Event data recorders (EDRs) in cars, truck,
airplanes, and other modes of transportation currently record large amounts
of information, and will record more soon.1 An "event
data recorder" has been defined by the National Highway Traffic Safety Administration
as "a device installed in a motor vehicle to record technical vehicle and occupant
information for a brief period of time (seconds, not minutes) before, during
and after a crash."
by R. Brent
Cooper & Katie McClelland
Cooper & Scully
The data recorded varies by model, but commonly recorded information may
The first such devices were available in the 1970s but were not installed
on most passenger cars until 20 years later.2 Automakers
are now required to tell owners if their vehicle has an event data recorder,
commonly called a "black box," and collect uniform data from the devices, the
federal government said. The black boxes, during and after a crash, can provide
information about a vehicle's speed and acceleration, whether air bags were
deployed, the brakes were applied, or seatbelts were being worn.3
Beginning with 2011 model year vehicles, the National Highway Traffic Safety
Administration (NHTSA) will require automakers to disclose the existence of
the technology in owners' manuals. However, some privacy experts worry that
the information could be accessed by anyone, and most motorists don't know the
black boxes are installed in their vehicles.
In Maine, state police used the information from a data recorder in reconstructing
an accident involving Gov. John Baldacci's Chevrolet Suburban, which spun off
an icy highway in February 2004. The existence of the data led to legislative
action. For example, beginning in August 2006 in Maine, data recorded on automotive
"black boxes" may not be downloaded without the owner's permission or court
In 2005, American fatalities from car accidents reached an astounding 43,200.4
In fact, people between the ages of 5 to 33 are more likely to die from a car
accident than from any other cause.5 Despite the
number of automobile-related fatalities each year in the United States and despite
the clear need for the development of new technology, there is little, if any,
use of an analogue to the airplane's "black box" to help understand the causes
of car accidents. Both the automobile industry and the government have been
slow to introduce the use of "black boxes"—or, more technically, EDRs—in American
The price of safer roads is thus the risk that private EDR data may be used
by insurance companies, the legal system, or other bodies.
Currently, EDRs are widely installed and used by vehicle manufacturers, insurance
companies, law enforcement agencies, and researchers. Insurance companies adopt
the EDRs as a way to gain a better precision to evaluate an individual's risk.
Besides speeds and acceleration, EDRs monitor the duration of the trip, the
exact vehicle location, the vehicle route, and the time of the day. This information
improves the precision of individual risk but it also reveals information about
individual preferences or consumption behavior.
Individuals who buy insurance may install the monitoring system which may
decrease the negative impact of recording information. However, they have to
trade it off against the loss of privacy by which insurance companies calculate
insurance premiums according to the information derived from the EDR.
Insurance companies have already begun to incorporate advanced, after-market
EDR systems into alternative automobile insurance plans in exchange for reduced
rates.6 For example, Progressive Insurance offers
discounts to customers who install a "TripSense" computer that records trip
duration, miles traveled, the number of aggressive acceleration or braking events,
and amount of time spent at a given speed.
The discount that Progressive offers, which will likely become more common
in the future, is tougher than the one General Motors offers to its OnStar customers.
With OnStar, customers receive the safety, entertainment, and other benefits
of the service in exchange for potential loss of privacy. Insurance customers
receiving lower rates in exchange for the release of advanced EDR data face
a far starker choice. They face an inevitable loss of privacy in exchange for
lower rates. Policy makers considering the possible regulation of EDR technology
must weigh freedom of contract concerns against the importance of protecting
consumers from surrendering their privacy rights to market-making insurance
An insured may have the right to choose from its insurer a contract based
on EDR information or the conventional contract. However, the nature of the
choice will be an all-or-nothing proposition for the insured. Typically, once
an individual chooses the EDR contract, their level of risk will be calculated
exclusively based on the EDR data. Their premiums will be determined accordingly.
In 2004, California became the first state to enact legislation (Cal. Vehicle
Code § 9951) requiring manufacturers to disclose to customers whether event
data recorders or "black boxes" are installed in vehicles. Black boxes record
data such as the speed of a vehicle, safetybelt use, and other vehicle safety
information. The law also prohibits download of that data without the owner's
permission or a court order.
In a related area, California (Cal. Civil Code § 1936) and New York (New
York Gen. Bus. Law § 396-z) have passed laws prohibiting rental car companies
from using electronic surveillance or global positioning devices to impose fees,
charges, or penalties relating to the renter's use of the vehicle.
Research revealed at least nine states that have passed and published EDR
In Matos v. State, 899 So. 2d 403 (Fla. Dist.
Ct. App. 2005), a Florida appellate court considered the issue of whether data
from an EDR in an automobile was new or novel scientific evidence that has been
generally accepted in the relevant scientific fields so as to be admissible.
In General Motors' vehicles, like the one in Matos,
the EDR is called a "Sensing & Diagnostic Module." Alternatively, the court
referred to the EDR as a "black box."
In Matos, the defendant appealed his conviction
for two counts of manslaughter, arguing that the trial court improperly admitted
the speed and airbag information from his vehicle's EDR (noting EDR recorded
a speed of 114 miles per hour 4 seconds prior to the accident and a speed of
103 miles per hour 1 second prior to the accident, and showed that the defendant's
airbag was working properly at the time of the accident). Specifically, the
defendant challenged the admissibility of EDR data under the general acceptance
standard of Frye v. United States, 293 F. 1013
(D.C. Cir. 1923). The court conducted a Frye
hearing [to determine whether the data was admissible in a legal proceeding]
and heard testimony from an accident reconstruction expert trained in EDR technology
and an industrial engineer who had worked for General Motors and was responsible
for its engine and computer control systems. Citing
Bachman v. General Motors, 776 N.E.2d 262 (Ill. App. 2002), the court
found that the process of recording and downloading data from an EDR was not
a new or novel scientific method. The court held that the evidence was properly
admissible under the Frye standard as a generally
accepted scientific method when used as a tool of automotive accident reconstruction.
In North Carolina Farm Bur. Ins. Co. v. Nationwide
Mut. Ins. Co., 608 S.E.2d 112 (N.C. App. 2005), the North Carolina Court
of Appeals addressed the issue of whether an occupant in the front passenger
seat who grabs the steering wheel is in lawful possession of the vehicle. There,
the driver of a vehicle borrowed from her mother lost control of the vehicle,
causing a fatal crash when the passenger suddenly grabbed the wheel and attempted
to steer the car into a weigh station the car was passing. A North Carolina
statute provided that an insurance company must insure anyone "in lawful possession"
of an insured vehicle. N.C. Gen. Stat. § 20-279.21(b)(2) (2004).
The trial court granted summary judgment for the defendant, finding that
the passenger was not in lawful possession of the vehicle. The appellate court
affirmed the trial court's decision. [North Carolina
Farm Bureau, 608 S.E.2d at 113.] Therefore, the insurance company was
not required to insure her. Reviewing North Carolina caselaw, the court held,
A person is in lawful possession of a vehicle … if he is given possession
of the automobile by the automobile's owner or owner's permittee under a
good faith belief that giving possession of the vehicle to the third party
would not be in violation of any law or contractual obligation.
Belasco v. Nationwide Mut. Ins. Co., 326 S.E.2d 109, 113 (1985).
Accordingly, the court found that grabbing a steering wheel of a moving vehicle
from the passenger seat cannot be possession in good faith.
In People v. Slade, 233 N.Y.L.J. 11 (N.Y.
Sup. Ct. 2005), defendants filed a motion to suppress physical evidence and
statements. A hearing was held to determine the admissibility of the Sensing
Diagnostic Module (SDM), also called an airbag control module, under the
Frye standard. Defendants were two men who were
charged each with two counts of manslaughter in the second degree.
The State of New York presented William Russell Haight, Director of the Collision
Safety Institute in San Diego, California, to testify regarding the scientific
reliability and general acceptance of the Sensing Diagnostic Module (hereinafter
SDM—also called "airbag control module" or black box"). Haight explained that
the air bag module is the component that decides whether to deploy an air bag
based on information it receives from different sensors. In General Motors cars,
such as the Corvette, the air bag module is called the "Sensing Diagnostic Module."
The event data recorder is a component of the air bag module, and it is essentially
where data is stored after an event takes place.
According to Haight's testimony, SDMs perform three distinct functions in
The EDR records several different areas of information, including: break
switch application, throttle position, engine rpm, Delta-V (change in velocity),
and vehicle speed. Id.
The Frye standard also called the "general
acceptance test," is the exclusive test for the admission of expert testimony.
It dictates that scientific evidence is only admissible at trial if the methodology
or scientific principle upon which the opinion is based is "sufficiently established
to have gained general acceptance in the particular field in which it belongs."
Frye, 293 F. at 1014. The acceptance of a particular
procedure "need not be 'unanimously endorsed' by the scientific community but
must be 'generally accepted as reliable'."8
The New York court verified credibility of the testimony of Mr. Haight and
found the SDM, including the event data recorder, to be generally accepted as
reliable in the scientific community, and therefore the
Frye admissibility standard was satisfied. The
SDM has been found to meet the Frye standard
for admissibility in a number of jurisdictions. Testimony relating to SDMs was
found admissible at trial after Frye hearings
in Illinois;9 in Wayne County, NY;10
in Missouri;11 and in Michigan.12
Testimony relating to SDMs was also found admissible at trial without the need
for a Frye hearing in New York.13
As EDRs become more widely used, insurers are likely to begin using them
to calculate premiums for certain drivers. The balance between privacy and public
safety will be tested as EDRs become more commonplace. Additionally, more states
are likely to draft legislation regarding the use of EDRs by insurers to ensure
protection for the insured drivers.
1National Highway Traffic Safety Admin.,
Event Data Recorder (EDR) Research History;
see also Auto Alliance,
Today's Automobile: A Computer on Wheels
(Mar. 22, 2004) ("The computer technology in today's cars, minivans, SUVs, and
trucks is nearly 1,000 times more powerful than that which guided the Apollo
Data Recorder Applications for Highway and Traffic Safety
Journal, (Aug. 23, 2006).
4National Highway Transp. Safety Admin.,
Motor Vehicle Traffic Crash Fatalities and Injuries (2006).
5Nat'l Highway Transp. Safety Admin.,
Crashes Are Top Cause of Deaths in US for Ages 5-33 (2006).
Mueller, Every Time You Brake, Every Turn You
Make—I'll Be Watching You: Protecting Privacy in Event Data Recorder Information,
2006 Wis. L. Rev. 135, 159 (2006).
People v. Middleton, 54 N.Y.2d 42, 429 N.E.2d
100, 444 N.Y.S.2d 581). People v. Wesley, 83
N.Y.2d 417, 423, 633 N.E.2d 451, 611 N.Y.S.2d 97.
9Bachman v. General Motors
Corp., 332 Ill. App. 3d 760, 776 N.E.2d 262, 267 Ill. Dec. 125, (4th
10People v. Christmann,
3 Misc. 3d 309, 776 N.Y.S.2d 437 (Jan. 2004).
11Missouri v. Bragg,
(32d Jud. Cir., May 16, 2003).
12Michigan v. Wood,
(Eaton County, Jan. 30, 2003)
13People v. Hopkins,
6 Misc. 3d 1008A, 800 N.Y.S.2d 353 (2004).
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