"No, the NHTSA did not declare that AIs are legal drivers."

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A slew of breathless stories have been published over the past couple days saying that the National Highway Traffic Safety Administration (NHTSA*) has declared that “Google’s driverless cars are now legally the same as a human driver,” or that “A.I. in Autonomous Cars Can Legally Count as the Driver.”

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Unfortunately, these news stories badly misstate–or at the very least overstate–what NHTSA has actually said. First, the letter written by NHTSA’s chief counsel that served as the main source for these news stories does not say that an AI system can be a “driver” under the NHTSA rule that defines that term. It merely assumes that an AI system can be a legal driver for purposes of interpreting whether Google’s self-driving car would comply with several NHTSA rules and regulations governing the features and components of motor vehicles. In the legal world, that assumption is very, very different from a ruling that the Google car’s AI system actually qualifies as a legal driver.

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The NHTSA indicated that it would initiate its formal rulemaking process to consider whether it should update the definition of “driver” in light of the “changing circumstances” presented by self-driving cars. But federal agency rulemaking is a long and complicated process, and the letter makes clear that dozens of rule changes would have to be made before a car like Google’s could comply with NHTSA standards.

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NHTSA also made it clear that many NHTSA rules that do not even contain the word “driver” would have to be completely rewritten in order for a self-driving car to comply with them. For example, Google’s car design does not include “foot control” service brakes or “a hand or foot control” parking brake, both of which are required under NHTSA regulations. Google asked NHTSA to interpret the “foot” and/or “hand” control brake requirements as simply being inapplicable and irrelevant to self-driving cars. But NHTSA said it could not do that because the written rules clearly require that human-appendage-controlled brakes be present; NHTSA cannot just pretend those rules do not exist. Even assuming that a reasonable interpretation of “driver” might include a self-driving car’s AI system, no reasonable interpretation of “foot control” brakes could include brakes that cannot be controlled by a foot. So unless a human is given control of braking in Google’s car (which would create safety issues) or the Google car’s AI system grows feet, the Google car would fail to meet NHTSA standards. The letter contains a number of other examples like this–rules that explicitly require a physical feature (such as a turn signal that can be deactivated by rotating a steering wheel) that are not part of Google’s self-driving car and that could not be added safely without returning control over driving back to a human.

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When laws on the books fail to keep up with the times, courts and agencies often look for creative ways to fit new square pegs into the round holes of existing law. But as the NHTSA letter demonstrates, that can only get you so far. Many laws and rules will have to be changed in order for self-driving cars to comply with them. And considering the thousands of pages of rules governing drivers and motor vehicles that are on the books across the U.S., that is going take awhile.

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