An Expectation of Privacy: NMA E-Newsletter #432

Earlier this month, the Florida Appeals Court in a 2-1 decision found in the 2013 Palm Beach County DUI manslaughter and vehicular homicide case involving Charles Worsham Jr that the Fourth Amendment affords an expectation of privacy for vehicle electronic data recorders (EDRs), aka black boxes. Similar to an airplane black box, a vehicle’s EDR can record a variety of data in the event of a crash and is now a mandatory requirement for all new vehicles. The Driver Privacy Act of 2015 also declares that the contents of EDRs belong to the vehicle’s owner, not the manufacturer or any other third party.

As typical in a crash like this, Worsham’s car was seized and impounded by police who accessed the EDR contents without a warrant. Palm Beach law enforcement maintained the black box was full of third-party records which required no warrant or consent. Worsham successfully challenged the lawfulness of the search, resulting in the suppression of evidence from his vehicle’s EDR. More broadly, the ruling addresses the type of question that courts around the country face frequently as more personal information is captured on electronic devices.

In the majority opinion, the Florida Court cited the U.S. Supreme Court’s Riley decision which introduced a warrant requirement for cell phone searches.

A car’s black box is analogous to other electronic storage devices for which courts have recognized a reasonable expectation of privacy. Modern technology facilitates the storage of large quantities of information on small, portable devices. The emerging trend is to require a warrant to search these devices.

The majority opinion judges went on to write about the difficulty of extracting the information from the black boxes.

Extracting and interpreting the information from a car’s black box is not like putting a car on a lift and examining the brakes or tires. Because the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impounded vehicle. 

In the dissenting opinion, Judge Alan Forst wrote that the information has no intrinsic value to the vehicle’s owner.

The data that the government extracted from the vehicle that was owned and driven by the Appellee in this case was not information for which Appellee or any other owner/driver had a reasonable expectation of privacy. The data was not personal to the Appellee, was not password protected by the Appellee, and was not being collected and maintained solely for the benefit of the Appellee. The EDR was installed by the vehicle’s manufacturer at the behest of the National Highway Traffic Safety Administration (NHTSA) and, as distinct from Jones, the purpose of the data collection is highway and driver safety.

Prosecutors will likely take the Worsham case to the Fourth District Court of Appeal where drivers’ Fourth Amendment rights will continue to be challenged. As NMA President Gary Biller noted in his “The Spy Within” column in the Summer 2012 issue of Driving Freedoms, “Vehicle EDRs have evolved as a less-sophisticated version of aviation black boxes and have a common goal: to aid accident reconstructionists and safety experts by capturing data that could lead to improved technology, and to reduce the number and severity of accidents. But therein lies the rub: The EDR contents are also sought by insurance investigators, lawyers, and other parties looking to assign financial responsibility for accidents. That silent electronic sentinel that you bought as standard equipment on your vehicle can be used to incriminate you.

The NMA’s position on EDRs is that it is okay to use them for alleged research functions, but not okay to use them against vehicle owners.

There is only one true solution. The vehicle owner should have the option to disable the EDR without affecting the functionality of the vehicle itself. “Responsible adults are capable of making responsible decisions for themselves. . .” A novel concept.

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