On March 18, 2014, Malaysian Airlines flight 370 disappeared en-route from Kuala Lumpier to Beijing sparking a massive search and ongoing mystery. Neither the plane nor any of its passengers has yet been found, though emergency personnel believe they may have located the flight’s data recorder at the bottom of the Indian Ocean. Flight data recorders collect a wealth of information about the condition and operation of airlines and retrieving this “black box” would tell researchers exactly what happened to the airplane and why it went down. While this data may prove critical to understanding what happened to Malaysian flight 370, many people may not realize that most cars in the United States have similar devices. In fact, pending federal legislation may require electronic data recorders in all cars by 2015. Expanding the use of EDRs in automotive applications offers a number of potential benefits such as improved auto and road safety through better accident data, however, the new law has renewed the concern of many consumers and privacy advocates over exactly how such data will be used.
What Is an EDR?
Electronic Data Recorders monitor certain signals from the vehicle and record that information shortly before and during an accident event. This information can later be retrieved and analyzed to help researchers better understand exactly what went wrong during a crash and how to prevent future accidents. With the implementation of mandatory OBD II engine and emission monitoring in the mid 1990s, many manufacturers took the opportunity to begin tracking and recording additional information for use in crash analysis. Today, the NHSTA estimates that more than 90% of all cars on the road are equipped with some form of EDR device; exactly what data the EDR records depends on the manufacturer. Under proposed federal law, 15 data points are required including vehicle speed, driver seat belt status, breaking force, and throttle position; however, most EDR devices likely are capable of collecting a much broader range of information. Of particular concern is the possibility of recording GPS data including specific driving patterns, speed, and precise location. As currently designed, most common EDR systems are integrated into the vehicle’s airbag system and record only a few seconds of data; either on a rolling basis (perhaps the last 30 seconds continuously) or as a result of certain specified trigger events (such as airbag deployment or sudden high G forces).
What Is the Data Used for?
Data collected by automotive EDR devices has a number of applications. Some are laudable such as helping to improve vehicle safety systems, roadway designs, or safety laws. Others are of more concern such as the ability of law enforcement to use the data in criminal prosecutions or of insurance carriers to use the data when setting policy rates. As of the writing of this article, only 13 states have laws specifically addressing exactly how automotive EDR data can be accessed and who owns that data. California’s law, enacted several years ago, states that EDR data belongs to the vehicle owner and can only be accessed with that owners consent, under a court order, or for safety statistical compilations where personal data is not also revealed. Proposed federal legislation would provide similar protection on the national level.
Privacy Concerns Abound
Unfortunately, this does not mean that your data is safe; or rather, that you are safe from your data. Many insurance companies are now including language in their standard policies requiring drivers to consent to data collection and while some states have moved to prevent this practice, the legal protections are patchwork at best. In many states, police authorities are equipped with devices capable of reading many types of black boxes on the scene of an accident. Even where neither your local police nor your insurance company can obtain the data at-will, a court can almost certainly subpoena that data for use in a either a civil or criminal trial.
In fact, this has already been done. While a California court ruled on appeal that law enforcement must have a warrant before taking EDR data for use in a criminal proceeding, such use is clearly an option in the state as it is in many others.
It is not hard to imagine situations in which the use of EDR data becomes very troubling for many drivers; even those who generally have nothing to hide. Insurance companies may use data collected after an accident to shift the blame for the incident or even to reduce or deny coverage based on certain factors. If, for example, your EDR reveals that you were not wearing a seatbelt at the time of the crash, it might be argued that you are partly responsible for your injuries and therefore not eligible for a full settlement amount. Something very similar happened to a Michigan politician who was caught in a lie by data from retrieved from the government car he crashed which contradicted his official story of a recent high-profile crash.
As with most types of data, the numbers themselves don’t have any agenda, but, how those numbers are used, and by whom, leaves a lot of questions unanswered. Furthermore, ensuring the validity and accuracy of the EDR data itself has never been adequately addressed. Exactly what the future holds for automotive EDR data will ultimately be decided by legislators, consumers, and the courts, but everyone should keep an eye on this rapidly developing area of law as the implications for establishing liability in an auto accident are potentially enormous.