Autonomous Driving: Regulatory Challenges Raised by Artificial Decision-Making and Tragic Choices
In: Woodrow Barfield and Ugo Pagallo (Eds), Research Handbook on the Law of Artificial Intelligence, Edward Elgar (2017/18, Forthcoming)
33 Pages Posted: 11 Oct 2017
Date Written: September 7, 2017
Artificial intelligence implies that decision-making by artificial agents replaces human decision-making. This paper examines the challenges this development raises with respect to the densely regulated area of traffic law in which self-driving cars and human drivers operate simultaneously. As opposed to other, more open-textured areas of law, road traffic law is generally suited for the operation of artificial agents even if the requirement of a human “driver” in international conventions still needs to be amended. Thus, it is now up to legislators and other regulatory bodies to clarify the legal framework. In order to ensure legal compliance by self-driving cars, the regulator must supervise how programmers translate the norms of traffic into computer code, and must set standards of reliability for artificial fact-finding. Machine learning, which will likely serve as an important method for fact-finding and meaningful law compliance, is not incompatible with the primacy of law if the process is supervised, and if its results are explainable and justifiable. Furthermore, a regulator must address the biases created by artificial decision-making as the paper illustrates with respect to tragic life-and-death decisions of crash algorithms. Crash algorithms raise legal, not only moral, questions that the law should arguably regulate. In doing so, the regulator fulfills a positive obligation flowing from human rights, i.e. the right to life, equality, and human dignity, which should also generally guide regulatory choices. More precisely, crash algorithms, which do not, as such, violate human dignity, should reflect the priorities of a legal order, and must not use personal characteristics such as race, gender, or age, to chose between potential victims of an accident. The regulator may, however, prescribe death-toll minimization, specify areas of risks or resort to responsibility as a relevant criterion for those tragic decisions.
Keywords: autonomous driving, self-driving car, artificial intelligence, computer code, algorithm, crash, tragic choice, human dignity, discrimination
Suggested Citation: Suggested Citation