Public Morals, Trade Secrets, and the Dilemma of Regulating Automated Driving Systems

Abstract

Automated driving systems (ADS) is growing exponentially as one of the most promising AI applications. While governments worldwide have been promoting ADS, they have also been contemplating rules and standards in response to its legal, economic, and social ramifications. ADS promises to transform ways in which people commute between places and connect with one another, altering the conventional division of labor, social interactions, and provision of services. Regulatory issues such as testing and safety, cybersecurity, connectivity, liability, and insurance are driving governments to establish comprehensive and consistent policy frameworks. Of key importance is ADS’s ethical challenges, which play a key role in building trust and confidence among consumers, societies, and governments. How to align ADS development with fundamental ethical principles embedded in a society—with its own values and cultural contexts—remains a difficult question. The “Trolley Problem” aptly demonstrates such tension. While it seems essential to have rules and standards reflecting local values and contexts, potential conflicts and duplication may have serious trade implications in terms of how ADS is designed, manufactured, distributed, serviced, and driven across borders. This chapter examines the multifaceted, complex, and fluid regulatory issues related to ADS and uses the most controversial, ethical dimension to analyze the tensions between the protection of public morals and trade secrets under the WTO. This chapter unpacks three levels of challenges that may translate into a regulatory dilemma in light of WTO Members’ rights and obligations under GATT, TBT Agreement, and TRIPS Agreement and identifies possible venues of reconfiguration.

Keywords: Automated driving systems, self-driving cars, autonomous vehicles, public moral, trade secrets, AI ethics, algorithm, Trolley Problem, TBT, TRIPS