09 Dec 2012 Privacy and Constitutional Issues at Play as Feds Move to Require Black Boxes in Cars, Says National Center Analyst

The federal government’s National Highway Traffic Safety Administration is soon expected to announce that it will begin requiring that all new U.S. cars and light trucks be equipped with “data recorders” — better known as “black boxes.”

Ford, GM, Toyota and Mazda are among the manufacturers who already have such devices in their new cars, but not all manufacturers’ devices have been recording the same data.

GM has included some version of an automotive black box in many vehicles since 1990, and it made them standard equipment in 1995.

In 2006, NHTSA ruled that all black boxes in the 2013 model year or later must collect at least 15 types of specified information. According to the Detroit News, “The recorders collect data for the seconds of a crash, including whether the driver is wearing a seatbelt, speed and whether the brakes were applied.”

In August, National Center Adjunct Fellow and Project 21 Co-Chairman Horace Cooper wrote a National Policy Analysis paper, “Coming to a Car Near You? The Department of Transportation’s Creepy Black Box.” The paper looked at legislation in Congress to make automotive black boxes mandatory, and was critical of measures to require the boxes, saying they invade the privacy of car owners.

Horace was not reassured by requirements that black box data will be kept private unless ordered released by a court:

…Don’t think the protection of judicial oversight will protect your privacy. This provision merely means that your private information will be accessible for any legal fishing expeditions in which someone has been able to convince a judge to issue a court order. The language regarding court-ordered access isn’t limited to whether or not there has been an automobile accident, but instead allows access for whatever reason a judge may deem appropriate.

Of course you could always hire an attorney to challenge any court order, but you’ve no guarantee of success and you’d be fully responsible for all costs associated with the challenge. In other words, your driving data could be retrieved via court order pursuant to a billing disagreement with the service department that did a repair on your vehicle, as part of divorce discovery, or even to settle a dispute with the IRS over your mileage deductions on your income tax forms. An enterprising attorney could probably come up with many more reasons to get your data.

Moreover, this data could be a bonanza for the insurance industry. Instead of trusting customers to track how many miles they travel a year and merely tracking ticket or accident data, they could insist that customers make their EDR accessible. The technology already exists so that your overall driving data could be instantly accessed at either mandatory checkpoints or even accessed electronically via the Internet while your car is parked at home.

Horace opposes making black boxes mandatory, and also believes requiring them in all vehicles could be unconstitutional:

The use of EDRs also raises serious constitutional concerns. Earlier this year the U.S. Supreme Court confronted the issue of government tracking automobiles in United States v. Jones. In that case, an FBI task force had attached a GPS tracking device, without first obtaining a valid warrant, to an accused drug dealer’s Jeep Grand Cherokee while it was parked in Maryland.

For four weeks, the government tracked the movements of the Grand Cherokee with accuracy to within 50-100 feet. Remarkably, the federal government sought to claim that it was perfectly legal to gather this data and use it in court without a warrant. In a major blow against the surveillance state and a win for privacy, the Supreme Court ruled that this constituted a form of search protected by the Fourth Amendment.9 Unfortunately the ruling still leaves open the question of whether government mandated EDRs would be treated differently than surreptitiously placed tracking devices. Other remaining questions include what the standard should be for allowing warrants for these devices or how much data should be allowed in and over what period.

Even if the most pressing problem facing America today included resolving disputed claims after an automobile accident, mandating a federal “creeper” box to track your every movement in your car or truck is not the right solution.

Mandating an EDR in every new car takes away the option of Americans not to purchase a vehicle that collects data in a significant, comprehensive and intrusive way.