I would like to add to the the article’s general
discussion of black boxes by noting that, from what little I have read about
their use in criminal cases, the use of these devices may be hard to challenge
on constitutional grounds. The case that
came to mind when I read this article was People
v. Diaz, 153 Cal. Rptr. 3d 90 (2013), where the government relied on
information collected from a vehicle’s sensing diagnostic module (SDM) to
determine the speed of the vehicle before a drunk-driving accident. The SDM seems to collect data in a similar
way to the devices discussed in the New York Times article. The defendant argued that the collection of
information from the SDM was a search under the Fourth Amendment, but the court
disagreed.
The court held that there was no reasonable
expectation of privacy in the SDM information because the data that the police
used was all information that the defendant had revealed to the public. Anybody who happened to see the vehicle
travelling on the road would have been able to see the speed of the vehicle,
and the SDM did not collect anything beyond this publicly visible
information.
As an aside on this prong of the analysis, I am
interested in seeing how this argument would hold up in a case that involves a
question of whether somebody in the vehicle had his/her seat belt fastened,
since this is information that black boxes collect, but not information that is
as clearly visible to observers of the vehicle.
The court further held that United States v. Jones, 132 S. Ct. 945 (2012) (holding that police
attaching a GPS device to a vehicle is a search within meaning of Fourth
Amendment) did not apply, noting that the police did not attach the device – it
was installed by the vehicle manufacturer and was only recovered from the
vehicle by the police. Furthermore, the
court invoked the third-party doctrine, citing Smith v. Maryland, 442 U.S. 735 (1979), a case where the court held
that officers’ use of a pen register – a device installed at a telephone
company that collected the numbers that the defendant dialed – was not a search
within the meaning of the Fourth Amendment because the defendant had
volunteered the information to a third party, the phone company. Here, the defendant driving the vehicle is
volunteering information to the vehicle manufacturer, and thereby assumes the
risk that this information can be transferred from that third party to the
authorities.
In light of the Fourth Amendment’s apparent
inapplicability to black boxes, the main focus shifts to the question of
whether these devices are sufficiently reliable as evidence. The article hints that there has been some criticism
but really does not go into any depth beyond noting a case where evidence was
excluded because the judge thought that there needed to be verification of the
device beyond the testimony of a defense expert alone. This seems easy enough to overcome, since
parties who retrieve the information can document their procedures in depth so
as to accommodate verification, or coordinate with the other party or vehicle
manufacturer when retrieving information.
This question will probably become less and less of an obstacle as these
devices are used in more cases and become even more universally used than they
already are. Wider usage will help iron
out any current defects and will also foster the development of standards for
the downloading and interpretation of collected data.
Ultimately, I think that the reliability of these
devices will not be a substantial obstacle to the use of this data in cases,
but I think that the Fourth Amendment questions might be a little more
complicated than the Diaz court
suggests. It will be interesting to see
how various jurisdictions approach the question as the use of these devices in
vehicles and in cases increases.
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