Event Data Recorders: Balancing the Benefits and Drawbacks

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 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.

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.

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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).