The Industry

The First Step Toward Protecting Everyone Else From Teslas

Why the government’s clever investigation into “Autopilot” might actually work.

A Tesla logo is seen on a Tesla car Model 3, inside of a Tesla shop inside of a shopping Mall in Beijing on May 26, 2021. (Photo by NICOLAS ASFOURI / AFP) (Photo by NICOLAS ASFOURI/AFP via Getty Images)
Once again, “Autopilot” is not actually autopilot. Nicolas Asfouri/Getty Images

After spending years looking into 30 separate Tesla crashes, this week federal safety officials finally took a step toward cracking down on the electric carmaker. On Monday, the National Highway Traffic and Safety Administration announced an investigation into Autopilot, Tesla’s driver assistance system, which allows the vehicle to manage certain highway tasks like changing lanes and moderating speed, and which numerous drivers have treated like a fully autonomous driving system (sometimes for the entertainment of their social media followers). NHTSA’s new investigation has a narrow focus: It will seek to determine why Teslas with Autopilot engaged have crashed at least 11 times into stationary first-responder vehicles.

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Depending on what the agency concludes, NHTSA could declare a “defect” in Autopilot, insisting that Tesla correct it or else face a hefty fine. NHTSA’s power over the automotive sector shouldn’t be underestimated; the agency’s investigation in Takata’s faulty airbags helped push the multi-billion dollar company into bankruptcy in 2017.

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While Tesla helped pioneer electric-car manufacturing, its strategy around autonomous driving has for years led to accusations of recklessness. Many observers cheered NHTSA for moving to rein in Tesla’s approach to Autopilot and its more advanced Full-Self Driving mode, something that has long been urged by the National Transportation Safety Board, a separate federal agency that lacks NHTSA’s enforcement authority.

As I’ve argued previously, Tesla has systematically pursued competitive advantage by sacrificing safety with its design and deployment of Autopilot and Full-Self Driving. In short: Tesla has given misleading names to the two systems that create driver confusion about their capabilities, refused to install high-quality driver monitoring systems, and enabled drivers themselves to determine whether it’s safe or not to deploy Autopilot in a given road situation. So far, Tesla’s competitors have been considerably more cautious in crafting their own so-called Advanced Driving Assistance Systems. A smackdown from the feds could force Tesla to change course, while dissuading other automakers from emulating its risky behavior.

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But there’s another aspect of NHTSA’s investigation that looks promising: It focuses on a specific group of people who were outside the Tesla during a collision. If an EMT has pulled over to check on people involved in a crash, there isn’t much she can do to protect herself from a Model Y bearing down on her.

That same logic holds for cyclists and pedestrians, more of whom are being killed on American roads—by all kinds of automobiles—than at any time since George H.W. Bush was president. These “vulnerable road users” have no control over the design of American autos, which are growing heavier, taller, and more dangerous to people walking or biking. For years, the federal government has focused on automobile occupants, doing little to protect vulnerable road users beyond recommending that they “dress to be seen by drivers.”

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But the investigation into Tesla offers a glimmer of hope that, at long last, that approach could be changing.

It’s worth nothing that NHTSA officials had plenty of alternatives available when they chose the focus of their new Tesla investigation. They could have asked whether the numerous videos of people playing cards or moving to the back seat while Autopilot is engaged—which Tesla warns against, but does not block—constitute “predictable abuse” of Autopilot’s design. If so, NHTSA guidance states that an enforcement action (i.e., a recall) could be appropriate. Or NHTSA could have followed a recommendation of the NTSB, probing whether Tesla should prevent drivers from using Autopilot outside its intended highway environment (its so-called operational design domain).

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But NHTSA didn’t take those paths. Instead, the agency chose to limit itself to the danger that Tesla poses to first responders on a roadway. There are practical reasons for such a narrow focus; it’s a relatively rare crash situation, but still common enough to search for a pattern of failure. Political calculations could factor in as well, since providing safety for firefighters and EMTs is about as nonpartisan as a policy goal can be.

There’s something else interesting in NHTSA’s approach. Focusing on these kinds of crashes frames first responders as the implied victims—not the occupants of the Tesla, who could (arguably) be said to have accepted the risks of Autopilot when they activated the system. That “buyer beware” defense has been voiced loudly by Tesla’s defenders after previous crashes have grabbed headlines, such as one in Texas earlier this year in which two individuals inside a Tesla were incinerated (neither was reportedly in the driver’s seat). It’s impossible to claim consent exists for a first responder—or for anyone else struck by a Tesla driver.

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This is a big deal, because it breaks with auto safety’s traditional orientation toward vehicle occupants. There is a natural reason for this focus. Car buyers want to be safe, and they frequently opt for pricier models or optional ADAS features like collision avoidance that they believe can better protect them. But most customers are far less willing to pay extra to reduce danger posed to people outside their vehicle in the event of a collision.

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As a result, carmakers have little incentive to invest in designs or technologies that protect vulnerable road users, since they can’t charge more for them. Worse, automaker’s lineups are steadily shifting toward taller, heavier SUVs and trucks, which provide a sense of security to their occupants while they endanger everyone else on the road.

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Researchers have cited this shift toward bulky SUVs and trucks as a key factor in the rising number of vulnerable road users killed on American roadways. Traffic deaths among people inside automobiles, meanwhile, have fallen 28 percent in the last 40 years. Notably, drivers who feel safer behind the wheel may drive more recklessly, assuming that they’ll come out of it OK if they end up in a crash (this is the Peltzman effect, named after an economist who argued that seat belt laws induced riskier driving). Pity the pedestrian or cyclist struck by a driver who felt secure in a Hummer that weighs as much as an elephant.

To date, the federal government has done virtually nothing to protect vulnerable road users, beyond issuing a shelf’s worth of policy reports. Institutional inertia is partly to blame, as automakers have long enjoyed a cozy relationship with their federal regulators (much to the frustration of safety crusader Ralph Nader, who was dismayed to see NHTSA fail to embrace the aggressive enforcement role he envisioned after writing Unsafe at Any Speed). Other countries have done much more to protect people outside the automobile. For instance, American auto crash safety ratings, called the New Car Assessment Program, do not incorporate the risk that a car’s design poses to pedestrians, unlike equivalent programs in Europe, Australia, and Japan.

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Advocates have had high hopes that President Biden—a cyclist who has endured a personal and horrific experience with a car crash—would revitalize the federal government’s commitment to road safety, especially with the aggressively multimodal Pete Buttigieg at the helm of the Department of Transportation, of which NHTSA is a part. So far Buttigieg has said all the right things, but his department hasn’t offered significant new protections to vulnerable road users.

That’s why NHTSA’s investigation into Autopilot’s risk to first responders seems encouraging. Finally, the agency is making an automaker sweat as it probes the risk posed to people outside its vehicles.

There’s no way right now to know if the Tesla investigation is an outlier or a turning point (DOT declined to comment for this article). But if the Biden administration is serious about finally offering protections to vulnerable road users, it will have plenty of policy levers available. Federal officials could finally revise the federal crash rating system to evaluate safety risk to pedestrians and cyclists, something that automakers seem willing to accept. They could push states to provide consistent data about the location and circumstances around collisions involving pedestrians and cyclists. And—perhaps most important of all—they could rejigger competitive grant criteria to favor states’ proposals that slow traffic, as well as those that expand sidewalks and create networks of protected bike lanes.

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Each of these steps would save lives. Even better, making biking and walking safer will encourage people to choose active transportation over driving. The Biden administration has attracted the ire of climate activists for doing too little in its first few months to spur mode shift away from automobiles; a renewed focus on pedestrian and cyclist safety would go over well with such critics.

However it unfolds, this initial, narrowly focused NHTSA investigation into Tesla is important for the development of autonomous vehicle technology, but it alone won’t do much to keep cyclists and pedestrians safe. But if it marks the beginning of a long-overdue federal pivot toward protecting vulnerable street users and not just the drivers themselves, it could send us down a whole new road.

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