Summer 2005
BLACK BOX OR PANDORA’S BOX
In April 2002, the Institute of Electrical and Electronics Engineers Standards Association (“IEESA”), in association with the Department of Transportation and other government agencies, began releasing information regarding the ongoing development of motor vehicle event data recorders (“EDR”). Better known as a “black box,” and as well known and utilized for years in airplanes, the technology is now earthbound. By 2004, the National Transportation Safety Board (“NTSB”) recommended that all autos to be equipped with a data recording device. Widespread adoption of this technology in commercially sold automobiles will and already has begun to dramatically influence auto-related personal injury litigation.
The MVEDRs, or black boxes, are being designed to record specific information such as speed, acceleration, location, and time (some devices record up to 42 data elements). Recording such data has been promoted by car manufacturers and government agencies for the significant safety information the data yield. Supporters of the technology, such as Jim Hall, the cochair of the IEESA development project and former NTSB head, attest that the primary purpose of furthering the technology and integrating it into commercial automobiles is that “the more accurate the data we gather on highway crashes, the better chance we have to reduce the devastating effects of crashes.” Indeed, the “NTSB considers this so important that it features ‘automatic crash sensing and recording devices’ high on its current list of the ‘Most Wanted’ transportation safety improvements.”
While the data may be used in the larger scale to make advancements in auto technology and highway design, on the individual crash basis, a more immediate impact may be its evidentiary value in litigation related to crashes. Whether for safety or evidentiary purposes, Mr. Hall claims that the boxes will serve to “objectively track what goes on in vehicles before and during a crash to complement the subjective input we now get from victims, eyewitnesses, and police reports.” In this way, this technology will impact the evidentiary standards and the efficiency and accuracy of accident examination, reconstruction, and reliability.
Although this recorded data will eliminate many of the problems associated with testimonial inconsistencies and unknowns in many auto accident cases, the recording and dissemination of the data recorded remain a key concern to many. The devices record information about the individual vehicle’s whereabouts and activities and, thus, the driver. Privacy issues naturally arise.
First and foremost, there is little legislation in place regulating the specific devices by name. Indeed, in the litigation arena, there are presently no restrictions on the use of the recorded information. If the data are requested in the process of litigation, there are presently no specific protections or basis for refusal to produce it.
Additionally, California is the only state so far to require car dealers to disclose the presence of an EDR to potential buyers. Thus, many people do not even know their activities are being recorded.
The use of the data by insurance companies to monitor their insureds’ driving and determine insurance rates and/or coverage based on the data received will also concern consumers, as will the “tracking” potential. Global positioning system (“GPS”) technology allows pinpoint location data to be transmitted in real time. While this technology already exists and is in use in other devices, such as cell phones, recorded location data is one of the primary concerns raised in relation to the widespread use of the EDR devices. The type of data recorded poses constitutional questions as to whether the use of such records, whether in real time via GPS or after an accident, infringe upon individual freedom of movement and right to privacy.
Thus, the advancement in technology can serve as both a blessing and curse. Like a DNA fingerprint, the black box data will provide objective evidence regarding a vehicle’s movement immediately prior to an accident. The participants’ subjective memories of the facts will be concretely confirmed or refuted. Such objective evidence should help the determination of both liability and causation in auto accident litigation and may, indeed, allow for faster and more comprehensive prelitigation evaluations of the cases.
As noted above, the use of black box technology will, however, also inherently raise significant constitutional issues, specifically relating to individual privacy rights. Accordingly, the propagation of such technology will also bring with it significant debate and will likely, eventually, bring more significant legislation. Indeed, like California, the New York Legislature, in April 2005, began contemplating bills to regulate black box technology.
Although the commercial integration of the technology remains in its childhood, still awaiting equipment and data consistency, the legal community has already begun to analyze and, of course, debate, the pros and cons of the technology’s applications. While the required use of EDRs will undeniably impact the litigation of auto-accident actions, the extent to which such evidence will be allowed remains to be seen. As the technology of onboard data recorders further develops and becomes more prevalent, state legislatures and courts must continue to tackle the regulation of the devices, the data recorded, and the admissibility and weight of such evidence for auto-related litigation.
ALEXIS L. WALKER
Ms. Walker is an Associate in the firm’s litigation group. Email: alw@kpclegal.com.
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