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."
The data recorded varies by model, but commonly recorded information may
include:
- Pre-crash vehicle dynamics and system status
- Driver inputs
- Vehicle crash signature
- Restraint usage/deployment status
- Post-crash data, such as the activation of an automatic collision
notification (ACN) system.
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 approval.
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 automobiles.
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.
Insurance Industry and EDRs
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 companies.7
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.
Statutory Provisions Regarding EDRs
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
regulations:
- Arkansas, see Ark. Code Ann. § 27-37-103 (2005) (requiring detailed
written disclosure to car owners regarding the EDRs in their vehicles and
prohibiting insurance companies from accessing the data)
- California, see Cal. Veh. Code § 9951 (West. Supp. 2006)
- Colorado, see Colo. Rev. Stat. Ann. § 12-6-402 (West 2006) (requiring
disclosure by manufacturers to car purchasers and also stating that EDR data
is owned by the vehicle owner and cannot be accessed by anyone else without
owner consent except in certain exceptional situations)
- Maine, see Me. Rev. Stat. Ann. tit. 29, § 1972 (2005)
- New Hampshire, see N.H. Rev. Stat. Ann. §§357-G:1 (2006)
- New York, N.Y. Veh. & Traf. L. § 416-b (McKinney 2005)
- North Dakota, see N.D. Cent. Code. § 51-07-28 (2005)
- Texas, see Tex. Transp. Code Ann. § 547.615 (Vernon Supp. 2006)
- Virginia, see Va. Code. Ann. § 46.2-1088.6 (West 2006)
Evidentiary Issues and EDRs
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 case law, 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.
Id. (quoting 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 GM cars:
- It performs a diagnostic check to determine the functionality of the air
bag and related components.
- It performs a sensing function—it looks for a crash event or a sudden
negative acceleration (or deceleration) event, evaluates the data, and
determines whether to deploy the air bags.
- It performs a recording function—it employs an event data recorder (EDR),
which captures and saves up to 5 seconds (in one second intervals) of
pre-crash data.
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
Conclusion
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 moon mission.").
2Event Data Recorder Applications for
Highway and Traffic Safety
3Insurance
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).
6See Patrick 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).
7Id.
8See 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 Dist. 2002).
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).