The Costs of Self-Driving Cars: Reconciling Freedom and Privacy with Tort Liability in Autonomous Vehicle Regulation

Abstract

Nearly all of the literature on self-driving cars explores either their impact on social values, like freedom and privacy, or the questions they pose for legal liability. These lines of inquiry have developed largely in isolation, with little effort to examine how they might intersect and inform each other. This Article advances an integrated approach: regulators should consider freedom, privacy, and liability as interlocking pieces—not independent elements—of the puzzle of self-driving car regulation. Explorations into the laws of agency and product liability demonstrate that an actor’s post-sale control of and access to an autonomous vehicle may determine that actor’s liability for its accidents. As a result, the more that users want to preserve their freedom and privacy, the more liability they may end up retaining for the behavior of their self-driving cars. This Article then provides the first sustained inquiry into how different liability regimes for autonomous vehicles might generate sizable efficiencies in liability and insurance administration. The Article closes by making a normative appeal to regulators: only allow autonomous vehicles to infringe on user freedom and privacy to the extent that (1) reductions in freedom and privacy lead to equivalent reductions in liability for the users of self-driving cars; and (2) the social costs incurred by forfeiting these values will be outweighed by administrative efficiencies or other identifiable social benefits. By tying the reduction of user freedom and privacy to improvements in both individual and social welfare, this Article charts a possible course for regulators to reconcile freedom and privacy with tort liability in autonomous vehicle regulation.