Automakers and Insurance and State Government and Legislation and Government & Economic Development and Government

Lawmaker wants car owners to be aware of data recorders

January 28, 2008

The wallet-size, metal box could help a motorist prevail in a dispute over who caused a crash even as the other driver lies through his teeth.

Or it could help convince a jury you're guilty of vehicular homicide and ensure a lengthy prison sentence.

The "event data recorder," a so-called black box car makers have installed in their cars over the last decade and a half as part of air-bag systems, can be a double-edged sword for motorists.

Yet they likely don't even know it's spying from under their seat or dashboard.

A bill in the Indiana House would require that those in the business of selling, leasing or renting new vehicles disclose to customers the presence of the data devices.

House Bill 1324 also would require disclosure of the type of recorder, the type of data stored or transmitted, and the length of time the information is retained.

The bill's sponsor, Rep. Earl Harris, D-East Chicago, could not be reached for comment. But his bill is a familiar, tepid version of measures passed in 15 other states that range from requiring notification to making verboten the access of data.

Failure to notify customers would be deemed a violation of the state's Deceptive Consumer Sales Act, which can bring fines of $500 and up.

The bill may not survive in a session preoccupied with property tax reform. Even so, it raises questions about what personal privacy motorists should expect and of the potential misuse of recorded information down the road.

"It's a really interesting kind of 'tip of the iceberg' type of issue," said Fred Cate, a law professor at Indiana University, Bloomington.

Many of the devices store up to 20 seconds of information before an "event" like an air-bag deployment. But with the price of computer memory falling, these devices are likely to be even more capable snitches in the future.

Might they, for example, store enough about one's driving patterns to help an estranged spouse make a case in divorce court to deny child custody?

Already, for example, data from electronic toll road passes "is subpoenaed all the time in divorce cases," Cate said.

Or how about the possibility data from these devices could be a factor in setting one's insurance rates? Don't think insurers haven't thought of it: Ohio-based Progressive Insurance in 2004 launched a program that offers premium discounts to customers who consent to on-board data monitoring. Many drivers would balk at such snooping, but then so did they wring their hands when supermarket chains first started offering loyalty cards that track purchases. Today, few worry.

But insurers could just as easily crank up rates for drivers if they get their hands on incriminating onboard data.

The largest vehicle insurer in Indiana, State Farm, said the data is not used to determine a customer's rates.

"No, as of right now, we are not using data recorders for that purpose," spokeswoman Missy Lundberg said. "There would be a lot of privacy hurdles we would have to overcome."

Lundberg said that, often, witness testimony is sufficient to resolve disputes over who was at fault in a collision. But at other times the insurer does access data recorder information, with customer notification.

But privacy experts point out that, when a customer totals a car, the insurer typically requires the owner to sign over title to the car--giving insurers the data recorder and its contents.

Plethora of data

What secrets do the recorders hold? It depends on the vehicle manufacturer and age of the vehicle.

Generally, the boxes record vehicle speed, changes in speed, engine RPMs, throttle position, whether brakes were applied, whether turn signals were on, and whether the driver was wearing a seat belt, according to Harris Technical Services, a Port St. Lucie, Fla., accident reconstruction firm.

Many newer cars can measure up to 16 such parameters.

Though the recorders are generally part of a vehicle air-bag system, the air bag doesn't necessarily have to deploy for them to capture information, according to Harris.

Even if the computer determines air bags should be deployed, it might cancel the order if it determines a driver was not in a proper position in the seat, for example.

"Data may be recorded for 'nondeployment' events. This can include rollover, sideswipes and side-impact accidents," according to the firm.

When there's a fatality involving multiple vehicles, there's a good chance local law enforcement agencies will want access to the information.

Accident investigators at the Marion County Sheriff's Department already have the expertise and have downloaded the boxes in an unknown number of serious accidents.

Or, a police agency or attorney will hire a firm like Indianapolis-based Wolf Technical Services, which is one of a handful in the state certified to interpret event data devices.

And, around the nation, there are plenty of documented cases of event data records helping bring convictions of motorists whose reckless driving caused fatalities.

Skid marks can tell a skilled accident reconstruction expert plenty--but an event data recorder can be even more accurate about the speed a vehicle was traveling before striking another.

Modest origins

When automakers began rolling out airbag-equipped cars to the masses in the early 1990s, some, like General Motors, found that retrieving data gathered just before air-bag deployment could be a useful tool.

"The initial thought was, this could be used for research," said Jim Casassa, a vehicle accident investigator at Wolf Technical Services.

It didn't take long for accident reconstruction experts like Casassa to realize that data quantifying crash severity had tremendous applicability to their work. Police investigators also pounced.

Some who worry about privacy infringement argue the data is the property of the car owner. On the other hand, you could argue that once a person is involved in an accident on public streets, that changes the equation, Casassa said.

It's not just cops and consultants who can extract data.

Experts say data also can be extracted from event data recorders through a number of new surveillance products marketed to parents and to the commercial sector that allow them to snoop on teen and employee drivers.

These products plug into a vehicle's on-board diagnostic port normally used by mechanics, then vacuum data from a vehicle's computers, including the event data recorder.

Some states have put in place more restrictive laws concerning event data recorders. New York requires that automakers selling or leasing vehicles in the Empire State disclose the presence of the devices. It also prohibits downloading of the data by anyone other than the owner. But there are exceptions, including cases in which retrieval is ordered by a court or need by a vehicle technician.

IU professor Cate wonders about the limited value of HB 1324 in merely requiring disclosure that a device is on board.

So does Kevin Kahlo, who owns Chrysler dealerships in Noblesville and Knightstown.

"Well, you're not going to be able to get the car without [the event data recorder]. So what is the deal? If you don't like it, are you going to buy a 1975 Ford?" Kahlo asked.

Complying with the terms of HB 1324, if it survives, wouldn't be a big deal, given that dealers already must comply with a number of state-mandated disclosures ranging from odometer statements to how customer information will be treated.

"It's one more form, one more piece of paper, one more tree," Kahlo added.

For a list of vehicles with data recorders, see www.harristechnical.com/downloads/cdrlist.pdf.

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