STRATEGIES Autonomous cars International Transportation (70) 1 | 2018 18 Legal aspects of autonomous driving Changing face of urban mobility in a connected mobility Urban mobility, Autonomous driving, Dilemma situation, Data privacy, Smart city, Connected cars The essay gives an overview about legal aspects of autonomous driving. Moreover, it deals with urban mobility and issues coming along with electromobility, digitalization and connectivity. In addition to constitutional aspects like the dilemma situation, the essay deals with a possible prohibition of diesel and petrol vehicles as well as non-autonomous cars. Besides, an introduction into public law is given. This contains police law as well as the road traffic law and legislation issues. Another aspect concerns data privacy issues which result from the digitalization of the mobility of the future. Furthermore, the connectivity of the cars themselves and with the city is a theme. Finally, legal aspects of civil liability are dealt with. Jutta Stender-Vorwachs, Hans Steege W ide landscapes are contrary to urban regions and its mobility. Thus, the architectural environment allows and forces the next generation of mobility to react on the surrounding area. In addition, it grants new models of mobility (Figure 1). Nowadays, the infrastructure in cities is one of the most important aspects of architectural planning and the economical development of a city. Due to the digitalization and the connectivity of cars a new era of mobility as well as a new era of urban mobility evoke. Autonomous driving, electromobility and the so called shared economy will be a disruptive technology with an immense impact. Truth be told, this will not only affect the mobility but in fact also the whole infrastructure of a city in addition to the architectural environment. The city and the urban traffic itself will be connected, digitalized and smart. Together with this progress, there are a lot of legal issues which should be dealt with right from the beginning. Speaking of autonomous driving, connected cars, digitalization of the infrastructure and the cities one should keep several aspects in mind which come along with this topic. Due to the connectivity, autonomous driving shall make the traffic easier and safer. But the safety of the traffic can only be enabled when the technical system of the car is implemented with regard to data security. Autonomous driving affects several fields of law, for example issues of penal law, civil law and civil liability law, product and producer liability, insurance law as well as data privacy issues. Furthermore, it affects antitrustand competition law, labor law and constitutional issues as well as International and European law. Finally, civil procedure law is also affected. 1 This essay shall give a legal introduction to the changing face of mobility due to autonomous driving. Implications of fundamental rights To begin with, it is of most importance to analyze the implications of the fundamental rights. In the German jurisdiction the legal norm of the German constitutional law stands above all. The importance results from one aspect: the fundamental rights form an objective system of values. 2 New technologies like autonomous driving have to be in unison with the constitutional law. On the European level, the Charter of Fundamental Rights of the European Union is simply put the pendant to the national constitutional law. The constitution and the fundamental rights are technology-open. 3 As a result, the research in the field of autonomous driving is in accordance with the German constitutional law. 4 In the context of autonomous driving the dilemma situation occurs most frequently in the news. 5 The starting point of the question is, if under specific circumstances, the car Figure 1: Toyota e-Palette project, CES 2018 Source: Ampnet Autonomous cars STRATEGIES International Transportation (70) 1 | 2018 19 shall weigh life against life. This question has now been discussed from an ethical point of view which is obligatory for a social acceptance. 6 The legal conclusion, however, is crystal clear. It is forbidden and in fact unconstitutional to weigh life against life. 7 This results from a violation of the human dignity. The usage of a random generator as an imaginable solution would treat the human dignity and the human being itself as an object. 8 This is likewise a violation of the constitution. While talking about urban mobility one might think of traffic jam, air pollution and rare parking spaces. With regard to this one might forward the question if the government is able to prohibit cars others than those using electromobility entering the city. In addition, if autonomous driving leads to fewer road accidents and less road fatalities one might think of prohibiting non-autonomous cars from entering the city. 9 These two questions shall not be solved here, because relating thereto, huge legal debates and problems occur. 10 Urban mobility shall grant mobility for the habitants of a city. Physically handicapped people need mobility to participate in life. Autonomous driving provides new possibilities for physically handicapped people and may change urban mobility. An interesting aspect is, if they have a right on mobility and autonomous driving. Such a right could result from Art. 3 of the German constitutional law. 11 New challenges for the public law Normative rules regulate one’s everyday life. These include the German road traffic law as well as several federal police laws which are important for traffic law. Autonomous driving puts the well-known acts on the test bench. Do we need new legal standards or may the present legal standards compete with the technical progress? Law shall provide a functional legal framework. If the law is not suitable because of fast technical development, this bears the danger that law is formed by the normative force of the factual. In order to prevent such developments, law must offer the suitable legal framework for the future development of mobility. In the following we would like to show two examples putting law on the test bench. Speaking of federal police law and the German road traffic law (StVG), police controls come into one’s mind. Autonomous cars may drive without any passengers. Imagine that these are used by organized criminals as mobile bombs in order to carry out attacks. Police controls are with no doubt necessary. But who may stop an autonomous vehicle? 12 Is it even legally possible to stop an autonomous vehicle? Nowadays, police officers can stop cars by using signs. The request to stop is addressed to the driver. In the German road traffic regulations (StVO) § 36 Abs. 5 S. 4 orders the driver to stop due to a police sign. 13 In times of autonomous driving, new methods to control cars are necessary. It would be possible to cooperate with the car manufacturer who may override the current driving progress in order to stop the car as requested by the police. 14 Therefore a connectivity is needed. Several laws have to be adjusted, so that they fit as a legal framework for autonomous driving. The new § 1a StVG shall regulate the usage of high and full automated driving. In fact, the norm does not apply for autonomous driving. To bring forward this new technology the legislator has to renew this norm. Besides, the new norm already brings forward a lot of liability questions instead of solving them. The legislation act is also something one should keep in mind when talking about urban mobility in the future. Data privacy and data security Modern cars nowadays already produce and collect a lot of personal data. They produce data concerning the status and the technical condition of the car. Besides, they produce data of the driver and the passengers. Autonomous driving is only able to function, when cars are connected 15 and when they use systems to see so that they can react to their surroundings. 16 Using optical systems to film the environment means that constantly a huge amount of personal, private or even sensitive data is being produced by the car. In fact, these data are necessary, so that the car is able to drive. But one shall not forget and underestimate that these data contain personal information of the affected persons. Data privacy has to protect both, data of passengers which are in the cars as well as uninvolved third parties which belong to the outer traffic. The GDPR (European General Data Protection Regulation) coming into action on May 25, 2018 harmonizes the data privacy law throughout the whole European Union and sets up a minimum standard level of data privacy and data protection. 17 But not every data pertains to privacy law. One has to differentiate which data has been collected. In fact, it matters if the affected data are personal data or not. If the car does not store the data, privacy law is not applicable. With regard to a necessary black box it would be sufficient to store the data for 15 minutes and, if no accident happens, to erase the data. 18 Then, there is no privacy problem and the optical sensor system of the car may run without any legal problems. The amount of data is the biggest problem for the people involved. The bigger the amount of data, the more likely it is that the involved person loses the overview of his or her data. Being in accordance with privacy law is not a big burden. Privacy by design may solve many problems, as for example erasing the black box data automatically. Autonomous driving without passengers on board is technically possible. It is also possible with just an 8-year-old child on board. Due to the collected data of the child the GDPR requires a valid consent. Art. 8 (1) 1 GDPR requires that if the child is under the age of 16, the parents or the person in charge shall give their consent. Data privacy will only be effective if there is a well-thought-out data security. Embedded software is the key to grant protection from cyber-attacks. The decoupling of safety-relevant interfaces has the highest priority. 19 In case of a cyber-attack, errors by the manufacturer can quickly lead to a recourse claim. Urban mobility in a larger view contains more data privacy aspects than autonomous driving does. A smart city is connected with both, infrastructure and traffic itself. Various data are produced by using connected traffic lights. The vision field of the traffic lights notices other cars and pedestrians, so that other cars know when another car or a pedestrian cross or want to cross the junction. The flow of traffic increases in using these technologies. Smart traffic lights and a AUF EINEN BLICK Der Beitrag behandelt juristische Fragestellungen im Kontext autonomer Fahrzeuge und versucht, einen breit gefächerten Überblick und einen einfach verständlichen Einstieg in dieses Thema zu geben. Die urbane Mobilität wird im Kontext mit autonomem Fahren und Elektromobilität sowie Vernetzung und Digitalisierung betrachtet. Neben grundrechtlichen Aspekten wie der Dilemmasituation und dem Verbot von Diesel- oder Benzinkraftfahrzeugen wird auch ein mögliches Verbot nicht autonomer Fahrzeuge behandelt. Zudem werden weitere öffentlich-rechtliche Nuancen vom Polizeirecht bis hin zu gesetzgeberischen Änderungen im Straßenverkehrsgesetz angesprochen. Einen weiteren Aspekt bilden datenschutzrechtliche Auswirkungen der Digitalisierung in der Mobilität von Morgen. Zudem wird die Vernetzung der Fahrzeuge untereinander und mit der Verkehrsinfrastruktur sowie der Stadt angerissen. Ebenso werden zivilrechtliche Aspekte der Haftung behandelt. STRATEGIES Autonomous cars International Transportation (70) 1 | 2018 20 smart city are one pillar for a well-functioning urban mobility when using autonomous cars. Traffic lights predict the traffic flow, the city itself may predict where a traffic jam could occur. Using traffic lights which are connected to other traffic lights, to cars and to the city increases the traffic information of an autonomous car. But, one has always to remind that various data, which are in first case produced to come in benefit for the quality of urban mobility contain several sensitive information about each person involved. Personal data may only be used or stored if there is the necessary consent of the person involved, if it is permitted by law or if the usage is necessary to fulfill contractual agreed duties, § 4 Federal Data Protection Act (BDSG). Several advantages lying in the connectivity provide surplus values for the mobility of the future. But on the other hand, they always bear the burden of misusage or underestimating the overwhelming impact of collecting and storing a mass amount of personal data. Civil liability and insurance law Autonomous driving raises questions of liability. Who shall be liable in case of an accident? What happens, if there is no passenger on board or if the passengers cannot control the steering movements due to the fact that there is no steering wheel (see Figure 2)? Is the German strict liability even up to date in this scenario? If an accident occurs due to a product defect for which the car manufacturer is responsible, is it then accurate to make the car holder liable due to the strict liability? This brings up fundamental questions of our liability law system. Another possibility is to make the car manufacturer liable. This is imaginable in two ways: The driver liability applies to the one who controls the longitudinal and lateral acceleration. An autonomous car is controlled by the software which means that the car manufacturer would be the driver of the car. Otherwise, it would be possible to construct a liability for every car manufacturer with an obligation to have a third-party motor insurance. For non-autonomous cars the liability is clear. If the driver uses assistance systems, high or full automated cars, he is responsible and has to take back control of the car if needed, § 1 b Abs. 1, 2 StVG. That means, that he is liable in case of an accident. Legal conclusions All in all, one might say that digitalization, connectivity as well as autonomous driving probably, in combination with electromobility, will most likely shape the future of urban mobility. Together with these new technologies new models of mobility like the shared economy evolve. The high potential to be a disruptive technology cannot be denied. On the way to autonomous driving several legal aspects have to be considered. Both, development of technology as well as the legal research have to work hand in hand to grant the highest quality results. Autonomous driving does not fail due to inadequate laws. However, with the focus on adjusting laws, there is still a lot to do for the legislator. ■ 1 An overview of mostly all legal aspects can be found in: Autonomes Fahren, Rechtsfolgen, Rechtsprobleme, technische Grundlagen, Oppermann/ Stender-Vorwachs (Hrsg.), 2017. 2 BVerfGE 39, 1, 41; Münch/ Kunig, Grundgesetz, Kommentar, 6. Aufl., 2012, Vorb. Art. 1 - 19, Rn. 23. 3 Stender-Vorwachs/ Steege, „Grundrechtliche Implikationen autonomen Fahrens“ in: Autonomes Fahren, Rechtsfolgen, Rechtsprobleme, technische Grundlagen, Oppermann/ Stender-Vorwachs (Hrsg.), 2017, S. 253, 257. 4 Stender-Vorwachs/ Steege, (Fn.3), S. 253, 257. 5 For example, in the New York Times “Whose Life Should Your Car Save? ” from Nov. 3, 2016. https: / / www.nytimes. com/ 2016/ 11/ 06/ opinion/ sunday/ whose-life-should-yourcar-save.html (last access to the page on 25.03.2018). 6 The Federal Ministry of Transport and Digital Infrastructure implemented an Ethics Commission which dealt with Automated and Connected Driving. https: / / www.bmvi.de/ SharedDocs/ EN/ publications/ report-ethics-commission. pdf? __blob=publicationFile (Homepage last accessed on 1.04.2018). 7 Stender-Vorwachs/ Steege, (Fn. 3), S. 253, 263 et seqq. 8 Stender-Vorwachs/ Steege, (Fn. 3), S. 253, 266. 9 Stender-Vorwachs/ Steege, (Fn. 3), S. 253, 268 f. with a comparison to the prohibition of diesel cars from entering the city in Fn. 82 on page 269. 10 An overview can be found in Stender-Vorwachs/ Steege, (Fn. 3), S. 266 et seqq. 11 Stender-Vorwachs/ Steege, (Fn. 3), S. 253, 260 et seqq. 12 First brought up by Stender-Vorwachs/ Steege, “Facetten Automatisierten Fahrens - von Datenschutz über Fahrerflucht bis zur Verkehrskontrolle“, in: Bonner Rechtsjournal (BRJ) 2017, S. 114, 118. 13 Stender-Vorwachs/ Steege, „Das Aus für Autonomes Fahren? Rechtliche und technische Möglichkeiten von Verkehrskontrollen bei autonomen Fahrzeugen“, in: Neue Zeitschrift für Verkehrsrecht (NZV) 2017, 553. 14 Stender-Vorwachs/ Steege, (Fn. 13), S. 553, 554 f. 15 It can be differentiated between Car to Car, Car to Infrastructure and Car to Anything communication, cf. Auer- Reinsdorff/ Conrad, Handbuch IT- und Datenschutzrecht, § 34, Rn. 582. 16 Wagner, „Technik autonomer Fahrzeuge - Eine Einführung“, in: Autonomes Fahren, Rechtsfolgen, Rechtsprobleme, technische Grundlagen, Oppermann/ Stender- Vorwachs (Hrsg.), 2017, S. 1, 19 et seqq. 17 Stender-Vorwachs/ Steege, „Kleine Sim-Karte - große Konsequenz: Automobilhersteller als TK-Anbieter? Eine tk- und datenschutzrechtliche Analyse im Kontext autonomer Fahrzeuge, in: MultiMedia und Recht (MMR) 2018, 212, 215. 18 Stender-Vorwachs/ Steege, (Fn.3), S. 253, 286. 19 Stender-Vorwachs/ Steege, (Fn.3), S. 253, 278 with more information in Fn. 133; Stender-Vorwachs/ Steege, (Fn. 13), S. 553, 554. Jutta Stender-Vorwachs, Prof. Dr. iur. habil., LL.M. (Virginia, USA) Associate Professor, Faculty of Law, Gottfried Wilhelm Leibniz Universität, Hanover (DE) jutta.stender-vorwachs@jura. uni-hannover.de Hans Steege Stud. iur., Faculty of Law, Gottfried Wilhelm Leibniz Universität, Hanover (DE) hans.steege@jura.uni-hannover.de Figure 2: Autonomous bus shuttle in Bad Birnbach, Bavaria Photo: Deutsche Bahn AG/ Cosalux Stanko Beronja