How Your Car is Spying on You

Did you know that your new car, truck, or SUV is equipped with a small computer that is recording your every driving action as well as data on your vehicle’s condition every time you drove it? If you didn’t, you know now!

Today’s post is a “good news” and “bad news” report on a recent National Highway Traffic Safety Administration (NHTSA) decision to withdraw its 2012 proposal regarding the installation of Event Data Recorders (EDRs or, as they are better known, “black boxes”). But first, a little background.

An EDR is essentially a device that, when installed in a car or truck, records everything that an accident investigator would consider important such as speed, direction of travel, brakes, or if seatbelts were in use. The NHTSA reasoned that if such data was recorded in the 5 seconds before an accident, it would help manufacturers design and produce safer cars and trucks. As a “side benefit,” an EDR would also be invaluable to police accident investigators and accident reconstructers because the EDR’s would yield “pure” data that could confirm, or refute, a driver’s account of how an accident occurred.

For all you privacy advocates, civil libertarians, and technophobes out there, the “good news” is that the NHTSA has rolled back (cancelled) its efforts to require manufacturers to install EDRs in all new vehicles at the assembly line. The “bad news” is the reason the NHTSA rolled back its previous mandate is that virtually all U.S. manufacturers now install an EDR on every vehicle that rolls off the assembly line!

What an EDR Records

With that said, let’s take a look at what an EDR records, how long it stores your driving data, and who has access to that information.

By federal law (49 CFR Ch V, for those who like to read it themselves) EDRs must record a minimum of 15 “channels” or “data points,” including:

• seat belt use
• speed
• rate of vehicle acceleration / deceleration
• steering
• braking
• direction of travel
• air bag deployment

Vehicle manufacturers are free to add as many channels as they wish to their EDRs, so long as they meet the federal minimum of 15 channels. Many manufacturers have done exactly that and, depending on the make and model, there may be as many as 30 channels being simultaneously recorded. Note that EDRs do not record your conversations with passengers, your end of cellphone calls, or your choice of a radio talk show host: EDRs record only vehicle data and nothing else (yet).

The EDR is programmed to stop recording data in one of two circumstances: you turn off your vehicle’s ignition switch or the EDR senses you have been involved in an accident. The EDR is programmed to sense when a vehicle’s airbags are deployed and uses that deployment as a signal that an accident has occurred and it is to preserve the data stored in its memory. Although some EDR systems can record other data from multiple sources to “sense” an accident, airbag deployment remains the industry standard (the logic being that the EDR doesn’t need to know if you bumped a wall in your garage or exchanged chrome in a parking lot).

For a relatively up to date accounting of which cars and trucks have EDRs installed, see the lists provided by Crash Forensics and Harris Technical Services.

As to how long your driving data is stored, here comes some good news: your vehicle’s EDR data is stored for no more than 5 to 8seconds before it is “overwritten” by more recent data! Since the EDR was created to gather information about what happened prior to a vehicle accident, the feds established the 5-second recording minimum as being sufficient for that purpose.

What does all this have to do with personal injury law?

At first glance, it is obvious that EDR data can be used to confirm an accident victim’s account of what happened during an accident. But there is another concern that must be addressed: who “owns” EDR data and who should have access to such data? We will address these concerns in the following section.

The question of who “owns” data stored on an EDR was settled by the Driver Privacy Act of 2015, which states that:

… any data in an event data recorder … is the property of the owner or lessee of the vehicle in which the recorder is installed …

In other words, you Fourth Amendment protection from unreasonable search (of your EDR) and seizure (of data stored in your EDR) extends to your vehicle and the data cannot be accessed unless:

• you give your permission
• you are served with a subpoena from civil court order
• you are served with a search warrant
• in order to comply with certain federal investigations (Homeland Security etc.)
• the data will be used for research purposes that does not identify you as the data’s source

In personal injury law, the above means that an insurance company’s adjuster cannot force you to allow the insurance company access to your EDR and the data it contains. Should an adjuster threaten to delay your injury claim settlement until you turn over your EDR data, you should contact a personal injury lawyer as soon as possible after receiving such a threat to discuss the legal options that may be available to you.

Eventually, of course, the “other side” will eventually gain access to your EDR . In most cases they will attempt to use that data to show that your own driving just prior to the accident was a factor in your injury. In short, they are attempting to use your state’s comparative negligence law to reduce the amount of money that they will have to pay out. Your auto accident injury lawyer will, of course, be ready for this tactic and will usually have a ready answer to such allegations.

How a Car Accident Lawyer from The Doan Law Firm Can Help

For more blog posts, articles, and the occasional essay on EDR’s and other related topics, be sure to visit The Doan Law Firm’s website weekly to stay up to date on the legal issues raised by the next generation of automobile and truck technology. Call our Houston car accident attorney if you have questions about a specific legal situation.