The Black Box Revisited
By E. L. Eversman, Esq.
In March of this year, I wrote an article about event data recorders and the use of the data collected. ("Event Data Recorders - The Black Box of the Road", March 26, 2003, AutoGuide.net.) Since that time, information about data recorders and their uses has become a topic of considerable debate. As a result, I felt this was a good time to revisit the issue.
Debate about use expands
Most consumers are still unaware that many vehicles come automatically equipped with an event data recorder ("EDR"). These devices are not options the customers select. Instead the recorders are included in the vehicles unbeknownst to the consumers. There are good aspects and bad ones about EDR inclusion. The good points include the ability to collect statistically relevant crash information to improve the safety of cars and trucks, demonstrate the efficacy of traffic laws (like those addressing speed and seat belt use), and to allow immediate notification of an accident to emergency personnel. The bad points include the loss of individual privacy, Fourth Amendment search and seizure violations, and insurance and legal uses of the information.
Insurers Encouraged to Harvest Data
On September 15, 2003, Injury Sciences L.L.C. issued a press release touting the launch of a "Comprehensive Automobile Black Box Solution for Insurers". In that release, the Texas-based company offers insurance carriers the ability to retrieve, harvest, and store data concerning the events of a collision and provides analysis and interpretation of the data. As Scott Palmer, the President and CEO of the company states in that release, "Insurers recognize significant benefits when they are able to quickly, accurately and cost effectively assess liability issues and injury causation issues present in automobile claims." The release also explains that this new program is designed "for use in claims adjudication".
The initial question which springs to mind is how insurers are obtaining the data in the first place. If the vehicle is repairable and the information is coming from a vehicle intended to be returned to the owner, is the insurer, body shop, or someone associated with Injury Sciences LLC extracting the information? Searching the company's website does not provide the answer, but it suggests that insurers and/or body shops are accessing the information themselves. Otherwise, the company offers "access to a network of service providers" who are equipped to harvest the data.
If insurers are mining data without disclosing that activity to the insured or the third party, they may well be engaging in unfair claims practices or violations of privacy rights under individual state law. If insurers use this data against their own insureds, that action could easily be the basis for a bad faith insurance claim and could have broader implications as well.
Legislative Response.
California legislators were sufficiently concerned about their citizens' lack of awareness of the existence and potential uses of this data to enact legislation prohibiting its use without the owner's consent or absent a court order. (California Assembly 2003, Bill Number 213, Signed September 22, 2003. The law goes in to effect for vehicles manufactured on or after July 1, 2004.) Citing potential abuses and comparing the event data recorders to wiretaps, the bill's sponsor, Assemblyman Tim Leslie, focused on consumers' lack of knowledge or consent to the installation of these devices in a written statement explaining the need for such legislation.
Law Enforcement Use
One of the primary concerns is that law enforcement personnel will simply see extracting data from the EDR as a method of short-cutting an investigation or using the information in ways it was not originally intended. The EDR data was not originally intended by manufacturers to be used by law enforcement or attorneys in criminal matters. If manufacturers ever anticipated that this data would wind up in court, it was for the purpose of defending the manufacturers against product liability suits. Nonetheless, law enforcers look to any legitimate source during their criminal investigations - and data obtained from a recording device seconds before a fatal accident would be illogical to overlook.
Former South Dakota Governor and now South Dakota Representative, Bill Janklow, has discovered how your own car can become a witness for the prosecution if it is equipped with a "black box". Earlier this year, Representative Janklow was involved in a motor vehicle accident during which another motorist was killed. Charged with second degree manslaughter, Janklow faces the prospect that data collected from his 1995 Cadillac will be used against him in his up-coming trial. Because his vehicle was an older model, the information harvested will be far less sophisticated than vehicles equipped with the latest generation of EDRs. The data gleaned from newer vehicle models can include the vehicle's rate of speed, engine speed, whether the brake was depressed, and even if the driver's seat belt was engaged.
Historically, an eye witness was deemed by the legal world as invaluable in the prosecution of any case. With the advent of technology, however, the testimony of several eye witnesses may be viewed as less credible than the data recovered from a recording device. Law enforcement personnel have already begun to focus on the event data recorder as a source of information when investigating vehicle collisions and these devices are deemed to be "objective" observers. As Kara Eberle reported October 15, 2003 for the York Daily Record, Pennsylvania State Police typically access "black box" information when investigating fatal crashes.
Provided the information remains one of several tools utilized by law enforcement, it is less likely there will be a debate over the weight given to this piece of evidence. The concern, of course, is that the material collected from the event data recorder will be relied upon too heavily by law enforcement, perhaps, to the virtual exclusion of other relevant evidence. This would be a mistake because the information recorded is not always accurate, particularly in collisions occurring at low speed.
Closing Heading.
To see if your vehicle is equipped with a black box from which data can be obtained, visit the Vetronix website or the EDR Vehicle List at the Harris Technical Services website. Do not be misled, however, into believing that the listed vehicles are the only ones containing EDR technology. The vehicles listed are those whose data can be recovered by a third-party supplier like Vetronix. But that does not mean your vehicle has no event data recording capabilities. All it means is that, for now, the manufacturer is keeping the information to itself.
E. L. Eversman
The information provided in this column is for information purposes only and should not be construed as legal advice. You should always consult an attorney licensed to practice in your Country, State, and/or Territory as laws vary from Country to Country, State to State, and Territory to Territory. The author is delighted to share information but cannot be responsible for damage or adversity encountered by reliance upon that information and urges you to consult with local counsel.
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