By on February 13, 2011

Via the excellent lawbloggers at The Volokh Conspiracy comes news of a decision by a California appellate court in re: State vs Xinos which finds that the data recorded by a vehicle’s Event Data Recorder or “black box” is protected by the fourth amendment. The ruling covered a case in which police used EDR data to charge the driver in a fatal crash of vehicular manslaughter, and under appeal, the ruling was handed down that

We do not accept the Attorney General’s argument that defendant had no reasonable expectation of privacy in the data contained in his vehicle’s SDM. The precision data recorded by the SDM was generated by his own vehicle for its systems operations. While a person’s driving on public roads is observable, that highly precise, digital data is not being exposed to public view or being conveyed to anyone else. . . . We conclude that a motorist’s subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle’s SDM.

And, according to Volokh

the computer data is in the car, not outside the car, so the legal standard that governs access to the data probable cause but not a warrant

Given trends towards ever more storage of vehicle telemetry data, this is a heartening development for motorists and privacy activists… but don’t be surprised if the issue ends up in the Supreme Court. [Hat Tip: TTAC commenter fincar]

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19 Comments on “Auto “Black Box” Data Protected By Fourth Amendment...”

  • avatar
    Dr. Kenneth Noisewater

    How about the 5th?

  • avatar

    Do you think Toyota was protecting it, customers by not being able to see data at the dealerships?

  • avatar
    M 1

    Is the box in the photo the same one in the case in question? I can’t remember if an 04 Envoy would do this automatically, but I’m looking at the phrase “or being conveyed to anyone else” and thinking about our newer GM vehicles’ OnStar systems. I kind of assume that even if I opt out of the “helpful” OnStar e-mails constantly reporting my mileage and tire pressure, those electronics will continue to share that information anyway.
    And if that isn’t enough, I’m willing to bet ten bucks it won’t be long before we see some legislation mandating enough “safety data” be transmitted that we also “just happen to” also cross the 4th Amendment exclusion threshold. Legislators never resist an opportunity to mete out new punishments.

  • avatar

    Right now we have cars that don’t have any of this technology, but that will eventually change. Laws need to be put in place to protect our rights before it becomes accepted that The State can monitor every aspect of your car and driving through EDRs and there seems to be nothing to be done about it.
    We all knew this day was coming.

  • avatar

    I’m actually of two minds on this.
    I’m not in favor of Big Brother oversight and tracking, as a rule…but I’ve been at the receiving end of “He said/He said” post-incident citations too often.  I’m careful behind the wheel, and tend not to flout speed laws too obviously – a tracking device or even dash-cam would be a powerful defense.
    It can go the other way, too.  I know someone in another state, following me, got a ticket meant for me when I stumbled into a speed trap.  Long story…but I’m certain it was for me and equally certain that the car pulled over was NOT speeding.  I wasn’t about to go back and surrender…but a black-box on the victim’s car would have been a great defense.
    We’ll almost certainly have to deal with these in our car in the future, in any case.

    • 0 avatar

      I agree with this.  Right now, a police officer can make any statement he/she likes in traffic court and, unless you have witnesses (unlikely) you have no recourse. Systems like this might enable the state, but they also create a data trail that you can use to hold the state to account.
      I have one ticket that, had it been a camera and not an officer “on duty” I’d not have at this point.

  • avatar

    Good ruling, hope its upheld through the Supremes.

  • avatar

    “so the legal standard that governs access to the data probable cause but not a warrant”
    This makes no sense, please clarify.

    Also, what exactly does “SDM” stand for?

  • avatar

    The laws against self-incrimination are really, really good to have.

    We were reminded of that just this past week when a Pakistani wanted the government to use beatings and torture to extract a confession it was the Americans that did something. If the government refused to, he and his group would use clubs and torture to get the confession in no time.

    The problem with this method is the prisoner also admits guilt for the seasons, tides, and moon cycles. Reliability = zero.

    When the police are not able to beat a confession out of someone, they tend not to try.

    Some guilty do not pay the price but better that then the innocent being ground up by sloppy or lazy police work.

    • 0 avatar

      This is about the 4th amendment, not the 5th.  4th is about illegal search and seizure.  The 5th is about self-incrimination.
      This is analogous to needing a search warrant to see what is on a computer.  If your computer has information that is incriminating, the 5th amendment won’t help you out if you put it there.

  • avatar

    Except these protections probably only extend to you if you OWN the car outright. If the bank or lease company holds the note, then they can likely give the OK to pull the data.

    • 0 avatar

      Except that the issue was the -expectation of privacy-. You have that whether you own or lease.

      And last time I checked, apartment renters and home mortgage holders still have search protection despite their residences’ notes being held by others.

      As far as concerns that this ruling could -prevent- defensive use of the data – why? If your car contains a DNA sample or some physical evidence giving you an alibi, there’s no reason you can’t -ask- the cops to search it, whether or not they have probable cause or a warrant. Privacy is -available- but not -required- (which would result in a strange world indeed…).

  • avatar

    Not true.  you own the car,  they have a lien against it. If they owned the car you wouldn’t be paying the fees and repairs on it. They have a financial stake on it only if it’s collateral for the loan but that’s it.
    The problem with cars is they fall into gray areas of personal property. The State reminds us how driving is a privilege and we surrender rights when we drive. Our vehicles are supposed to be mini castles but then out come dogs trained to pee and sit on the sidewalk granting cops access to your trunk. Probable cause in the case of vehicles is a lot easier than a house. Hit something or break a traffic regulation and that’s PC right there.
    If we don’t have a choice about the data being recorded or how long it is retained we sure need a choice about who gets to view it if at all. Any chance you can buy a car without the helpful EDR under the dash?
    If a crime is suspected of being committed the law has power to subpoena data from a vehicle or individual controlling the vehicle. Either way you are going to lose if something bad happens. And agreeably this is justice for the harmed.
    The slippery slope begins when they decide to go looking for crimes or checking to see who’s been naughty or nice. At first we’ll see random anonymous polls of vehicles from roadside query stations, nothing identifying anyone, no harm done. Once data shows radical driving, emissions problems, no seat belt use, etc the next step will be to prevent these infractions For The Public Good. Then the fun begins. It will be easy to sway sheeople that we need to put a stop to the shenanigans before someone gets hurt.
    If the data is available to Authorities, Insurance Companies will leverage their cozy relationship with The State to insist on taking part in these roadside surveys so they can classify areas or streets as high risk. The drivers on these roads will unwittingly be involved in these decisions. The holy grail of insurance rating is to know everything your customers do so they either behave like perfect angels or fatten your bottom line accordingly. In this model they bet on lucky drivers who drive cars like they stole them (Jack Baruth) who rack up points without actually taking anyone out.
    Final step is the irresistible urge to regulate driving activity this level of monitoring brings. Imagine the potential all this data brings to the table, For The Children of course and In The Public Good.

  • avatar

    I don’t want to be monitored, but I’d prefer that police investigators have access to as much factual information as possible after some idiot runs into me.

  • avatar

    Honestly, this just means that they have to get a warrant or have probable cause to search it.  I don’t think this is going to be hard to get.  This is more of a check box than anything else.

  • avatar

    I fully expect that before long we’ll be required to waive our 4th Amendment rights in order to get auto insurance, at least in terms of allowing the insurance company to have a look at the data. Also, this ruling is in regards to a criminal trial. Does one have the same protections in a civil trial?

    • 0 avatar

      The 4th Amendment is for criminal trials.  To get this information in a civil trial, one side has to ask the judge for it.  Kind of like when Toyota was giving safety information at the center of the Biller case.  Not trying to say how the Biller case went in general, but Toyota was asked to turn over evidence in which they must comply.  The same would apply here.  You would need to turn it over per the judge’s instructions.

  • avatar

    Don’t hold out on the Supreme Court to rule in favor of the individual here.  The Scalito-Roberts court isn’t going to let a gift to corporate America paid for by average joes go to waste…

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