Autono-Trust: How Safe Should You Feel Behind the Wheel of a Self-Driving Vehicle?

This is part one of a three-part series on the marketing of automated and autonomous driving systems to the public, and the impact of that marketing on public perception and understanding.

Many readers will have heard the term “autonowashing,” which was coined in 2020 by ADAS-researcher Liza Dixon to describe “the practice of making unverified or misleading claims which misrepresent the appropriate level of human supervision required by a partially or semi-autonomous product, service or technology.” Dixon’s website dedicated to the concept can be accessed here.

Another term that we think aptly describes this issue is “autono-trust.”

Some OEMs market their advanced driver assistance systems (ADAS) and automated driving systems (ADS) as a “stress-free” driving experience with advanced safety and convenience features designed to assist with the “burdensome” parts of driving. In fact, Tesla’s CEO, Elon Musk, declared as far back as 2016 that Tesla’s Autopilot was “probably better than humans at this point in highway driving.”

Critics, however, argue that this marketing fosters a misplaced sense of “autono-trust” in consumers. While OEMs market their ADAS and ADS to be used in dense traffic situations, they often do not disclose that in those circumstances, like freeway driving, the systems simply do not always recognize other cars, novel traffic patterns, or roadway hazards. Critics note that even in less complicated driving situations, ADAS and ADS sometimes fail to recognize and warn drivers of traffic patterns that involve merging, such as where lane changes take place, traffic exits and enters the highway, or traffic merges as lanes consolidate.

In response, advocates of ADAS and ADS validly point out that drivers are repeatedly instructed and warned that they must remain attentive and ready at all times to take over driving responsibilities from an ADAS or ADS. The argument is that drivers are fully informed and aware that they are ultimately responsible for controlling their vehicles and should not rely upon ADAS and ADS for anything more than secondary assistance in limited circumstances.

These same advocates dismiss claims of autono-trust as innocuous “puffery,” while critics view it as a serious issue that can lead to safety concerns as customers are often lulled into a false sense of security believing their ADAS and ADS can safely navigate any potential traffic condition with little or no driver oversight. In essence, critics argue that is exactly what consumers expect as part of a “stress-free” driving experience.

Notwithstanding the opposing views of critics and advocates of ADAS and ADS, there can be no dispute that as these systems become more commonplace so, too, will incidents in which drivers do not react quickly enough to transition from ADAS or ADS to manually operate the vehicle to avoid an accident. Proponents of placing liability on OEMs in these situations point to a growing body of scientific data which suggests that drivers have a limited ability to execute a “take over response” when ADAS and ADS fail to recognize dangerous conditions. These proponents further argue that common sense dictates that the “takeover response” time for humans varies greatly depending on the circumstances: the type of stimuli, the type of control necessary, and the driving situation. Critics of ADAS and ADS point out that currently-available technology does not allow for a sufficient margin of time for a driver to safely perform a takeover response. In other words, according to critics, some OEMs know that reasonable drivers will not, and more significantly, perhaps cannot override an ADAS or ADS safely through no fault of their own. Instead, critics maintain that by instructing drivers to be ready to assume control at all times, some OEMs “autono-trust” drivers into the false premise that a human can always safely take control of an ADAS or ADS that performs in an unexpected manner.

Hence, the conundrum of autono-trust, which gives rise to the perplexing legal dilemma of liability when accidents occur while ADAS or ADS are engaged. Is the OEM responsible for autono-trusting the driver into an unavoidably inattentive state or is the OEM insulated from liability because of the express warning that the driver must remain alert and ready to take over control of the vehicle? Regardless of the outcome of this debate, inevitably public trust in this otherwise promising technology continues to erode with each new report of an accident involving ADAS or ADS.

What is the solution? No doubt, this is an evolving situation with many perspectives and many possible approaches. Two that stand out in the current environment are advocacy and legal enforcement. On the advocacy side, consumer protection and industry groups have been calling for the standardization of terminology used by OEMs to ensure clarity surrounding the capabilities of the autonomous systems they offer in their vehicles. On the enforcement side, regulatory bodies are beginning to crack down on false advertising and misleading statements by OEMs regarding the capabilities of their ADAS and ADS. To this end, within the past few weeks, the California Department of Motor Vehicles formally accused Tesla of engaging in deceptive practices around its advertising and marketing of Autopilot and FSD, its driver assistance systems. We’ll explore both of these approaches in greater detail in Parts 2 and 3 of this series.

Posted August 12, 2022

The opinions expressed in this blog are those of the author(s) and do not necessarily reflect the views of the Firm, its clients, or any of its or their respective affiliates. This blog post is for general information purposes and is not intended to be and should not be taken as legal advice.