fall under personal information may still fall under other classifications such as “important data.”^{112Sammy Fang, China’s emerging data protection laws bring challenges for conducting investigations in China, DLA Piper (2022) https://www.dlapiper.com/en/insights/publications/2022/07/chinas-emerging-data-protection-laws-bring-challenges-for-conducting-investigations-in-china.} Whether data falls under the personal or important categories, all data must be kept domestically.^113Id.

         This requirement seems to be unique to China. It is possible for data to be exported after extensive government review; however, China keeps much of its sensitive data in-country.^{114Stephanie Yang, As China shuts out the world, internet access from abroad gets harder too, Los Angeles Times (Jun 23, 2022) https://www.latimes.com/world-nation/story/2022-06-23/china-great-firewall-foreign-domestic-virtual-censorship.} China does not typically allow outside mapping of its territory.^{115Using Maps and Navigating in China, The China Guide (2020) https://www.thechinaguide.com/blog/maps-and-navigation.} Google Maps is often distorted unevenly across the country (though Apple Maps seems to work just fine) and the collection of extensive roadway mapping by AVs would undercut this security effort.^116Id. However, accurate digital maps are necessary to the functionality of AVs.^{117Jihong Chen, Peng Cai, Jiawei Wu, Yating Jiao, & Jaibin Sun, New Legislative Trend of Tightening ICV Data Regulation in China, Zhong Lun (June 1, 2021) https://www.zhonglun.com/Content/2021/06-01/1354095002.html.} China’s commitment to data security may have to be reexamined by government officials to reconcile with participation in the highest levels of automation.^118Id.

         Notwithstanding the importance of data collection to the success of AVs, China is currently creating a more extensive set of regulations regarding cyber and data security for AVs.^119Id. These regulations include specifications and testing methods to ensure that companies can protect data in accordance with Chinese law, which is much more stringent than that of many of the other leading countries developing this type of technology.^120Id. To accompany the existing taxonomy of AVs, China is developing a taxonomy of data security levels.^{121Ron Cai & Julie Yang, China Issued Network Data Classification and Grading Guidelines, Zhong Lun, (Jan, 29, 2022), https://www.zhonglun.com/Content/2022/01-29/1443154320.html.} While not yet published, “important data” and “personal data” are likely to be two of the terms.^122Id.

         China has draft rules requiring the anonymization or desensitization of personal data where consent is hard to obtain.^123Id. Drivers will likely be provided with information on how to delete data collected from inside the car, however, handling of personal data is subject to limitations such as determining responsibility in accidents or use by the driver.^124Id. Contrary to much of the aforementioned regulatory framework, China will reportedly develop a framework explaining how to bring Chinese data overseas if necessary, and the process will undergo security assessments developed by State Cyberspace Administrative Departments.^{125Yan Luo & Xuezi Dan, China Releases Measures for a Security Assessment of Cross-Border Data Transfers To Take Effect in September 2022, Covington: Inside Privacy (Jul. 7, 2022), https://www.insideprivacy.com/international/china/china-releases-measures-for-a-security-assessment-of-cross-border-data-transfers-to-take-effect-in-september-2022/.}

6. Accident Reporting and Public Safety:

         Traffic management departments in each municipality are responsible for the registration of AVs as well as the management of road traffic safety. There have been a few notable fatal accidents involving AVs in China. One of the accidents involved an AV crashing into another vehicle that had pulled over to the side of the road; the AV had failed to detect the pulled-over vehicle.^{126Ye Zhanhang, Fatal Car Crash Sparks Safety Concerns Over Autonomous Driving, Sixth Tone (Aug. 12, 2022) https://www.sixthtone.com/news/1010965/fatal-car-crash-sparks-safety-concerns-over-autonomous-driving?source=recommend.} Another accident involved a Nio test car, which drove off the top floor of a parking garage.^{127Jill Shen, Nio says vehicle not at fault in fatal ‘accident’ at Shanghai headquarters, technode (Jun 24, 2022) https://technode.com/2022/06/24/nio-says-vehicle-not-at-fault-in-fatal-accident-at-shanghai-headquarters/.} The company reported that the car was not at fault in the accident but did not offer any further explanation.^128Id. It is hard to get a sense of the public concern surrounding these incidents. After the Nio crash, which was the company’s second fatal accident of the year, stock prices fell, which could reflect public sentiment.^129Id.

7. Vehicle Testing:

         The Shenzhen Draft Regulations define few terms with regards to experimentation. Road testing is defined as the testing activities of automated driving functions conducted by intelligent networked vehicles on designated road sections.^{130Global Times, Shenzhen city works out regulations to guide self-driving vehicles, Global Times (Mar. 24, 2021), https://www.globaltimes.cn/page/202103/1219294.shtml.} Demonstration application is defined as the operation of intelligent connected vehicles (ICVs) with pilot and trial effects on the designated road sections for carrying people and objects.^131Id. The experimentation framework forbids interference with normal traffic activities and only permits testing on public roads after passing a series of closed-road testing and the issuance of a temporary license plate.^{132Mark Schaub, China’s Legislation on Autonomous Cars Rolls Out, Lexology (Apr. 9, 2021), https://www.lexology.com/library/detail.aspx?g=00634789-2551-4bb5-96e1-dd9416c167a7.} Lastly, the Shenzhen Special Administrative Region will recognize valid road testing conclusions from other Chinese provinces to prevent duplicative testing and reduce the amount of resources used .^133Id. Though the vision for AVs in Chinese regulatory frameworks was never explicit before the Shenzhen Draft Regulations, the regulations read in tandem with the MPS Proposed Amendments, and the existing transportation regulatory tools fully incorporate AVs in the vision for public roadways.^134Id.

         China encourages companies to develop software that can simulate a variety of driving scenarios to test how the AVs will respond when on the road.^{135Xinghua Wang, Yong Peng, Tuo Xu, Qian Xu, Xianhui, Guoliang Xiang, Shengen Yi, & Honggang Wang, Autonomous driving testing scenario generation based on in-depth vehicle-to-powered two-wheeler crash data in China, 176 Accident Analysis and Prevention, 1 (2022).} It seems that the domestic focus has been on building a scenario library for testing vehicles in simulations.^136Id. Given the unique traffic patterns of Chinese urban areas, scenarios involving motorcycles and mopeds are an area of particular focus.^137Id. China has also adopted other scenario libraries such as SafetyPool, which is the largest database in the world for AV testing scenarios and was developed by researchers at the University of Warwick and Deepening AI.^{138Luke Walton, China welcomes world’s largest scenario database for autonomous vehicle safety, Warwick News and Events (Sept 9, 2021), https://warwick.ac.uk/newsandevents/pressreleases/china_welcomes_worlds/.}

IV. France

1. An Initial Pass in 2018

         France published the French National Strategy on Development of Autonomous Vehicles in 2018.^{139Development of Autonomous Vehicles Strategic Orientations for Public Action (2018) (Fr.), https://www.ecologie.gouv.fr/sites/default/files/18029_Développement-VA_8p_EN_Pour%20BAT-3.pdf.} This document laid out an initial plan for adjusting the mobility and transportation ecosystem to include AVs.^140Id. It is the cornerstone of how the government intends to address issues of ethics, insurance, responsibility, liability, and infrastructure.^141Id. France began by implementing regulations, which are something of a revised version of the Vienna Convention on Road Traffic,¹⁴²Vienna Convention on Road Traffic, Nov. 8, 1968, 17 U.N.T.S. 1042. to adapt the law to cases where AVs were being used.^{143Development of automated and connected road mobility: State of play, challenged and actions for the national strategy (2023) (Fr.), https://www.ecologie.gouv.fr/sites/default/files/dgitm-strategie-vehicule-automatise-et-connectee-2022-2025-EN.pdf.} France presented these amendments to the UNECE Road Safety Group. A French working group identified thirty articles of the Vienna Convention it believed needed to be adjusted to allow for AV development.^144Id.

2. Issues of Liability

Adapting the liability rules is a priority in France. The working group decided that the Badinter Law, which attempted to improve outcomes for victims of traffic accidents, already applies to AVs.^{145InterEurope Law Service, Anniversaries Should Be Celebrated—30 Years “Loi Badinter” https://www.intereuropeag.com/news_eng/magazine/intereurope-magazine-special-france-la-loi-badinter/.} (The Badinter Law was passed in 1985 as a comprehensive plan for addressing liability in traffic accidents.^146Id. It is founded on the principle that victims should be compensated.^147Id. The law addresses the requirements for drivers to be considered victims, which is likely the reason the working group believed this legal question would be better dealt with by a products liability amendment.^148Id. The Badinter law assumes that the driver was driving and at fault in the accident, but with an AV this presumption is called into question).^149Id. However, a similar directive that addressed defective products may need to be reworded to encompass AV liability despite the addition of a national liability regime at the end of 2022.^{150Development of automated and connected road mobility, supra note 143.}

Criminal liability is addressed for experimentation purposes with the PACTE law (its name in French is an acronym that translates to “action plan for business growth and development”), which holds experimenters responsible for accidents and issues fines when the driver is not in control of the vehicle.^{151Inside Tech Law, Autonomous Vehicles in France, Norton Rose Fulbright, https://www.insidetechlaw.com/autonomous-vehicles/06_france (last visited Jan 31, 2023).} The law is a comprehensive reworking and is meant to help corporations experience growth with less disruption. For context, the PACTE law is meant to protect the French economy by simplifying and streamlining business, social, and patent laws.^{152Laurence Loumes, PACTE law: a stronger French Patent Procedure, Plasseraud, https://www.plass.com/en/articles/pacte-law-stronger-french-patent-procedure (last visited Jan 28, 2023).} It facilitates the development of AVs by allowing any type of trialing with or without a human in the vehicle.^153Id.

The PACTE law must be read in tandem with the proposed “order on the criminal liability rules applicable to the use of a vehicle with driving delegation and its conditional use” and the existing French Traffic Code.^{154Ozan Akyurek, Oliver Haas, & Philipp Werner, France Plans on Adopting New Rules for Self-Driving Cars, Jones Day (Apr. 2021), https://www.jonesday.com/en/insights/2021/04/france-plans-on-adopting-new-rules-for-selfdriving-cars.} The combination of laws can be read to deduce that passengers of a vehicle with automated features deployed will not be held criminally liable for accidents, but may be responsible for monetary fines under civil law.^155Id. Moreover, the law states that the driver may be responsible when the driver chooses to engage automated driving features while under the influence of drugs or alcohol (which is the same as the law for manual driving), or when the environmental circumstances are not conducive to using the automated functions of the vehicle.^156Id. If an accident occurs when the driver has correctly used the automated features, “the responsibility of the driver is transferred to the holder of the experimental authorization.”^{157Ann-Laure Villedieu, CMS, Autonomous Vehicles Law and Regulation in France, https://cms.law/en/int/expert-guides/cms-expert-guide-to-autonomous-vehicles-avs/france.}

The French working group also believes these regulations and social expectations need to be defined clearly before mass adoption of the technology. There is a particular focus on fault:

If the use of such a vehicle with partial or total delegation has caused an accident resulting in bodily injury, the holder of the experimental authorisation will be liable for offences of involuntary injury to the life or integrity of the person when it is established that there is a fault (within the meaning of Article 121-3 of the French Criminal Code) in the implementation of the system of delegation of conduct. This concept of “fault” may include deliberate fault as well as recklessness, negligence or failure to observe an obligation of due care or precaution imposed by any statute or regulation, where it is established that the offender has failed to show normal diligence, taking into consideration, where appropriate, the nature of his role or functions, his capacities and powers and the means then available to him. In this case, the offender who has not directly contributed to causing the damage, but who has created or contributed to the situation, which allowed the damage to happen and who failed to take steps enabling it to be avoided, is criminally liable where it is shown that he has broken a duty of care or precaution laid down by statute or regulation in a manifestly deliberate manner, or has committed a specified piece of misconduct, which exposed another person to a particularly serious risk of which he must [be] aware.^158Id.

Driver preparation is also addressed. The understanding of drivers’ licenses is that in the short-to-medium term, drivers will continue to pass the training required to drive without automated features.^159Id. The driver must, however, receive some type of training about how to delegate control, how to regain control, and when such action is appropriate.^160Id. The proposed Mobility Orientation Law would require appropriate information and training be provided before the sale or rental of vehicles with self-driving features.^{161Lesley Brown & Joelle Toure, Let’s talk LOM (French mobility orientation law), futura-mobility (Jun. 20, 202), https://futuramobility.org/en/lets-talk-lom-french-mobility-orientation-law/.}

3. Issues of Public Safety

Some concerns remain about AVs’ vulnerability to hijackings. Unfortunately, the French working group’s research has suggested that the standardization of technology will not only make the technology user-friendly but will also encourage attacks that could affect large numbers of vehicles.^{162Michelle Djong Hui Ing, Tackling the Challenges Faced by On-Demand Public Transport- Autonomy, Autonomy (Feb. 2, 2023), https://www.autonomy.paris/autonomy-community-site/articles/09c22dfb-d6b1-ed11-a8df-000d3a49e15d/tackling-the-challenges-faced-by-on-demand-public-transport-autonomy.}

With regards to public transport, the lack of a driver could facilitate acts of terror or deter users who need more assistance; however, the existing research overwhelmingly suggests that automated public transit is safer and more secure than existing modes of transit.^163Id. “In public transport and as well as in other shared modes, we are used to get[ting] into a vehicle with a driver who can interact with us and stop when we have our hand. Now and more in the future, we want to invite people to a vehicle that doesn’t have that kind of driver and is still developing and changing over time.”^164Id. One proposed solution is, of course, security cameras installed within automated shared mobility, but this does not answer the demands of those who require extra assistance (and may create new concerns for those who do not want to be constantly video surveilled for any reason).^165Id. However, this nuance is an idea of which France has taken note.

In the 2018 Development of Autonomous Vehicles Strategic Orientation for Public Action Summary Document, the relevant government authorities listed safety and acceptance consecutively as priority issues.^{166Development of Autonomous Vehicles Strategic Orientations for Public Action (2018) (Fr.) https://www.ecologie.gouv.fr/sites/default/files/18029_Développement-VA_8p_EN_Pour%20BAT-3.pdf.} There exists both a balancing act as well as a symbiotic relationship between the two to “ensuring that systems being developed comply with expectations and requirements [ ] for individual and collective safety, in terms of both road safety and cyber-security, as well as the protection of individual data” and facilitate acceptance which “should not be taken for granted: aside from issues pertaining to safety and suitability, other effects of automation will also affect its acceptance by the public[;] impact on transit options and their environmental footprint, employment, regional equality, etc.”^167Id.

Another public safety consideration is determining how vehicles should respond to interactions with emergency vehicles such as pulling over during a traffic stop, making way for emergency vehicles, and respecting the indications of traffic officers. Such capabilities also relate to the liability discourse because an officer must be able to determine the state of the automated driving technology at the time of the offense. There is little to no existing literature on the question in France, though interactions with emergency vehicles are a popular research topic in other jurisdictions.^{168See: Brianna Wessling, Nvidia patent helps autonomous vehicles detect emergency vehicles, The Robot Report (June 21, 2022), https://www.therobotreport.com/nvidia-patent-helps-autonomous-cars-detect-emergency-vehicles/ (last visited Jan 28, 2023).}

In response to the European General Data Protection Regulation, France has supplemented the French Data Protection Act to address AV issues.^{169Privacy Research Team, France Data Protection Act, security, (Feb. 9, 2022), https://securiti.ai/france-data-protection-act/.; Clara Hainsdorf & Bertrand Liard, Data Protection Laws and Regulations France 2022-2023 16 (ICLG 2022).} There has not been specific legislation regarding the use of biometric data in AVs, however there are existing regulations for the use of biometric data for security in the context of both employees and consumers.^{170Denise Lebeau-Marianna & Alexandre Balducci, France: The First CNIL Standard Regulation for Biometric Systems in the Workplace, DLA Piper (2019), https://blogs.dlapiper.com/privacymatters/france-the-first-cnil-standard-regulation-for-biometric-systems-in-the-workplace/.; Trilateral Research, Biometric Data in the workplace—Franch Authority to address the GDPR regime, Trilateral Reseach (Oct. 24, 2018), https://trilateralresearch.com/data-governance/biometric-data-in-the-workplace-french-authority-to-address-the-gdpr-regime/.} The law requires data be anonymous, encrypted, and stored inside the device.^171Id. The Commission Nationale de l’Informatique et des Libertés has placed a heavy focus on consumer consent for the use of biometric data.^{172Sonia Cisse, France—Data Protection Overview, Data Guidance (January 2023), https://www.dataguidance.com/notes/france-data-protection-overview.}

4. Progress Report

a. Enacted Laws

         The Mobility Orientation Law was enacted December 24, 2019 and noted four main objectives: becoming less car-centric, increasing the development of new forms of transportation, ecological preservation, and investments in relevant infrastructure.^{173Grantham Research Institute, Mobility orientation law on transport (LOM), London School of Economics https://climate-laws.org/geographies/france/laws/mobility-orientation-law-on-transport-lom} The 2050 goal of carbon neutrality is reflected in the legislation as well.^174Id. The law included provisions to create measures necessary for the deployment of AVs beyond the experimentation phase with the intention of accessing vehicle data for traffic tracking and incident reporting, as well as delegating the establishment of mobility services in AVs to parliament.^{175The French strategy for the development of automated road mobility (2020-2022) (2020) (Fr.) https://unece.org/sites/default/files/2021-01/GRVA-09-03e.pdf} “Thanks to the Mobility Orientation Law of December 2019, France is one of the first European Countries to adopt a legal and regulatory framework allowing the circulation of these vehicles by 2022. It is a great pride.”^176Id. As of January 2023, AVs have not yet been deployed in Europe to the scale experts might have imagined in 2018, but the Mobility Orientation Law remains a cutting-edge piece of legislation for the current environment of pilot programs and delivery robots.^{177PYMNTS, Autonomous Delivery Gets Boost From Pilots in France and Germany, PYMNTS (Jan. 10, 2023), https://www.pymnts.com/news/delivery/2023/autonomous-delivery-gets-boost-pilots-france-germany/.}

         In April of 2021, Ordinance 2021-443 was passed and outlined three critical chapters for the development and deployment of AVs: criminal liability when using an AV, conditions of using an AV, and the relevant safety policies regarding the first two chapters.^{178Parlement, Francais, Ordonnance n° 2021-443 du 14 avril 2021 relative au régime de responsabilité pénale applicable en cas de circulation d’un véhicule à délégation de conduite et à ses conditions d’utilisation (Ordinance No. 2021-443 of April 14, 2021 relating to the criminal liability regime applicable in the event of the circulation of a vehicle with driving delegation and its conditions of use), No. 0089 (Fr.), https://www.legifrance.gouv.fr/eli/ordonnance/2021/4/14/TRAT2034523R/jo/texte} As mentioned previously with regard to the PACTE law, when a driver does not comply with the “warnings, instructions, or indications” the driver is subject to criminal liability.^{179Ordinance 2021-443 Article L 123-1.} Where the ADS does not comply with relevant use regulations, the manufacturer is civilly liable for damages.^{180Ordinance 2021-443 Article L 123-2.} The ordinance also calls out which entities lawfully have access to the data of the device while the vehicle’s automated features are engaged, which includes the national police, the person who holds the vehicle’s registration, and the public or private sector officials who are tasked with identifying relevant data breaches.^{181Ordinance 2021-443 Article L 123-3.} Administrative fines are also issued for failure to comply with any of the Chapter II requirements, which outline protocol and expectations of the user and manufacturer. An example may include the manufacturer-seller’s obligation to inform the consumer of the conditions of use of the vehicle.^{182Ordinance 2021-443 Article L 224-68-1.}

b. Issues of Public Trust

         A series of studies by Deloitte in 2017 and 2019 on the social acceptance of AVs^{183Craig Giffi, Joseph Vitale Jr., Thomas Schiller, and Ryan Robinson, A reality check on advanced vehicle technologies, Deloitte (2019), https://www2.deloitte.com/xe/en/pages/about-deloitte/articles/on-mastery/reality-check.html; Inside Tech Law, Autonomous Vehicles in France (2020), https://www.insidetechlaw.com/autonomous-vehicles/06_france.} found that the French were more confident about AV deployment than other countries and that the transition to acceptance was rapid. In 2017, 65% of French citizens were skeptical, but two years later the number dropped to 36%.^184Id. The average rate of skepticism is roughly 50% in other European countries.^185Id.  There is still a common reluctance about the personal adoption of AV technology.^{186Inside Tech Law, supra note 183.} There have been societal concerns expressed about the sustainability of the technology, reluctance to board transit without a driver present, and concerns about AVs’ interactions with vulnerable users.^187Id. However, the surveys also found that driver training was favored by the public and, when experiments utilized real road conditions, acceptance increased.^188Id.

5. Experimentation 

In France, the experimentation of AVs requires authorization based on the Energy Transition Act with experiments beginning in 2014.^{189UNEPFI, French Energy Transition Law: Global Investor Briefing, https://www.unepfi.org/fileadmin/documents/PRI-FrenchEnergyTransitionLaw.pdf.} Authorizations are valid for two years and are renewable once. In 2018, the scope of the Act was clarified to include: testing to develop technologies for AVs, such as sensors and mapping, evaluation of performance, and public demonstration to raise awareness. As of 2018, France was conducting three types of experiments on public roads. Experiments taking place on motorways and carriageways at SAE Levels 2, 3, and 4; experiments in low-speed urban areas again using SAE 2, 3, and 4, which are more demanding for interactions with users and with vehicle positioning; and, finally, in very-low-speed urban areas using public transport at SAE Levels 4 and 5 along predefined routes. These vehicles are small shuttles that carry between 4 and 8 people. In 2021, France opened its experimentation regulatory framework to allow experiments in vehicles without a driver on board. France anticipated having SAE Level 4 vehicle experimentation up and running by the end of 2022, yet as of September of 2022 the French government had just announced the introduction of Level 3.^{190Pascale Davies, You can now drive partially hands free in France. This is what’s changing, EuroNews.net (Jan, 9, 2022), https://www.euronews.com/next/2022/09/01/you-can-now-drive-partially-hands-free-in-france-this-is-whats-changing.}

French stakeholders have also created a model village called Transpolis^{191Transpolis, World Class Center for Innovation and Safety, https://transpolis.fr (last visited Jan. 30, 2023).}covering 80 hectares to allow vehicles to be tested in real world traffic scenarios without interaction with public infrastructure.^192Id. The village brings in members of the public to participate in testing of the vehicles and to help get a sense of public attitudes towards automated transportation.^193Id.

V. Germany

1. World’s First Level 4 Law

In the summer of 2021, Germany passed the world’s first regulation concerning Level 4 AVs which was followed by a federal ordinance in February of 2022 regulating the deployment of AVs and amending existing road traffic laws to facilitate the technological advancement.^{194Jenny Gesley, Germany: Road Traffic Act Amendment Allows Driverless Vehicles on Public Roads, Library of Congress (2021).} As presented by Dr. Volker Wissing, who is the Federal Minister for Digital Affairs and Transport, the law seeks to regulate the operation of AVs as well as amend the existing traffic code to better accommodate Level 4 vehicles in regular traffic.^{195Michael Malterer, Germany completes legal framework for autonomous driving | Federal cabinet approves new ordinance, Driverless commute (April 19, 2022), https://www.thedriverlesscommute.com/germany-completes-legal-framework-for-autonomous-driving/.} Formally known as the Act Amending the Road Traffic Act and the Compulsory Insurance Act (Autonomous Driving Act), the Act allows vehicles with automated capabilities, which are defined as any vehicle that “can perform the driving task immediately within a defined operating area without a person driving the vehicle” to operate in defined operating areas.^{196Gesley, supra note 194.} The Act delegates the authority to approve vehicles and operating areas to the relevant public authorities.^197Id. Though this law is exciting to those who wish to see the development and deployment of AVs, it is not surprising given Germany’s recent history of AV development. The federal government issued a 2015 Strategy for Automated and Connected Driving and has since been dedicated to testing such vehicles in real-world scenarios.^198Id. The Federal Ministry of Transport and Digital Infrastructure has devoted significant resources to such testing efforts and, as previously mentioned in 2017, the state amended the Road Traffic Act to legalize the relinquishment of control of a vehicle by a driver to a highly or fully automated system.^199Id. In sum, Germany has been signaling for several years that its goal is to test, regulate, and deploy Level 4 AVs on real roads for use by real people.

Turning to the content, the law has a few very specific focuses. First, it outlines the process for obtaining an AV operating license including test specifications.^200Id. Second, the law explains the requirements and specifications for approving specific makes and models of AVs for public road use, which is one of the most fundamental purposes of the law.^{201Malterer, supra note195.} Next, the requirements for AV registration are outlined.^202Id. Perhaps most importantly, the law includes an explanation of obligations for the parties including the manufacturer and the owner/operator.^203Id. AV testing requirements are outlined in addition to the explanation of how to obtain an operating license.^204Id. The law also defines administrative and civil offenses. Lastly, the law includes the technical requirements and indicators.^205Id. Not only is this the world’s first Level 4 regulation, but it is also among the most comprehensive.

Returning to the idea of approval, there is a three-step process that was created by the amendment to the Road Traffic Act in 2021. The first step is applying for an AV operating license with the Federal Motor Transport Authority.^206Id. Next, the amendment identifies various authorities responsible (and authority is granted by a web of various laws) for the approval of one or more AVs of the same type to operate in an identified area.^207Id. It is important to note that the means by which to identify a geographic area for AV use is also defined by a web of laws addressing “the roads on which the vehicle is [permitted] to move.”^208Id. Lastly, the amendments to the Road Traffic Act establish that an operating permit and a permit to operate in a defined area (as outlined by the first two steps) are prerequisites for actual road use approval.^209Id. Said differently, before an AV can be issued a license plate and corresponding vehicle documents, the vehicle and operator must successfully complete the application for an operating license and a permit for a defined operating area.

Germany has long been a significant player in the global automotive industry, thanks to German automotive companies such as Volkswagen, Mercedes-Benz, Audi, BMW, and Porsche.^{210Federal Ministry for Digital and Transport, Germany will be the world leader in autonomous driving, BMDV.BUND.de (2021), https://bmdv.bund.de/SharedDocs/EN/Articles/DG/act-on-autonomous-driving.html.} The German government has made automation a policy priority, and the Federal Minister for Digital Affairs and Transport has described itself as “working intensively on further improving the [automated driving] framework conditions.”^211Id. The Ministry will track the effects of the Act and evaluate the findings at the end of 2023 to better understand the developments of infrastructure and the compatibility of the technology with data security laws.^212Id. The Ministry also notes that the “Act on Autonomous Driving is an interim solution until internationally harmonised provisions enter into force.”^213Id. When read together with the number of white papers Germany is co-authoring and submitting to GRVA^{214U.N. Economic Commission for Europe, Working Party on Automated/Autonomous and Connected Vehicles- Introduction, UNECE.org, https://unece.org/transport/vehicle-regulations/working-party-automatedautonomous-and-connected-vehicles-introduction.}, it is clear Germany is positioning itself to influence the coming international standards, calling itself a “pioneer and international catalyst for automated and connected driving.”^215Id.

2. Testing

Part of the government’s research programs include digital test beds, which are defined areas in which data is being collected through smart city infrastructure to better understand the ability of connected and automated technology.^{216Federal Ministry for Transport and Digital Infrastructure, Digital Test Beds, BMDV.BUND.de (2021), https://bmdv.bund.de/SharedDocs/EN/Articles/DG/digital-test-beds.html.} The purpose of the test beds is to showcase the amazing potential of the technology to German citizens in public road environments, “laboratories with real-life conditions.”^217Id. In addition to gaining public trust, industry leaders benefit from the test beds by collecting data about real-world scenarios, while policymakers are able to make better informed transportation policies.^218Id. Transparency is a priority during the implementation of test beds.^219Id. The data collected from the test field activities is always publicly available.^220Id.

3. Action Plan (ethics)

The German federal government has produced two white papers announcing its public policy priorities regarding AVs. The first is an action plan that considers the ethical and social implications of AVs.^{221Federal Ministry for Transport and Digital Infrastructure, The Federal Government’s action plan on the report by the Ethics Commission on Automated and Connected Driving (ethical rules for self-driving computers), BMDV.BUND.de, (2017) https://bmdv.bund.de/SharedDocs/EN/publications/action-plan-on-the-report-ethics-commission-acd.pdf?__blob=publicationFile.} Germany developed the Ethics Commission on Automated and Connected Driving in 2017 to consider social and environmental questions related to Level 4 and 5 AVs.^{222Id. at 1-4.} The Commission concluded with 20 recommended rules.^{223Id. at 2.} The most fundamental principle of the rules is that human safety is always the priority over property damage and harm to animals.^{224Id. at 3.} When “dilemmatic situations” occur where injury to a human cannot be avoided, vehicles must be programmed to not prioritize any person over another.^225Id. Two other topics of specific interest in the paper are cybersecurity and handover (ADS disengagement) scenarios.^{226Id. at 5.}

The Ethics Commission encourages awareness and educational campaigns to teach the general public about emerging transportation technologies.^{227Id. at 4.} These campaigns would include detailed information about knowing and understanding the right to privacy and human dignity.^228Id. “The complete connectivity and central control of all vehicles is deemed ethically questionable if total surveillance of road users and manipulation of vehicle control cannot be ruled out. Moreover, the Ethics Commission states that, as an expression of their autonomy, human beings, who take responsibility for their own actions, are at liberty to avail themselves of technological possibilities.”^229Id.

The federal government responded positively to the Ethics Commission’s recommendations. The federal government has explained itself as “progress[ing] the evolution of the technology on the [Law Commission’s] basis.”^{230Id. at 6.} It has outlined several stages of an action plan that it will implement to regulate the ethical concerns of AVs. The first action item of the action plan includes continuously evaluating the amendment to the Road Traffic Act to ensure that the legal regime logically regulates conditionally and highly automated systems. Germany has openly acknowledged that technology often develops beyond the scope of existing law and seeks to keep transportation law current.^{231Id. at 6-7.} Secondly, the federal government prioritizes data sovereignty, meaning the keepers and users of the vehicle should always be able to decide if their data is collected and how that data is used.^{232Id. at 2-3, 6.} This action item in particular seeks to balance technological development with cybersecurity and concerns of privacy.^233Id. Third, Germany states that to ensure the utmost safety standards, statutorily defined safety criteria should be scored by a neutral third party before deployment to ensure compliance with the ethical standards.^{234Id. at 7.} Next, the action items return to the aforementioned concept of “dilemmatic scenarios” and call for the continued study of scenarios when harm to humans cannot be avoided; the plan calls for a public sector institution of some sort to spearhead this research.^235Id. Another priority outlined in the action plan is the clarification that no person will be forced to adopt automated technology despite the resources being invested in educational campaigns and the goal of making AVs accessible to everyone.^236Id. International standardization is also prominent in the action plan, and Germany has created suitable templates for its domestic initiatives that can be incorporated into international agreements including the ethical standards outlined in this paper.^237Id. Lastly, Germany promised to expedite legislation codifying the core principle identified by the Ethics Commission: human safety will always take priority over avoiding property damage and harm to animals; accidents threatening human safety should always be avoided but, when they cannot be, the ADS cannot prioritize any person over another.^238Id. This appears to have at least begun to happen with the 2021 legislation.

4. Strategy (business)

The second relevant white paper by the German federal government is called Strategy for Automated and Connected Driving.^{239Federal Ministry for Transport and Digital Infrastructure, Strategy for Automated and Connected Driving, BMDV.BUND.de, (2015), https://bmdv.bund.de/SharedDocs/EN/publications/strategy-for-automated-and-connected-driving.pdf?__blob=publicationFile.} It addresses the economic and business development questions related to AV development and deployment.^240Id. Because Germany has a long history of leadership in automotive innovation and sales, the paper considers how to protect Germany companies’ status as industry leaders in what it terms ‘Mobility 4.0”,^{241Id. at 3.} covering automation Levels 2-5.^{242Id. at 5.}

The paper identifies the potential of AVs as well as the federal government’s objectives.^{243Id. at 8.} The potential benefits of the technology include safety, efficiency, sustainability, and making Germany an even larger competitor in the automotive industry.^{244Id. at 8-11.} The government objectives include developing a legal regime that regulates and encourages the development, testing and production of CAVs; making Germany a leading supplier of CAV technology; and deploying CAVs in German roads for ordinary users.^{245Id. at 12-13.} Both the potential benefits and the objectives are consistently explained in terms of market value, international competitiveness, and consumer acceptance.

To maintain its status as an industry leader, Germany will have to take appropriate steps (including significant financial investment) to guarantee its impact on Mobility 4.0.^{246Id. at 14.} The paper identified several key topics in which it must develop robust policy and secure consistent funding, such as infrastructure, legislation, innovation, connectivity (particularly alluding to smart infrastructure and V2I capability), and cybersecurity.^{247Id. 14-25.}

Lastly, with regard to implementation, the Strategy for Automated and Connected Vehicles states that it will be reviewed and overseen by the Federal Ministry of Transport and Digital Infrastructure among other relevant government ministries.^{248Id. at 26.} The ultimate goal is to implement the items in order to ensure the smoothest transition possible for industry as well as users.^249Id. The federal government has also facilitated a working group called the Automated Driving Round Table, which is an interdisciplinary group of relevant experts who identify questions unanswered by the Strategy for Automated and Connected Vehicles from the perspective of their respective industries.^250Id. This group will continue throughout the AV deployment process to continue to highlight questions as they arise especially in the social and legal contexts.^251Id.

5. Liability

The introduction of AVs to the general public (and the consequent legal regime that will follow) will redefine the German understanding of liability and automotive insurance.^{252Martin Eber, Civil liability for autonomous vehicles in Germany, prepared for 21st Congress of the International Academy of Comparative Law, (2022), https://deliverypdf.ssrn.com/delivery.php?ID=936024072000095005120103106095064011005045010029091017099010092127097003126008003007045048040054026046000080086011077024117028030017092083016104126074086011105064091021073024127087005087109108122078014098019119066078029018096077124087072105123102065092&EXT=pdf&INDEX=TRUE.} The current legal regime is founded on the fact that over 90% of vehicle accidents are due to human error and sometimes products have manufacturing defects that cause accidents.^{253Mark Paradies, Is Human Error the Cause of 94% of Vehicle Accidents? Would Automation Stop These Crashes?, TapRoot, (Jan 5, 2022), https://www.taproot.com/is-human-error-the-cause-of-vehicle-accidents/.} Today, section 823(1) of the German Civil Code requires the tortfeasor found to be at fault to be liable.^{254Eber, supra note 252.} This Code is read in context with the Road Traffic Act, which establishes strict liability for vehicle keepers and a rebuttable presumption of liability of drivers.^255Id. This means that even though it is assumed a driver is responsible for damage caused by a vehicle crash, the driver does have the opportunity to show they were not at fault. It is perhaps worth noting that while the Civil Code and the Road Traffic Act are exclusively German national laws, German product liability laws are inspired by the EU Product Liability Directive 85/374/EEC, which exists to standardize product liability laws throughout Europe.^{256Id. at 7, 14.} To implement the EU’s directive domestically, Germany has enacted the Product Liability Act, which regulates manufacturers’ liability by establishing strict liability and no-fault liability.^{257Id. at 12, 14.} The simplest way to think of the existing legal regime is that keepers and drivers of vehicles can be civilly liable for their torts, and manufacturers can be strictly liable for their products’ defects.

The issue of fault will change with the introduction of highly or fully automated vehicles. The Road Traffic Act considers the human inside a Level 3 AV to be the driver because the person must always remain ready to regain control of the vehicle.^{258Id. at 8.} Under section 18(1)(1) of the Act, the driver will still be liable for any damages caused by a Level 3 AV unless the driver can demonstrate that they have complied with the awareness requirement and did not act negligently (German law does not use the reasonably prudent person standard found in United States law, but rather the Act considers “the basis of obvious circumstances that the prerequisites for intended use no longer exist”).^259Id. This is an important distinction because the Autonomous Driving Act of 2021 removes the duty of the human driver from the liability equation for Levels 4 and 5 AVs.^{260Id. at 9.} This point is likely going to have significant nuance in application because the Vienna Convention on Road Traffic requires AVs to have some type of deactivation button or procedure for a human driver to deploy.^261Id. However, the general rule is that under section 18(1)(1) of the Road Traffic Act, a human driver can be found liable unless they are in a Level 4 or 5 AV.^262Id.

The Road Traffic Act differs from the German Civil Code, so it is likely that the users of a Level 4 or 5 AV may still be liable in some instances.^263Id. The Civil Code does not require a human driver in the sections defining civil liability for traffic accidents, however it seems intuitive that the more highly automated the technology gets, the less it would be reasonable to find a human liable.^264Id. This is especially true of Level 4 and 5 AVs, which are able to operate without a rider. Academic papers have speculated that it is possible that the user of a Level 4 vehicle does not meet the statutory definition of a driver and therefore will likely not be liable for damages caused by Level 4 vehicles.^265Id.

German law considers three parties other than the driver or user of the vehicle: the technical supervisor^266Id., the vehicle keeper^{267Id. at 12.}, and the manufacturer^{268Id. at 14.} of the vehicle. Relatedly, there may also be some liability for IT service providers under the Telemedia Act. That analysis considers questions of efficient, reliable data and cybersecurity rather than automotive failures (this is a slight difference but considers how close a third-party IT provider is to the relevant content of the data rather than a manufacturing defect in the AV).^{269Id. at 24.} Returning to the liability of a technical supervisor, this regulation refers to a human who can deactivate the AV and approve alternative maneuvers in emergency situations.^{270Id. at 9.} This does not mean the technical supervisor is required to monitor at all times, but to comply with the Vienna Convention on Road Traffic, a vehicle has to have a person who can control an emergency situation.^{271Id. at 9-10.} Despite this, the technical supervisor is not required to be inside the vehicle, so there is still some ambiguity about the Autonomous Driving Act 2021’s compliance with the Vienna Convention.^{272Id. at 10.} Lastly, as of today, a technical supervisor can only be held liable under the Civil Code’s general principles when the injured party is able to show the technical supervisor breached a duty.^{273Id. at 11.} It is unclear what the technical supervisor’s liability will be under 18(1)(1) Road Traffic Act and will likely remain unclear until the qualifications and responsibilities of the technical supervisor have been determined officially. ^{274Id. at 11-12.}

Moving on to the vehicle keeper, the current legal regime allows an injured party to seek damages from the vehicle keeper under 7(1) Road Traffic Act.^{275Id. at 12.} Put simply, the law defines the vehicle keeper as a person who uses the vehicle even if that person is not the owner; the vehicle keeper is the person who “exercises the power of disposal over it”.^276Id. The Act provides for strict liability for vehicle keepers.^277Id. Driving with the automated features engaged does not absolve the vehicle keeper of liability, malfunctioning technology does not count as the type of “unavoidable event” that excuses strict liability, and the driving functions are not considered force majeure because the driving functions are not caused by third party actors or natural forces outside the vehicle.^278Id. Ultimately, the development, deployment, and regulation of AVs does not currently stand to change the legal liability of a vehicle keeper.

Finally, the manufacturer may be found liable in some instances. Much like in the United States, a manufacturer in Germany can be strictly liable or found liable for tortious behavior.^{279Id. at 14.} Strict liability, which means the manufacturer is liable for damages even without a showing of negligence or intentional wrongdoing, under the Product Liability Act in Germany still requires some type of defect and unlawful conduct.^280Id. Though this sounds a bit confusing, this requirement simply means that the manufacturer must have done something wrong that caused a problem with the product and that product in turn caused harm; however, this requirement excludes the general principle in a finding of negligence that requires the harm to be reasonably foreseeable or for plaintiff to show the manufacturer reasonably should have known about the problem and likely outcome. This point does not fit cleanly with the 823(1) Civil Code requirement for a breach of interests protected by law (which can either be intentional or negligent).

To reconcile some of this confusion, German case law has developed a series of safety obligations that must be met by the manufacturer and has placed the burden of proof on the plaintiffs.^{281Id. at 14, 21-22.} The Automated Driving Act 2021 requires an AV manufacturer to conduct a risk assessment analysis (this includes a systems check to ensure the electronic components of the AV are protected from hacking and other cyber security concerns).^{282Id. at 17.} Safety assessments require some form of standardization among manufacturers.^{283Id. at 18.} When the Automated Driving Act 2021 amended the Road Traffic Act, it slightly altered section 1e(2) to expressly require AVs to have accident avoidance systems and comply with traffic rules.^{284Id. at 17.} In events with unavoidable damage, the AV is required under the Act to balance legal interests and prioritize protecting human lives.^285Id. The same section outlines many requirements an AV must meet before being authorized to operate in regular traffic, including having a risk-minimized mode, being designed to report defects to a technical supervisor automatically (which includes the ability to be put into the risk-minimizing stage by the technical supervisor vis-a-vis a deactivation procedure), and ensure the connectivity features are reasonably secure from interference.^286Id. The aforementioned liability of manufacturers is similar to the previous legal obligations for vehicles without automated features, but the Automated Driving Act 2021 amended or expanded upon a few key points to ensure manufacturers are responsible for establishing safe and reasonable ADSs, new cybersecurity precautions, and foreseeing more complicated traffic safety scenarios.

Though there is practically no case law regarding highly or fully AVs because such vehicles are not available yet commercially, Germany has already taken steps to reform its legal regime to clarify the legal obligations of the user, the vehicle keeper, the technical supervisor, and the manufacturer.

VI. Japan

           In April 2022, Japan’s Road Traffic Act (RTA), Act No. 105 of 1960, was amended to permit service providers to operate automated transportation services in “depopulated areas” beginning within the year. The amendment, which was adopted by Japan’s central government in March 2022,^{287Japanese government adopts bill for driverless cars under certain conditions, Japan Times (Mar. 6, 2022), https://www.japantimes.co.jp/news/2022/03/06/national/japan-bill-driverless-cars/.} permits the operation of Level 4 AVs by business entities rather than private persons. Additionally, the amendment places certain requirements on the operation of AVs by service providers. Specifically, the amendment stipulates that—

• businesses providing transportation services with automated vehicles will need to have “operation plans approved by prefectural public safety commissions”;
• businesses providing transportation services with automated vehicles will need to “have staffers in place to remotely monitor their operations” who will “be ready to dispatch staff if an accident occurs”;
• businesses will face “penalties, including the revocation of permits, for traffic violations and failing to take appropriate measures in the event of an accident”; and that
• “[d]elivery robots with a maximum speed of up to 6 kph can travel on sidewalks but pedestrians will have the right of way.”^288Id.

         In contrast to several other jurisdictions, much of the work to introduce automated driving to Japan’s roadways has been handled by the National Police Agency, or NPA. The NPA maintains a page on its website that provides resources related to automated driving and information about the NPA’s work in relation to promoting automated driving on Japan’s roads. In the introductory paragraph on that webpage, the NPA writes that it is focused on “ensuring the technical safety of automated driving” with aims of “reducing traffic accidents caused by drivers’ errors” and “alleviating traffic congestion.”^{289Automated Driving, Nat’l Police Agency, https://www.npa.go.jp/english/bureau/traffic/selfdriving.html (last visited Apr. 10, 202273).}

Among multiple resources that the NPA cites on its webpage is a document laying out the Japanese government’s targets regarding the “realization of automated driving.”^{290Government’s target for realization of automated driving, Nat’l Police Agency, https://www.npa.go.jp/english/bureau/traffic/target.pdf (last visited Oct. 10, 2022).} That document provides information regarding both the government’s long-term goals for automated driving and current progress toward those goals. In multiple places, the flowchart on the first page of the document discusses the government’s goals in the express language of the SAE Automation Taxonomy. The flowchart describes the government’s “medium term” goals as those that are estimated to be achieved between FY2023 and FY2025. Almost all the goals in this section are stated as corresponding to Level 4 automation in the SAE Taxonomy. Specifically, these goals are:

• “Automated driving on expressways”;
• “Automated driving trucks on expressways”;
• “Driverless automated driving transport areas in specified areas; and
• expansion of subject areas/[operational design domain (ODD)] and service content/scope.”^291Id.

The flowchart also categorizes its goals in terms of three types of services or vehicles: private vehicles, logistics services, and transport services.^292Id. The long-term (occurring in FY2026 or later) goals for private vehicles are “reduction of traffic accidents,” “alleviation of traffic congestion,” and “strengthening industrial competitiveness.”^293Id. For logistics services, the sole long-term goal is “innovative streamlining of logistics responding to the era of population decrease.”^294Id. For transport services, the sole long-term goal is a “society that enables the elderly drivers to freely move around the country.”^295Id.

Additionally, based on a 2019 amendment to the Road Traffic Act, the NPA has created another brief document that informs drivers of the restrictions (or lack thereof) placed on them when using a Level 3 Automated Driving System (ADS). The document first states what drivers are allowed to do when using a Level 3 ADS: ride in the automated vehicles without “check[ing] what is in front of the vehicle and its surroundings,” while “talk[ing] on a mobile phone,” and while “watch[ing] the car navigation system.”^{296Amendment to the Road Traffic Act for the safe deployment of SAE Level 3 automated driving, Nat’l Police Agency, https://www.npa.go.jp/english/bureau/traffic/amendment.pdf (last visited Apr. 10, 202273).}

Next, the document specifies certain scenarios when the ODD of the automated vehicle may not be met: “when traveling on a highway at low speeds due to traffic jams,” “in bad weather conditions such as heavy rainfall, snowfall, or fog,” and “[c]onditions [that] make stable driving difficult due to road freeze or other reasons.”^297Id. In those conditions, the document warns that the ADS may “issue[] a transition demand to a driver in order to take control of the vehicle,” and that, even when the ADS is engaged, “the driver must be in a state to immediately acknowledge the transition demand and to be prepared to take control of the vehicle securely.”^298Id. Thus, the document specifies that the amendment to the Road Traffic Act permitting the use of Level 3 automated driving presumes the “presence of a driver.”^299Id.

1. Relevant Definitions from the Road Transport Act and the Road Traffic Act

Two important statutory updates to the Japanese automated vehicles regime came in May 2019 when the Japanese House of Representatives and House of Councillors revised the Road Transport Vehicle Act and amended the Road Traffic Act.^{300See Karlyn D. Stanley, Michelle Grisé & James M. Anderson, Autonomous Vehicles and the Future of Auto Insurance, 45(RAND Corp. 2020).} An expert commentator has posited that by revising and amending the statutes, the “Japanese government intend[ed] to accelerate

development of automated vehicles.”^301Id. Two of the important aspects of these revised and amended statutes are the Japanese legislatures’ definitions of “automatic operation device” and “automated driving apparatus,” respectively. 

A RAND Corporation report provides an unofficial translation of the Road Transport Vehicle Act’s definition of an “automatic operation device,” which serves to:

process the sensor for detecting the operating state and surrounding conditions of the vehicle and the information transmitted from the sensor, which are necessary for the program to automatically operate the vehicle. This device whose main components are the computer and program of the above, and when each device is used under the conditions ordered by the Minister of Land, Infrastructure, Transport and Tourism, recognition, prediction, judgment and operation related to the operation of the person who operates the automobile. This device… function[s] to replace all of the capabilities related to the above and is equipped with a device for recording information necessary for confirming the operating state of the function.^{302Id. at 45-46.}

In contrast, the Road Traffic Act (according to an unofficial translation by the same expert) discusses the “automated driving apparatus,” which more closely reflects the language used in statutes and regulations used in other jurisdictions. That expert’s input to the RAND Corporation report indicates that, under the amended Road Traffic Act, drivers cannot drive or make someone drive “an automated vehicle which could not properly record any necessary data to confirm [the] operating condition of [the] automated driving system,” and that operators and owners of automated vehicles covered by the Act must keep the “data recorded by recording device in accordance with regulation [to] be decided by the Cabinet Office.”^{303Id. at 46.}

2. Automated Vehicle Testing

In May 2016, the NPA published a set of guidelines for the “Public Road Testing of Automated Driving Systems.”^{304Guidelines for Public Road Testing of Automated Driving Systems, Nat’l Police Agency, https://www.npa.go.jp/english/bureau/traffic/guideline.pdf (May 2016).} In the introductory section to the Guidelines— “Purpose”—the NPA states that the Guidelines “are not intended to prohibit public road testing conducted using procedures that are different from those indicated herein,” but rather are aimed at offering “information that would be useful to entities implementing or planning to implement public road testing.”^{305Id. at 1.} Thus, while the Guidelines include information about legal requirements that trialing entities will have to conform with, many of the Guidelines’ recommendations are prudential rather than mandatory; that is, they reflect the NPA’s views of best practices rather than consisting entirely of legal mandates. 

The second section of the Guidelines lays out the “Basic System” that governs testing of automated vehicles on Japan’s roads.^{306Id. The Guidelines note that their references to “roads” incorporate the definition of “roads” from Article 2(1)-1 of the Road Traffic Act, Law No. 105 of 1960.} The “Basic System” comprises only three requirements. First, the automated vehicle must “compl[y] with the requirements of the Safety Regulations for Road Vehicles.”^{307Nat’l Police Agency, supra note 304, at 1 (citing Ministry of Transport Ordinance No. 67 of 1951)).} Second, “[t]he person who assumes the role of the driver [must be] seated in the driver’s seat of the test vehicle,” and that person must “monitor[] the surrounding traffic as well as the vehicle’s condition at all times,” and, if an emergency occurs, that person must “operate[] the vehicle as necessary in order to ensure safety and thus prevent damage to others.”^308Id. Finally, the test vehicle must be “driven in compliance with the relevant laws including the Road Traffic Act.”^309Id.

In terms of promoting safety during road testing, the Guidelines recommend that testing entities take some combination of appropriate safety measures, of which they recommend several. These recommendations include: having a testing driver as well as “another person aboard the test vehicle so that the monitoring role can be divided into the role of monitoring the automated driving system’s performance… and… monitoring the surrounding traffic, which is to be assumed by the test driver”; “arrang[ing] to have a vehicle that will travel, for example, side-by-side with the test vehicle to ensure safety”; “mark[ing] the body of the test vehicle with information indicating that it is being subjected to the public road testing of an automated driving system,” and “announc[ing] in advance the date and place of the public road testing using flyers, notice boards, etc. in order to inform local residents and road users thereof.”^{310Id. at 3.} In terms of marking the body of the test vehicle to communicate that it is being operated as part of on-road automated vehicle testing, the Guidelines note that such markings may cause “changes in the behavior of general road users around the test vehicle,” and recommends that these changes be taken into account, although they do not state how such changes should be calculated.^311Id.

The Guidelines specifically discuss requirements that test drivers of automated vehicles being operated on roads as part of a testing operation must fulfill. First, the Guidelines state that “[t]he test driver is required to have the driver’s license required under law to drive the vehicle type of the test vehicle.”^312Id. Second, the Guidelines expressly state that the “test driver has the responsibilities of the driver under the relevant laws including the Road Traffic Act at all times” and that they are “required to acknowledge that he or she will be held responsible as the driver at all times if a traffic accident or traffic violation should occur.”^313Id. Next, the Guidelines recommend, but do not require, that testing entities verify that the test driver meet several requirements, specifically, having “significant amount of driving experience and [being] a skilled driver,” “[u]nderstand[ing] well the mechanism and characteristics of the automated driving system,” and “[h]av[ing] driven vehicles using the automated driving system of the test vehicle at test facilities, etc. prior to the public road testing,” including so that they can operate the automated vehicle “in the event of an emergency.”^{314Id. at 3-4.}

The Guidelines state that if the testing entity does not anticipate having a driver who can meet these requirements in the vehicle during testing, then they should “make sure that the automated driving system of the test vehicle operates safely on public roads through performing public road testing repeatedly with a test driver that meets the [above] requirements,” and should take other “adequate safety measures,” such as—

having, prior to the public road testing, a person that understands well the mechanism and characteristics of the system explain well to that test driver the relevant matters including the characteristics of the system and what to do specifically in the event of possible emergencies until the test driver understands all this well and by having, in addition to the test driver, a person with sufficient knowledge of the mechanism and characteristics of the system aboard the test vehicle to assist the test driver in operating the vehicle as necessary in the event of an emergency.^{315Id. at 4.}

Finally, the section of the Guidelines that addresses test drivers specifies that “the test driver is not necessarily required to hold the steering device such as the steering wheel,” but that the test driver “is required to monitor the surrounding traffic as well as the vehicle’s condition at all times and to be able to operate the vehicle immediately as necessary in the event of an emergency.^316Id.

Additionally, the Guidelines recommend that testing agencies record certain types of data during public road testing and maintain that data. Specifically, the Guidelines recommend that the testing entities “install in the test vehicle a driver recorder, event data recorder or similar device that records information on what is happening around the vehicle and how the vehicle is.”^{317Id. at 5.} The Guidelines also specify that the testing entities should, but are not required to, “record and maintain various data, including information on the condition of the vehicle, obtained by sensors, etc… in an appropriate [way] that would allow such data to be utilized for the investigation of any traffic accident or violation that may occur during the testing.”^318Id.

3. Insurance Regimes for Automated and non-Automated Vehicles

Japan, like the United Kingdom and several other jurisdictions surveyed, has a mandatory, no-fault insurance regime.^{319See Stanley, Grisé & Anderson, supra note 300, at 45.} Japan’s automobile insurance regime “requires every driver to obtain insurance,” for which they pay “the premium or fee.”^320Id. The insurance regime also sets a mandatory floor for coverage; all automobile insurance policies must cover damages of at least the specified amount, which was ¥3 million in 2020.^321Id. When accidents occur, the insurance company automatically pays the victims from the insurance policy that the vehicle’s owner or operator is required to maintain.^322Id. Typically, the police investigate automobile accidents immediately after they occur and assess “which vehicles’ owners have responsibility:” “If the police discover that there was some negligence involved in the accident, there can be criminal penalties for the driver.”^323Id.

This description of the default automobile insurance regime differs somewhat from the United Kingdom’s insurance regime, which was established by the Automated and Electric Vehicles Act of 2018³²⁴Cf. Automated and Electric Vehicles Act 2018 (UK)., http://www.legislation.gov.uk/ukpga/2018/18/contents. and focuses on allocating civil liability to the owners or operators of insured automated vehicles rather than on creating criminal sanctions for owners or operators (although it does not foreclose the possibility of owners or operators facing criminal sanctions for their acts or omissions). Specifically, the Automated and Electric Vehicles Act allows for insurance companies to recover money from a vehicle’s owner or operator if they had to pay out damages for an accident that resulted due to “software alterations made by the insured person, or with the insured person’s knowledge, that are prohibited under the policy,”^{325Automated and Electric Vehicles Act 2018, c. 18, § 4(1)(a) (UK), http://www.legislation.gov.uk/ukpga/2018/18/section/4.} “a failure to install safety-critical software updates that the insured person knows, or ought reasonably to know are safety-critical,”^{326Id. at § 4(1)(b).} or other events or omissions that allow for a reallocation of liability. Thus, an important open question regarding the insurance framework that will govern the assessment of liability relating to accidents that involve automated vehicles is whether Japanese legislators or regulators will permit any reallocation of liability between policyholders and insurers, or between insurers and persons deemed to be contributorily negligent.

VII. United Kingdom

In the United Kingdom, the Automated and Electric Vehicles Act 2018 (AEVA) is the central statute that establishes requirements for AV registration and operation. This law also creates the framework for regulating AVs.^{327Automated and Electric Vehicles Act 2018 (UK)., http://www.legislation.gov.uk/ukpga/2018/18/contents.} AEVA creates a framework for assessing liability between insurers, owners, and operators of AVs, and grants the Secretary of State for Transport the power to create future regulations and determine which AVs will be allowed on the United Kingdom’s roads. The AEVA (Commencement No. 1) Regulations 2021 brought into effect Sections 1 through 8 of AEVA, which grant the Secretary of State for Transport the power to designate which AVs will be allowed on the road and establish the insurance framework for the operation of AVs.^{328The Automated and Electric Vehicles Act 2018 (Commencement No. 1) Regulations 2021, SI 2021/396, c. 15 (UK)., http://www.legislation.gov.uk/uksi/2021/396/contents.} Another statutory instrument—The Road Vehicles (Construction and Use) (Automated Vehicles) Order 2022 also amended the Road Vehicles (Construction and Use) Regulations 1986^{329The Road Vehicles (Construction and Use) Regulations 1986, SI 1986/1078 (UK)., http://www.legislation.gov.uk/uksi/1986/1078/contents} to allow the driver of an AV to view information on a built-in screen of a vehicle that is driving itself.^{330 The Road Vehicles (Construction and Use) (Automated Vehicles) Order 2022, SI 2022/470, art. 3 (UK)., http://www.legislation.gov.uk/uksi/2022/470/article/3} 

Since AEVA’s passage, the Secretary of State for Transport has consulted extensively with stakeholders but has not yet promulgated further regulations or allowed any AVs to be driven on the United Kingdom’s roads. Another important source of law is the Highway Code, which the Department for Transport updated on July 27, 2022 to specify and create several requirements for persons operating AVs.^{331Dep’t for Transp., The Highway Code, https://www.gov.uk/guidance/the-highway-code (last updated July 27, 2022).}

Several governing agencies have created regulations and guidance materials that also make up part of the growing framework for AV regulation in the United Kingdom. Notably, the Law Commission of England and Wales and the Scottish Law Commission^{332The Law Commission of England and Wales and the Scottish Law Commission are independent government bodies that, among other responsibilities, provide legal research and recommendations to the United Kingdom’s parliaments. Both Commissions were created by statute. Law Commissions Act, 1965 c. 22, §§ 1, 2 (UK)., http://www.legislation.gov.uk/ukpga/1965/22/contents} issued a Joint Report on AVs on January 25, 2022,^{333Law Commission & Scottish Law Commission, Automated Vehicles: joint report, 2022, HC 1068 (UK).} and the Centre for Connected and Autonomous Vehicles has issued a Code of Practice for Automated Vehicle Trialing.^{334Ctr. for Connected & Autonomous Vehicles, Code of Practice: automated vehicle trialling, https://www.gov.uk/government/publications/trialling-automated-vehicle-technologies-in-public/code-of-practice-automated-vehicle-trialling (last updated Jan. 28, 2022).}

Taken together, these materials indicate that United Kingdom government bodies are seeking to promote the testing of AVs on public roads, although they have not yet authorized the widespread introduction of AVs outside of testing contexts. In terms of currently enacted legislation, the United Kingdom has largely focused on developing a registration and insurance framework for AVs and has not yet discussed data security or technological requirements in comparable depth. 

1. Existing Legal Regimes

AEVA currently constitutes the bulk of United Kingdom statutory law related to AVs and consists of three parts. Part 1 requires the Secretary of State for Transport to create and update a list of AVs that can be operated on the country’s roads and defines an “automated vehicle” as any vehicle placed on that list.^{335Automated and Electric Vehicles Act 2018, c. 18, § 1(4) (UK)., http://www.legislation.gov.uk/ukpga/2018/18/contents.} Part 1 also creates a framework for determining the liability of AV insurers, owners, and operators, and those injured by accidents involving AVs.^{336 Id. at §§ 1(2)-(5).} Part 2 focuses on electric vehicles and gives the Secretary of State for Transport authority to regulate the creation and operation of charging and refueling ports to improve the country’s electric vehicle infrastructure.^{337Id. at § 2.} Part 3 establishes how regulations can be promulgated pursuant to the Act,^{338Id. at § 3(20).} when different parts of the Act will come into effect^{339Id. at § 3(21).} and specifies to which regions of the United Kingdom the two previous Parts apply.^{340Id. at § 3(22).} 

The Highway Code is created by the Department for Transport and contains both non-binding information and road safety as well as binding mandatory rules that have legal consequences. The Highway Code was last updated on July 27, 2022, and now expressly imposes certain requirements and obligations on AV operators.^{341Dep’t for Transp., The Highway Code, https://www.gov.uk/guidance/the-highway-code (last updated July 27, 2022).} The Centre for Connected and Autonomous Vehicles, a government body within the Department for Business, Energy & Industrial Strategy and the Department for Transport, has also published a Code of Practice for Automated Vehicle Trialling that advises those testing AVs on public roads of relevant legal requirements and other best practices.^{342Centretr. for Connected & Autonomous Vehicles, Code of Practice: automated vehicle trialling, https://www.gov.uk/government/publications/trialling-automated-vehicle-technologies-in-public/code-of-practice-automated-vehicle-trialling (last updated Jan. 28, 2022).}

2. Devolution and Its Impact on AV Lawmaking

In the United Kingdom, separate legislatures and executives make certain decisions in Scotland, Wales, and Northern Ireland based on the distribution of lawmaking powers between the United Kingdom central government and the subnational governments.^{343United Kingdom Civil Service, Devolution: Factsheet, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/770709/DevolutionFactsheet.pdf (last accessed Sept. 13, 2022).} The Scottish, Welsh, and Northern Irish governments have “many powers to make laws and deliver public services… often called devolved powers.”^344Id. The UK Parliament and UK Government have other powers that apply across the entirety of the UK, “often called reserved powers.”^345Id. The impact of this devolution system on AV regulation can be seen in the applicability of different Parts of the AEVA 2018 in different parts of the UK. Specifically, Part 1 of the AEVA—which applies to AVs and establishes attendant liability provisions, insurance provisions, and definitions—applies in England, Wales, and Scotland, but not Northern Ireland^{346Automated and Electric Vehicles Act 2018, c. 18, § 3(22)(1)., http://www.legislation.gov.uk/ukpga/2018/18/section/22}, whereas Part 2—which applies to electric vehicles and attendant charging station and data regulations—applies throughout the UK.^{347Id. at § 3(22)(2).} Additionally, the statute specifies that amendments made to the statute will have “the same extent as the provision to which [they] relate”;^{348Id. at § 3(22)(3).} stated simply, amendments to Part 1 of the AEVA will not impact Northern Ireland unless the provisions of the statute governing Part 1’s extent are also amended. 

In their Joint Report, the Law Commissions discuss the impact that devolution will have on future lawmaking relating to AVs in the UK. The Law Commissions write that “[t]he great majority of our recommendations fall within legislative competence reserved to the UK Parliament under the Scotland Act 1998 and the Government of Wales Act 2006,” but that “a small number of them fall within devolved competence, and the UK Parliament will not normally legislate for devolved matters without the consent of the devolved legislatures.”^{349Law Commission & Scottish Law Commission, supra note 333, at 25.}

Turning first to Scotland, the Law Commissions note that pursuant to the Scotland Act 1998, “the subject matter of the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988” are reserved to the UK parliament, as well as “[m]atters concerned with approval.”^{350Id. at 26 (citing Scotland Act 1998, sch. 5, head E1(d), head c8).} Several other matters, however, are covered by the Scottish Parliament’s devolved powers: the law of delict^{351Law Commission & Scottish Law Commission, supra note 333, at 26. The Law Commissions define delict as “[c]ivil wrongs, usually compensated by damages, the equivalent of the law of tort in England and Wales.” Id.}(i.e., tort) certain criminal offenses,^352Id. and taxi and private hire licensing.^{353Id. (citing Scotland Act 1998, sch. 5, head E1(b)).}

Regarding Wales, the Law Commissions write that, “[f]ollowing the Wales Act 2017, the Welsh Parliament (the Senedd) is now able to pass legislation” not relating to a reserved matter, and that those devolved matters include “regulation of the construction of motor vehicles; regulation of the use of vehicles; road traffic offences; driver licensing; and insurance of motor vehicles.”^{354Law Commission & Scottish Law Commission, supra note 333, at 26 (citing Government of Wales Act 2006, sch 7A, s E1).}

The Law Commissions also note that their “remit does not extend to Northern Ireland,” and that the “law of Northern Ireland is subject to the Protocol on Ireland/Northern Ireland and will require a different system of regulation.”^{355Law Commission & Scottish Law Commission, supra note 333, at 26.}

Given that the statute proposed by the Law Commissions “will cover a mix of both reserved and devolved issues, and [that the] dividing line between the two is not always clear cut,” the Law Commissions recommend that the “UK, Scottish and Welsh governments should work together to introduce a uniform scheme that will apply across Great Britain.”^{356Id. at 26–27.}

3. Definition of a Driver

In their Joint Report, the Law Commissions note that the civil liability provisions in the AEVA concern incidents that are caused “by a listed vehicle when ‘driving itself,’” and that the AEVA defines “driving itself” as “‘operating in a mode in which it is not being controlled, and does not need to be monitored, by an individual.’”^{357Id. at 2.} The Code of Practice for Automated Vehicle Trialing defines a “driver, test driver, or safety driver,” as “the person who is able to control the vehicle’s speed and direction,” and states that “[t]his person may be referred to as the driver even when the vehicle is operating in an automated mode.”^{358Centretr. for Connected & Autonomous Vehicles, supra note 334.} When discussing how to determine if an ASD is capable of self-driving, the Report discusses the SAE taxonomy’s use of the DDT as a “critical concept.”^{359Law Commission & Scottish Law Commission, supra note 333, at 14.} The DDT consists of:

(1) sustained lateral and longitudinal motion-control of the vehicle; steering, accelerating

and braking; [and]

(2) object and event detection, recognition, classification, response preparation and response execution: monitoring the driving environment and reacting to other road users and the conditions of the road.^{360Id. (citing SAE Int’l, Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles at ¶ 3.10 (last updated Apr. 30, 2021)).}

The Report then builds out definitions of several key terms by first defining the ADS in relation to the DDT, and then defining two other terms in relation to the ADS. Incorporating the SAE definition, the Report defines the ADS as “the combination of software and hardware capable of performing the entire DDT,” and notes that “ADS refers to a system within a vehicle, not the vehicle itself.”^{361Law Commission & Scottish Law Commission, supra note 333, at 15 (citing SAE Int’l, Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles at ¶ 3.2 (last updated Apr. 30, 2021)).} The Report then defines an “automated vehicle” as “a vehicle equipped with an ADS which is able to conduct the entire dynamic driving task in one or more operational design domains,” and notes that “[a] vehicle may be an AV even if the ADS is not engaged at the time.”^{362Law Commission & Scottish Law Commission, supra note 333, at 15.} Finally, the Report defines an “ADS feature” as “part of an ADS, which is designed to operate in a particular ODD.”^363Id. In place of a single driver vested with legal obligations and potential liability, the Joint Report describes three new legal actors who may have different legal obligations and liabilities depending on the scenario. 

a. The Authorized Self-Driving Entity (ASDE)

The first actor is the ASDE, which is the vehicle manufacturer or software who puts an AV forward for authorization as having self-driving features.”^{364Id. at 20.} The Commission proposes that, generally, the ASDE will be the actor that is “responsible for vehicles which are driving themselves on roads in Great Britain,” and that will be required to report problems to the in-use regulator.^365Id. 

b. The User-in-Charge

The second actor is the “user-in-charge,” which the report states “can be thought of as a human in the driving seat while a vehicle is driving itself.”^366Id. The report further recommends that “every self-driving vehicle should have a user-in-charge, unless the ADS feature is specifically authorised for use with no user-in-charge.”^{367Id. at 21.} The report also recommends that the “user-in-charge must be qualified and fit to drive, as they may be called on to take over driving if the ADS issues a transition demand.”^368Id. However, the report also envisions a legal regime in which “[w]hile the ADS feature is engaged, the user-in-charge is not responsible for dynamic driving,” “[does] not need to monitor the driving environment,” and “cannot be held liable for criminal offences which arise from these activities.”^369Id. As will be discussed below, key issues discussed in the report include how regulators should determine when an ADS feature can monitor the DDT such that a user-in-charge will be said to not be driving and cannot be held criminally liable, how much time is necessary for a transition from ADS driving and user-in-charge driving, and how liability should be assessed if a user-in-charge fails to take over driving after being issued a transition demand. 

c. The No-User-in-Charge (NUIC)

Finally, the third actor relates to features that are “authorised for use without a user-in-charge,” which the report refers to as “‘No User-In-Charge’ (NUIC) features.”^370Id. The report recommends “that when a NUIC feature is engaged on a road or other public place, the vehicle is overseen by a licensed NUIC operator,” which is “an organisation rather than an individual.”^371Id. The report recommends that “NUIC operator staff … be expected to respond to alerts from the vehicle if it encounters a problem it cannot deal with, or if it is involved in a collision.”^372Id.

4. Statutory Definition of “Driving Itself”

Section 1, Subsection 8 of AEVA, which defines and sets interpretive rules for terms used in the statute, establishes that “a vehicle is ‘driving itself’ if it is operating in a mode in which it is not being controlled, and does not need to be monitored, by an individual.”^{373Automated and Electric Vehicles Act 2018, c. 18, § 1(8) (UK).} As the Law Commissions note in their report, however, “the crucial issue is what it means for an individual not to ‘need to monitor’ a vehicle.”^{374Law Commission & Scottish Law Commission, supra note 333, at 37.} Based on responses to their Consultation Paper 3, the Law Commissions “concluded that an ADS feature should only be regarded as self-driving if a human is not required to monitor the driving environment, the vehicle or the way it drives,”^{375Id. at 38.} and that “the user must not be relied on to respond to events in the absence of a transition demand.”^376Id.

5. Governmental Policy Papers Regarding AVs

While policy papers are not binding law, they are useful for identifying public policy initiatives within the jurisdiction. In August 2022, the Centre for Data Ethics and Innovation published a policy paper titled Responsible Innovation in Self-Driving Vehicles.^{377Ctr. for Data Ethics & Innovation, Responsible Innovation in Self-Driving Vehicles (Aug. 19, 2022), https://www.gov.uk/government/publications/responsible-innovation-in-self-driving-vehicles/responsible-innovation-in-self-driving-vehicles.} The policy paper’s stated purpose is to assist the UK government in achieving several goals through automated vehicles—“improv[ing] accessibility,” “reducing driver error,” “reduc[ing] emissions,” and promoting the UK economy—by providing “clarity about the regulatory landscape” to automated vehicle manufacturers.^378Id. Regarding the economic benefits of automated vehicles specifically, the policy paper notes that, “[r]ecent research commissioned by the Department for Transport has shown that by 2035, the UK connected and automated vehicles market could be worth £41.7 billion.”^{379Id. (citing Dep’t for Transport. & Ctr. for Connected & Autonomous Vehicles, Connected and Automated Vehicles: market forecast 2020 (Jan. 13, 2021), https://www.gov.uk/government/publications/connected-and-automated-vehicles-market-forecast-2020).} The policy paper expressly states that it was written in response to the Joint Report of the Law Commissions, and that it aims to propose “detailed recommendations on what features and capabilities a new safety framework for self-driving vehicles will need to possess, and how to manage interdependencies between different parts of the regulatory ecosystem.”^{380Ctr. for Data Ethics & Innovation, supra note 377.} The policy paper’s recommendations have been included in the relevant sections below. 

Another important report that communicates the UK government’s goals and strategies regarding automated vehicles is Connected & Automated Mobility 2025: Realising the benefits of self-driving vehicles in the UK, a report published in August 2022 by the Secretary of State for Transport and the Secretary of State for Business, Energy & Industrial Strategy.^{381Sec’y of State for Transp. & Sec’y of State for Bus., Energy & Indus. Strategy, Connected & Automated Mobility 2025: Realising the benefits of self-driving vehicles in the UK, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1099173/cam-2025-realising-benefits-self-driving-vehicles.pdf.} Importantly, Connected & Automated Mobility 2025 “sets out government’s response to the Law Commissions’ recommendations and commits to a new legislative framework for safe self-driving road vehicles, based on these recommendations.”^{382Id. at 7.} Connected & Automated Mobility 2025 also sets out what the two Secretaries of State who authored the report see as the timeline for deploying and harmonizing the use of AVs on UK roadways. The report includes a timeline for the completion of research, lawmaking, and commercialization of AVs in the UK, with a goal of reaching a situation in which “[s]elf-driving services [are] operating in early use cases at scale” and there exists “a growing, globally competitive supply chain” for such vehicles.^{383Id. at 16, fig. 2.} Focusing on the lawmaking aspect of the timeline, the figure anticipates that primary legislation will progress through Parliament through 2022 and 2023, and that consultation on secondary legislation will commence in 2023 and continue into 2024.^384Id. There are three important regulatory benchmarks in place in the timeline as well. 

First, the timeline anticipates that the legal framework will be such that responsibility can be removed from vehicle occupants in 2024.^385Id. As discussed in the insurance sections below, the Law Commissions and Centre for Data Ethics & Innovation both envision an insurance regime in which vehicle occupants—whether passengers or users-in-charge—will not be responsible for any accidents that occur while an AV is driving itself. Instead, insurance companies will pay out claims for damage to persons or property, and the insurers can then pursue claims against users-in-charge or ASDEs in certain scenarios. This benchmark in the report therefore signals the Secretaries’ approval of this insurance regime and their willingness to adopt it in the coming years. Second, the timeline anticipates that the “approval and autorisation processes for other AVs, and in-use regulation and incident investigation processes” will be developed from 2022 until 2025, and that by 2025 the approval scheme will be in place.^386Id. This is important because the AEVA 2018 gives the Secretary of State for Transport the authority to “list” automated vehicles, but the Secretary has yet to authorize any automated vehicles for use on UK roadways. Third, the timeline anticipates, under the “regulatory/legislative timeline” section, that the “self-driving vehicle framework [will be] in place” of 2025.^387Id.

6. The Law Commissions’ Decision to Not Follow the SAE Levels of Automation

Early on in the Joint Report, its authors note their decision to not discuss regulation of AVs using SAE terminology due to important differences between the aims of the UK and SAE:

The SAE does not prescribe legal tests each level must meet. Instead, the levels are based on the designers’ intent… This report has a different aim. We recommend a regulatory framework to verify whether automated driving reaches the required standard to be treated differently from assisted driving.^{388Law Commission & Scottish Law Commission, supra note 333, at 13.} 

The Report’s authors state that they therefore prefer the term “self-driving” precisely because it “does not carry other meanings in the SAE Taxonomy.”^{389Id. at 15.} The authors use “self-driving” as a legal benchmark: “Once a vehicle has been authorised as having a ‘self-driving’ ADS feature, and the feature is engaged, the human in the driving seat is no longer responsible for the dynamic driving task.”^390Id. The authors revisit their intention to not follow SAE or other industry terminology in Chapter 3 of the Report, which focuses on drawing a “line between driver assistance and self-driving.”^{391Id. at 35.} “In technical terms, there is a continuum between the different levels of automation,” the authors acknowledge, “In legal terms, however, the difference is profound… The law therefore requires a clear-cut distinction setting out when the user is no longer responsible for the dynamic driving task.”^{392Id. at 36.}

7. Requirement for a Safety Driver During Testing

In its Code of Practice for Automated Vehicle Trialling, the Centre for Connected and Autonomous Vehicles states that “trialling any level of automated vehicle technology is possible on any UK road if carried out in line with UK law,” and states that those carrying out such trials “will need to ensure that they have a driver or operator, in or out of the vehicle, who is ready, able, and willing to resume control of the vehicle; a roadworthy vehicle; and appropriate insurance in place.”^{393Centretr. for Connected & Autonomous Vehicles, supra note 334.} 

The Code of Practice advises that during trials carried out on public roads or “in other public places,” a “suitably licensed and trained safety driver or safety operator” should supervise the vehicle at all times to ensure compliance with traffic laws and to be available to override automated driving if necessary.^394Id.

8. Requirement for Remote “Driver”/Operator

The Code of Practice specifies that the “safety driver or operator may be outside of the vehicle, as long as they have the necessary capability to be able to resume control of the vehicle.” Furthermore, the Code states that in the case of remote-controlled trials, “safety drivers or safety operators should understand any risks associated with remote access,” including “any communication or control latency and mitigating and responding to any network problems.”^395Id.

The Code requires that the safety driver or operator “must hold the appropriate category of driving license for the vehicle under trial if on a public road… even if the trial vehicle is operating entirely on an automated mode.” The Code clarifies that if the vehicle is a “a prototype vehicle which cannot easily be categorised, the nearest equivalent conventional category of licence is expected to be held.” The Code also requires organizations carrying out trials to “have in place clear rules regarding safety driver and operator behaviour,” that “cover any restrictions on the use of alcohol and drugs, over and above existing legal regulations.” Safety drivers and operators must comply with all existing laws regarding driver behavior, such as “complying with speed limits, exchanging insurance details in the event of a collision,” and refraining from “viewing a display screen when driving.” The Code also considers the effect of driver behavior on others on the road and requires safety drivers and operators to “be conscious of their appearance to other road users, for example continuing to maintain gaze directions appropriate for normal driving, to prevent any distraction to other drivers.”^396Id.

9. Electronic Recording Devices and Event Data Recorders (EDRs)

The Centre for Connected and Autonomous Vehicles’ Code of Practice states that “[a]utomated vehicles under trial or deployment should be fitted with a data recording device or series of devices,” which it described as “a minimum expectation for trials on public roads to provide safety and assurance to other road users.” The Code states that the data “should be securely stored,” that it should be “preserved in full” if an incident occurs, and that “[i]t is expected that responsible trialling organisations will cooperate fully with the relevant authorities by providing access to any relevant data.”^397Id. 

The Code then specifies the type of data that should be recorded, and the quality at which it should be recorded. Specifically, the Code recommends that data recorders capture “at a minimum at 10Hz,” at least sixteen kinds of information about how, where, and at what speed the vehicle is being trialled, as well as data about the actions taken by drivers or safety operators and about road conditions. The Code also recommends considering using video and audio recording systems during trialling but specifies that these systems would not be considered “an alternative to the data recording requirements” specified earlier in the Code. 

Beyond the base suggestions for recording systems, the Code makes specific suggestions for the use of EDRs during incidents. The Code states that “an [EDR] should be able to capture a suggested minimum period of 30 seconds before the incident, and 15 seconds after” at a minimum recording frequency of 50Hz. But much like with the framework of the rest of the Code that lays out suggestions rather than requirements, this section of the Code specifies that “[i]t is for those carrying out trials to develop plans that are proportionate to the trial and vehicle under trial,” and “sufficiently capable of capturing data for investigation purposes.”^398Id. 

10. Data — Generally

The authors of the Law Commission and Scottish Law Commission’s 2022 Joint Report note that “[m]ost issues of ‘data protection and privacy,’” were outside of the scope of their terms of reference.³⁹⁹Law Commission & Scottish Law Commission, supra note 333, at 31. In its introductory section, the Joint Report’s authors note that based on recently implemented EU regulations, “both conventional and automated vehicles sold in the EU will need to be equipped with [EDRs]”.^400Id. The authors note, however, that EDRs will be largely unhelpful for investigating many incidents involving automated vehicles, given that “EDRs will not record collisions between a vehicle and something of much lower mass, such as a motorcycle or pedestrian,” and that “as currently convened, EDRs will not record details of individual vehicles.”^401Id. For a model of a more comprehensive system, the Joint Report’s authors look to UN Regulation 157 on Automated Lane Keeping System, which describes a “second system of data capture” that it refers to as a “Data storage System for Automated Vehicles (or DSSAD).”^{402Id. (citing UN Regulation 157 on uniform provisions concerning the approval of vehicles with regard to Automatic Lane Keeping Systems, E/ECE/TRANS/505/Rev.3/Add.156).} Under UN Regulation 157, a DSSAD must “record each time an [Automated Lane Keeping System] is activated or deactivated or issues a transition demand,” and “must also record when the vehicle is involved in a detected collision.”^{403Law Commission & Scottish Law Commission, supra note 333, at 31 (citing UN Regulation 157 on uniform provisions concerning the approval of vehicles with regard to Automatic Lane Keeping Systems, E/ECE/TRANS/505/Rev.3/Add.156).} The Joint Report considers data when necessary (as will be noted below), but largely steer away from data and data privacy issues due to their terms of reference. The Joint Report’s introductory section concludes:

There is considerable work still to be done in developing standards for data collection concerning collisions and other incidents. There are also complex issues about how best to protect data and preserve privacy. Data is an area where more work is needed.^{404Law Commission & Scottish Law Commission, supra note 333, at 33.}

The Centre for Data Ethics & Innovation’s policy paper addresses data in the context of AV regulations in two sections: “Data privacy” and “Data sharing.”^{405Ctr. for Data Ethics & Innovation, supra note 377.} Within the “Data privacy” section, the paper first discusses the personal data of AV occupants and notes that automated vehicles can likely collect and analyze personal data in three categories: “ time-stamped location data of the vehicle (which carries a high degree of identifiability), ‘health and wellbeing’ data on the driver (e.g. whether they are awake and alert for the purposes of handing over vehicle control) and personal data collected by non-driving infotainment systems (e.g. choices made on in-vehicle app stores).”^406Id. The paper then notes that the sources of law governing data processing in the UK are the UK GDPR, the Data Protection Act 2018, and the Privacy and Electronic Communications Regulation (PECR) 2003, and that, taken together, the laws require “controllers to have a lawful basis for [personal data] processing.”^407Id. The policy paper then delves into several specific questions regarding the interplay of consent requirements imposed by those statutes and regulations and the Law Commissions’ anticipated need for data sharing in AV regulation. 

The policy paper states that the UK’s data protection laws typically require user consent for personal data processing “in the context of goods and services,” and that the PECR requires that “all users… must give their valid consent” for processing of location data, “unless the data is processed anonymously”; the paper also notes that in the context of automated vehicles, this personal location data requirement will likely apply to users-in-charge and passengers alike.^408Id. Next, the policy paper turns to the Law Commissions’ recommendation that the government create a duty for AV “data controllers to share relevant data with insurers to provide a legal basis for doing so,” but cautions that “[r]egulators should guard against companies using privacy as an inappropriate reason not to share safety-critical data.”^409Id.

The next specific question regarding personal data discussed in the policy paper is the frequency at which users or passengers may need to provide consent. One open question, for example, is “whether the user will need to provide consent every time the vehicle is activated, as there may be new passengers on board who have not previously provided valid consent.”^410Id. Additionally, “there are open questions regarding fleet ownership models using vehicles fitted with a NUiC self-driving feature, and whether the occupants or the NUiC Operator will be responsible for providing consent in these situations.”^411Id.

The second subsection of the “Data privacy” section regards the regulation of personal data of other road users. The policy paper notes, however, that while AVs “may also collect personal data from individuals outside the vehicle… most notably facial images collected from video feeds… this issue is not unique to AVs, as many vehicles now have dash cams installed that collect the facial images of pedestrians.”^412Id. Thus, the policy paper concludes that “the legal compliance considerations remain the same” in the automated vehicles context, and that “such collection will likely be necessary for the safe operation of the vehicle, or in the interests of public safety to meet these obligations.”^413Id. One open question, however, regards the fact that “ASDEs will also need to consider how to enable individuals external to the vehicle to assert their data protection rights (in line with ICO [Information Commissioner’s Office] guidance).”^414Id.

The policy paper reports that some AV companies and manufacturers are “exploring the use of biometric data of road users outside of the vehicle” to, for example, “identify the intentions of other road users… by assessing eye contact with the vehicle.”^415Id. The policy paper explains that these uses may be “lawful under the ‘legitimate interests’ basis of UK GDPR” if data controllers can demonstrate that the collection of biometric data is “necessary for the safe operation of the vehicle.”^416Id. The paper notes, however, that “this is something of a grey area and would be subject to undertaking a legitimate interests assessment.”^417Id. As such, the policy paper recommends that “the ICO and AV regulator(s) should clearly set out the circumstances (if any) in which the processing of personal data of individuals outside of the vehicle… would be considered lawful and proportionate under Article 6 of UK GDPR.”^418Id.

The report next addresses the idea of “data protection by design” and the principle of data minimization. According to the ICO, “data protection by design is ultimately an approach that ensures you consider privacy and data protection issues at the design phase of any system, service, product or process and then throughout the lifecycle.”^419Id. The data minimization principle comes from the UK GDPR, and states that “[Personal data shall be] ‘adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed.”^420Id. With regard to “data protection by design,” the policy paper notes that, based on “consultation with manufacturers and technical experts,” the paper’s authors believe that “all facial image data of other road users could reasonably be anonymised at the point of collection, without any adverse impact on the functioning of the vehicle.”^421Id. The policy paper also reports that the anonymization of other road users and corresponding (in)applicability of the UK GDPR is a technical, fact-based issue: “ASDEs will need to ensure that such techniques fully anonymise faces, otherwise they may be considered ‘pseudonymised’ and therefore still subject to UK GDPR as personal data.”^422Id.

Finally, the policy paper notes that automated vehicle cameras can “function much like surveillance cameras [because] … they can collect, store, and transmit video data of environments, including other road users in public and private spaces.”^423Id. The policy paper therefore recommends that ASDEs “comply with legal requirements, such as transparency requirements in UK GDPR, and follow established good practice for the responsible adoption of surveillance cameras,” including the “ICO’s guidance on surveillance cameras.”^424Id. The policy paper also notes that AVs would be covered by the Police and Criminal Evidence Act (PACE) 1984, which relates to “the power for police to seize electronic information from vehicles, along with safeguards for the use of these powers.”^425Id. Further, the policy paper suggests that ASDEs and NUiC Operators may “fall under the classification of ‘telecommunications operators’ for the purposes of the Investigatory Powers Act (IPA) 2016,” which “provides the legislative framework for police forces, intelligence agencies and certain regulators to gather information for intelligence and investigation purposes along with oversight of the use of these powers by the Investigatory Powers Commissioner.”^426Id. Thus, the paper recommends that regulators should prepare to “clarify and communicate any obligations to [ASDEs], especially distinguishing between the categories of AV data that could satisfy definitions in the IPA.”^427Id.

11. Safety During the Testing and Operation of AVs 

The Highway Code, as of July 27, 2022, states that “[w]hile a self-driving vehicle is driving itself in a valid situation, you are not responsible for how it drives. You may turn your attention away from the road and you may also view content through the vehicle’s built-in infotainment apparatus.”^{428Dep’t for Transp., The Highway Code, https://www.gov.uk/guidance/the-highway-code (last updated July 27, 2022).} However, the Code specifies that several mandatory provisions of the Code apply even when the self-driving vehicle is driving itself in a valid situation:

• The driver must be fit to drive (for example, the driver must be within the drink-drive limits and not be under the influence of drugs). This requirement references Rules 90 to 96 of the Code.^429Id.
• The vehicle must be road legal (for example, it must have an MOT certificate, if applicable, and it must be taxed and insured). The vehicle must be roadworthy (referencing Rules 89 and 97, and Annexes 3 and 6). The driver will be responsible for their passengers and anything else that the driver is carrying (referencing Rules 98 to 102).^430Id.
• The driver must not do anything illegal—like using a handheld mobile phone, or similar hand-held device.^431Id.

The Highway Code also establishes a new mandatory rule that is specific to drivers of AVs: “If a self-driving vehicle needs to hand control back to the driver, it will give you enough warning to do this safely. You MUST always be able and ready to take control and do it when the vehicle prompts you.”^432Id. 

12. Modification of the Road Vehicles (Construction and Use) Regulations 1986

Among many other requirements, the Road Vehicles (Construction and use) Regulations 1986 states that “[n]o person shall drive, or cause to be driven, a motor vehicle on a road, if the driver is in such a position as to be able to see, whether directly or by reflection, a television receiving apparatus or other cinematographic apparatus used to display” anything other than information specified in the provision.⁴³³The Road Vehicles (Construction and Use) Regulations 1986, SI 1986/1078, § 109 (UK), http://www.legislation.gov.uk/uksi/1986/1078/regulation/109. The provision previously provided exceptions for information “about the state of the vehicle or its equipment,”^{434Id. at § 109(1)(a).} “about the location of the vehicle and the road on which it is located,”^{435Id. at § 109(1)(b).} “to assist the driver to see the road adjacent to the vehicle,”⁴³⁶Id. at § 109(1)(c). or “to assist the driver to reach his destination.”^{437Id. at § 109(1)(d).} The 2022 Order modifying that provision added another, far more general category. The Regulations now also allow drivers to view information “of any sort” if three requirements are met. First, the information must be “displayed on the built-in apparatus of an automated vehicle.”^{438The Road Vehicles (Construction and Use) (Automated Vehicles) Order 2022, SI 2022/470, art. 3(b) (UK), http://www.legislation.gov.uk/uksi/2022/470/article/3.} Second, the vehicle must be “driving itself within the meaning of Section 8(1)(a) of the Automated and Electric Vehicles Act 2018.”⁴³⁹Id. Third, the vehicle must not be “requesting the driver to take control.”^440Id.

13. General Liability Framework and Insurance Policy Requirements

Part 1, Section 2of the AEVA governs the parties’ liabilities when an AV causes an accident and applies when “an accident is caused by an automated vehicle when driving itself on a road or other public place in Great Britain,” and “an insured person or any other person suffers damage as a result of the accident.”^{441Automated and Electric Vehicles Act 2018, c. 18, § 2(1) (UK), http://www.legislation.gov.uk/ukpga/2018/18/section/2.} If the vehicle is insured at the time of the accident, Subsection (1) states that the insurer will be liable for the damage.^442Id. In contrast, Subsection (2) states that if the vehicle is not insured—as is required by section 143 of the Road Traffic Act 1988—because section 144(2) of the Road Traffic Act, which creates an exemption for public bodies, applies, or because “the vehicle is in the public service of the Crown,” the vehicle’s owner is liable for the damage.^{443Id. at § 2(2).}

Subsection (3) defines “damage” within the meaning of Part 1 to include “death or personal injury, and any damage to property,” with the exception of damage to “the automated vehicle,” “goods carried for hire or reward in or on that vehicle or in or on any trailer… drawn by it,” and “property in the custody, or under the control of” either the insured person or the person in charge of the AV at the time of the accident.^{444Id. at § 2(3).} Subsection (4) specifies that the amount recoverable for property damage arising out of “any one accident involving an automated vehicle” is limited to the amount specified in section 145(4)(b) of the Road Traffic Act 1988, which is currently £1,200,000.^{445Id. at § 2(4).} 

Another important subsection within Section 2 is Subsection (6), which states that “[e]xcept as provided by section 4,” which will be discussed below, “liability under this section may not be limited or excluded by a term of an insurance policy or in any other way.”^{446Id. at § 2(6).} This provision appears to be a sort of “equal footing” requirement for insurance policies covering AVs that prevents insurers from contractually shifting liability to the insured person. 

14. Contributory Negligence

Section 3 describes two scenarios in which an insurer or vehicle’s owner may be held less liable, or not liable at all, due to the actions of the injured person. Subsection (1) states that if the insurer or vehicle owner would be liable to the injured party under section 2 of the Act, but “the accident, or the damage resulting from it, was to any extent caused by the injured party,” the liability will be reduced in accordance with “whatever reduction under the Law Reform (Contributory Negligence) Act 1945 would apply to a claim… brought by the injured party against a person other than the insurer or vehicle owner.”^{447Id. at § 3(1).} Subsection (2) exempts the insurer or owner from all liability to an injured person who was “in charge of the vehicle” if “the accident that it caused was wholly due to the person’s negligence in allowing the vehicle to begin driving itself when it was not appropriate to do so.”^{448Id. at § 3(2).}

15. Unauthorized Software Alterations and Failure to Update Software

Section 4 allows insurers to issue policies that limit their liability when the accident at issue was caused by an improper modification of the vehicle’s software or failure to install certain software updates. Subsection (1) allows insurers to “exclude or limit” their liability in the event of an accident that was the direct result of either “software alterations made by the insured person, or with the insured person’s knowledge, that are prohibited under the policy,”^{449Id. at § 4(1)(a).} or “a failure to install safety-critical software updates that the insured person knows, or ought reasonably to know, are safety-critical.”^{450Id. at § 4(1)(b).} 

Subsection (6) defines “software alterations,” and “updates,” as “alterations and updates to the vehicle’s software,” and states that “software updates are ‘safety-critical’ if it would be unsafe to use the vehicle in question without the updates being installed.”^{451Id. at § 4(6).} However, Subsection (2) clarifies that Subsection (1)’s rule regarding prohibited software alterations applies to insured persons who are not policyholders “only in relation to software alterations which, at the time of the accident, the person knows are prohibited under the policy.”^{452Id. at § 4(2).}

Subsection (4) also allows insurers to recover, from an insured person, amounts paid to non-insured persons who were injured in accidents resulting from “software alterations made by an insured person, or with an insured person’s knowledge, that were prohibited under the policy,” or failures to install safety-critical software updates that “an insured person knew, or ought reasonably to have known, were safety-critical,”^{453Id. at § 4(4).} if that recovery is authorized by the policy. Subsection (5) then specifies that when Subsection (4) only applies to insured persons who are not the policyholder in accidents resulting from “software alterations which, at the time of the accident, the person knew were prohibited under the policy.”^{454Id. at § 4(5).}

16. Insurers’ Right to Pursue Claims Against Persons Responsible for Accidents

Section 5 allows the insurer to recover the amount they are required to pay to an injured person by Section 2 from the person responsible for the accident. Subsection (1) states that when Section 2 imposes liability on an insurer or vehicle owner respecting injuries to an injured party, and the amount of liability is settled, “any other person liable to the injured party in respect of the accident is under the same liability to the insurer or vehicle owner.”^{455Id. at § 5(1).} Subsection (2) specifies that an “insurer’s or vehicle owner’s liability is settled” when established by “a judgment or decree,” “an award in arbitral proceedings or by an arbitration,” or “an enforceable agreement.”^{456Id. at § 5(2).} 

Subsection (3) then states that if the insurer or owner recovers more from the person responsible for the accident that the insurer agreed or was ordered to pay the injured party, “the insurer or vehicle owner is liable to the injured party for the difference.”^{457Id. at § 5(3).} Finally, Subsection (4) states that the section prohibits “the insurer or vehicle owner and the injured party, between them” from recovering from any person “more than the amount of that person’s liability to the injured party.”^{458Id. at § 5(4).}

17. Importance of Data in the Insurance Context

The Joint Report discusses data in its thirteenth chapter, which concerns civil liability, in the context of the necessity of preserving and sharing data when processing insurance claims and assessing liability. The Report’s authors note that “[i]n practice, insurers will rely heavily on vehicle-generated data to resolve claims,” and therefore focus on two questions, “how long data should be retained, and whether [ASDEs] should be under a statutory duty to share data with insurers.”^{459Law Commission & Scottish Law Commission, supra note 331, at 241.} 

When thinking about how long data should be stored, the Law Commissions first look to another source of law–the UNECE Regulation 157 on Automated Lane Keeping Systems (“the ALKS regulation”). The ALKS regulation “requires vehicles to have a system to store data, known as a Data Storage System for Automated Driving, or DSSAD,” and the guidelines in the regulation “only provide for the capacity to store data around six months.”^{460Law Commission & Scottish Law Commission, supra note 331, at 248 (citing UN Regulation 157 on uniform provisions concerning the approval of vehicles with regard to Automatic Lane Keeping Systems, E/ECE/TRANS/505/Rev.3/Add.156).} In Consultation Paper 3, the Law Commissions propose that DDSAD and location data “should be stored for three years to reflect the standard limitation period for bringing legal claims.”^{461 Law Commission & Scottish Law Commission, Automated Vehicles: Consultation Paper 3 – A regulatory framework for automated vehicles 301 (2020).} However, the Joint Report notes that this proposal had detractors, some who thought that the storage period was too long and some who thought it was too short. The stakeholders who thought that the period was too long “focused on the cost and practical difficulties of data storage,” whereas those who thought it was too short thought that the three-year period would undermine “the policy underlying longer limitation periods, for example where the claimant is a minor.”^{462Law Commission & Scottish Law Commission, supra note 331, at 249.} The Joint Report notes that “[t]here was little consensus as to how long any additional period should be, with consultees arguing for many different periods between just over three years and 21 years.”^463Id. 

In response to the stakeholders’ feedback, the Law Commissions concluded that “essential data should be stored for long enough to cover the great majority of claims, even if it cannot cover all possible claims.”^464Id. The Commissions heeded the argument “that claims often arrive on or shortly before the day the three-year limitation expires,” and that, consequently, “a period of time will be needed for the insurer to request the data and the ASDE to find and preserve the data before it is deleted.”^465Id. The Joint Report drives home the purpose of the recommendation: “There is little point in requiring data to be preserved for three years if it is destroyed on the day it is needed.”^466Id. As a result, the Law Commissions recommend that “the DDSAD-equivalent data (as specified by the authorisation authority) should be retained for the three-year standard limitation period, plus another three months to enable the data to be found and preserved.”^{467Id. at 250.} 

The Law Commissions then discuss the creation of a duty to share AV data in certain circumstances. The Joint Report identifies two reasons why a legal duty to share data is necessary. First, the Law Commissions note that “a data controller may only share personal data if it can point to one of the six lawful bases set out in Article 6(1) of the UK General Data Protection Regulation,” and argues that it would be simplest “for the issue to fall within Article 6(1)(c), where ‘processing is necessary for compliance with a legal obligation to which the controller is subject.’”^{468Id. at 251.} Making the data controller’s sharing of the data protected under Article 6(1)(c) requires the creation of a legal obligation, however. 

The Law Commissions support the creation of a legal obligation to share AV data in certain circumstances “to prevent a potentially anti-competitive practice,” based on the fear “that ASDEs would force customers to take out insurance with an ASDE-nominated insurer by refusing to release data to others,” which would reduce consumer choice and “driv[e] up the cost of insurance for customers.”^469Id. 

To address these concerns, the Law Commissions propose that “the new Act should set out a general duty… [and] require those controlling AV data to disclose data to insurers, where the data is necessary to decide claims fairly and accurately.”⁴⁷⁰Id. However, the Commissions note that “[l]egislation will not resolve all the issues about exactly what data should be shared in what time frame.”⁴⁷¹Id. at 252. The Commissions write that they hopes that insurers and manufacturers can come to an agreement about how and when to share data, but also proposes that, if such an agreement does not materialize, “the in-use regulatory should issue a code of practice on the issue” and recommends “that the in-use regulator should be given a power to issue a similar code of practice.”⁴⁷²Id. 

The Centre for Data Ethics and Innovation’s policy paper also discusses potential legal frameworks around data sharing in the automated vehicles context. The policy paper first discusses the Law Commissions’ “aim of establishing a ‘no-blame safety culture,’ which would allow learning between competitors.”^{473Centretr. for Data Ethics & Innovation, supra note 377.} The policy paper also notes that “there may be benefits to competition based on safety while the technology is new,” and that current safety testing programs “incentivise safety innovation above and beyond the minimum through the use of star ratings.”^474Id. As a counterpoint, the policy paper argues that the “positive effects of competition should be noted, but we should also recognise that this competition has often benefited the safety of drivers and passengers rather than other road users.”^475Id. The policy paper then turns to “novel data sharing approaches,” and recommends that regulators and the AV industry “should explore the ways in which mechanisms that facilitate responsible sharing of commercially sensitive data, such as data intermediaries, could be used.”^476Id.

18. Discussions of Equity, Fairness, and Bias in Policy Papers and Reports

The Centre for Data Ethics & Innovation notes that AVs “will have implications for the distribution of risks and benefits across groups,” and notes that, within its scope of attention, automated vehicles “as data-driven technologies have the potential for various forms of algorithmic bias, which may be hard to predict in advance of deployment at scale.”^477Id. The Centre’s policy paper notes that this bias may constitute unlawful discrimination if it “result[s] in unfair outcomes for particular groups.”^478Id. Specifically, “[w]here AVs categorise vulnerable road users (for example, children, adults, or wheelchair users), there is a risk of discrimination that could include protected characteristics.”^479Id. The policy paper then discusses the potential for bias to arise, and how regulators and industry actors can mitigate those biases in several ways.

First, the policy paper discusses “[i]ssues of algorithmic bias,” and notes that “[r]esearches involved in AV testing and development have already spotted potential data gaps caused by a concentration of testing and data collection in some areas” and by the fact that “[p]eople and objects that are seen less often, such as wheelchairs and wheelchair users, may be underrepresented in training data.”^480Id. Thus, the policy paper recommends that “[w]here training data distinguishes between categories of road users, e.g., between children and adults for reasons of safety, this should be acknowledged as part of the safety case and reported to the authorisation authority” and that “[s]teps should be taken to anticipate and minimise unfair consequences resulting from data bias, including discrimination.”^481Id. Additionally, the policy paper recommends that “[w]here systems distinguish between groups while driving, justified on the grounds of safety, e.g. the identification of children, wheelchair users or other vulnerable road users, ASDEs should have a duty to report in order to allow independent scrutiny.”^482Id.

Second, the policy paper discusses the notion that “[e]ven if AVs enable large improvements in overall safety, some groups may see substantial safety improvements while others see none or even face new hazards.”^483Id. The policy paper notes that “[t]here is a need for meaningful data on how AVs affect different groups,” and that this data need “will… require access to ASDE’s own data on collisions and near misses.”^484Id. The policy paper therefore makes two recommendations. First, “ASDEs and NUiC Operators should facilitate independent scrutiny of emerging risks and biases (in addition to those raised by notifiable events) so that the distribution of risks can be assessed.”^485Id. Second, “The in-use regulator, advised by CAVES, should collect data on fairness and safety outcomes in order to allow feedback to operators and collective learning. In the event that serious problems are identified and no other means prove effective in mitigation, the regulator should be empowered to impose sanctions, up to and including de-authorisation and product recall.”^486Id.

Third, the policy paper discusses fair treatment and access to AVs across communities. The policy paper first notes that “[s]ome aspects of fairness might be designed into AV systems from the start so that they are more inclusive,” such as “new vehicle designs that are more accessible to disabled people.”^487Id. The policy paper also notes that the “safe operation of AVs may make demands on other road users,” and recommends that “it should be the ASDE’s responsibility to ensure the safety of vulnerable road users, and vulnerable road users should never be required to wear or carry devices that would make them more visible to AVs.”^488Id.

Within this subsection, the policy paper then turns to the possibility that deployment of AVs will require infrastructural changes, and that these changes may impact equitable access to AVs. The paper notes that “AVs may suit some types of roads more than others, they may depend upon vehicle-to-infrastructure (V2I) connectivity and demands for their safe operation may create pressure to segregate AV spaces or ‘AV-only’ lanes.”^489Id. The paper therefore notes that “if investments in AV-friendly infrastructure are costly and taxpayer-funded but seen as benefiting a minority of people who travel in AVs, this would change the balance of costs and benefits, jeopardising public trust.”^490Id. Thus, the paper concludes that “[a] thorough review of short-term AV infrastructure needs and long-term infrastructure possibilities would allow planners and local authorities to make better-informed decisions.”^491Id.

Similarly, the Law Commissions also discuss equality as an “overarching theme” in the Joint Report in terms of both the potential for AVs to disproportionately impact certain segments of the population and the potential for AVs to either mitigate or exacerbate inequitable access to transportation.^{492Law Commission & Scottish Law Commission, supra note 333 at 27.} Regarding the first theme—that AVs may disproportionately impact certain populations—the Law Commissions make one observation about the existing legal framework and one suggestion for future regulation. First, the Law Commissions state that “[u]nder section 149 of the Equalities Act 2010, public regulators must already comply with the public sector equality duty,” that the Commissions feel that this existing law is sufficient, and that they therefore “do not make recommendations for new laws to this effect.”^{493Id. at 29.} However, the Law Commissions also recommend that ASDEs be “required to submit an equality impact assessment alongside their safety case,” and that there exist “a forum where AV regulators and different road user groups can exchange views regularly.”^494Id.

The Law Commissions consider this first theme when discussing the factors that the authorization authority (currently the Secretary of State for Transport) should consider when listing automated vehicles for use on UK roadways. The Commissions note that the authority, “as a public body, is subject to the public sector equality duty,” and therefore must “have due regard to advancing equality of opportunity for those with protected characteristics (which includes race, sex, age, and disability).”^{495Id. at 82.} The Commissions recommend that ASDEs be required to submit equality impact assessment to assist the authorization authority in fulfilling this statutory duty.^496Id. The Commissions state that the equality impact assessment should “show how [the ASDE] has taken account of the needs of vehicle users and others using the road, to ensure that people are not treated unequally on the basis of protected characteristics.”^497Id. The Law Commissions also discuss the idea of inequitable risk distribution created by AV introduction in Chapter 4 of the Joint Report, which focuses on the safety standard expected of AVs. The Law Commissions note that they “received responses from those representing vulnerable road users, including pedestrians, cyclists, motorcyclists and horse riders,” and that these stakeholders emphasized that “existing groups should not be subject to greater risks than they are now.”^{498Id. at 66.} The Law Commissions again refer to the public sector equality duty and write that they expect that the published safety standard will reflect that statutory duty; for example, it could “provide metrics to ensure that disabled road users are not subject to greater risks than they are now following the introduction of AVs.”^499Id.

Turning to the second theme—the role that AVs can play in mitigating inequitable access to transportation—the Law Commissions write that “[o]ne of the main advantages of AVs is their potential to make life better for those with disabilities,” and therefore recommend that “AVs need to be developed, designed and introduced with the needs of disabled people in mind.”^{500Id. at 30.} This theme comes into play in the Law Commissions’ discussion of the requirements that transition demands—a demand that a self-driving vehicle issues to a user-in-charge, requiring that the user to take over control of the driving task—must meet. The Law Commissions note that “hearing impairments are common, affecting one in six of the population,” that hearing impairments “do not interfere with a person’s ability to drive a car, and should not prevent someone from acting as a user-in-charge in a car.”^{501Id. at 40.} As such, the Law Commissions “recommend that transition demands should involve multi-sensory alerts,” a recommendation that was unanimously accepted by groups with which the Law Commissions consulted during the planning process.^502Id.

19. Law Commissions’ Recommendation of Inapplicability to “Restricted Environments”

The Law Commissions also state in their Joint Report that their recommendations “do not apply to restricted environments, such as private car parks, ports, quarries or warehouses.”⁵⁰³Id. at 19. The Law Commissions state that in those environments, “the Health and Safety at Work etc Act and occupiers’ liability appear to provide a sufficient legal framework.”^504Id. One question for comparing the UK’s framework to other jurisdictions’ is the degree to which other jurisdictions have made their legal provisions applicable outside of public roads (i.e., on private property and/or closed campuses). 

VIII. Highlights from an Initial Comparison Include:

Broad influence of SAE definitions: Across countries, AVs and their operation are generally defined consistent with the SAE taxonomy, with some countries hewing more closely and others differentiating somewhat. Even those who take issue with the SAE approach recognize that it is a de facto standard set of descriptions, definitions, and terminology (e.g., where AVs might be used (operational design domain or ODD); automated driving system (ADS), including its role as a driver; dynamic driving task (DDT)).

Government requirements for testing AVs under development: Parameters for operating on public roads are specified, with an emphasis on developmental vehicles but beginning to extend to commercial operation. These include obligations for operators of different kinds, as well as for developers or manufacturers. Requirements differ as to whether type approval or compliance with national standards must be met. The role of simulation to ascertain safety is evolving.

Safety as a primary focus: Legal regimes codify concerns about safety of people in or near AVs. Expectations are set for safety drivers in AVs (e.g., UK) or people who might perform a similar role from a remote location (e.g., Japan). Compliance with existing traffic rules is a common expectation (e.g., UK, Australia), and in some cases (e.g., Japan, UK) additional but non-mandatory guidelines are presented. Risks to people outside of an AV get differing degrees of attention, from pedestrians to the broad public at risk from hijacking (i.e., France).

Data as a growing concern: AVs maximize the use of information technology and, hence, data. Data are important inputs to AV operation (e.g., from sensors or GPS/maps), and they are also important outputs (e.g., location and movement, who traveled where and when, dimensions of AV performance such as speed or braking). Legal regimes are beginning to grapple with both proprietary and privacy implications of AV-generated data (e.g., UK expectations for access to certain data when an ADS is in use, Australia execution of a privacy-impact analysis). Because data are increasingly recognized as vital to investigating accidents, requirements for event data recording (e.g., Japan) and accident investigation (e.g., France) are becoming common. Notwithstanding the global nature of motor vehicle markets generally, where AV data can be transmitted and stored is an issue (e.g., China requires that AV data collected in China stay there).

Assignment of liability: Liability is a central concern of AV legal regimes, and countries tend to draw from existing product liability frameworks (e.g., Germany). As discussed in prior RAND research, insurance plays an important mediating role. Expectations might be set for insurance coverage (e.g., UK) and the allocation of liability between insurers and vehicle owners or operators (e.g., Japan). Both civil and criminal liability are discussed in legal regimes, building from existing treatment for conventional vehicles (e.g., France’s Badinter Law’s concern with victim compensation). Assignment of liability helps to motivate identification or characterization of the driver—who other than a human sitting in the driver’s seat is driving and what behavior of that person is permissible (e.g., the UK identifies three legal actors only one of which is a human).

Equity and protection of those outside an AV. The legal regimes that were reviewed have different elements related to equity concerns and protection of those outside an AV. Some, for example, considered implications for people with disabilities. Germany’s law is explicit in establishing priority of people over animals and disallowing an AV to be programmed to differentiate among categories of individuals.

Use in public transport, fleets, and individual ownership. Expectations are not clear about the developmental path of AV use as part of public transport, fleets, or individual ownership. Safety, liability, and privacy issues may be different depending on the context of ownership and use. In addition, infrastructure development – as well as where AVs can operate – also may vary depending on deployment models.

IX. Conclusions and Next Steps

The countries covered in this article stand out because they have already worked through issues that enable substantial legal regimes and/or they are influential in the evolving AV marketplace. Future work will (1) deepen the analysis while continuing to update the research, and (2) expand on the connections between AV-specific law, regulation, and policy and complementary legal regimes that bear on broad, relevant concerns (e.g., data dimensions and equity considerations).