Built into the framework of U.S. citizens’ civil liberties is the right to privacy. Though not specifically mentioned in the U.S. Constitution, privacy is cherished as a catchall concept that limits government intrusion into people’s lives and establishes boundaries meant to protect one citizen from another. But the framers of the Constitution could not have foreseen the electronic systems that now threaten to modify the definition of privacy or abolish it entirely.
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.