Thursday, October 2, 2014


A black box, formally known as an event data recorder (EDR), and informally known as a narc-in-the-box, logs a variety of data regarding the operation of the vehicle in which it's installed. The good news is that EDRs do not (yet) track your location, nor do they beam real-time information to feds, cops, carmakers, or mothers-in-law. That's what your smartphone is for.

Automobile safety systems, which are networked throughout the body of your car, generate a blizzard of data (likely without your knowledge) and store it in a nondescript box the size of a deck of cards. The gadget, called an event data recorder (EDR), is a less-refined version of the so-called black box carried by aircraft. Initially, EDRs were supposed to help researchers and automakers make refinements to the systems intended to keep cars from crashing and people from dying. But it wasn’t long before these devices were eyed as tools to help authorities figure out what a driver was doing in the moments before a crash—be it eating, shaving, or gargling with vodka. (Before EDRs, drawing such conclusions required autopsies and a series of educated guesses based on things like skid marks.)

What’s more, new standards regarding the performance of automotive black boxes and guidelines for retrieving data after a crash  are set to go into effect in the next several months, raising privacy issues and setting up a clash between law enforcement and privacy advocates that could be fought all the way to the U.S. Supreme Court. The high court is already grappling with unprecedented cases involving the freedom from search and seizure provided by the Fourth Amendment and the privilege against self-incrimination provided by the Fifth Amendment.

In January, the Supreme Court ruled in a similar case— United States v. Jones —which involved digital monitoring of a driver’s behavior. In that case, police secretly planted a GPS tracking device on a suspected drug dealer’s car and monitored his whereabouts for 28 days. The high court ruled that the evidence obtained using the device could not be used against the suspect because the police failed to obtain a warrant. At a minimum, the court ruled, placing the tracker represented an illegal trespass.

Technology is sure to play an ever greater role in courtroom drama, especially as it relates to the sharing of digital data. But in contrast to the United States v. Jones case, the focus will be on electronic devices that are already in place when you drive your car off the dealer’s lot.

According to the National Highway Traffic Safety Administration (NHTSA), 85 percent of new vehicles come equipped with black boxes. Still, the average driver has no idea that in the event of a crash, data stored in the box details how the car was being driven in the moments before impact.

Although black boxes are not mandatory by NHTSA rules, starting with 2013 models, EDRs must keep a record of 15 discrete variables in the seconds before a crash. Among them are the car’s speed, how far the accelerator was pressed, the engine revolutions per minute, whether the driver hit the brakes, whether the driver was wearing a safety belt, and how long it took for the airbags to deploy. A black box must also stand up to the initial impact so that it can capture data for at least two more hits in a multievent crash, such as when two moving vehicles collide and one bounces off, sideswipes a parked car, and then slams into a tree.
There is currently pending legislation (the Motor Vehicle and Highway Safety Improvement Act of 2011, or Mariah’s Act) that would make EDRs mandatory for 2015 models. The bill also calls for the collection of even more data about your driving habits. And here’s where the tug of war between law enforcement and privacy advocates begins.

NHTSA rules require automakers to make commercially available tools for retrieving black box data. The rules also mandate that the car’s owner’s manual contain a brief statement indicating that the vehicle includes an EDR and explaining what it does. And although Mariah’s Act says that any data in a vehicle’s black box is the property of the owner or lessee of the vehicle in which the data recorder is installed, privacy advocates fear what could happen if the information is misappropriated. Why? Slowly but surely, EDR data is ending up in court, affecting the verdicts in criminal and civil cases.

Case in point: The Santa Clara County District Attorney’s Office in San Jose, Calif., prosecuted the driver of a vehicle that in May 2006 struck and killed a 15-year-old pedestrian in a crosswalk. Conventional accident reconstruction techniques estimated that the driver was traveling at roughly 90 kilometers per hour in a 72 km/h zone. Subsequently, the prosecutor’s office allowed the driver to plead guilty to hit and run—a lesser offense than vehicular manslaughter, which is what it had initially aimed to prove.

Police investigators were initially unaware, however, that the driver’s vehicle, a GMC Yukon, was equipped with an EDR capable of recording precrash data. (This underscores the extent to which EDRs’ capabilities have been an open secret.) A year after the accident, authorities found out that the data they needed was available and recovered it. Prosecutors discovered that the driver had actually been traveling at 122 km/h. The box also revealed that the driver applied the brakes at some point between 2.1 and 1.3 seconds before he struck the pedestrian, lowering the SUV’s speed to about 97 km/h at impact. With that evidence in hand, Charles G. Gillingham, the attorney who prosecuted the case, withdrew the plea agreement and proceeded to trial on the vehicular manslaughter charge and other, lesser charges. The driver was convicted.

“I don’t see how there can be an expectation of [EDR] privacy in a criminal case,” Gillingham insists. “When you’re driving on public land, you give up expectation of privacy.” Challenged on whether that statement conflicts with longstanding U.S. principles of search and seizure, he says, “There’s an expectation of privacy with regard to my body or my home; that’s very much different than the engine of my car.”

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