By on June 30, 2016

Tesla Model X crash

Drivers blaming their cars for accidents or sudden acceleration is nothing new, but modern technology allows us to view data in cases where sudden breaking or a collision occurs. This information is recorded by a device known as an Event Data Recorder (EDR). These types of devices, commonly referred to as “black boxes,” are able to save multiple variables when a collision is detected.

EDRs are often used by police in crash investigations, but some have been used by manufacturers to prove that their vehicles aren’t faulty. One recent case involved a Tesla Model X, where the owner claimed the vehicle accelerated on its own and crashed into a building. Tesla refuted the claim based on the logs they pulled from the vehicle and stated that the driver was at fault.

Since Tesla is the only one with access to the logs, can owners defend themselves, and do they have a right to that data?

Event data recorders are defined as devices that are able to record a vehicle’s speed before and after a crash, based on federal regulation 49 CFR 563. These devices are not yet required to be installed in all vehicles, but, if a manufacturer chooses to record such data, they must abide by the regulation and record all of the variables that are described within. Due to a proposed law to make the devices mandatory, most manufacturers have chosen to install EDRs into their vehicles.

According to EDR expert Richard Ruth, about half of the current vehicles on the road have an EDR device that is accessible by the most popular tool on the market, the Bosch CDR system. He said that 88 percent of 2016 models are supported by the Bosch tool while another 11 percent are supported by another proprietary tool, meaning 99 percent of 2016 models having an EDR device that is readable by a commercial tool.

Hyundai and Kia use their own proprietary tool (known as the GIT tool), which is based on their OEM diagnostic system and is available commercially. Subaru uses a similar setup with tools from Denso and Hitachi. Jaguar Land Rover and Mitsubishi use tools from OTC and Bosch SPX. Jaguar Land Rover falls into a bit of grey area as its tool is commercially available, but the format it outputs has to be converted by their engineers in the United Kingdom. Although the data can be read independently, it still has to go through their hands in order to be in a presentable format. Ruth said they recently designated some engineers in the U.S. and will be expanding on this program. Jaguar Land Rover declined to comment on the story by the time of posting.

Toyota SRS module

According to Ruth, Porsche vehicles do not currently employ EDR devices, so they are not required to abide by the regulation at this time. Tesla is the only outlier — it appears to be able to record crash data as described by the EDR rule but does not comply with it, since it does not offer a commercially available EDR tool. I asked Ruth how Tesla is able to comply with the rule if they do not offer the tool. He said they might be meeting the regulation by not employing an EDR, or that they think that they are not employing one but are actually in violation of the rule.

The rule defines an EDR as “a device or function in a vehicle that records the vehicle’s dynamic time-series data during the time period just prior to a crash event (e.g., vehicle speed vs. time) or during a crash event (e.g., delta-V vs. time), intended for retrieval after the crash event. For the purposes of this definition, the event data do not include audio and video data”.

The information released by Tesla after the recent crash, along with earlier ones, appears to meet this definition. We asked Tesla for clarification on their device and how it can be retrieved with a commercially available tool. They replied by stating that, “Tesla does not have an EDR device as defined by 49 CFR 563.”

I followed up and asked how they can make that statement when it is clear that they are reading crash data that coincides with the definition of an EDR device. They followed up with another statement: “We collect diagnostic data from Tesla vehicles in a responsible way that allows us to continue to improve the driver experience while also protecting our customers’ privacy.”

Since Tesla was not willing to share what data they were collecting and how they were collecting it, it is unclear at this time whether they are in violation of the EDR rule. The EDR rule received a recent follow-up that addresses ownership of data in the form of the Driver Privacy Act of 2015. The act states that “any data in an event data recorder required to be installed in a passenger motor vehicle (as provided for under Department of Transportation [DOT] regulations concerning the collection, storage, and retrievability of on-board motor vehicle crash event data) is the property of the owner or lessee of the vehicle in which the recorder is installed, regardless of when the vehicle was manufactured.”

The Act does not allow a manufacturer to retrieve the data without the owner’s consent, and even though Tesla does not admit to employing an EDR device, they have included language in their sales agreements that requires owners to grant them this right.

The Act protects owners from allowing others to read the data without their consent, but there are some other exclusions — court orders, federal investigations, emergency medical response, and anonymized traffic safety research. The data can be shielded by the law but can a vehicle owner retrieve it, and do they really want to? Ruth states that equipment and training for independent data retrieval involves an initial startup cost of $7,200 to $15,000, with yearly recurring costs between $1,880 and $5,000. These costs push the tools out of the price range of the average vehicle owner, but the forensic data experts that operate them do offer their services to independent parties. Ruth states that these readings range from $300 to $2,000 and typically come in at around $500 if there is minimal travel involved in reaching the download site.

Download requests are not yet common by vehicle owners but they are often requested by engineers hired by attorneys in civil suits. Ruth states that he has only completed one reading for an individual since during his 18 years in the field, and in that case it was for a driver charged with DUI. In that case, the individual stated that he was not in the driver’s seat at the time, but the downloaded data did not support this — the passenger occupant classification size did not match him.

Finding an impartial expert to download data is possible in vehicles covered by the commercially available systems, but would not have helped the Model X owner. Tesla does not consider their crash monitoring system to be an EDR device and, therefore, does not offer a commercially available tool for reading the data.

[Image Sources: Tesla Model X crash (Puzant/imgur); Toyota SRS Module (eBay)]

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47 Comments on “Who Owns Your Vehicle’s Crash Data?...”


  • avatar
    28-Cars-Later

    This is an excellent topic of discussion.

    • 0 avatar
      Adam Tonge (bball40dtw)

      All your crash data are belong to us

      • 0 avatar
        28-Cars-Later

        I was thinking that, and then thought I should come back and update my comment.

        lovelace-media.imgix.net/uploads/1404/66b86b80-9157-0133-f1ef-0e8e20b91aa1.gif?

    • 0 avatar
      CoreyDL

      Tesla is like the guy who gets out of any situation where he’s in the wrong by some technicality.

      “The only RWD car produced by Cadillac in 1999 was the Catera.”
      “No, the Escalade was also available in RWD.”
      “THAT’S NOT A REAL CADILLAC IT’S A TAHOE I’M RIGHT STFU.”

      • 0 avatar
        orenwolf

        I think it’s more that they are trying to collect a lot more telemetry than what other manufacturers do (I wouldn’t be surprised if they felt existing EDR implementations were dinosaurs and wanted to implement something modern), and, given the amount of in-car intelligence they have anyway, integrated it all.

        I’m not a fan of a lack of transparency around what safeguards are in place for personal information (I’m a security IT guy, that always irks me) but I’m not against the idea of a modernized telemetry system in cars, to be sure.

        I wonder if someone from SpaceX looked at the vehicle EDRs and decided they looked decidedly apollo-era, sparking the whole thing to begin with. ;)

        • 0 avatar

          orenwolf, I can see where they might be trying to use an advanced form of telemetry data for better results but in this case they are specifically stating that they do not fall under the rule because their data does not meet the advanced requirements of the rule even though the rule is fairly basic at this point.

          Like the expert, I don’t believe that there is much use for personal access of the data at this time but if you are suing Tesla for a faulty car shouldn’t you have the option to go to a 3rd party expert to pull the data instead of relying on Tesla to hand it over under subpoena using a system that only they can access?

          • 0 avatar

            You can take a look at the CFR, it dosen’t really limit the tech just a bare minimum of what should be recorded.
            https://www.law.cornell.edu/cfr/text/49/563.5

            After reading it all I agree with Bozi. It seems Tesla is saying it’s not an EDR, but what Tesla is recording seems to match the EDR definition. So they seem to be relying on the old I said it’s not defense which I doubt would hold up if pushed. This is one of those issues that annoys me about recent tech companies. Many seem to knowingly break laws they feel aren’t in their favor, I’m pretty sure they know they are breaking the law but they feel that’s ok because it’s in their way, I really hope they start cracking down more on this.
            They will likely have to allow third party access at some point (limited to the parameters outlined in the CFR of course. ) The agreements Tesla have you sign makes me sad for society I miss actually owning things instead of merely licensing them.

          • 0 avatar
            cdotson

            Bozi,

            I agree that it seems Tesla’s “advanced” data telemetry is streaming data to a remote facility. That makes the equipment on the vehicle a telemetry device and not an “EDR” per the code. The EDR is defined as storing data for the time period of the crash for later analysis. Since that data is transmitted and stored remotely, a Tesla is not equipped with an EDR per the code.

          • 0 avatar

            “Event data recorder (EDR) means a device or function in a vehicle that records the vehicle’s dynamic time-series data during the time period just prior to a crash event (e.g., vehicle speed vs. time) or during a crash event (e.g., delta-V vs. time), intended for retrieval after the crash event. For the purposes of this definition, the event data do not include audio and video data.”

            Seems even remote storage should fall under this.

        • 0 avatar
          stuki

          Creating a separate, possibly parallel, system for recording a minimal set of data to be used for investigations, and which must be available to the owner, may end up being how things shake out in the end.

          Manufacturers may, for competitive reasons, want to record all manners of other arcana, the way race teams do, that they do not want to give the competition unfettered access to.

          Sensors and data pipelines are getting so cheap, accurate and powerful now, that strain and temp gauges embedded in tires, wind speed/direction/pressure gauges along the cars’ surfaces are becoming feasible. And, at least in racing, soon mandatory.

          You don’t want to write laws that discourages this, by mandating “all data collected for any reason, must be made available to any ambulance chaser with a judge’s cell phone in his rolodex.” But at the same time, a certain minimum, to be expanded over time as standards emerge, would certainly aid in accident reconstruction.

          • 0 avatar
            Piston Slap Yo Mama

            stuki: “Creating a separate … system for recording … data” – get a dash cam. While they usually don’t record parameters like throttle / brake position (some do) they do absolve you of guilt when the other party does something stupid. Like intentionally rear-ending you.

            My rear facing camera put a guy in jail – had I not had it I wouldn’t have seen justice.

      • 0 avatar
        Kyree S. Williams

        I saw that conversation.. How silly.

  • avatar
    JustPassinThru

    Let’s see.

    If I find a key, and that key opens a lock on a storage unit somewhere…does ownership of the key give me possession of the contents of the storage unit?

    I think not. If the car is SOLD, and there is no explicit statement that the event recorder, and/or all data contained therein, remains the property of Tesla and/or FedGov…absent that agreement stated in the sales documents, the OWNERSHIP of the event recorder and what’s in it, is that of the registered owner.

    • 0 avatar
      brn

      Until a Court Order comes along.

    • 0 avatar

      Possession is 9/10ths so in your storage locker example, yes much if not all of the contents could become your property.

      Data stored in an electronic device is not your property, you may have privacy rights associated with that data should for instance it contain PII (Personal Identifiable Information) but that’s your only right.

      All you own is the physical hardware.

      Amazon remote wiped an e-book from Kindles once (ironically it was 1984) the e-book had been legitimately purchased. All perfectly legal. They were however convicted in the court of public opinion and vowed to never do it again. Amazon own the data (which is the book).

      Not only is the data not yours, you may have trouble getting access to it without a fight.

      The digital world is very different to the physical world, they intersect but have different legal rights.

      • 0 avatar

        Yeah I hate this I feel this may become one of the great failings of modern times. Changing from ownership to incredibly limited licensing. And it’s not just digital several other industries are also trying it. Courts are against it but they still try.

  • avatar
    JustPassinThru

    Re-scanning the article…it seems Tesla is slipping language in its sales papers giving the company ownership of the data therein. If the buyer is foolish enough to agree to this, with his signature – knowing or not – then Tesla does have legal claim.

    Caveat emptor.

  • avatar

    Does financing or leasing make a difference?

  • avatar
    shaker

    “In that case, the individual stated that he was not in the driver’s seat at the time, but the downloaded data did not support this — the passenger occupant classification size did not match him.”

    I read this twice – should it read “passenger occupant classification size did match him.”?

  • avatar
    JimC2

    Need a little camera down in the driver’s footwell, just enough to view the pedals, that’s all…

  • avatar
    DenverMike

    Shouldn’t I unplug the factory EDR and install my own? Or just leave it unplugged and video record my driving movements over the shoulder, besides instruments?

    If I buy a house with an exterior security cam system, would the home builder own exclusive rights to what’s recorded? What about law enforcement’s claim to subpoena rights?

    • 0 avatar
      JimZ

      “Shouldn’t I unplug the factory EDR and install my own?”

      You probably can’t. the one image above (and some stuff I’ve heard) is that EDR is built into another module, likely the restraints control module (RCM.)

      • 0 avatar
        DenverMike

        We’re the ones forking over the cash and should own the cars from bumper to bumper, leased or not. Why would they stack the ‘deck’ totally in their favor?? They’re the only ones that can read the EDR, in some cases, and if the data makes the car maker look bad, “Hey, the data was “inconclusive”, “experimental” or some how got “erased”.

        • 0 avatar

          We may think we are 100% owners of our vehicles, but that is slowly changing whether we like it or not.

          Black Box data is one example of where we own the hardware but probably not the content.

          The ‘right to repair’ is under assault, with several manufacturers refusing to sell spare parts to unauthorized shops and/or owners.
          https://www.thetruthaboutcars.com/2015/10/tesla-doesnt-want-work-cars/
          http://cafeelectric.com/stretchla/
          Tesla has disabled access to the SC Network for salvage vehicles not repaired by their approved body shops.

          As autonomous features are added to our cars and OEM’s take on more of the driving responsibility, they will probably take on more ownership rights as well or sell to fleets like Uber only.

  • avatar
    orenwolf

    Interesting. AFAICT, in Canada, there is no law around EDR data (in fact there was a recent case where EDR data lead to a conviction:

    http://www.cbc.ca/news/canada/car-s-black-box-convicts-montreal-driver-1.394312

    I’m of two minds about this. I know this is a weird mindset from an American perspective, but I’m not against police access to EDR data, I think, in general – I try to be a responsible driver myself and if some jackass hits me doing double the speed limit on the 401, I’d rather be able to compel his EDR data than not. Of course that cuts both ways, if I get into an accident because I was doing 150(KM/h!) on the highway and the police use that against me, well, that’s my risk I suppose.

    • 0 avatar

      As long as the data is protected against warrantless access I’d agree. We need protections against unlawful search and seizure.

      Our rights to see the data at all is questionable. We own the hardware of car, but not the software of the ECU for example. The software is proprietary and copyrighted. The data on an EDR may not be available for owners to examine.

      I wonder how authorities would act if you deliberately destroyed the EDR and its data after an accident occurred (e.g. by driving a screwdriver through it). Sounds like tampering with evidence.

      Keep your own data and/or dashcam records on your own device.

  • avatar

    Customer access to this data isn’t going to come our way easily. As with most things in life, if you want it done right, do it yourself.

    Years ago I had several Davis CarChip devices in my cars. It was interesting to track several parameters and the device did provide me with early warning of a failing thermostat in a Taurus before something blew.

    One feature of the CarChip device was that it kept track of several engine parameters such as throttle position, engine revs, speed as well as various engine sensors in great detail for the last 30 seconds of travel (the idea being you’d have very granular data in the case of an accident). I never needed it but it was good to know if someone claimed I was doing 70 in a 30 I could prove otherwise, or if I didn’t even try to brake or reversed into them, once again I could prove otherwise.

    We need to use our own OBDII devices. Depending on an OEM or insurer has too many conflicts of interest to be in our favor!!

    WIth the CarChip device data had to be transferred through a serial port so I soon lost interest due to the hassle factor. Now modern equivalents use Bluetooth connections to our smart phones. A popular device is Automatic it’s only $99.

  • avatar

    It would not be surprising that manufacturers provide jurisdictions with the ability to read data in the various “black boxes”. Similar to providing information as to where the various VIN’s are located on any vehicle, besides the obvious places.

    If any vehicle is constantly communicating with the manufacturer or if the data is stored in a box.

    Who owns the data?

    The data is not in the public domain, but is easily accessible, similar to a hard drive in a computer, or memory in a smart device.

    Even if the owner/lessee of the vehicle owns the data, a search warrant will make it easy to access the data.

    On modern vehicles its a constant that “Big Brother” is always watching, and recording.

    Go a step further as we progress towards AV’s (autonomous vehicles) the data will be crucial to reconstruct incidents. “It was driving itself when it rear ended the vehicle in front not my fault”

    We are progressing from “Big Brother” watching and recording to “Big Brother” driving.

  • avatar
    Fred

    According the IIHS,

    Who owns the data and who has access?

    EDRs and the data they store belong to vehicle owners. This has long been generally recognized, but it was clarified by a federal law enacted in 2015. 6 Police, insurers, researchers, automakers and others may access EDR data with the vehicle owner’s consent or through a court order. Federal law also allows access without a court order under certain circumstances — for example, for emergency responses or for highway safety research, provided that identifying information is removed.

    Seventeen states have their own laws specifying who can access the data.

    For crashes that don’t involve litigation, especially when police or insurers are interested in assessing fault, insurers may be able to access the EDRs in their policyholders’ vehicles based on provisions in the insurance contract. However, some states prohibit insurance contracts from requiring policyholders to consent to access. 7, 8

    http://www.iihs.org/iihs/topics/t/event-data-recorders/qanda

  • avatar
    shaker

    Hmm – nobody mentioned OnStar yet?

    I have “Big Brother” watching over me and my Volt at all times.

    I stopped giving a poop about it.

  • avatar
    golden2husky

    The data should belong to the car owner, period. Even a court order should be forbidden. Unless this systematic step by step erosion of rights is questioned and ultimately stopped, we are doing ourselves a grave danger. I’m far more concerned about my car being at the body shop and Geico comes to do an estimate and downloads the data which ultimately will be used to jack my rates. This is something that should make it to the SCOTUS, though I’m not so sure that an individual’s rights will trump those of the money people. So locate your black box, and rip it out in the event of an accident. Why, Mr. Insurance man, I have no idea where it is! I think the tow operators took it.

    • 0 avatar

      Black boxes are simply an initial step in capturing car data.

      As with Tesla cars, data will be transmitted to a central server. It won’t be possible to take out the black box if the record is kept elsewhere and is constantly being updated.

      I understand your privacy concerns, but the genie is out of the bottle. We have no privacy anymore the battle has already been fought and lost.

  • avatar
    Erikstrawn

    Nothing new here. As a dealer technician in 1998, I was able to look at the data point from when an engine sensor failed and see the engine was at 7000rpm and the vehicle speed was 0mph when the rod went through the block. Some cases could be hit-or-miss depending on if a DTC was triggered during the event.

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