Dear readers,

The ongoing digitalization of traffic will change our mobility in the future. Additionally, there will be a multitude of consequences requiring adequate legal reactions. Automated driving already provides an example: if, in future, we are on our way with autonomous driving vehicles connected with other vehicles and a «smart infrastructure», we will not only cover distances but continuously generate data. This data is going to be part of a tremendous data pool covering all daily routes. By contributing to the creation of Big Data, we open up possibilities of optimizing road traffic, say by prevention of traffic jams. Simultaneous, our data enables new options for value chains by data evaluation: from personalized advertising up to robot cars undertaking «gentle trips» with us assuming that we would be interested in shopping or getting a haircut. Furthermore, a data pool of daily routes can be valuable for the surveillance of individuals: if, for example, a sensational crime happens, persons having stayed nearby could be identified. Or in case, crimes happen increasingly at specific locations, profiles of possible offenders could be created by combining traffic data with other data. Besides, individualized data from a vehicle, e.g. after a car accident, enable the reconstruction of a preferably probabilistic sequence of events. The articles published in this issue shed light on the various aspects of a digitalization of traffic that are significant for ownership of rights or law enforcement:

In Three Lessons Learned for Intelligent Transport Systems that Abide by the Law, Ugo Pagallo shows that self driving cars, due to the underlying technology, raise legal issues in a wide range of different areas: security, consumer law, insurance, privacy and data protection, road traffic law, tax law, and more. The article aims to address the normative challenges and regulatory models – and, in doing so, retrospects a more then 15 years old discussion.

A fundamental question for intelligent traffic and data rights is asked by Christine Möhrke-Sobolewski: who owns the data from car and road? The article takes up an essential aspect of the speeches held at the conference «Intelligenter Verkehr – Rechtsfragen im Kontext», organized by the law faculty of the University of Basel: the question of data rights. Along with a short overview of the current state of debate, safety aspects of individual and mass transport are discussed, the interaction of data and creation of value is outlined, and questions regarding the procedural usage of data in terms of access rights in civil and criminal procedures and according to data protection are asked. Sabine Gless elucidates yet another fundamental question being discussed at the conference: Intelligent Traffic and Big Data – what advantages and disadvantages do we expect from recording and evaluating our paths?

A practical perspective on data from cars is offered by Jörg Arnold – showing the point of view of those intending to externally access certain information generated when using a car. The access to so-called crash data, for instance, can be essential for a presumably valid reconstruction of the accident’s sequence of events for prosecution authorities. If such data, eventually saved in airbag control modules, should be accessed, interests may collide: forensically relevant digital evidence might be extremely valuable both for the involved persons and the vehicle producers, and data transparency is not reasonable from every point of view. The author informs about the current practice and shows up open legal questions.

In their analysis of a judgement of the Higher Regional Court of Hamm regarding data processing in vehicles, Jan Spittka and Marcus Schreibauer elucidate that a differentiation of «offline» and «online» vehicles is essential. The court’s decision relates to the first litigation case about the admissibility of the storage of personal data in a vehicle known in Germany. In relation to a dispute between the seller and a buyer of an SUV, the court had to evaluate to what extent data storage in the systems of the car may entitle the buyer to refuse the acceptance of the car, and, in this context, grappled with respect to the data processing in a vehicle which becomes more and more common and comprehensive.

Based on the EU General Data Protection Regulation that will be in force from 25 May 2018, Magnus Grünheidt contemplates self driving cars from a data protection related perspective. In doing so, he presents the current development status, enlarges upon accruing data of connected cars and asks whether and how the use of self driving cars can be designed in compliance with data protection. The legal design possibilities allowing technical developments to reconcile with data protection will be evinced.

More questions concerning data rights and data protection, and especially new liability issues arise when highly automated or autonomous cars take part in digitalized traffic:

Nadine Zurkinden examines the criminal liability for a crash within a pilot operation of self driving vehicles. Could damage done be justified as a criminally authorized risk? This scenario relates to an accident that occurred after granting an exceptional permit for testing autonomous vehicles. In a case like this, can the pilot operation be assessed a permitted risk, so that no one would be prosecuted, because a balancing of interest on three levels – legislator, approving authority and criminal judge – would result in taking the risk?

Problems in the field of civil law occurring when the car does not see the lorry are analysed by Cordula Lötscher, who flags up the hypothesis of a shifting of civil liability due to intelligent algorithms. The article provides an overview on the civil liability for the use of self-driving cars under Swiss and German law de lege lata and ferenda. The responsibility of the owner, the driver and the producer, plus possible new actors, is investigated.The article thereby focuses on the special features of Machine Learning based systems.

The articles highlight several unresolved legal issues arising from the digitalization of traffic. Questions like these are objects of a Law & Robot research module at the Faculty of Law at the University of Basel. The scenario of increasingly smart road traffic serves as one visual example for four dissertation projects within the Swiss National Science Foundation’s National Research Programme «Big Data» (SNF NFP75). The focus is on

• the assignment of data rights in the value chain Big Data using the example of intelligent traffic;
• the possibility to regulate the transfer of data rights, particularly in automatized driving;
• the possible exclusion of data which is generated by robots in a defendant’s private sphere from criminal proceedings;
• the right to demand prosecution as a victim’s data right within criminal law.

The research cluster aims to demonstrate the challenges Big Data poses for law, using intelligent traffic as an example, and to present various solutions for new legal rules so that everyone can prepare for where they can profit and what they could risk in a future of intelligent traffic.

I would like to thank Weblaw AG for making the articles of the conference «Intelligenter Verkehr – Rechtsfragen im Kontext» as well as other papers relevant to the topic available for free and thus forwarding the discussion and the state of research.

Basel, in November 2016

Prof. Dr. iur. Sabine Gless
Law Faculty, University of Basel