4 ms·

I don't understand why Elon claiming that the cars will be able to drive themselves in the future could be considered any kind of crime? I don't think Tesla has

by wilg 4y ago

I don't understand why Elon claiming that the cars will be able to drive themselves in the future could be considered any kind of crime? I don't think Tesla has ever said "hey you can get in the car today and it is fully autonomous". They've just said that's what they will do in the future. They've also shown and talked about products in-development. You might think they are full of shit about whether it will ever be delivered, which is a fair argument, but that's much different than lying about the actual product in people's hands.

AlexandrB 4y ago
They allowed you to buy the "car can drive itself" capability and never fully delivered. It's not like this was just a promise, it was something you could pay for years ago.
- wilg 4y ago
  Yeah, but that isn't a crime. You can pre-order things. They still claim they will deliver it. Seems like maybe you could do a class-action or something to get your money back, but not argue that actually it was reasonable to believe you already had it and therefore are not liable for a crash or whatever.
  - AlexandrB 4y ago
    IANAL but I think you could call it fraud if you never had any intention of delivering. E.g. if I kickstart a perpetual motion machine and then move to the Bahamas with the funds. What's ironic is that despite his image as a genius no one ever holds Elon to account for his failure to accurately predict the state/progress of his own technology. He's either not as smart as people think or he's knowingly lying, but I think you have to pick one.
    - wilg 4y ago
      Seems like since they are delivering things, albeit slowly, and spending tons of money developing it, that it would be hard to make that stick.
      - AlexandrB 4y ago
        Yeah, probably true.
  - mike_d 4y ago
    > Yeah, but that isn't a crime. You can pre-order things. It actually is. When accepting a preorder you have to provide a fixed delivery date, or it is assumed to be no later than 30 days after sale (or 50 days if you offer in-house financing). The fraud case here is actually very straightforward. https://www.ftc.gov/business-guidance/resources/business-guide-ftcs-mail-internet-or-telephone-order-merchandise-rule https://www.ftc.gov/business-guidance/resources/business-gui...
fasthands9 4y ago
Their marketing has lots of videos where they tout self-driving (calling it full self-driving or Autopilot) without any clarification it is a future promise. And then there is a feature on your Tesla called Autopilot you can click one I know if you are in the weeds you know the capabilities - but I think most people get the impression it can drive itself and its safe. And that impression is a direct result from marketing materials. Given the severity of car accidents it seems reasonable to be strict on these marketing claims, even if they call it a "beta" in the fine-print. https://www.youtube.com/watch?v=tlThdr3O5Qo https://www.youtube.com/watch?v=tlThdr3O5Qo
- FireBeyond 4y ago
  > without any clarification it is a future promise and even then, oftentimes it's -very- strongly implied that if it's not really available now the only thing holding it back is regulators. (Well, that's actually true in its own way, though not a good thing - I am certain that Elon would be yeeting all sorts of shit over the fence if the regulators let him, if only so Tesla could realize all manner of deferred income.)
klyrs 4y ago
It's the claims he makes about the present that are a problem. Also, when he's selling "beta" access with the expectation that "release" access will be more expensive and a neverending promise of "this year" and "next year", that sounds like reasonably clear-cut fraud to me.
- wilg 4y ago
  I am not sure there are any actual claims about the present that would lead a reasonable person to conclude their car currently has features that it does not. I don't think it's anywhere near clear-cut fraud to say "you can pre-order this for a cheaper price" and to be wrong about your deadline estimates. Yes, if it never comes out or there is evidence they never even tried to make good on the offer, then you would be open to some kind of legal action. But clearly they are trying. If a bunch of owners want to try to argue that the timeline was promised and missed and do a class action to get their money back, that seems reasonable enough. But none of this seems to relate to actual safety issues or anything.
  - mike_d 4y ago
    See my comment upthread. If you accept a preorder you must offer a firm delivery date. If you cannot make that date, your only option under the law is a refund. You can't push the date back.
    - filoleg 4y ago
      How do Kickstarter and early access games sold on Steam function in that magic universe where "if you accept a preorder, you must offer a firm delivery date"? As far as I can tell, there aren't droves of Kickstarter campaigns that keep getting sued or prosecuted on regular just for perpetually delaying their delivery dates (often for years).
      - klyrs 4y ago
        Are these non-released steam games killing people?
phire 4y ago
The probe isn't about the future "full self driving" product. It's about the current "autopilot" product, or more importantly, the marketing around it. They are investigating if Tesla deliberately oversold the capabilities of autopilot, implying that can do far more than it actually can. Basically: are Tesla criminally responsible for customers who misunderstood what autopilot was, and then didn't correctly supervise the autopilot and ended up in accidents? Though the fact that Tesla/Musk were continually talking about the FSD features will play into the probe, but only because customers might have confused things said about the future FSD feature, for the capabilities of the current system. But only if Tesla deliberately encouraged or knew about this confusion (or should have known)
tptacek 4y ago
If Tesla knowingly makes material false claims about what their cars can do, especially if they have internal evidence that people are using the feature dangerously in ways Tesla could have prevented, they're perpetrating fraud. Most frauds are prosecuted in state court. There are several federal fraud statutes. For instance, wire fraud, which is any interstate fraud that uses telecommunications, has the following (paraphrased) predicates in the model jury instructions: (1) You knowingly took part in a scheme to deceive people. (2) The lies you told were material and caused people to spend money or give up property. (3) You had an intent to cheat people out of money. (4) You used some form of interstate telecommunications as part of the scheme. Prosecutors don't have to prove that Tesla says "the car is fully autonomous today". They just have to prove that Tesla made statements that it knew weren't true, in order to get people to buy cars or Tesla stock. Those statements can be much narrower than "we have achieved full FSD", so long as they are material: that is, so long as they're significant enough to influence people's purchasing decisions.
- wilg 4y ago
  Sure, I just wonder if there actually are any such statements. Seems like usually people point to statements that are Elon tweeting "I think it might be ready next year".
  - tptacek 4y ago
    The article quotes Elon Musk as having said "Like we’re not saying that that’s quite ready to have no one behind the wheel". That statement is presented as exculpatory for Tesla, despite the fact that there's miles of safety margin between "nobody needs to be behind the wheel" and "autopilot is safe to rely on as advertised in all circumstances". If that's what's getting Tesla off the hook, chances are, they've got substantially worse things in their files. The other thing is, the messages Tesla sends to the market can be contradictory; prosecutors will home in on the least responsible things they say, and it'll be up to the defense to establish "no, what we really meant, and what every reasonable person took away from what we said, was this banal statement we made in the manual for the car". That'll be tricky, because people have obviously been killed by Tesla's "autopilot" feature, which they were dumb enough to name "autopilot". Who knows if there's a real case here, though? There may not be!
mike_d 4y ago
It is a crime because he is collecting money for it now. At the minimum it is a violation of the "30 day rule." If you accept money for a preorder of something, you must clearly state a delivery date. If you do not, it is assumed within 30 days of an order. Tesla can face FTC fines of $16,000 per Autopilot sale, in addition to lawsuits from consumer protection agencies in every state where a vehicle was sold with the undelivered feature. This is why all the crowdfunding platforms are basically donations with "rewards" of products and not preorders.
- wilg 4y ago
  This is interesting and very specific. I would think that if this applied it would be quite open-and-shut, and handled by the FTC directly. So my guess is it does not apply. Perhaps because it is not "merchandise"?
  - mike_d 4y ago
    I believe the lack of enforcement action is because FTC is understaffed for the amount of stuff under their purview, combined with the fact that not enough defrauded consumers know they need to file complaints. https://www.ftc.gov/media/71268 https://www.ftc.gov/media/71268
dmitrygr 4y ago
> why Elon claiming [...] could be considered any kind of crime? Among many other reasons, if he knows it to be false but states it as is true, this is market manipulation
everforward 4y ago
You can read the DMV's complaint at [1] which is kind of the prior art here; I haven't found a filing for criminal charges yet. It cites 4 things from the Tesla website: 1) Usage of the term "Autopilot" 2) Usage of the term "Full Self-Driving Capability" 3) The phrase: "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." 4) The statement: "From Home - All you will need to do is get in and tell your car where to go. If you don't say anything, your car will look at your calendar and take you there as the assumed destination. Your Tesla will figure out the optimal route, navigating urban steets, complex intersections and freeways. To your Destination - When you arrive at your destination, simply step out at the entrance and your car will enter park seek mode, automatically search for a spot and park itself. A tap on your phone summons it back to you." 3 is probably the most damning, because it specifically promises features that do not work, and could not legally be used in that way even if they did without further licensing. 1: https://www.documentcloud.org/documents/22128016-california-dmv-complaint-against-tesla-1 https://www.documentcloud.org/documents/22128016-california-...

by wilg 4y ago

AlexandrB 4y ago

They allowed you to buy the "car can drive itself" capability and never fully delivered. It's not like this was just a promise, it was something you could pay for years ago.

wilg 4y ago
Yeah, but that isn't a crime. You can pre-order things. They still claim they will deliver it. Seems like maybe you could do a class-action or something to get your money back, but not argue that actually it was reasonable to believe you already had it and therefore are not liable for a crash or whatever.
- AlexandrB 4y ago
  IANAL but I think you could call it fraud if you never had any intention of delivering. E.g. if I kickstart a perpetual motion machine and then move to the Bahamas with the funds. What's ironic is that despite his image as a genius no one ever holds Elon to account for his failure to accurately predict the state/progress of his own technology. He's either not as smart as people think or he's knowingly lying, but I think you have to pick one.
  - wilg 4y ago
    Seems like since they are delivering things, albeit slowly, and spending tons of money developing it, that it would be hard to make that stick.
    - AlexandrB 4y ago
      Yeah, probably true.
- mike_d 4y ago
  > Yeah, but that isn't a crime. You can pre-order things. It actually is. When accepting a preorder you have to provide a fixed delivery date, or it is assumed to be no later than 30 days after sale (or 50 days if you offer in-house financing). The fraud case here is actually very straightforward. https://www.ftc.gov/business-guidance/resources/business-guide-ftcs-mail-internet-or-telephone-order-merchandise-rule https://www.ftc.gov/business-guidance/resources/business-gui...

fasthands9 4y ago

Their marketing has lots of videos where they tout self-driving (calling it full self-driving or Autopilot) without any clarification it is a future promise. And then there is a feature on your Tesla called Autopilot you can click one I know if you are in the weeds you know the capabilities - but I think most people get the impression it can drive itself and its safe. And that impression is a direct result from marketing materials. Given the severity of car accidents it seems reasonable to be strict on these marketing claims, even if they call it a "beta" in the fine-print. https://www.youtube.com/watch?v=tlThdr3O5Qo https://www.youtube.com/watch?v=tlThdr3O5Qo

FireBeyond 4y ago
> without any clarification it is a future promise and even then, oftentimes it's -very- strongly implied that if it's not really available now the only thing holding it back is regulators. (Well, that's actually true in its own way, though not a good thing - I am certain that Elon would be yeeting all sorts of shit over the fence if the regulators let him, if only so Tesla could realize all manner of deferred income.)

klyrs 4y ago

It's the claims he makes about the present that are a problem. Also, when he's selling "beta" access with the expectation that "release" access will be more expensive and a neverending promise of "this year" and "next year", that sounds like reasonably clear-cut fraud to me.

wilg 4y ago
I am not sure there are any actual claims about the present that would lead a reasonable person to conclude their car currently has features that it does not. I don't think it's anywhere near clear-cut fraud to say "you can pre-order this for a cheaper price" and to be wrong about your deadline estimates. Yes, if it never comes out or there is evidence they never even tried to make good on the offer, then you would be open to some kind of legal action. But clearly they are trying. If a bunch of owners want to try to argue that the timeline was promised and missed and do a class action to get their money back, that seems reasonable enough. But none of this seems to relate to actual safety issues or anything.
- mike_d 4y ago
  See my comment upthread. If you accept a preorder you must offer a firm delivery date. If you cannot make that date, your only option under the law is a refund. You can't push the date back.
  - filoleg 4y ago
    How do Kickstarter and early access games sold on Steam function in that magic universe where "if you accept a preorder, you must offer a firm delivery date"? As far as I can tell, there aren't droves of Kickstarter campaigns that keep getting sued or prosecuted on regular just for perpetually delaying their delivery dates (often for years).
    - klyrs 4y ago
      Are these non-released steam games killing people?

phire 4y ago

The probe isn't about the future "full self driving" product. It's about the current "autopilot" product, or more importantly, the marketing around it. They are investigating if Tesla deliberately oversold the capabilities of autopilot, implying that can do far more than it actually can. Basically: are Tesla criminally responsible for customers who misunderstood what autopilot was, and then didn't correctly supervise the autopilot and ended up in accidents? Though the fact that Tesla/Musk were continually talking about the FSD features will play into the probe, but only because customers might have confused things said about the future FSD feature, for the capabilities of the current system. But only if Tesla deliberately encouraged or knew about this confusion (or should have known)

tptacek 4y ago

If Tesla knowingly makes material false claims about what their cars can do, especially if they have internal evidence that people are using the feature dangerously in ways Tesla could have prevented, they're perpetrating fraud. Most frauds are prosecuted in state court. There are several federal fraud statutes. For instance, wire fraud, which is any interstate fraud that uses telecommunications, has the following (paraphrased) predicates in the model jury instructions: (1) You knowingly took part in a scheme to deceive people. (2) The lies you told were material and caused people to spend money or give up property. (3) You had an intent to cheat people out of money. (4) You used some form of interstate telecommunications as part of the scheme. Prosecutors don't have to prove that Tesla says "the car is fully autonomous today". They just have to prove that Tesla made statements that it knew weren't true, in order to get people to buy cars or Tesla stock. Those statements can be much narrower than "we have achieved full FSD", so long as they are material: that is, so long as they're significant enough to influence people's purchasing decisions.

wilg 4y ago
Sure, I just wonder if there actually are any such statements. Seems like usually people point to statements that are Elon tweeting "I think it might be ready next year".
- tptacek 4y ago
  The article quotes Elon Musk as having said "Like we’re not saying that that’s quite ready to have no one behind the wheel". That statement is presented as exculpatory for Tesla, despite the fact that there's miles of safety margin between "nobody needs to be behind the wheel" and "autopilot is safe to rely on as advertised in all circumstances". If that's what's getting Tesla off the hook, chances are, they've got substantially worse things in their files. The other thing is, the messages Tesla sends to the market can be contradictory; prosecutors will home in on the least responsible things they say, and it'll be up to the defense to establish "no, what we really meant, and what every reasonable person took away from what we said, was this banal statement we made in the manual for the car". That'll be tricky, because people have obviously been killed by Tesla's "autopilot" feature, which they were dumb enough to name "autopilot". Who knows if there's a real case here, though? There may not be!

mike_d 4y ago

It is a crime because he is collecting money for it now. At the minimum it is a violation of the "30 day rule." If you accept money for a preorder of something, you must clearly state a delivery date. If you do not, it is assumed within 30 days of an order. Tesla can face FTC fines of $16,000 per Autopilot sale, in addition to lawsuits from consumer protection agencies in every state where a vehicle was sold with the undelivered feature. This is why all the crowdfunding platforms are basically donations with "rewards" of products and not preorders.

wilg 4y ago
This is interesting and very specific. I would think that if this applied it would be quite open-and-shut, and handled by the FTC directly. So my guess is it does not apply. Perhaps because it is not "merchandise"?
- mike_d 4y ago
  I believe the lack of enforcement action is because FTC is understaffed for the amount of stuff under their purview, combined with the fact that not enough defrauded consumers know they need to file complaints. https://www.ftc.gov/media/71268 https://www.ftc.gov/media/71268

dmitrygr 4y ago

> why Elon claiming [...] could be considered any kind of crime? Among many other reasons, if he knows it to be false but states it as is true, this is market manipulation

everforward 4y ago

You can read the DMV's complaint at [1] which is kind of the prior art here; I haven't found a filing for criminal charges yet. It cites 4 things from the Tesla website: 1) Usage of the term "Autopilot" 2) Usage of the term "Full Self-Driving Capability" 3) The phrase: "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." 4) The statement: "From Home - All you will need to do is get in and tell your car where to go. If you don't say anything, your car will look at your calendar and take you there as the assumed destination. Your Tesla will figure out the optimal route, navigating urban steets, complex intersections and freeways. To your Destination - When you arrive at your destination, simply step out at the entrance and your car will enter park seek mode, automatically search for a spot and park itself. A tap on your phone summons it back to you." 3 is probably the most damning, because it specifically promises features that do not work, and could not legally be used in that way even if they did without further licensing. 1: https://www.documentcloud.org/documents/22128016-california-dmv-complaint-against-tesla-1 https://www.documentcloud.org/documents/22128016-california-...