- The Washington Times - Wednesday, February 25, 2004

Stephen Keating isn’t sure he’d like “my car testifying against me.”

The brave new world of automotive electronics makes him appreciate older cars all the more, he said. “I’m sticking with the old cars,” the executive director of the Privacy Foundation in Denver said.

But millions of unsuspecting new-car buyers are likely unaware they may be getting vehicles that carry onboard recorders.

Known in the auto industry as sensing and diagnostic modules or Electronic Data Recorders (EDRs) but commonly referred to as black boxes, this equipment is found mostly on General Motors Corp. vehicles and a few Ford models.

It’s designed to tell if the air-bag system operated properly during a crash.

But according to at least one California state lawmaker, today’s laws don’t make clear exactly who owns the recorded data.

The lawmaker, Tim Leslie, Tahoe City Republican, has written what many believe is the first legislation in the country that would require carmakers to tell consumers, in California, at least, that they have a recording device in their vehicle.

Mr. Leslie’s bill, which is making its way through committee in the California Legislature, also states that EDR data is the property of the registered vehicle owner. This would mandate getting owner approval before anyone could tap the data.

The legislation comes as prosecutors are beginning to use the data in court cases. In a widely publicized case this year, a Florida man was sentenced to 30 years in prison for vehicular manslaughter after the black box in his 2002 Pontiac Trans Am said he was traveling between 104 and 114 mph before a deadly crash that killed two teens.

The assistant state prosecutor, Michael Horowitz, said it was his first use of the data in court, and he likened it “to where DNA was 10 years ago.” Mr. Horowitz also questioned why a driver would have the expectation of privacy while in his car, speeding on a public roadway.

But privacy advocate Mr. Keating noted drivers have been accustomed to simpler cars over the decades. “It’s one of the examples where technology has gotten ahead of the law. Data are collected on all of us all the time, but it only becomes an issue when it’s used,” he said. “That’s why this is such a great issue.”

To be sure, even without a clarifying law, GM engineers who tap the data for safety research get permission of the vehicle owner first, assured GM spokesman Jim Schell. And they work to ensure the confidentiality of the vehicle owner.

He added that engineers access the data a lot, but he said he couldn’t give specific numbers.

All it takes is your car, a technician or two, a link and a laptop with the right software to download and decode the information. Voila, someone has information about your crash and the few seconds leading up to it and immediately after it.

What kind of information?

The most sophisticated EDRs can tell, along with air-bag operation, the speed of your vehicle before and up to the crash, whether you had your foot on the accelerator or the brake and whether you had your seat belt on.

The devices are hardly new.

GM vehicles dating back to the mid-1970s have had them integrated with the air-bag system, Mr. Schell said, adding that all new GM vehicles have them.

Some Ford high-end models have begun adding them, too.

BMW spokesman Dave Buchko said the data gathered in BMWs are primarily for diagnostics and not robust enough for use in accident reconstruction or litigation.

DaimlerChrysler’s Chrysler Group doesn’t use EDRs and is still studying them, in part because of the privacy issues, according to spokeswoman Angela Spencer Ford.

Phil Haseltine, president of the auto industry-funded Auto Coalition for Auto Safety, said he favors legal clarification of who owns the data.

“I don’t think there have been a lot of real world problems yet, but the potential is out there,” he said. “Consumers need some confidence that this isn’t Big Brother watching them.”

Mr. Haseltine estimated some 10 million vehicles already on the road have EDRs.

Mr. Leslie’s bill won’t stop law enforcement from tapping EDR data, because a court order would allow access, just as a search warrant allows gathering of evidence in a criminal case, Mr. Leslie’s press secretary said.

Assistant State Prosecutor Horowitz said authorities did get a search warrant for the Trans Am as well as the data recorder in the Florida case.

“It was an issue of speed, and this was a tool we used,” he said. “It’s just one more piece of evidence we can use.”

He said he didn’t consider EDR data infallible.

But according to news reports, the defense attorney didn’t convince jurors that because the driver had modified the car from its original condition the EDR data might have been wrong.

Further, GM’s Mr. Schell said the information is considered objective.

“It’s more reliable than measurements or eyewitnesses,” he said.

But Sally Greenberg, senior product safety counsel for Consumers Union, isn’t sure all electronic data-gathering is infallible.

While she acknowledges it’s beneficial not just for automakers but for the National Highway Traffic Safety Administration to have access to crash data and vehicle performance, she worries about future uses of the data.

“Some people wonder whether its a ‘gotcha’ for automakers to win lawsuits,” she said.

Mr. Keating at the Privacy Foundation wonders whether insurers will want to use these data to settle claims, to provide selective discounts to drivers who agree to be monitored or to decide whether to continue to insure a driver at all.

All the more reason, he said, for consumers to become aware of what he calls “one of the more fascinating privacy issues out there.”

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