Your Vehicle Black Box: A ‘Witness’ Against You In Court
Odds are your vehicle is equipped with an Event Data Recorder, also known as a vehicle black box. And, your local police department is now fully equipped to retrieve and analyze the black box data and use it against you in court.
As of May 2018, almost all common US vehicles come standard with a black box installed. That means that every time you get behind the wheel, every button you press and every maneuver you make is being recorded. The data is stored in the black box to be readily accessible after collisions, such as seatbelt closure, brake usage, blinker usage, travel speed, etc. All of this information, once retrieved, will either corroborate or contradict your account of what happened. If you’re lucky, your story is bolstered, if not, your credibility is shot. If you wanted to remain silent and limit the evidence the government can use against you in a criminal prosecution, you’re out of luck when your car’s black box does the talking for you.
In civil litigation, this data will help to determine the course of events and may help to determine which vehicle was responsible for the collision. In criminal investigations, the black box may incriminate or exculpate the accused.
Around since the 90s, black boxes were mostly used by the National Highway Traffic Safety Administration to gather statistical data, but not in court. It the last few of years, local police slowly began using black boxes in criminal cases.
After a deadly collision in Georgia, Victor Mobley was charged with two counts of vehicular homicide, reckless driving, and speeding. Mobley was accused of driving at a speed of 97 miles per hour in a 45-mile-per-hour zone as he collided with another moving vehicle, resulting in a crash that killed both passengers in that vehicle. Police obtained data from Mosley’s black box without a warrant. The data included airbag deployment, engine speed, brake status, throttle position, engine revolutions, driver’s seat belt status and brake switch status, as well as time from maximum deceleration to impact, time from vehicle impact to airbag deployment, and diagnostic information on the vehicle’s systems. The prosecutor relied on Mobley’s black box data to prove the government’s case against Mobley. Mobley was subsequently found guilty on all counts.
Mobley appealed his case to the Court of Appeals of Georgia, arguing that he had an expectation of privacy in his vehicle’s black box data and that the Fourth Amendment shielded this data from police search and seizure without a warrant. In 2018, the court opined, based on the type of data retrieved by the police, a search warrant was not required. The data was not private, the court reasoned. Any member of the public can observe a vehicle’s speed or see whether the driver is wearing a seatbelt. This is not the type of information that is guarded by the Fourth Amendment, the court reasoned. But the court limited its ruling to this particular set of facts, acknowledging that as technological capabilities of vehicle black boxes broaden, so too must protections for the information they will store. “[We] caution law enforcement officers faced with an investigative need to obtain data from a vehicle’s ACM to err on the side of caution by obtaining a search warrant before retrieving that information,” the court concluded. Two judges wrote concurring opinions to double down on the message to law enforcement: get a warrant.
In a similar case in Florida that happened a year prior, after a high-speed collision that killed his passenger, Charles Worsham was charged with manslaughter and vehicular homicide. The black box in Worsham’s vehicle recorded speed and braking data, the car’s change in velocity, steering input, yaw rate, angular rate, safety belt status, system voltage, and airbag warning lamp information. Police obtained the black box data without a warrant and attempted to use it in their case against the driver.
Worsham argued that he had an expectation of privacy in his vehicle’s black box data and that the police should be prohibited from using the information against him when they obtain it without a warrant. The Florida Court of Appeals agreed and ruled in direct contrast to the Georgia case. The Florida court understood the black box as a type of constant, unrelenting surveillance. They also considered the difficulty, expertise, and precision required to obtain and interpret the data stored in the black box.
The information contained in a vehicle’s black box is fairly difficult to obtain, and the data retrieval kit necessary to extract the information is expensive. Moreover, each car manufacturer’s data recorder requires a different type of cable to connect with the diagnostic port. Plus, the downloaded data must be interpreted by a specialist with extensive training.
Furthermore, the Florida Court of Appeals reasoned that while some of the data collected by the vehicle black box was in public view, not all of the collected data was available to the public. And that private data belonged to the driver, not to the government. As such, Worsham was entitled to a reasonable expectation of privacy in his black box data, and police were only entitled to retrieve it after obtaining a warrant explicitly permitting them to do so.
Other than a likely outdated opinion from a California Court of Appeals on this issue, there are no other appellate court opinions on this subject matter. This is because we are in the infancy of black box litigation. The drastic divergence between the Georgia and Florida opinions on whether a warrant was required for police to obtain the black box data is a good indicator that this fight over black box data privacy may end up in the Supreme Court. Nevertheless, both Florida and George have made it clear: police have a simple avenue to use the black box data against the accused when a warrant is secured.
However, all of this litigation over warrants does not cover an essential flaw in reliance on black box data in the first place: the data provides an incomplete picture of what really happened and allows the jury to give too much weight to the information jurors interpret as a smoking gun. Black boxes, under current design, retain only a few seconds of vehicle activity in memory. That means that driving behavior that occurred immediately prior to the start of the recording is omitted from evidence a jury will be able to see. If you were driving at the speed limit for the duration of your trip but had to suddenly accelerate in an attempt to avoid a collision or in response to a trigger event, it is the acceleration and your response that will be recorded while your prior calm driving will be off the record. Black boxes are thus dangerous “witnesses” in court, and drivers will feel significant pressure to waive their 5th Amendment rights, take the stand and testify to fill in the holes.
In 2019 and beyond, we can expect to see increased courtroom usage of black box data. But as the analysis of the data becomes easier and cheaper for law enforcement, the cost to defend a case with black box data will become higher for the accused. The more your lawyer will need to do, and the more experts that you will need, the higher your litigation costs will rise.