Privacy

Vehicle ‘black boxes’ need tighter rules: Dillon

By Mia Clarke, AdvocateDaily.com Associate Editor

While you have the right to remain silent, your vehicle’s so-called black box could give up valuable evidence to determine if you were at fault in a collision, says London, Ont. privacy lawyer Peter Dillon.

And that’s led to privacy concerns about event data recorders (EDRs), which have become almost standard in vehicles built since 2001, says Dillon, partner with Siskinds LLP.

Initially created to track and improve vehicle safety, the devices are now often used by police for investigations and to recreate crash scenes, he tells AdvocateDaily.com. Insurance companies are also using the data to assign fault in accidents.

“This raises significant and impactful privacy concerns as your vehicle is constantly monitoring your behaviour without your knowledge or consent,” says Dillon.

He says 14 states have statutes that require carmakers to inform owners of the presence of EDRs, but Canada has no such legislation.

Although they’re not required by law to do so, Dillon says most manufacturers do inform consumers — “It's just hidden away in the back of the owner's manual.

“That's the problem,” he says. “They put the information in this document that nobody actually pays much attention to.

“So now they have this ability to spy on drivers and use the information in criminal and civil court cases. And it's actually being used as a fairly reliable source of data.”

In 2001, data collected from a black box was used to convict a man in a fatal accident in Montreal, reported the Globe and Mail.

“Without skid marks, there was no way to calculate his speed, and there was only the suspect's testimony about his actions. The EDR showed his vehicle going 157 km/h in a 50-km/h zone, that four seconds before impact he floored the gas pedal, and that just before impact he took his foot off the gas but did not brake,” says the article.

Dillon says the courts have dealt with the question many times of whether a warrant is required to access such data.

“The generally accepted standard right now is that they do not need a warrant because if the event happens on a public road, the data is equivalent to a person walking past and observing the accident.”

He says the Canadian Automobile Association (CAA) and the Automobile Protection Association (APA) have asked for clearer rules on how the data is obtained and used by police, car manufacturers and insurance companies.

“I would say EDRs should be regulated, so there’s a standard for how consumers are made aware of the technology in their vehicles. And I think there should be legislation governing how it can be used and under what circumstances,” says Dillon.

“Transparency regarding these devices is important so consumers know what information is being tracked in their vehicle, how it's used to benefit them, and how it can be used against them.”

While drivers who are in danger of being found at fault may want to keep the black box evidence under wraps, Dillon points out that the information can be exculpatory as well.

“It's not all negative for consumers,” he says. “There are positives to the use of EDRs."

Dillon says EDRs initially only logged speed and determined whether the brake lights turned on. The earliest version was used to help deploy airbags in the event of a collision.

Although the data recorded varies by model, he says most systems now collect the following information:

  • Pre-crash vehicle dynamics and system status
  • Driver inputs
  • Vehicle crash signature
  • Seatbelt usage/deployment status
  • Post-crash data, such as the activation of an automatic collision notification (ACN) system.

“Consumers may feel like this information is more detrimental to their privacy than the positives that come from the technology,” says Dillon.

“They may think the police or automobile makers are using the information to spy on our behaviour. But manufacturers have assured various automobile non-profits that the data would never be able to identify what is occurring inside the vehicle and who’s controlling it.”

He says the information is “allegedly being constantly erased and generally the only time the data recorder will hold onto the information is when the airbags have been deployed.”

Dillon suspects that as EDRs become more widely used, insurers will likely start using them to calculate premiums for certain drivers.

“The balance between privacy and public safety will be tested as EDRs become more commonplace,” he says.

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