Is Tesla merely a Level-2 ADAS vehicle or a Level-4 highly automated car?
Most consumers find the technical distinctions between the established SAE levels of autonomy arcane and downright bewildering. But for California DMV regulators, this is the pivotal issue.
If Tesla’s Full Self-Driving (FSD) design intent parallels to SAE’s Level 4 autonomy standard, it could serve as legal grounds for an injunction against operation of Tesla’s FSD beta vehicles in California, according to a law professor and a safety expert.
In an academic commentary recently published by JURIST and the original technical analysis at SSRN, William Widen, a professor at the University of Miami School of Law, and Philip Koopman, associate professor at Carnegie Mellon University, sketch out for lawmakers and regulators a roadmap to put Tesla’s FSD beta testing under official scrutiny.
If Tesla’s FSD beta is classified at SAE Level 3, 4, or 5, then “under the California DMV regulations, that vehicle is an ‘autonomous vehicle,’” the authors note. Once FSD beta vehicles are designated AVs, “they should be subject to the same regulatory oversight as all other Level 4 testers to ensure the safety of road users and by-standers,” they add.
Do consumers care?
In practice, for most consumers, SAE definitions don’t really matter. Once you’ve bought a brand-new Tesla, all you want to do is enjoy the “driving.”
As evidenced in countless YouTube video clips, however, some consumers have become unofficial Tesla testers — self-styled mavericks who push their vehicles’ ADAS and AV features hard to see if their cars can live up to Elon Musk’s tweeted Level 4 promises.
At the other end of the spectrum are the Tesla owners who stand — or sit — ready to throw caution to the wind. They appear to feel no compunction about driving their Teslas while intoxicated, for example, believing that the vehicle’s Autopilot will carry them home like an old horse who knows the way.
The fatalities that have resulted from the Tesla’s occasionally idiosyncratic driving behavior have been widely reported. But in most cases, thus far, the culprits have been the drivers themselves, who were posthumously said to have been confused about Autopilot’s limitations.
Usually absent from these accounts is some clarification of who contributed to the drivers’ misunderstanding.
Tesla’s FSD beta: An even bigger nightmare?
Looming large at this point is Tesla’s expanded FSD beta rollout, which has begun this week. Safety experts are concerned that it’s likely to create even bigger risks to public road users than we have seen up to now.
Tesla is releasing updated FSD software to an expanded set of customers beyond its current cadre of 2,000 “beta testers.” Tesla owners will be able to request the update with a beta test request button.
The company is downplaying its FSD beta distribution, calling it a test expansion rather than a general public release. Musk tweeted that Tesla is limiting FSD beta access to owners whose “driving behavior is good for seven days.”
However, Widen and Koopman argue in their paper, “this only reinforces the notion that this is a selectively released pre-production test system, and not a road-ready full production feature.”
They conclude: “In other words, Tesla is having selected civilian drivers do on-road testing of their ‘beta’ SAE Level 4 FSD feature, and that combination of vehicle plus test driver arrangement is behaving dangerously on public roads.”
Whom to blame?
It’s important to note that Autopilot, a standard feature in all newer Tesla cars, has already wreaked havoc. Tesla’s own description of FSD features suggests even more chaos to come.
Tesla describes its FSD as follows:
All new Tesla cars have the hardware needed in the future for full self-driving in almost all circumstances. The system is designed to be able to conduct short and long-distance trips with no action required by the person in the driver’s seat.
Say what?
Who will be held responsible when accidents happen? Will Tesla’s FSD be blamed, or will it be the non-driving driver’s fault, even though the driver was assured by Tesla that whoever is in the driver’s seat is required to take no action when making short or long-distance trips?
Bait and switch
On one hand, Tesla is promoting a SAE Level 2 classification for its vehicles. Tesla knows this designation inoculates it from further, more stringent AV regulations. However, Tesla’s marketing materials clearly entice consumers to believe that they no longer need to drive while occupying the FSD-enabled cars.
Tesla is shuffling autonomy classifications according to its mercantile convenience. It’s particularly pernicious example of bait and switch.
Such practices might eventually catch up with Tesla. With the FSD beta rollout, Widen and Koopman write, “Tesla has painted itself into a regulatory corner.”
The two academic sleuths assiduously parsed Tesla’s legal and technical maneuvers. Koopman, in an interview with The Ojo-Yoshida Report, said that “it appears Tesla’s lawyers knew exactly what they were doing” by choosing their words carefully in contacts with California DMV regulators.
Are we duped?
A string of email communications between the two parties was first disclosed on PlainSite.
When the documents came to light, reporters concluded that the emails somehow expose repeated lies by Musk, who is known to exaggerate Tesla’s vehicles as self-driving even though the current available feature is a Level 2 ADAS system.
This interpretation came about because Tesla’s lawyers stuck to the narrative that Tesla’s FSD City Streets feature “continues to firmly root the vehicle in SAE Level 2 capability and does not make it autonomous under the DMV’s definition.” Eric Williams, associate general counsel, regulatory at Tesla wrote it in his letter to the California DMV. Widen said “the better way to read safety regulations is to give broader application to provisions that promote safety, not narrower ones.”
But it turns out that the media and perhaps even some regulators might have been duped by Tesla’s attorneys because Tesla, legally, didn’t want anyone to believe its vehicles classify higher than Level 2.
When Koopman combed through the original emails and letters between Tesla and the California DMV, he found that Tesla’s legal language strategically dodged any unequivocal claim for Tesla’s SAE autonomy levels.
According to Widen and Koopman, the Tesla letter of November 20, 2020 limits discussion to its vehicles’ current capabilities, not mentioning design intent — although design intent is the crux of SAE Levels.
The closest Tesla’s communications come to an SAE Level statement is that it “continues to firmly root the vehicle in SAE Level 2 capability” (Tesla letter of Nov. 20, 2020). “That, however, is not a statement that it is Level 2,” Koopman noted. “It says their path to Level 4 starts at Level 2. That simply reflects the reality of incremental product improvements.”
A Dec. 14, 2020 Tesla letter refers to a “final release” and release “to the general public” being SAE Level 2 rather than beta releases to selected testers.
In the joint paper, the author suspect: “Indeed, Tesla might never issue a ‘final release,’ instead keeping FSD in beta indefinitely, offering the feature to essentially all “qualified” Tesla owners, thus technically avoiding a ‘deployment.’”
Design intent
Technically speaking, how did Widen and Koopman conclude that Tesla’s FSD beta classifies as Level 4?
“The SAE J3016 Section 8.2 criterion for assigning SAE Level 4 hinge on design intent,” they write.
A table in their published paper lists SAE’s J3016 Level 4 requirements and Tesla’s description of its FSD capability side by side, demonstrating that they match.
“If the manufacturer’s design intent is Level 4, then it is a Level 4 vehicle even if there is a test driver to supervise while the feature is engaged and intervene when necessary. The Tesla description of the FSD feature makes it quite clear that Tesla has Level 4 design intent,” they write.
Widen does not find Tesla’s regulatory stance surprising. “Good regulatory lawyers push the boundaries of legal definitions all the time to give their clients options. That happens in tax law, for example. But when safety, and not just money, is at stake, a less aggressive stance makes more regulatory sense,” he said. “Tesla and the California DMV ought to work together to beef up the qualifications for FSD beta testers.”
In conclusion, Widen and Koopman urge departments of transportation around the United States to “consider classifying the FSD beta release as an SAE Level 4 program.” The authors remind regulators that they are responsible for conducting an independent assessment that protects the public from “unreasonable risk.”
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— Junko Yoshida is the editor in chief of The Ojo-Yoshida Report. She can be reached at junko@ojoyoshidareport.com
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