Ever ones for pushing their luck when it comes to respecting codes, regulations, and maybe even the law, Uber hit the news again last when it turned it out at least one of its automated vehicles was caught running a red light (Uber blames humans for self-driving car traffic offenses as California orders halt).
My first thought on this was to wonder who’s nominally in control of an automated vehicle of the vehicle itself detects a likely accident and quickly hands control over to a human driver (“Sh********t… you-drive”), particularly if reaction times are such that even the most attentive human operator doesn’t have time to respond properly.
My second was to start pondering the agency associated with an algorithm, particularly a statistical one where the mapping from inputs to outputs is not necessarily known in advance but is based on an expectation that the model used by the algorithm will give an “appropriate” response based on the training and testing regime.
[This is a v quick and poorly researched post, so some of the references are first stabs as I go fishing… They could undoubtedly be improved upon… If you can point me to better readings (though many appear to be stuck in books), please add them to the comments…]
In the UK, companies can be registered as legal entities; as such, they can act as an employer and become “responsible” for the behaviour of their employees through vicarious liability ([In Brief] Vicarious Liability: The Liability of an Employer).
According to solicitor Liam Lane, writing for HR Magazine (Everything you need to know about vicarious liability):
Vicarious liability does not apply to all staff. As a general rule, a business can be vicariously liable for actions of employees but not actions of independent contractors such as consultants.
This distinction can become blurred for secondees and agency workers. In these situations, there are often two ‘candidates’ for vicarious liability: the business that provided the employee, and the business that received him or her. To resolve this, courts usually ask:
(i) which business controls how the employee carries out his or her work; and
(ii) which business the employee is more integrated into.
Similarly, vicarious liability does not apply to every wrongful act that an employee carries out. A business is only vicariously liable for actions that are sufficiently close to what the employee was employed to do.
The CPS guidance on corporate prosecutions suggests that “A corporate employer is vicariously liable for the acts of its employees and agents where a natural person would be similarly liable (Mousell Bros Ltd v London and North Western Railway Co  2 KB 836).”
Findlaw (and others) also explore limitations, or otherwise, to an employer’s liability by noting the distinction between an employee’s “frolics and detours”: A detour is a deviation from explicit instructions, but so related to the original instructions that the employer will still be held liable. A frolic on the other hand, is simply the employee acting in his or her own capacity rather than at the instruction of an employer.
Also on limitations to employer liability, a briefing note note from Gaby Hardwicke Solicitors (Briefing Note: Vicarious Liability and Discrimination) brings all sorts of issues to mind. Firstly, on scope:
Vicarious liability may arise not just where an employment contract exists but also where there is temporary deemed employment, provided either the employer has an element of control over how the “employee” carries out the work or where the “employee” is integrated into the host’s business. The employer can be vicariously liable for those seconded to it and for temporary workers supplied to it by an employment business. In Hawley v Luminar Leisure Ltd, a nightclub was found vicariously liable for serious injuries as a result of an assault by a doorman, which it engaged via a third party security company.
The Equality Act 2010 widens the definition of employment for the purposes of discrimination claims so that the “employer” is liable for anything done by its agent, under its authority, whether within its knowledge or not. This would, therefore, confer liability for certain acts carried out by agents such as solicitors, HR consultants, accountants, etc.
In addition, the briefing describes how “Although vicarious liability is predominantly a common law concept, for the purposes of anti-discrimination law, it is enshrined in statute under section 109 Equality Act 2010. This states that anything that is done by an individual in the course of his employment, must be treated as also done by the employer, unless the employer can show that it took all reasonable steps to prevent the employee from doing that thing or from doing anything of that description.
So, I’m wondering… Companies act through their employees and agents. To what extent might we start to see “algorithms” and/or “computational models” (eg trained “Deep Learning”/neural networks models) starting to be treated as legal entities in their own right, at least in so far as they may be identified qua employees or agents when it comes to acting on behalf of a company. When one company licenses an algorithm/model to another, how will any liability be managed? Will algorithms and models start to have their own (employment) agents? Or are statistical models and algorithms (with parameters set) actually just patentable inventions, albeit with very specifically prescribed dimensions and attribute values?
In terms of liability, companies currently seem keen to try on wriggling around accountability by waving their hands in the air when an algorithm occurs. But when does the accountability lie, and where does the agency lie (in the sense that algorithms and models make (automated) decisions on behalf of their operators? Are there any precedents around ruling decision making algorithms as something akin to “employees” when it comes to liability? Or companies arguing for (or against) such claims? Can an algorithm be defined as a company, with its articles and objects enshrined in code, and if so, how is liability then limited as far as its directors are concerned?
I guess what I’m wondering is: are we going to see algorithms/models/robots becoming entities in law? Whether defined as their own class of legal entity, companies, employees, agents, or some other designation?
PS pointers to case law and examples much appreciated. Eg this sort of thing is maybe relevant? Search engine liability for autocomplete suggestions: personality, privacy and the power of the algorithm in a discussion of how an algorithm operator is liable for the actions of the algorithm?
The news in recent days that VW had installed a software device into some of it’s diesel engines that identify when the engine is being tested for emissions on a dynamometer (“dyno”) provides a nice demonstration of how “intelligent” software control systems can be use to identify particular operating environments and switch into an appropriate – or inappropriate – operational mode.
As I keep finding, press coverage of the events seems to offer less explanation and context than the original document that seems to have kicked off the recent publicity, specifically a letter from the US environmental protection agency to the Volkswagen Group of America:
(The document is a PDF of a scanned document; I had hoped to extracted the text using a variant of this recipe, running Tika on my own computer via Kitematic, Getting Text Out Of Anything (docs, PDFs, Images) Using Apache Tika, but it doesnlt seem to extract text from the inlined image(s). Instead, I uploaded it to Google Drive, then opened it in Google docs – you see pages from the original doc as an image, and below is the extracted text.)
Here are some of the bits that jumped out at me:
A defeat device is an AECD [Auxiliary Emission Control Device] “that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and procedure use, unless: (1) Such conditions are substantially included in the Federal emission test procedure; (2) The need for the AECD is justified in terms of protecting the vehicle against damage or accident; (3) The AECD does not go beyond the requirements of engine starting; or (4) The AECD applies only for emergency vehicles …” 40 C.F.R. § 86.1803-01.
Motor vehicles equipped with defeat devices, … cannot be certified.
The CAA makes it a violation “for any person to manufacture or sell, or offer to sell, or install, any part or component intended for use with, or as part of any motor vehicle or motor vehicle engine, where a principal effect of the part or component is to bypass, defeat, or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under this subchapter, and where the person knows or should know that such part or component is being offered for sale or installed for such use or put to such use.” CAA § 203(a)(3)(B), 42 U.S.C. § 7522(a)(3)(B); 40 C.F.R. § 86.1854-12(a)(3)(ii).
Each VW vehicle identified … has AECDs that were not described in the application for the COC that purportedly covers the vehicle. Specifically, VW manufactured and installed software in the electronic control module (ECM) of these vehicles that sensed when the vehicle was being tested for compliance with EPA emission standards. For ease of reference, the EPA is calling this the “switch.” The “switch” senses whether the vehicle is being tested or not based on various inputs including the position of the steering wheel, vehicle speed, the duration of the engine’s operation, and barometric pressure. These inputs precisely track the parameters of the federal test procedure used for emission testing for EPA certification purposes. During EPA emission testing, the vehicles ECM ran software which produced compliant emission results under an ECM calibration that VW referred to as the “dyno calibration” (referring to the equipment used in emissions testing, called a dynamometer). At all other times during normal vehicle operation, the “switch” was activated and the vehicle ECM software ran a separate “road calibration” which reduced the effectiveness of the emission control system (specifically the selective catalytic reduction or the lean NOx trap). As a result, emissions of NOx increased by a factor of 10 to 40 times above the EPA compliant levels, depending on the type of drive cycle (e.g., city, highway). … Over the course of the year following the publication of the WVU study [TH: see link below], VW continued to assert to CARB and the EPA that the increased emissions from these vehicles could be attributed to various technical issues and unexpected in-use conditions. VW issued a voluntary recall in December 2014 to address the issue. … When the testing showed only a limited benefit to the recall, CARB broadened the testing to pinpoint the exact technical nature of the vehicles’ poor performance, and to investigate why the vehicles’ onboard diagnostic system was not detecting the increased emissions. None of the potential technical issues suggested by VW explained the higher test results consistently confirmed during CARB’s testing. It became clear that CARB and the EPA would not approve certificates of conformity for VW’s 2016 model year diesel vehicles until VW could adequately explain the anomalous emissions and ensure the agencies that the 2016 model year vehicles would not have similar issues. Only then did VW admit it had designed and installed a defeat device in these vehicles in the form of a sophisticated software algorithm that detected when a vehicle was undergoing emissions testing.
VW knew or should have known that its “road calibration” and “switch” together bypass, defeat, or render inoperative elements of the vehicle design related to compliance with the CAA emission standards. This is apparent given the design of these defeat devices. As described above, the software was designed to track the parameters of the federal test procedure and cause emission control systems to underperform when the software determined that the vehicle was not undergoing the federal test procedure.
VW’s “road calibration” and “switch” are AECDs’ that were neither described nor justified in the applicable COC applications, and are illegal defeat devices.
The news also reminded of another tech journalism brouhahah from earlier this year around tractor manufacturer John Deere arguing that farmers don’t own their tractors, but instead purchase “an implied license for the life of the vehicle to operate the vehicle” (Wired, We Can’t Let John Deere Destroy the Very Idea of Ownership).
I didn’t really follow that story properly at the time but it seems the news arose out of a response to a consultation by the US Copyright Office around the Digital Millennium Copyright Act (DMCA), and in particular a “Proposed Class 21: Vehicle software – diagnosis, repair, or modification” category (first round comments, second round comments) for the DCMA Section 1201: Exemptions to Prohibition Against Circumvention of Technological Measures Protecting Copyrighted Works.
[UPDATE: Decisions have now been made on what exemptions are allowable: Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies (PDF)]
Here’s how the class was defined:
21. Proposed Class 21: Vehicle software – diagnosis, repair, or modification
This proposed class would allow circumvention of TPMs [technological protection measures] protecting computer programs that control the functioning of a motorized land vehicle, including personal automobiles, commercial motor vehicles, and agricultural machinery, for purposes of lawful diagnosis and repair, or aftermarket personalization, modification, or other improvement. Under the exemption as proposed, circumvention would be allowed when undertaken by or on behalf of the lawful owner of the vehicle.
Note the phrase “for purposes of lawful diagnosis and repair”…
I also note a related class:
22. Proposed Class 22: Vehicle software – security and safety research
This proposed class would allow circumvention of TPMs protecting computer programs that control the functioning of a motorized land vehicle for the purpose of researching the security or safety of such vehicles. Under the exemption as proposed, circumvention would be allowed when undertaken by or on behalf of the lawful owner of the vehicle.
(and in passing note Proposed Class 27: Software – networked medical devices…).
Looking at some of the supporting documents, it’s interesting to see how the lobby moved. For example, from the Senior Director of Environmental Affairs for the Alliance of Automobile Manufacturers:
The proponents state that an exemption is needed for three activities related to vehicles – diagnosis, repair, and modification. In my limited time, I will explain why, for the first two activities – diagnosis and repair – there is no need to circumvent access controls on Electronic Control Units (ECUs). Then, I will address why tampering with ECUs to “modify” vehicle performance undermines national regulatory goals for clean air, fuel efficiency, and auto safety, and why the Copyright Office should care about that.
The arguments put forward by the proponents of this exemption are unfounded. State and federal regulations, combined with the Right to Repair MOU and the 2002 “Dorgan letter,” guarantee all independent repair shops and individual consumers access to all the information and tools needed to diagnose and repair Model Year 1996 or newer cars. This information and these tools are already accessible online, through a thriving and competitive aftermarket. Every piece of information and every tool used to diagnose and repair vehicles at franchised dealers is available to every consumer and every independent repair shop in America. This has been the case for the past 12 years. Moreover, all of these regulations and agreements require automakers to provide the information and tools at a “fair and reasonable price.” No one in the last 12 years has disputed this fact, in any of the various avenues for review provided, including U.S. EPA, the California Air Resources Board, and joint manufacturer-aftermarket organizations.
There is absolutely no need to hack through technological protection measures and copy ECU software to diagnose and repair vehicles.
The regulations and agreements discussed above do not apply to information needed to “modify” engine and vehicle software. We strongly support a competitive marketplace in the tools and information people need so their cars continue to perform as designed, in compliance with all regulatory requirements. But helping people take their cars out of compliance with those requirements is something we certainly do not want to encourage. That, in essence, is what proponents of exemption #21 are calling for, in asserting a right to hack into vehicle software for purposes of “modification.” In the design and operation of ECUs in today’s automobiles, manufacturers must achieve a delicate balance among many competing regulatory demands, notably emissions (air pollution); fuel economy; and of course, vehicle safety. If the calibrations are out of balance, the car may be taken out of compliance. This is so likely to occur with many of the modifications that the proponents want to make that you could almost say that noncompliance is their goal, or at least an inevitable side effect.
Manufacturer John Deere suggested that:
1. The purpose and character of the use frustrate compliance with federal public safety and environmental regulations
The first fair use factor weighs against a finding of fair use because the purpose and character of the use will encourage non-compliance with environmental regulations and will interfere with the ability of manufacturers to identify and resolve software problems, conduct recalls, review warranty claims, and provide software upgrade versions.
And General Motors seem to take a similar line:
TPMs also ensure that vehicles meet federally mandated safety and emissions standards. For example, circumvention of certain emissions-oriented TPMs, such as seed/key access control mechanisms, could be a violation of federal law. Notably, the Clean Air Act (“CAA”) prohibits “tampering” with vehicles or vehicle engines once they have been certified in a certain configuration by the Environmental Protection Agency (“EPA”) for introduction into U.S. commerce. “Tampering” includes “rendering inoperative” integrated design elements to modify vehicle and/or engine performance without complying with emissions regulations. In addition, the Motor Vehicle Safety Act (“MVSA”) prohibits the introduction into U.S. commerce of vehicles that do not comply with the Federal Motor Vehicle Safety Standards, and prohibits manufacturers, dealers, distributors, or motor vehicle repair businesses from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle in compliance with an applicable motor vehicle standard.14
Further, tampering with these systems would not be obvious to a subsequent owner or driver of a vehicle that has been tampered with. If a vehicle’s airbag systems, including any malfunction indicator lights, have been disabled (whether deliberately or inadvertently), a subsequent vehicle owner’s safety will be in jeopardy without warning. Further, if a vehicle’s emissions systems have been tampered with, a subsequent owner would have no way of knowing this has occurred. For tampering that the subsequent owner eventually discovers, manufacturer warranties do not cover the repair of damage caused by the tampering, placing the repair cost on the subsequent owner. For good cause, federal environmental and safety regulations regarding motor vehicles establish a well-recognized overall policy against allowing tampering with in-vehicle electronic systems designed for safety and emissions control.
While so-called “tinkerers” and enthusiasts may wish to modify their vehicle software for personal needs, granting greater access to vehicle software for purposes of modification fails to consider the overall concerns surrounding regulatory compliance and safety and the overall impact on safety and the environment. … Thus, the current prohibition ensures the distribution of safe and secure vehicle software within an overall vehicle security strategy implemented by car manufacturers that does not restrict vehicle owners’ ability to diagnose, modify or repair their cars.
The arguments from the auto lobby therefore go along the lines of “folk can’t mess with the code because they’ll try to break the law”, as opposed to the manufacturers systematically breaking the law, or folk trying to find out why a car performs nothing like the apparently declared figures. And I’m sure there are no elements of the industry wanting to prevent folk from looking at the code lest they find that it has “test circumvention” code baked in to it by the actual manufacturers…
What the VW case throws up, perhaps, is the need for a clear route for investigators to be allowed to find a way of checking on the compliance behaviour of various algorithms, not just in formal tests but also in unannounced to the engine management system, everyday road tests.
And that doesn’t necessarily require on-the-road tests in a real vehicle. If the controller is a piece of software acting on digitised sensor inputs to produce a particular set of control algorithm outputs, the controller can be tested on a digital testbench or test harness against various test inputs covering a variety of input conditions captured from real world data logging. This is something I think I need to read up more about… this could be a quick way in to the very basics: National Instruments: Building Flexible, Cost-Effective ECU Test Systems White Paper. Something like this could also be relevant: Gehring, J. and Schütte, H., “A Hardware-in-the-Loop Test Bench for the Validation of Complex ECU Networks”, SAE Technical Paper 2002-01-0801, 2002, doi:10.4271/2002-01-0801 (though the OU Library fails to get me immediate access to this resource…:-(.
PS In passing, I just spotted this: Auto Parts Distributor Pleads Guilty to Manufacturing and Selling Pirated Mercedes-Benz Software – it seems that Mercedes-Benz distribute “a portable tablet-type computer that contains proprietary software created by to diagnose and repair its automobiles and that requires a code or ‘license key’ to access [it]” and that a company had admitted to obtaining “without authorization, … [the] Mercedes-Benz SDS software and updates, modified and duplicated the software, and installed the software on laptop computers (which served as the SDS units)”. So a simple act of software copyright/license infringement, perhaps, relating to offboard testing and diagnostic tools. But another piece in the jigsaw, for example, when it comes to engineering software that can perform diagnostics.
PPS via @mhawksey, a link to the relevant West Virginia University test report – In-use emissions testing of light-duty diesel vehicles in the U.S. and noting Martin’s observation that there are several references to Volkswagen’s new 2.0 l TDI engine for the most stringent emission standards — Part 2 (reference  in the paper, Hadler, J., Rudolph, F., Dorenkamp, R., Kosters, M., Mannigel, D., and Veldten, B., “Volkswagen’s New 2.0l TDI Engine for the Most Stringent Emission Standards – Part 2,” MTZ Worldwide, Vol. 69, June, (2008). , which the OU Library at least doesn’t subscribe to:-(…
“Interestingly” the report concluded:
In summary, real-world NOx emissions were found to exceed the US-EPA Tier2-Bin5 standard (at full useful life) by a factor of 15 to 35 for the LNT equipped Vehicle A, by a factor of 5 to 20 for the urea-SCR fitted Vehicle B (same engine as Vehicle A) and at or below the standard for Vehicle C with exception of rural-up/downhill driving conditions, over five predefined test routes. Generally, distance-specific NOx emissions were observed to be highest for rural-up/downhill and lowest for high-speed highway driving conditions with relatively flat terrain. Interestingly, NOx emissions factors for Vehicles A and B were below the US-EPA Tier2-Bin5 standard for the weighted average over the FTP-75 cycle during chassis dynamometer testing at CARB’s El Monte facility, with 0.022g/km ±0.006g/km (±1σ, 2 repeats) and 0.016g/km ±0.002g/km (±1σ, 3 repeats), respectively.
It also seems that the researchers spotted what might be happening to explain the apparently anomalous results they were getting with help from reference 31: “The probability of this explanation is additionally supported by a detailed description of the after-treatment control strategy for Vehicle A presented elsewhere “.
PPPS I guess one way of following the case might be track the lawsuits, such as this class action complaint against VW filed in California (/via @funnymonkey) or this one, also in San Francisco, or Tennessee, or Georgia, or another district in Georgia, or Santa Barbara, or Illinois, or Virginia, and presumably the list goes on… (I wonder if any of those complaints are actually informative/well-researched in terms of their content? And whether they are all just variations on a similar theme? In which case, they could be an interesting basis for a comparative text analysis?)
In passing, I also note that suits have previously – but still recently – been filed against VW, amongst others, regarding misleading fuel consumption claims, for example in the EU.