Pull up a chair, get some popcorn. The fireworks have been flying fast and furious. New York Times reporter John Broder wrote a piece about his press loaner Tesla running out of juice. Tesla, already smarting from the perceived slight given them by BBC’s Top Gear, decided they needed an ace up their sleeve: data logging. Chairman Elon Musk penned a response that included detailed data logs from the press car. Broder responded in general terms and then with a point-by-point response to Musk’s charges. The NYT’s public editor, Margaret Sullivan, has also chimed in with the opening of her own investigation. Notably, Musk hasn’t returned her calls. Her tentative conclusion? “I reject Mr. Musk’s central contention that Mr. Broder’s Sunday piece was faked in order to sabotage the Model S or the electric-car industry.” She also called for Tesla to release all the data they’ve got in proper machine-readable form, not just their pretty annotated graphs with the circles and the arrows and the paragraph on the back of each one.

Readers are welcome to read all the back and forth and come to their own conclusion. You can read lots of smart technical people trying to reconcile both stories at this Hacker News thread. The AtlanticWire has a reasonably concise pro-Broder analysis if you don’t want to wade through a comment thread. Also, Consumer Report’s recent article and members of the independent-of-Tesla owner’s forum seem to be corroborating some of the cold-weather battery issues raised by Broder’s original piece.

Instead of going any further down that path, let’s instead talk some more about this data logging business. The Tesla Model S has the capability of logging everything about the car: it’s GPS location, velocity, even the settings on the AC/heating system. Musk noted, in a tweet, that “Tesla data logging is only turned on with explicit written permission from customers, but after Top Gear BS, we always keep it on for media.” How nice.

On the one hand, bully for Tesla. As Jack Baruth has often noted, car reviewers are often not particularly good car drivers, and this gives Tesla the opportunity to correct the record. On the other hand… Tesla is working to destroy the career of a seasoned journalist based on their interpretation of the evidence in these logs. It’s heady stuff that might give any other car reviewer a moment of pause. We believe that journalists sign something acknowledging that Tesla is watching them. But everybody else is cool, right? Let’s talk about the privacy implications.

Say you’re a Tesla owner, you enable the data logging feature, and then you let your teenage kid drive the car without you around. Does she have an expectation of privacy? Should she? Okay, now you give your car to one of the valet parking stands which many trendy restaurants force you to use these days. The valet takes your car for a joyride and you’ve got the data. (Amusingly, the Tesla Roadster had a valet mode to diffuse exactly this concern, but the Model S doesn’t seem to.) Those are easy cases. How about your insurance company or a car rental company? Maybe they offer you a discount for driving sedately and providing them with the data. Or maybe they require data logging access, particularly if you’ve got a less than stellar driving record. Drive your car more than 10 mph over the speed limit and lose your coverage? Some companies already offer variations on this sort of usage-based insurance, but Tesla’s data logging facility enables it to go to quite a different level. One step further: can a court order subpoena your data? The possibilities are endless. Hacker types might also imagine protecting their privacy by modifying the car to falsify these records. Criminal types might see this as a way to generate an alibi. Heck, unethical car manufacturers could even falsify these records to falsely impugn negative reviewers. Write a positive review or risk your career!

I don’t want to pick on Tesla too much. Any car with a modern telematics system (GM OnStar, etc.) already has the facilities to support remote data logging. Let’s just hope Tesla gets more of these cars into reviewers’ hands. That’s the scientific method at play: results should be repeatable. If there’s a real problem, it can and should be discovered by having more eyes looking at it. CNN has already set out with another Tesla. More on this story as it develops.

[This blog piece emerged from a discussion with several of my graduate students. Everybody’s buzzing today with this news.]

The US Supreme Court earlier this month heard oral arguments in a case that will set the legal boundaries for police GPS surveillance of automobiles. Last year, the US Court of Appeals for the DC Circuit ruled that police were wrong to spend a month tracking the every move of Antoine Jones, who was arrested on October 24, 2005 for drug possession (view opinion). A tracking device had been attached to Jones’s Jeep without judicial approval. The high court judges engaged in heated debate about the rights of motorists in connection with the Fourth Amendment.

“It seems to me the heart of the problem that’s presented by this case and will be presented by other cases involving new technology is that in the pre-computer, pre-Internet age much of the privacy — I would say most of the privacy — that people enjoyed was not the result of legal protections or constitutional protections; it was the result simply of the difficulty of traveling around and gathering up information,” Justice Samuel Alito summarized. “But with computers, it’s now so simple to amass an enormous amount of information about people that consists of things that could have been observed on the streets, information that was made available to the public.”

The administration, represented by Deputy Solicitor General Michael R. Dreben, argued that police do not need to obtain a warrant because location information could have been obtained this information through ordinary surveillance methods. That means anyone could track even supreme court justices without violating their privacy.

“So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?” Chief Justice John Roberts said. “Your argument is, it doesn’t depend how much suspicion you have, it doesn’t depend on how urgent it is. Your argument is you can do it, period. You don’t have to give any reason. It doesn’t have to be limited in any way.”

Roberts suggested the process of obtaining a warrant serves as an effective limit. Scalia seemed to suggest that state legislatures were best suited to decide what limits should be placed on police tracking, not the courts. Other justices worried about the implications of allowing unrestricted tracking.

“[It's] an easy way, to pick someone up for speeding when you suspect something far worse but have no probable cause,” Justice Ruth Bader Ginsburg said. “It’s all in the computer. The police can say, we want to find out more about X, so consult the database, see if there is an indication that he was ever speeding in the last 28 days.”

Justice Anthony M. Kennedy compared the GPS tracking to the use of speed cameras and red light cameras for tracking purposes.

“Lots of communities have, including Washington, cameras on — at intersections on stop lights,” Kennedy said. “Suppose the police suspected someone of criminal activity and they had a computer capacity to take pictures of all the intersections that he drove through at different times of day, and they checked his movements and his routes for five days. Would that be lawful?”

Justice Elena Kagan suggested constant police surveillance of an individual is obviously a violation of privacy.

“If you think about this, and you think about a little robotic device following you around 24 hours a day anyplace you go that’s not your home, reporting in all your movements to the police, to investigative authorities, the notion that we don’t have an expectation of privacy in that, the notion that we don’t think that our privacy interests would be violated by this robotic device, I’m — I’m not sure how one can say that,” Kagan said.

The justices are expected to arrive at a decision by spring.

[Courtesy: Thenewspaper.com]

Motorists searched during a traffic stop may find their iPhone data electronically grabbed by police in ways that would not be possible or acceptable with written material. Some police departments, including the Michigan State Police, are equipped with a mobile forensics device able to extract images, videos, text messages and emails from smartphones. In some cases, the device is able to bypass password protection. Several states have been reluctant to curtail law enforcement access to this information.

In January the California Supreme Court ruled in California v. Diaz that a police officer did not need a warrant to read the text messages on a cell phone grabbed during a search incident to arrest. A Court of Appeal ruling in September (view opinion) found a Blackberry in an automobile was nothing more than a “container” subject to warrantless examination. Golden State lawmakers recoiled at the precedent being set and moved quickly to introduce legislation requiring police to obtain judicial approval before searching a phone. The state Senate approved the measure in June by a vote of 28-9 and the state Assembly unanimously passed it in August. Governor Jerry Brown (D), however, used his veto power last month to prevent the measure from becoming law.

“I am returning Senate Bill 914 without my signature,” Brown wrote in his message to the Senate. “The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections.”

Nationwide, the courts do not agree on how such cases should be handled. On Tuesday, New York’s Supreme Court, Appellate Division ruled that police had no right to read a driver’s paper notebook during a search. The case began when a Suffolk County Police officer pulled over Cristobal Perez for driving while talking on his cell phone and weaving in his lane. Perez had been operating on a suspended license, so his car was impounded. Police did not wait to ask a judge for a warrant before reading the papers found in the vehicle. The state’s second-highest court saw no reason why law enforcement could not wait for a judge.

“Here, the police officer’s initial entry of the defendant’s impounded car to leaf through notebooks located in the back seat was an unjustified unconstitutional search, and the notebooks and any information gleaned therein by the officer must be suppressed,” the unanimous court ruled. “Further, the plain view doctrine does not apply, because the incriminating character of the notebooks was not immediately apparent.”

Lawmakers in the Empire State have not addressed the issue of electronic searches. A copy of the New York decision is available in an 85k PDF file at the source link below.

Source:  New York v. Perez (New York Supreme Court, Appellate Division, 10/25/2011)

[Courtesy: Thenewspaper.com]

With TTAC’s editorial team rendezvoused in Georgia in preparation for our Southern Tour, it seems the state of Tennesse has been warned of the coming invasion of Niedermeyers, Langs, Schmitts and Baruths. According to Nashville’s News Channel 5 [via Robert Farago's Truth About Guns], the Volunteer State has, er, volunteered to become the first state to bring a Transportation Security Administration presence to its highways and byways. Says Tennessee Department of Safety & Homeland Security Commissioner Bill Gibbons,

Where is a terrorist more apt to be found? Not these days on an airplane more likely on the interstate

What evidence is there, besides the imminent presence of some particularly depraved automotive bloggers, for this purported increase in terrorist activity on Tennessee’s interstates? Who knows? Not the point. And there’s no “opt-out” lane on the freeway…

The effort to patrol Tennessee’s highways is known as Visible Intermodal Prevention and Response (VIPR), and the “awareness” and “safety enforcement” mission is being undertaken by Tennessee’s Department of Safety and Homeland Security on Tuesday in partnership with the TSA. So what does this mission entail?

Agents are recruiting truck drivers, like Rudy Gonzales, into the First Observer Highway Security Program to say something if they see something.

“Not only truck drivers, but cars, everybody should be aware of what’s going on, on the road,” said Gonzales.

It’s all meant to urge every driver to call authorities if they see something suspicious.

“Somebody sees something somewhere and we want them to be responsible citizens, report that and let us work it through our processes to abate the concern that they had when they saw something suspicious,” said Paul Armes, TSA Federal Security Director for Nashville International Airport.

And why is this necessary again? Oh right, it’s not: according to “officials,” the

 statewide “VIPR” operation isn’t in response to any particular threat.

And not only that, but get this:

The random inspections really aren’t any more thorough than normal, according to Tennessee Highway Patrol Colonel Tracy Trott

“Security Theater,” or the post-9/11 term for the public exercise of pointless security rituals that don’t actually make you any safer but make people feel safer, has taken ten years to metastasize past airports… and now it’s hitting the open road. For now it seems that truck drivers will feel most of the immediate impact of this shift, but expect this to be the beginning of a trend towards an ever-greater security presence on American highways.

Though the idea that there is a “war on cars” appeals to certain segments of society, there’s little evidence for any such effort. On the other hand, it’s pretty clear that there’s a “war on drivers” on, and it’s being led by the automotive industry. On the one hand, cars are being ever-more laden with distracting gizmos and toys, while simultaneously, companies are testing systems that minimize the need for drivers at all. Though Google’s autonomous cars get a lot of media play in this country, another system is moving Europe towards a similar endgame. Known as “Car-To-X,” the system allows cars to swap information like speed and direction, not just with each other but with traffic lights and traffic data collectors. The idea is to avoid traffic and crashes, by warning drivers of oncoming traffic in a left-hand turn scenario, for example. Because who wants to use their eyes to make sure they’re safe when technology can do it for you?

According to Autobild, the first public German test of the system will begin next spring, with 120 vehicles taking part. GM is currently testing a similar system. If all goes according to plan, systems like this and Google’s autonomous technology will fulfill GM’s prediction that autonomous vehicles will be a reality by 2020, and the war on driving will be won. Or lost, depending on your perspective.

The California Court of Appeal on September 26 approved a police officer’s rifling through the cell phone belonging to someone who had just been pulled over for a traffic violation.

Reid Nottoli was pulled over on December 6, 2009 just before 2am as he was taking a female friend home. Santa Cruz County Deputy Sheriff Steven Ryan said Nottoli’s silver Acura TL had been speeding on Highway 1. After speaking with Nottoli on the side of the road, Ryan suspected the 25-year-old was under the influence of a stimulant drug. His license was also expired, so Ryan said he would impound the vehicle. Nottoli asked if his car could stay parked on the side of the road, which was not heavily traveled and out of the way. Ryan refused so that he could conduct an “inventory” search prior to the towing.

Ryan testified that Nottoli’s driving was not impaired, and Nottoli was not arrested for driving under the influence. As he rifled through the belongings in the car, Ryan found a fully legal Glock 20 pistol with a Guncrafter Industries 50 GI conversion that should have been stored in the trunk of the vehicle. He also noticed Nottoli’s Blackberry Curve which, after it was turned on, displayed a photograph of a mask-wearing man holding two AR-15 rifles akimbo. Such rifles could have been legally possessed if owned before California’s assault weapons ban took effect. The photograph could also have been taken in another state, but Ryan took it was evidence of possible “gun-related crimes.”

Another deputy began reading all of Nottoli’s cell phone text messages, photographs and emails. Much later, Ryan obtained a search warrant to grab more information from the phone, and then a second search warrant was obtained for Nottoli’s home. Based on the information from the Blackberry, the Santa Cruz County Sheriff’s Office SWAT team on December 16 raided the Nottoli home. They found a large cache of weapons, a marijuana growing operation and $15,000 in cash, which the law enforcement officials kept.

At trial, Nottoli argued the cell phone search was illegal, and a magistrate agreed to suppress the evidence as obtained in violation of the Fourth Amendment. The appellate court, however, only agreed that the phone search was unlawful as part of the inventory process for the automobile. The judges insisted that the search was valid as part of the arrest process in which no warrant is needed to examine items related to officer safety and the preservation of evidence, as expanded by the 2009 US Supreme Court ruling in Arizona v. Gant (view ruling).

“In sum, it is our conclusion that, after Reid [Nottoli] was arrested for being under the influence, it was reasonable to believe that evidence relevant to that offense might be found in his vehicle,” Justice Franklin D. Elia wrote for the three-judge panel. “Consequently, the deputies had unqualified authority under Gant to search the passenger compartment of the vehicle and any container found therein, including Reid’s cell phone. It is up to the US Supreme Court to impose any greater limits on officers’ authority to search incident to arrest.”

The court reversed the lower court’s order suppressing the evidence, but the decision was made solely to set legal precedent. Reid Nottoli died on September 4. A copy of the decision is available in a 120k PDF file at the source link below.

Source:  California v. Nottoli (Court of Appeal, State of California, 9/26/2011)

[Courtesy: Thenewspaper.com]

Although the US Supreme Court is expected to settle the issue of GPS tracking of motorists soon, a three-judge panel of the Ohio Court of Appeals, Fifth District ruled 2-1 earlier this month against the warrantless use of the technology. The majority’s decision was likely designed to influence the deliberations of the higher courts. On November 8, the US Supreme Court will hear oral arguments in the GPS case US v. Jones. The Ohio Supreme Court is also considering Ohio v. Johnson in which the Twelfth District appellate court upheld warrantless spying.
The present case began on January 14, 2010, when Franklin County Sheriff’s Department Corporal Richard Minerd’s investigation of a burglary brought him to a white Honda Civic in an apartment complex. Minerd slapped a battery-powered GPS tracking unit under the bumper that allowed real-time tracking of the vehicle’s location, speed and direction of travel. Minerd did not seek a search warrant before acting.

Nine days later, the Civic appeared at the location of a robbery, and Minerd was able to follow the car back to the home of David L. White, who was caught with the stolen property. The Fifth District considered the question of whether it is ever acceptable for government agents to attach such devices to privately owned vehicles without a warrant.

“We respectfully disagree with our brethren in the Twelfth Appellate District,” Presiding Judge W. Scott Gwin wrote. “We find for the reasons which follow that under the facts of this case a warrant was required before placing the GPS tracking unit on the suspect vehicle and to continuously monitor the tracking signal.”

The panel majority took issue with the idea that attaching devices on the bumper of vehicles was ordinary conduct one could expect from any member of the public. The judges expounded on the importance of the Fourth Amendment in securing individual privacy against arbitrary government intrusion and concluded their colleagues were wrong in suggesting one has no expectation of privacy when parking on the street.

“When a person parks his car on a public way, he does not thereby give up all expectations of privacy in his vehicle,” Gwin wrote. “There is no way to lock a door or place the car under a protective cloak as a signal to the police that one considers the car private… Upon observing a stranger underneath one’s automobile, it is reasonable to believe that most citizens would sound an alarm. A response to the effect of, ‘Well, you have no reasonable expectation of privacy in the undercarriage of your car so any stranger can crawl under there and attach a GPS tracking device’ would be met with righteous anger and disbelief. A citizen would justifiably feel that his or her property has been defiled; her privacy breached and his personal security compromised.”

Since the GPS unit allows surveillance capabilities far beyond anything that could be accomplished with traditional spying methods, the majority dismissed the argument that the device only captured information that could have been observed with visual surveillance. Without enforcing a warrant requirement, police could install permanent tracking devices on anyone’s car whether or not criminal activity is suspected.

“We find that the GPS tracking device, remaining constantly in place, performs a search of much more substantial and therefore unreasonable duration and scope,” Gwin wrote. “The installation of the device without consent upon private property is a ‘search’ subject to Fourth Amendment warrant requirements, in the sense that it is an unreasonable governmental intrusion upon the individual’s constitutionally guaranteed right of personal security, personal liberty, and private property.”

A copy of the decision is available in a 100k PDF file at the source link below.

Source:  Ohio v. White (Court of Appeals, State of Ohio, 9/1/2011)

[Courtesy: Thenewspaper.com]

A powerful group of political figures issued a report last week condemning law enforcement’s unchecked use of high-tech surveillance system. The Constitution Project is troubled in particular by the ease with which a person’s movements can be tracked 24 hours a day. The conservative-leaning group insisted on the need to bring the law back in line with fundamental constitutional principles.

“Private sector technologies that enable constant monitoring of individuals are moving inexorably forward, and as they are developed, law enforcement agencies inevitably seek to use these new surveillance tools,” the report stated. “These include not only GPS devices and cell phones, but also laptop and notebook computers, location based services like OnStar, and technologies yet to be developed. Use of these surveillance devices presents serious challenges in terms of compliance with Fourth Amendment protections. While these technologies enhance the ability of law enforcement agents to accomplish their important work, it is also critical that we carry forward Fourth Amendment safeguards into the Digital Age.”
The statement was put together by a committee that included David Keene, current president of the National Rifle Association; former FBI Director William S. Sessions; Asa Hutchinson, former Republican congressman from Arkansas and former undersecretary of the Department of Homeland Security; Mickey Edwards, former Republican congressman from Oklahoma; and former US Court of Appeals Judge Patricia Wald.

The issue of vehicle tracking will heat up in November as the US Supreme Court hears oral arguments in the case US v. Jones, which will likely settle the existing disagreement among appellate courts over the legality of secretly attaching GPS devices to automobiles without a warrant. The Constitution Project is urging Congress to update the Electronic Communications Privacy Act to ban the use of such tracking without judicial oversight, regardless of how the high court rules.

“GPS technology has made pervasive and continuous location tracking possible in a way that was never before feasible relying solely on human law enforcement officers,” the report argued. “When such tracking is conducted, vast quantities of data are collected, automatically stored in a searchable digital database, and analyzed for patterns of behavior that can reveal a great amount of very personal and private information. These technologies convert traditional ‘tailing’ of a suspect into a new and different type of surveillance, paired with new and powerful digital analytic tools, that alters our analysis of expectations of privacy in a public place. Such tools may be a valuable aid to law enforcement when following a particular suspect. But their use is also a search that should require a warrant based upon a showing of probable cause.”

A copy of the report is available in a 120k PDF file at the source link below.

Source:  Statement on Location Tracking (The Constitution Project, 9/21/2011)

[Courtesy: Thenewspaper.com]

Under attack from privacy advocates and US Senators, Onstar will be dropping plans to automatically track vehicles that are not subscribed to its service, and will make post-cancellation tracking an opt-in option, rather than opt-out. A GM statement reads:

DETROIT – OnStar announced today it is reversing its proposed Terms and Conditions policy changes and will not keep a data connection to customers’ vehicles after the OnStar service is canceled.

OnStar recently sent e-mails to customers telling them that effective Dec. 1, their service would change so that data from a customer vehicle would continue to be transmitted to OnStar after service was canceled – unless the customer asked for it to be shut off.

“We realize that our proposed amendments did not satisfy our subscribers,” OnStar President Linda Marshall said. “This is why we are leaving the decision in our customers’ hands. We listened, we responded and we hope to maintain the trust of our more than 6 million customers.”

If OnStar ever offers the option of a data connection after cancellation, it would only be when a customer opted-in, Marshall said. And then OnStar would honor customers’ preferences about how data from that connection is treated.

Maintaining the data connection would have allowed OnStar to provide former customers with urgent information about natural disasters and recalls affecting their vehicles even after canceling their service. It also would have helped in planning future services, Marshall said.

“We regret any confusion or concern we may have caused,” Marshall said.

Editor’s note: When I wrote about OnStar’s latest round of privacy concerns, I didn’t realize that the chairman of the Senate Judiciary subcommittee on privacy, technology and the law had voiced his own concerns in a letter published just the day before. Here is the letter, as published at Senator Franken’s website. OnStar has already said it will respond to specifically to the concerns of Senators Franken and Coons.

Ms. Linda Marshall, President
OnStar Corporation
400 Renaissance Center
Detroit, MI 48265

Dear Ms. Marshall:

We are writing to express our serious concern with OnStar’s announcement earlier this week that it would continue to track the GPS locations of its customers’ vehicles even if those customers have affirmatively ended their contractual plans with OnStar.  In this email announcement, OnStar informs its current and former subscribers that it reserves the right to track their locations “for any purpose, at any time.”  It appears that the only way to stop this tracking is to actually call OnStar and request that the data connection between OnStar and the vehicle be terminated; this service is not available online.  OnStar further reserves the right to share or sell location data with “credit card processors,” “data management companies,” OnStar’s “affiliates,” or “any third party” provided that OnStar is satisfied that the data cannot be traced back to individual customers.  See OnStar, Privacy Statement: Effective as of December 2011.  In a nutshell, OnStar is telling its current and former customers that it can track their location anywhere, anytime—even if they cancel their subscriptions—and then give or sell that information to anyone as long as OnStar deems it safe to do so.

OnStar’s actions appear to violate basic principles of privacy and fairness for OnStar’s approximately six million customers—especially for those customers who have already ended their relationships with your company.  OnStar’s assurances that it will protect its customers by “anonymizing” precise GPS records of their location are undermined by a broad body of research showing that it is extraordinarily difficult to successfully anonymize highly personal data like location.  See generally Paul Ohm, Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization, 5 UCLA Law Review 1701 (2010) and Marco Gruteser and Baik Hoh, On the Anonymity of Periodic Location Samples, in Second International Conference on Security in Pervasive Computing, Boppard, Germany (2005) at 179-192.  If a data set shows the exact location where a car starts every morning, the roads that car travels on its morning commute, the office where it is parked during business hours, and the schools where it stops on its way home, it is unnecessary for that data set to include a name or license plate for it to be connected to an individual and his or her family.

We urge you to reconsider these decisions.  We also urge you to better inform your customers of their ramifications.  To that end, we request that you provide answers to the following questions:

1.      Does OnStar believe that its actions comply with federal law?
2.      Will OnStar allow its customers to deactivate their data connections online?
3.      If a customer deactivates their data connection, will OnStar delete the existing location information they have gathered for that customer?  Or does OnStar reserve the right to store and sell that information regardless of deactivation?
4.      Has OnStar ever suffered a breach of its customers’ location data?
5.      Has OnStar ever suffered a breach of any of its customers’ private information?
6.      How will OnStar protect non-anonymized data on its servers in light of recent breaches at major institutions like Citibank, Sony and the International Monetary Fund?
7.      How exactly will OnStar anonymize its location data?
8.      Will OnStar seek its customers’ consent before sharing or selling their location data to third parties?  Does OnStar believe it is legally required to do so?
9.      Will OnStar inform its customers of the entities to whom it sells location data?
10.  Has OnStar already disclosed or sold any of its customers’ location data with third parties?  Which third parties?
11.  Will OnStar agree to stop the tracking, sharing, and sale of location data for customers that have ended their subscriptions to OnStar services?

We believe that OnStar’s actions underscore the urgent need for prompt congressional action to enact privacy laws that protect private, sensitive information like location.  In the meantime, we believe that it is the responsibility of corporate citizens like OnStar to take every step possible to safeguard the privacy of their customers.

We appreciate your prompt attention to this matter.

Sincerely,

Al Franken                                                                                          Christopher A. Coons
Chairman, Subcommittee on                                                               United States Senator
Privacy, Technology and the Law