Black Boxes in Cars

Via the CrimProf Blog, I learned about this article in the New York Times which discusses the use of event data recorders, or “black boxes” in vehicles.  These devices gather an increasing amount of information, including the speed of the vehicle, whether the vehicle’s brakes were employed, and whether occupants of the vehicles were using seat belts.  The article notes that these devices, originally designed by manufacturers to analyze the safety and performance of vehicles, are increasingly being used as evidence in criminal investigations and lawsuits.

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.