Black Boxes: Friend or Foe?

An EDR unit located under a vehicle's driver's seat.
(Photo: Vetronix )

One technological advance used today in the discovery of the truth following an accident is the Event Data Recorder (EDR), one of many sensing and diagnostic computerized modules integrated into cars today. More commonly known as "black boxes," their use is not without controversy. Let's have a look at some of the issues.

1. Disclosure: An "awareness gap" exists wherein many vehicle owners and drivers are unaware of the presence, nature and use of EDRs, whereas insurers, law enforcement and lawyers are aware of their presence and their intended use. 

The nature of the National Highway Transportation and Safety Administration's (NHTSA) rule is voluntary, and as a result, EDR data can be used in ways that are detrimental to the vehicle owner. Privacy advocates argue that vehicle owners should know of the existence of EDRs and other signal and diagnostic modules (SDMs) in their automobiles, the nature of the information stored in such devices, and that this information can be used against them. NHTSA is not empowered to create laws, but, say these EDR opponents, officials who can have done little if anything to safeguard privacy. 

Even in aftermarket cases when owners were informed and aware of aftermarket devices that sense, store and act, there have been some issues. In some cases, non-owner drivers for fleets were not informed of the presence of black box recording devices; yet the information retrieved was used in some cases to their detriment. Another example is the sale of aftermarket sensing devices to rental car companies that tracked where unsuspecting customers were driving these rental vehicles. The installed devices enabled rental companies to immobilize and lockout customers if they traveled outside of the fine print in agreements, as well as impose additional fees. 

Up-front and full disclosure statements of all EDRs and similar devices to consumers by whomever installs such a device - be it automaker or aftermarket - just makes sense, if only because it is has more buy-in from the public. Requiring full disclosure before purchases also would enable each individual to make an informed buying choice, as well as to make informed decisions regarding their driving behaviors.

2. Ownership and access to EDR data: Who owns EDRs and the data collected? In the absence of any federal legislation, only a handful of states have black box laws in place, all of them after the NHTSA rule was issued. Yet EDR data have been admitted into courts as early as 2000. The first use of EDR information in a criminal case was in 2002 in Colorado, also well before the NHTSA rule.

Although NHTSA did not make any recommendation in its rulemaking, it has heard comments. Thomas Kowalick of Click Inc. Transportation Safety Technologies, suggested that in the absence of clear and consistent legislation defining ownership, negotiated and shared access rights by both the individual and the OEM, with safeguards employed for privacy issues, would provide the means for data to be used to improve vehicle and highway safety. 

A current listing of recent court cases (with brief descriptions) in the United States and Canada can be viewed on the Harris Technical Services Web site. Note also that in a few cases, the use of EDR data without owner permission also has resulted in acquittals or reduction in offenses.

Several automotive industry groups such as the Specialty Equipment Market Association (SEMA) have recommended that, "EDR data should be considered the sole property of the vehicle owner and that access to the data be restricted to owner consent or court order." SEMA noted two exceptions: when the data is collected solely to improve vehicle safety and the identity of the vehicle owner/driver remains anonymous; or in cases to determine the need for emergency medical response.

Advocates argue access without awareness and permission of owners is unfair. But in many jurisdictions, and with increasing frequency, search warrants have been granted and EDR data admitted as evidence. The outcomes of these court proceedings have resulted in permitted access to EDR information without an owner's permission, regardless of a state's black box legislation status. 

3. Privacy and self-incrimination: Opponents to the use of EDRs and the stored data often argue from the perspective of Fourth and Fifth Amendments regarding privacy and self-incrimination. Individuals should be able to reasonably assume that they will not face intrusions into their privacy or be ambushed and self-incriminated by any information accessed, with or without their permission, especially without prior disclosure.

Kowalick noted, "While the Constitution does not explicitly grant the right to privacy, individual privacy has been acknowledged as a prerequisite to a democracy." In addition, he pointed out that support and respect for both personal privacy and self-incrimination have been shown by the justice system. 

Before and after EDR technology entered our lives, in automotive as well as other legal issues, courts have deliberated on other cases that hinged on personal privacy issues. Decisions have been made mindful of balancing respect for personal privacy with the public's need to know. 

When a decision is made to allow access to EDR data in the public's interest, even in the absence of an individual's consent, there are established procedures for applying for search warrants from the courts that may or may not be granted. If those procedures are not followed, the evidence is not admitted into court proceedings. As well, like Miranda rights, getting permission from a vehicle owner to access EDR data without properly informing him or her of the potential consequences of its use has led to evidence not being admissible. Nonetheless, discretion by the courts still crosses the line in the views of some.

4. Accuracy: Opponents claim that EDRs are not always 100 percent accurate and data retrieval requires care. Through research and analysis, NHTSA and other organizations have established known margins of error for EDRs and standards regarding manufacture and retrieval. Devices aren't perfect. But their degree of error is known, and it is much narrower than that of multiple eyewitness accounts or other subjective forms of traditional evidence. It is accepted that EDRs bring more factual and reliable information to light as part of the evidence for consideration.

James Harris, founder of Harris Technical Services, an accident reconstruction firm, addresses the protocols used by accident reconstruction specialists for the recovery and presentation of electronic data to a court. There must be strict adherence to recognized procedures and standards that assure the information presented is an accurate presentation of both the data stored on the computer chip and the data collected through traditional field investigation at the crash scene. In addition, care must be taken to prevent the alteration of data, as well as its omission or loss. The procedures outlined by Harris also provide that documentation must be such that in the absence of the original investigator, another competent person can evaluate what was done and interpret the data in a manner consistent with the originator. These protocols can be viewed online at the Harris Web site.

5. Comprehension: Do jurists and judges fully understand the nuances, strengths and weaknesses of both traditional field and modern technical evidence gathering, prior to issuing search warrants, admitting the evidence and weighing its validity and relevance? 

Proponents argue that the lesser of the two evils is to allow as much complete and factual information as possible before making a decision that could otherwise incorrectly lead to imprisonment or innocence, or the unwarranted payout or withholding of insurance proceeds or damages sued for. Yet opponents question the understanding of the complexities of the data and its retrieval by courts and juries made up of lay people.

Harris' firm provides educational videos to judges, juries and other interested parties. Experienced and credible accident reconstruction specialists also can explain the nature and nuance of EDR data, too. Whether admitted as evidence to a court or not, sound consideration is necessary for the claimant's and defendant's futures, possible liability, insurance company payouts and the public's interest--all are at stake. Understanding EDR evidence and its degree of error ensures decisions that still factor in the benefit of doubt for the defendant.

6. Legislation: Federal leadership and legislation is very limited in regards to EDRs, let alone disclosure, access to and tampering with them. In 2004, U.S. House Representative Michael Capuano (D-MA) sponsored a H.R.5305, which would have required automobile dealers to disclose to consumers the presence of EDRs on new automobiles. The bill also proposed providing consumers with the option to enable or disable such devices. In October 2004, the bill was referred to the House Subcommittee on Commerce, Trade and Consumer Protection, where it remains.

In a telephone inquiry on its status, the congressman's Press Secretary, Alison Mills told Motor Age, "We intend to re-file the legislation in this session of Congress." It is unknown if the bill will be identical to its predecessor or modified to reflect concerns of the subcommittee and sponsors or current state legislation. But if passed, it will be the first such legislation at the federal level.

A complete listing of passed and pending EDR legislation can be found online at the National Conference of State Legislatures' Web site.

Some state legislatures have taken action on their own. In 2004, California became the first state to enact black box legislation, and since then four other states have also passed legislation: Arkansas, Nevada, North Dakota, and Texas. Ten other states have pending legislation awaiting approval after recesses, including Alaska, Connecticut, Massachusetts, Montana, New Hampshire, New Jersey, Pennsylvania, Tennessee, Virginia and West Virginia. 

There is much in common between the states' versions, but there are also some differences. The lack of uniformity in definition and application between states can perhaps be resolved with a stronger federal umbrella. Most of the passed or pending legislation requires that OEMs disclose to vehicle owners the existence and nature of EDRs in vehicles; that the vehicle owner owns the devices; and that access to and use of the fully identified stored data can only be done with the owner's permission or a court order. Some legislation goes further, addressing tampering or disabling of the devices. California and New York have since enacted legislation to prohibit the practice of rental car companies using aftermarket-installed monitoring and immobilizing devices.

The EDR TimelineYEARMILESTONE1974NHTSA uses analog signal devices to gather crash information.1990First modern EDR installed into vehicles.1997NTSB recommends pursuing crash information gathering using EDRs.NHTSA began gathering data to support crash investigation activities.1998NHTSA forms a working group to consider EDR.NHTSA receives a petition asking for mandatory EDRs in all vehicles. The petition was denied.1999NTSB recommends NHTSA formulate a EDR rule for school buses and fleets.2000Vetronix begins selling Crash Data Retrieval systems.EDR evidence used for the first time in a civil case.2001Dept. of Justice develop Search and Seizure Manual for electronic evidence.NHTSA Working Group files final report.Institute of Electrical and Electronics Engineers approves draft standard for EDRs.2002EDR evidence used for the first time in a criminal case.NHTSA requests public comments on EDRs.2003SAE drafts standard for EDR Interfaces.California passes EDR legislation to be effective July 2004.2004June: NHTSA publishes proposed EDR rule.Aug: NTSB recommends an EDR rule be issued.July: California becomes the first state to enact EDR legislation.Aug: NHTSA rule issued.Sept: IEEE standard for EDRs adopted.Oct: Federal legislation stalls at subcommittee level.2005Five states have EDR legislation; 10 other states have pending legislation.Proposed federal legislation to be refiled by Rep. Capuano.Data source: NHTSA7. Boundaries: What, if any, limits should there be to the proliferation and uses of black boxes? There is no doubt that EDRs and other sensing devices are here and more are coming. While some may not like the intrusion of computers and remote sensing devices, it is clear that the devices are accepted to be more accurate, scientific and objective than anecdotal and subjective information gathered at crash sites.

But for those of you who think the use of SDMs isn't likely to increase, consider this: General Motor Corp.'s OnStar feature has broadened from a satellite-based emergency roadside assistance system into remote vehicle diagnostics. (See related story - need title here.) This has led to speculation within the industry that remote repair via direct software downloads could be an attainable reality.

Second, at the Reuters Auto Summit in Detroit on Sept. 22, 2005, Toyota Motor Sales CEO Jim Press told reporters that future Toyota models could sport health-related applications such as medicated seat covers designed to heal rashes, steering wheels that can detect diabetes and built-in blood pressure monitors. The oddest concept that Press threw out, however, involved using the sensors to detect a driver's mood and change the headlight color accordingly to warn other drivers. 

These revelations have led to further speculation of less pleasant potential applications. The use of monitors to remotely determine and fine for offenses such as speeding or running stoplights is possible. No need to be seen and pulled over; simply put, the electronic evidence results in the delivery of a citation and notice of fine to your home. Another is monitoring the operation of vehicles with a view to potentially voiding warranty coverage in the event of going outside of certain parameters, backed by electronic evidence. Yet another possibility is monitoring travel patterns to determine buying habits and other behaviors. 

Without safeguards, ethics and legislation, who knows where the limits are? As government officials wrestle with deciding who will have access to the information, it is apparent that these data recording devices are already an accepted standard within the automotive manufacturing industry.

(Sources: NHTSA, SEMA, NCSL, Toyota, Harris Technical Services, Professor Thomas Kowalick)