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
- rate of vehicle acceleration / deceleration
- 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
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 8
seconds 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.