Since its introduction in the 1990s, the automobile’s event data recorder (EDR) or electronic control module (ECM), also known as the “black box,” has provided insight into vehicle metrics, driver behaviors and accident data. Depending on the design and designated settings, black boxes can capture data concerning driver habits, braking, the speed and the performance of a vehicle in the moments immediately prior to a collision. Such data can result in the discovery of evidence that is adverse to the vehicle owner’s interests. This possibility has been the catalyst for creative lobbying and lawmaking in support of defining a vehicle owner’s privacy interests in the information held on the black box.
The potential for inadvertent destruction of data contained within EDRs requires engagement of rapid response preservation strategies, but such activities have been hindered across several jurisdictions. In light of the potentially harmful information contained on post-collision EDRs, in recent years, vehicle ownership representatives have lobbied state and federal legislatures for interests/tighter controls on the acquisition of this data. Those advocating for tighter controls argue that information tracked by EDRs is the vehicle owner’s private property and requires consent or a court order before retrieval. One third of states agree.
Legislatures across the nation have passed laws that state absent certain emergency, safety, or need-for-repair circumstances, adverse parties may only download and analyze black box data of the vehicle by either obtaining the owner’s consent or a court order. New Jersey became the most recent addition to the list of states that have enacted black box privacy legislation mirroring European data protection law:
- Arkansas
- California
- Colorado
- Connecticut
- Delaware
- Maine
- Nevada
- New Hampshire
- New Jersey
- New York
- North Dakota
- Oregon
- Texas
- Utah
- Virginia
- Washington
Retrieval and preservation of EDR data may be substantially impaired by the delay and denial of access to data under the auspices of privacy contentions. Moreover, remedying the problem by seeking court intervention likely increases the possibility of a civil lawsuit when, for many, the goal is to avoid that very thing.
Given that a third of the states have adopted EDR privacy legislation, those who care about early investigation of accidents will be confronted with discrepancies in how their access to this data is regulated. To further muddy the waters, automakers have also joined in the privacy fight by asserting that their permission is required to download EDR data due to their intellectual property rights to its software and hardware.
Despite legislative barriers to the quick retention of crucial EDR data, the ultimate objective of obtaining and preserving the information may still be accomplished through proactive planning. It is important to know and understand what permissions, if any, may be required from an automobile owner (and/or manufacturer!). Similarly, the possibility of going to court to preserve potential evidence should be discussed before the accident occurs so that the heat of the moment does not adversely affect the choices made.
By Lew Bricker and Janice Evans of SmithAmundsen