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Mr. Kin Yiu Chung-AP photo

Black boxes, formally known as event data recorders (“EDR”) are not just present in airplanes and tractor trailer trucks.  About 96 percent of all new automobiles sold in the United States have EDRs.  In April 2008, the U.S. Department of Transportation, National Highway Traffic Safety Administration (“NHTSA”) published a paper, “Analysis of Event Data Recorder Data for Vehicle Safety Improvement.”

The NTSA paper concluded that EDR can objectively report real-world crash data and therefore be a powerful investigative and research tool, by providing very useful information to crash reconstructionists and vehicle safey researchers.

NHTSA is pushing to require that 100% of new vehicles be equiped with EDRs, effective September 2014.  As the New York Times reports today, to some people, “the data is only the latest example of governments and companies having too much access to private information. Once gathered, they say, the data can be used against car owners, to find fault in accidents or in criminal investigations.”  The article cites the example of former Massachusetts lieutenant governor, Timothy P. Murray, who crashed his government-issued Crown Vic in 2011.  Mr. Murray told the Massachusetts police that he was not speeding and was wearing a seatbelt.  When the police checked the EDR on Murray’s Crown Vic, it revealed that Murray was driving over 100 mph and was not wearing a seatbelt.  Murray then changed his story to say he had fallen asleep at the wheel.

When it comes to issues like drones flying over my yard and the government collecting data from my cell phone, I tend to be in the “more privacy, less government intrusion” camp.  I’m not sure how I come down on the EDR in cars issue.  I can say that the New York Times article does not help me make up my mind, as it is long on conclusory statements and short on examples or substance.  Here are the quotes from the consumer advocate interviewed for the article:

‘These cars are equipped with computers that collect massive amounts of data,’ said Khaliah Barnes of the Electronic Privacy Information Center, a Washington-based consumer group. ‘Without protections, it can lead to all kinds of abuse.’

What’s more, consumer advocates say, government officials have yet to provide consistent guidelines on how the data should be used.

‘There are no clear standards that say, this is a permissible use of the data and this is not,’ Ms. Barnes said.

It would have been informative for Ms. Barnes to talk about the kinds of abuse about which she is concerned.

My experience in litigation involving the discovery of EDR data is that the automobile manufacturer controls the data. Unlike the black boxes on airplanes, which continually record data including audio and system performance, the cars’ recorders capture only the few seconds surrounding a crash or air bag deployment. A separate device extracts the data, which is then analyzed through computer software.  Until recently, the car manufacturers had sole access to the proprietary software program capable of analyzing the data.  I had an airbag case a few years ago in which the manufacturer’s attorney advised that my expert would have to go to Mexico in order to observe the downloading of the EDR data.  This particular manufacturer had all of its EDR data read at one facility in Mexico.  The point is that consumers may not have the ability to even access the data recorded in the black box contained in their car.  A case in point is cited in the Times article.  In a Las Vegas case in which the plaintiff contended that an airbag failed to deploy, the judge excluded the black box data as evidence on the grounds that the data was not fully reliable since an engineer working on behalf of the defense retrieved the data and the plaintiffs hand no way of independently verifying the data.  The good news for consumers is that the proposed NHTSA regulations are supposed to help enable universal access to the data via a commercially available reader.


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