“Flight data recorders” or “black boxes” in the airline and automobile industry monitor and record various data points related to the operation and function of the vehicle before and after the crash.
This data, including speed, acceleration, braking, lights, turn signals, and seat belts, has now become a critical – and sometimes definitive – tool in accident investigations.
With the National Highway Traffic Safety Administration now requiring this technology in almost all newly-manufactured vehicles, New Jersey recently introduced legislation to protect the car owner’s privacy. That is, unless the data collected by these devices was needed in a criminal investigation. This legislation would also make it illegal for anyone, including a driver or owner, to destroy or alter the data in the aftermath of an accident.
Although New Jersey’s appellate courts have not yet ruled on the scientific reliability of these devices, data from EDRs is increasingly used in litigation and prosecutions arising out of automobile collisions. Therefore, this proposed bill takes steps to begin to control when and how the information can be obtained.
HOW DOES AN EDR RECORD DRIVING INFORMATION?
An EDR records in a continuous loop of up to twenty-second intervals (depending on the manufacturer), recording over itself until it encounters a “deployment event” or “near deployment event” significant enough to “awaken” the air bag device. When such an event occurs, the EDR freezes and stores the information leading up to any collision significant enough to trigger the airbag or alert the recorder to store the data.
The data stored by the EDR is fairly easily retrieved through use of a computer software program or crash data retrieval system (CDR), which downloads the information. Prior to 2000, the CDR software programs were proprietary to the manufacturer, but many of the retrieval programs are now publicly available, allowing anyone, including police and private experts, to extract the information. The EDR data is then analyzed and compared to the physical evidence related to the triggering event for accuracy.
WHO OWNS THE DATA AND HOW HAVE NEW JERSEY COURTS HANDLED THE RETRIEVAL OF EDR EVIDENCE?
The growing desire to utilize EDR information in accidents has prompted questions regarding who owns the data stored in an EDR and, in turn, how the data may be obtained and for what purpose. The prevailing view, however, including that of the National Highway Transportation Safety Administration (NHTSA), places propriety rights in the hands of the vehicle’s owner. The next question then becomes whether the owner has a reasonable expectation of privacy in the data and, if so, how that privacy interest can be protected from those seeking to obtain that information.
The only reported New Jersey decision on the subject of event data recorders, State v. Shabazz, 400 N.J. Super. 203 (Law. Div. 2005), recognized a privacy interest in EDR data. The Shabazz court upheld the extraction of that information by law enforcement pursuant to a search warrant and permitted its use against a defendant automobile owner/driver in a vehicular homicide trial. Given that New Jersey’s Constitution demands exigent circumstances to conduct warrantless automobile searches, law enforcement in this state must seek warrants to extract the data.
The pending legislation would leave no room for doubt that the data belongs to the vehicle’s owner and that the police may not access this information without a legitimate warrant. The new bill would only allow this information to be pursued through court order, giving the vehicle owner notice and the opportunity to challenge the request in appropriate circumstances.