Use of Event Data Recorder (EDR) Technology for Highway Crash Data Analysis (2005)

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119 5. Legal Issues Surrounding the Implementation and Use of Event Data Recorders 5.1 Conclusions The objective of this report is to examine the legal issues surrounding the implementation and use of Event Data Recorders (EDRs). The report addresses several specific issues: (1) whether the Fourth Amendment to the United States Constitution in any way bars the collection of data recorded by Event Data Recorders, (2) whether the United States Department of Transportation’s (USDOT) has the authority to mandate the installation of EDRs in all new vehicles, (3) the admissibility of the data recorded by EDRs in court, and (4) whether the collection of such data violates privacy rights. The report’s conclusions are as follows: First, it is clear that the USDOT may require the installation of devices that demonstrably improve highway safety or advance some other significant public policy interest. The public policy interest in installing EDRs seems beyond peradventure. As a consequence, the USDOT presumably enjoys the authority to mandate the installation of such devices on new automobiles. Second, with respect to Fourth Amendment concerns, it appears that the police (or other government accident investigators) may properly seize such devices (or otherwise collect the data therefrom) without a warrant during post-accident investigations. This authority is premised upon two legal issues: either because seizure of a required safety device does not constitute a search implicating the Fourth Amendment, or in the alternative, because seizure of a safety device qualifies under the exemptions for conducting a warrantless search. The police’s authority to conduct warrantless searches may be affected by how soon after the accident the search occurs. The more immediate the search occurs following the accident, the greater the officers’ authority to conduct a warrantless search. Absent an accident, however, unless there are changing expectations with respect to an individual’s reasonable expectation of privacy regarding EDR data, police may not be able routinely to seize such data either without a warrant or express legislative authorization. Of course, police should have little trouble in obtaining a warrant to seize EDR data (or even the device itself). Third, although the data (and the recorder itself) may be “owned” by the automobile’s owner or lessee, that data may almost certainly be used as evidence against that owner (or other driver) in either a civil or a criminal case. Certainly nothing within the Federal Rules of Evidence (FRE) or the Fifth Amendment’s protection against compelled self- incrimination would exclude the use of data recorded by the EDRs. Similarly, owners might be prohibited from tampering with the data if litigation is pending. At bottom, the issue here is not one so much of legal authority to use EDR data in court, but instead what the public will accept. While the statutory authority to require EDRs

120 may exist, the public may not want a device installed in their automobiles that appears to encroach upon their personal privacy interests. Understood in this way, the problem is less a legal concern than it is a battle to mold public perception. Not every life-saving device that is deployed with the best of intentions will be accepted by the public. Personal privacy and public safety must exist within the same sphere. Occasionally, respecting privacy rights will mean that harmful things may come about, but this is the cost of living in a free society. 5.2 Background EDRs act as automobile “black boxes” providing critical information about an automobile’s operation and the status of its various systems in the seconds immediately preceding an accident and during the crash itself.1 This type of information may assist (among others) police agencies, accident reconstructionists, lawyers, rental car companies, safety researchers, vehicle fleet managers and insurance companies. The National Highway Traffic Safety Administration (NHTSA) has explained that: “The information collected by EDRs aids investigations of the causes of crashes and injury mechanisms, and makes it possible to better define safety problems. The information can ultimately be used to improve motor vehicle safety.”2 Despite the obvious safety benefits that might accrue, however, the use of EDRs has not been without controversy.3 Privacy concerns seem to have been a particular sore spot for those advocating the general use of EDRs.4 Oftentimes, the concern is less about the data EDRs presently collect, but instead what future devices might be capable of recording. Presumably, the devices could be engineered to collect considerably more data and do so over even longer periods of time. On-board cameras could record driving habits, sensors could determine cell phone use, and even breathalyzers could be installed to monitor alcohol consumption. One could argue that each of these innovations might improve highway safety. Such improvements, however, would plainly come at a decrease in 1See, Department of Transportation, National Highway Traffic Safety Administration Event Data Recorders—Request for Comments, 67 Fed. Reg. 63493 (Oct. 11, 2002). Depending on vehicle type, EDRs can provide important crash data including such variables as vehicle speed (in five one-second intervals preceding impact), engine speed (in five one-second intervals preceding impact), brake status, whether seatbelts were engaged, whether airbags were enabled or disabled, and other information critical to crash investigators. Of course, EDRs may, in the future, include additional information as well. Presently, separate devices such as global positioning systems (GPS), can provide data such as vehicle location and speed. 2 Id. at 63493. 3 See Matthew L. Wald, The Debate over Event Data Recorders, New York Times, (Sunday, Dec. 29, 2002) (discussing potential controversies surrounding the deployment of EDRs); See, also Dean Narciso, Sensors Tell How Teen Driver Crashed, Columbus Dispatch (Jan. 5, 2002) (discussing EDR benefits versus privacy concerns). 4 Barry Brown, Warning! Your trip may be tracked, MSNBC News (July 10, 2002), http://www.msnbc.com/news/596601.asp.

121 personal privacy. Faced with such potential intrusions upon personal privacy, the public would doubtless be more willing to permit the collection of certain types of data as opposed to others. After all, the use of EDRs to collect telemetric data is not new. General Motors Corporation (GM) allegedly first began installing EDRs in its cars in 1990, equipping nearly six million cars to date.5 Since 1990, the quantity and type of data collected by EDRs has dramatically expanded. Initially, EDRs were limited to recording data from the time between a collision and the air bag’s deployment. In 1994, however, GM modified its EDRs to record and save additional information, including: the change in velocity during an accident; the change in velocity of an event even if the air bag did not deploy; whether or not the seat belt was fastened; and the time between the moment of vehicle impact and the moment of maximum change in velocity.6 Since the 1994 modifications, GM has enhanced the EDRs to record such information as the vehicle’s overall speed, engine RPMs, brake status, and its throttle position.7 The data collected by currently available EDRs remains saved in the device for approximately 60 days for non-deployment services, but is stored permanently for deployment events (accidents), which also require that the air bag device be replaced.8 A subsequent serious accident or other event could erase the data. It cannot be erased otherwise (with the exception of intentional destruction).9 To make it easier to download data from the scene of an accident, GM partnered with Vetronix Corporation to produce a decoder that downloads the data from the automobile.10 As of this writing, at least 26 of the 50 state trooper organizations have purchased the Vetronix Crash Data Retrieval system for highway use.11 In order to avoid the manual, on-site method of data collection, Dr. Ricardo Martinez, a former NHTSA administrator, has proposed to create a “Global Safety Data Vault”12 through which the data from the EDRs will be downloaded automatically through telematic systems like those already in existence.13 5 Bob Van Voris, Black Box Car Idea Opens Can of Worms, Nat'l L. J., June 14, 1999, at A1. Similar types of devices have long been installed in airplanes, trains, and other forms of (usually public or commercial) transportation. See, e.g., 14 C.F.R. 121.343 (Dec. 10, 1972) & 121.344 (Sept. 12, 1997) (flight data recorders); 14 C.F.R. 121.359 (Jan. 1, 1967) (airplane cockpit voice reorders); 49 C.F.R. 229.5 & 135 (May 26, 1995) (locomotive event recorders). 6 Id. 7 Id. 8 See Recording Automotive Crash Event Data, available at http://www.nhtsa.dot.gov/cars/problems/studies/record/chidester.htm (last checked March 28, 2004). 9 Id. 10 See Don Gilman, Automotive Black Box Data Recovery Systems, available at http://www.tarorigin.com/art/Dgilman/ (last checked March 28, 2004). 11 E-mail from James Kerr, Program Manager, Vetronix Corporation (on file with author). 12 See Cathy Orme, A Black Box Under Every Hood: Safety or Big Brother?, available at http://www.valvoline.com/carcare/articleviewer.asp?pg=dsm20020501bb (last checked March 28, 2004). 13 Such existing systems include OnStar, Wingcast, Qualcomm, and the as yet unnamed AT&T system.

122 Although such a plan would doubtless prove controversial, the present future of EDR use appears secure. Ford and GM have signed agreements with Vetronix – presently the industry’s leading supplier of crash data retrieval systems – to supply such devices in their new cars.14 The type of data collected by on-board sensors could readily be increased. For example, Dr. Martinez has suggested that data collection could easily be expanded to include any data that could be “gleaned from electronic sensors already installed on the vehicle.”15 Dr. Martinez was referring to the tire pressure data, telemetric data (currently used to contact emergency services), the functioning of anti-lock braking systems, electronic suspension information, and the routine diagnostic information used by mechanics.16 Although car manufacturers claim EDRs help their engineers refine on-board safety systems, privacy advocates (such as the American Civil Liberties Union) decry their use, claiming the devices unfairly erode personal privacy.17 As a consequence of these ongoing concerns, the NHTSA commissioned a panel of experts that included members of the automobile industry, academia, and the government to study EDRs.18 The panel concluded in its 2001 report that EDRs would “profoundly impact highway safety” by allowing for “better design of occupant protection systems and improved accuracy of crash reconstruction.”19 Additionally, the panel reported that studies of black boxes have shown that driver awareness of the devices can “reduce the number and severity of the crashes.”20 The National Transportation Safety Board (NTSB) has recommended, since 1997, that the NHTSA “gather more and better real-world crash data” using EDRs.21 Despite the benefits EDRs seem to deliver, and the positive recommendations from the NTSB, however, the NHTSA has twice rejected petitions that would require EDRs to be installed in all automobiles.22 14 E-mail from James Kerr, Program Manager, Vetronix Corporation (on file with author). 15 Ed Gartson, Ex-NHTSA Chief Works on Auto Data, AP Online, Mar. 6, 2002. 16Id. 17 American Civil Liberties Union, Are Vehicle “Black Boxes” a Black Hole for Privacy? (June 3, 1999), http://archive.aclu.org/news/1999/w060399a.html. 18 Harry Stoffer, Promise and pitfalls seen in black box, 75 Automotive News 5948 (2001). The complete NHTSA report titled “Event Data Recorders, Summary of Findings by the NHTSA EDR Working Group”, published in August 2001 is available at http://www-nrd.nhtsa.dot.gov/pdf/nrd-10/EDR/WkGrp0801.pdf (last checked March 28, 2004). 19 Id. 20 Id. 21 Id.

123 Presently, the collection and use of EDR data exists in something of a legal vacuum. It has yet to be conclusively determined whether information provided by EDRs may be admitted at trial. Similarly, it is unclear whether the use of data recorded by EDRs may implicate Fourth Amendment or other privacy concerns. The federal and individual state governments are only now beginning to consider the legal implications of deploying such devices as EDRs or global positioning systems (GPS). For constitutional purposes, courts must address whether accessing EDR data at the scene of an accident constitutes a search for Fourth Amendment purposes. If such access qualifies as a Fourth Amendment search (and seizure), a court must then consider whether such a search is valid without a warrant.23 Before discussing the Fourth Amendment issues raised by EDRs, it is worth determining at the outset whether the federal government may require the installation of EDRs. 5.3 Regulatory Authority and Use and Collection of EDR Data24 As a general matter Congress' authority to regulate interstate transportation is found within the Constitution’s Commerce Clause.25 The Constitution provides Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes."26 Congress' power under the Commerce Clause extends to any activities affecting commerce.27 Courts have interpreted this grant of authority broadly.28 In the seminal case of Gibbons v. Ogden, the Supreme Court described the depth and breadth of the Commerce Clause as "complete in itself, [and] may be exercised to its utmost extent, and acknowledges no limitations, other than [those] prescribed in the Constitution."29 The Court has recognized expressly that Congress has the authority to regulate the channels and instrumentalities of interstate commerce, which of course 22 Id.; See, also, Event Data Recorder Research History, (February 28, 2003) (detailing NHTSA’s rejection of petitions to mandate EDRs), http://www-nrd.nhtsa.dot.gov/edr-site/history.html. 23 Note that this overview will only consider relevant federal statutory and constitutional law. Individual states may provide greater privacy protections above and beyond the ambit of the Federal Constitution in their own constitutions and statutes. A general survey of state law, however, is beyond the scope of this paper. 24 See generally, Donald C. Massey, Proposed On-Board Recorders For Motor Carriers: Fostering Safer Highways Or Unfairly Tilting The Litigation Playing Field?, 24 S. Ill. U. L.J. 453, 464-65 (Spring 2000) (provides an in-depth discussion of the commerce clause implications). 25 U.S. Const. Art. I, § 8, cl. 3. 26 Id. 27 See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 277 (1981) (quoting Perez v. United States, 402 U.S. 146, 150 (1971)). 28 See Nevada v. Skinner, 884 F.2d 445, 450 (9th Cir. 1989), cert. den’d, 493 U.S. 1070 (1990). 29 22 U.S. 1, 196 (1824).

124 includes the regulation of motor vehicle safety.30 This authority is quite broad. Nevertheless, any proposed legislation must pass rational relationship muster. In the commerce clause context, a rational relationship must exist “for concluding that a regulated activity sufficiently affected interstate commerce.”31 Nevada v. Skinner32 provides a useful example of the rationale basis test in the commerce clause context. In Skinner, Nevada had established a 70 mph speed limit on a thirty mile stretch of highway. In response, the federal government pursuant to the Emergency Highway Energy Conservation Act of 1973 informed Nevada that it would withhold all federal highway funds until Nevada reduced its speed limit to 55 mph, the national speed limit under the Act.33 The state of Nevada decided to challenge the constitutionality of the national speed limit on, among others, the grounds that there was no rational relationship between a lower national speed limit and the goal of promoting rapid interstate commerce. The state of Nevada argued that “the lower national speed limit would inhibit rather than promote the goal of rapid commercial intercourse.”34 The Ninth Circuit found Nevada’s argument without merit, holding that Congress’ imposition of a lower national speed limit is rationally related to a safer highway system: "commerce that proceeds safely is more efficient than commerce slowed by accident or injury."35 As can be seen in Skinner, the rational relation need not be perfect. Nevada’s argument is arguably just as rational as that of Congress. It even may be more so. However, under the rational relationship test, Congress does not have to choose the most rational option. Rather, its approach need only be rationally related to an otherwise permissible, socially desired end. In the case of EDRs, this is not a particularly difficult hurdle to overcome. 5.3.1 May the Federal Government Require Manufacturers to Install EDRs? Pursuant to the Motor Vehicle Safety Act of 1966 (MVSA), the USDOT, on advice from the NHTSA, may promulgate through informal agency rulemaking federal highway safety standards. 36 Such standards may encompass manufacturer’s safety component requirements. Both the Motor Vehicle Safety Act and the 1974 amendments concerning occupant crash protection standards indicate that motor vehicle safety standards are to be put into effect under the informal rulemaking procedures of the Administrative Procedure Act (APA).37 30 See United States v. Lopez, 514 U.S. 549, 558-59 (1995) (citing United States v. Darby, 312 U.S. 100). 31 Id. at 557. 32 884 F.2d 445, 450 (9th Cir. 1989). 33 Id. at 446. 34 Id. at 451. 35 Id. 36 18 U.S.C. § 1381 et. seq. 37 15 U.S.C.A. § 1381 et seq.; 5 U.S.C.A. § 553.

125 For example, in 1967, based (in part) upon an understanding that seatbelts would save a substantial number of lives, the USDOT required manufacturers to install manual seat belts in all automobiles.38 Similarly, after significant NHTSA testing revealed the utility of passive restraint systems, the USDOT required manufacturers either to install a passive restraint device, such as automatic seatbelts or airbags, or to retain manual belts and add an “ignition interlock” device that in effect forced occupants to buckle up by preventing the ignition from turning on if the seat belts were not engaged.39 The USDOT may also require manufacturers to install other “devices” in the interests of public policy. For example, in New York v. Class, the Supreme Court confirmed the validity of a USDOT rule requiring Vehicle Identification Numbers (VINs) in automobiles, noting that in light of the important interest served by a motor vehicle identification number, the federal and state governments were amply justified in making it a part of the web of pervasive regulation that surrounds the automobile. 40 In addition, although it acknowledged certain privacy interests, the Court had no difficulty in upholding the regulation requiring the VIN’s placement in an area ordinarily in plain view from outside the passenger compartment.41 The regulation, of course, required the public placement of the VIN to allow police officers easily to verify ownership.42 Effectively, this regulation compelled owners to make their automobiles identifiable to police officers (and anyone else, for that matter). As with GPS devices, use of a VIN enables the dedicated investigator to track the location of a vehicle wherever it may be parked. Thus, if it can be demonstrated that the installation of EDRs demonstrably improves highway safety, the USDOT might possess the authority under the Motor Vehicle Safety Act to require installation of these devices in all newly manufactured automobiles.43 38 32 Fed.Reg. 2408, 2415 (1967). 39 37 Fed.Reg. 3911 (1972). 40 New York v. Class, 475 U.S. 106 (1986) (holding that the police officer’s actions in searching the car did not violate the fourth amendment because there is no reasonable expectation of privacy regarding the VIN placement). 41 Id. The regulation in question stated, "The VIN for passenger cars [manufactured after 1969] shall be located inside the passenger compartment. It shall be readable, without moving any part of the vehicle, through the vehicle glazing under daylight lighting conditions by an observer having 20/20 vision (Snellen) whose eye point is located outside the vehicle adjacent to the left windshield pillar. Each character in the VIN subject to this paragraph shall have a minimum height of 4 mm." 49 CFR § 571.115 (S4.6) (1984). 42 NHTSA also requires so-called high theft line vehicles to have identification numbers or symbols placed on major parts of certain passenger motor vehicles. 49 C.F.R. 541. Once again, this is to foil theft and to enable authorities to track stolen vehicles and parts. 43Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (“Given the effectiveness ascribed to airbag technology by the National Highway Traffic Safety Administration, the

126 Even if the USDOT has the legal authority to do so, however, without popular support, it may be difficult to mandate the use of EDRs. In the wake of a public backlash, for example, Congress could always choose to override any USDOT regulations requiring EDR use.44 This is precisely what happened with so-called ignition interlock devices. These devices detect the presence of alcohol on the driver’s breath and, when the alcohol level is too high, prevent the car from being started. Initially, ignition interlock devices were used primarily as a means to prevent those convicted of repeated drunk driving offenses from recidivating. The NHTSA, however, believing such devices to be a significant benefit to automobile safety, decided to require the installation of interlock devices in newly manufactured automobiles.45 The NHTSA’s decision was based upon solid research demonstrating the pervasive problem of drinking and driving—a problem widely understood by the public. Despite the anticipated benefits of installing ignition interlock devices, however, public opposition was so fierce that the NHTSA quickly rescinded the regulation. Thus, even though the statutory authority existed for the NHTSA to require installation of the device, the public’s willingness to accept it was another matter.46 The same is doubtless true for EDRs. Merely because EDRs may seem to be a positive force for promoting highway safety and giving vital information to engineers seeking to develop safer vehicles does not mean the public will embrace them. The similarity between EDRs and Cockpit Voice Recorders (CVRs) has lead some to suggest that the NHTSA would be able to mandate use of EDRs in the same way the Federal Aviation Administration (FAA) is able to require CVRs and Flight Data Recorders (“FDR”) in airplanes. This is a difficult analogy to draw, however, because the FAA has substantial authority to impose requirements upon aircraft by virtue of the highly regulated status of air travel. Indeed, the FAA regulates virtually every aspect of mandate of the Motor Vehicle Safety Act to achieve traffic safety would suggest that the logical response to the faults of detachable seatbelts would be to require the installation of airbags.”). 44For example, the DOT’s “interlock and buzzer” devices were most unpopular with the public. Congress, responding to public pressure, passed a law that forbade the DOT from requiring, or permitting compliance by means of, such devices. Motor Vehicle and School Bus Safety Amendments of 1974, § 109, 88 Stat. 1482 (previously codified at 15 U.S.C. § 1410b(b) (1988 ed.)). 45 See, http://www.nhtsa.dot.gov/people/injury/enforce/Millenium/strategy_45.htm (discussing strategy for mandating interlock devices); Nat Barnes, Take a Breather, The Express, Saturday, July 13, 2002 (discussing efficacy of interlock devices). 46 Motorcycle helmet laws are another interesting example of a good idea that has garnered slow, begrudging acceptance. Popular opposition to mandatory helmet laws was difficult to overcome, and met with considerable controversy, even though substantial evidence existed demonstrating their safety. See, generally, http://www.nhtsa.dot.gov/people/outreach/stateleg/mchelmetUpdateDec2000.htm (discussing efficacy of helmets); Gabe Mirkin, Riding Bikes or Motorcycles, Helmet use Remains Life-Saving, The Washington Times, September 15, 2002, p. C 8. (arguing against the repeal of helmet laws); Jessica Bujol, Bikers Battle Helmet Law, Associated Press, State & Local Wire, March 9, 2001 (reporting on opposition to mandatory helmet laws). Paul Hampel, Lawmaker’s 10th Try at Motorcycle Helmet Rule Fails Again; Sponsor of the Bill Blames Strong Anti-Helmet Lobby, St. Louis Post-Dispatch, Tuesday may 28, 2002 (discussing opposition to mandatory helmet laws).

127 air travel, from product design,47 to the licensing of pilots,48 to air traffic control.49 As was demonstrated in the wake of the September 11, 2001 terrorist attacks, the FAA even possesses the authority to deny the right to fly over the United States. The FAA can, and does, require that certain aircraft in certain configurations flying under certain conditions be equipped with a CVR and/or FDR. The FAA also enjoys authority to investigate problems with flight over the United States. As a consequence, the FAA can require that the FDR and CVR be turned over after an accident occurs to determine what caused the accident and to ensure the safety of future flights The NTSB has jurisdiction over all civil aircraft accidents as well as those involving certain other aircraft as well as certain incidents, and upon such an occurrence, the owner or operator of the aircraft is obligated to preserve all evidence including CVR and FDR data for NTSB’s examination as part of its investigation .50 NTSB investigations result in a determination of probable cause as well as recommendations issued to regulatory authorities, operators, vehicle manufacturers and other organizations for the purpose of improving future safety of flight. . Although the NHTSA has the ability to regulate certain aspects of driver behavior by requiring states to enforce certain laws, it does not have the authority to mandate that drivers reveal their driving habits via an EDR. Unlike airline pilots and even commercial vehicle drivers, no federal agency licenses the driver of a passenger vehicle. Therefore, the federal government has substantially less interest in how an individual operates a vehicle than how a pilot flies an aircraft. Nevertheless, substantial leeway for regulation in this area does exist. 5.3.2 What Authority Permits the NHTSA and the Various State Departments of Transportation to Include EDR Information in their own State Databases? Congress has authorized the NHTSA to collect statistical data on motor vehicle crashes to aid in the development, implementation, and evaluation of motor vehicle and highway safety measures.51 As a consequence, “since the early 1980s, the NHTSA has been obtaining crash data files derived from data recorded on PARs” (Police Accident Reports) from 17 states.52 This State Data System (the term by which NHTSA refers to this collection of computerized state crash data files) is conducted by the National Center 4714 CFR 21. 48 14 CFR 61. 4914 CFR 170. 50 49 CFR, Part 830. 51 15 U.S.C. 1395, 1401 & 23 U.S.C. 403. 52 U.S. Department of Transportation, National Highway Traffic Safety Administration, National Center for Statistics and Analysis, State Data Systems available at http://www-nrd.nhtsa.dot.gov/departments/nrd- 30/ncsa/TextVer/SDS.html (last checked March 28, 2004).

128 for Statistics and Analysis (“NCSA”).53 NHTSA requests the crash data files annually from the appropriate state agencies, primarily the state police, the state highway safety department and the state Department of Transportation.54 These safety efforts, as implemented by the Secretary of Transportation, are authorized by federal statute, which provides in pertinent part: §401. Authority of the Secretary The Secretary [of Transportation] is authorized and directed to assist and cooperate with other Federal departments and agencies, State and local governments, private industry, and other interested parties, to increase highway safety. In addition, the Secretary of Transportation has an obligation to Congress, as detailed further in section 401, to prepare, publish and ultimately to submit a report on the highway safety performance of each State in the preceding year.55 This report must include data on highway fatalities, injuries, and motor vehicle accidents in urban as well as rural areas.56 This data is geared to providing the Secretary of Transportation with the means for comparing highway safety performance of the States in an effort to provide overall improved national safety. Increasing safety and promoting highway safety are plainly legitimate state interests. Thus, the use of EDR and other accident data is rationally related to such interests. At the federal and state levels, EDR data is used to save lives, reduce injuries and prevent property loss. Collecting this data also assists in forming a better safety management system for the highway and traffic systems. The federal government, through the NHTSA, uses this data to assess safety problems and solutions for issuing new and revised vehicle safety performance standards. State governments employ this crash data to help manage road systems and design better roadside safety hardware, such as guardrails and crash cushions. In the future, it is not unlikely that new statutes will permit the use of EDR data to assist in emergency medical rescues; more specifically, statutes permitting the automatic dispatch of EDR data from the crashed vehicle to the Public Safety Answering Point (PSAP) center as well as other affected parties. Furthermore, EDR data would help the local authorities assign the "right" response teams early in the event, thus fostering a more efficient emergency response system. The NHTSA's potential interest in making EDRs mandatory in the interest of safety serves if not a compelling national interest, at least a legitimate state interest. However, 53 Id. 54 Id. 55 23 U.S.C. 401 (1987). 56 Id.

129 without clarification of the NHTSA's authority to collect and use the data provided by EDRs, misunderstanding will continue to occur and the important public purpose of a cooperative, independent accident investigation may not be served. Presumably, the NHTSA's potential intention to require the installation of EDRs is motivated by a desire to protect the public by improving highway safety. Technological advances, such as the EDR, allow the NHTSA to take effective actions in improving the timeliness, accuracy, completeness, uniformity, and accessibility of their highway safety data. EDRs have played major roles in the NHTSA's accident investigations and will continue to do so to a greater extent as their use becomes more widespread. For this reason, it might be useful to identify methods for expanding the use and function of recorders. Nevertheless, as the present record stands, investigators are not empowered to halt an accident investigation and clean-up activities simply to obtain EDR data. All too often, valuable information is needlessly lost due to contradictory statutes and lukewarm mandates concerning EDR use. Consequently, it might be argued that the nation's highway safety could be greatly improved with a government mandate authorizing the NHTSA to retrieve, preserve, copy and use EDR data as it sees fit. Congressional and public support for any such action, however, is vital. As an illustration, one need only consider the Environmental Protection Agency’s (EPA) quest to promulgate regulations promoting a clean environment. In 1990, the EPA faced a similar predicament in its quest to protect public health and the environment through its recommendations for improving air quality. It lacked popular support, however. Alone, the EPA was severely limited in achieving its goals. By working closely with Congress, however, the EPA was able to garner support for its environmental quality recommendations. The resulting federal mandates, which regulate air emissions from area, stationary, and mobile sources, were quite controversial at the time.57 In particular, the EPA sought the installation of catalytic converters on newly built cars.58 The EPA prevented automobile owners from removing or otherwise interfering with the catalytic converters’ function.59 Without cultivating congressional support, it is unlikely such broad, potentially unpopular changes could ever have been made. In similar fashion, by carefully securing legislative support of EDRs and being open with the public, the NHTSA might be able to accomplish its goal of enhancing highway safety through the routine deployment of such devices. The NHTSA's Vehicle Safety Rulemaking Priorities (July 2003) cites that its mission is to save lives, prevent injuries 57 42 U.S.C §§ 7401 et seq. (1990). 58 EPA Regulations on Automobile Exhaust Systems, Exhaust System Repair Guidelines, http://exhaust soundclips.com/epa_reg.html (noting that catalytic converters can neither be removed nor tampered with). 59 See generally, 42 USC §§ 7521, 7522, 7541, 7545, et seq.

130 and reduce traffic related health care and other economic costs.60 Without clarification of the NHTSA's authority to use the most advanced means available (including the use of EDRs), misunderstandings will continue to occur and the important public purpose of a cooperative, independent accident investigation may not be served.61 EDR data obviously offers a range of possibilities. EDRs could be the basis for an evolving data-recording capability that could be expanded to serve other purposes, such as emergency rescues, where their information could be combined with occupant smart keys to provide critical crash and personal data to paramedics. It is even possible that the NHTSA could prevent car owners from tampering with EDRs or otherwise interfering with their collection of data, much the same way the EPA prevented individuals from disabling or removing catalytic converters. The question of data ownership and data protection would have to be resolved, but it is entirely possible such interests can be balanced with the government's objective of ensuring consumer safety on the roads. 5.4 What Limitations do Private Parties Face When Attempting to Use the Information Contained in EDR? The responsibilities and limitations affecting private parties are somewhat different from those affecting public entities. Although private parties are not constrained by Constitutional limitations, such as the Fourth’s Amendment’s protection against unreasonable searches and seizures, they are subject to other rules and regulations governing their ability to use EDR data. 5.4.1 May private parties obtain the data contained in EDRs without the consent of the vehicle owner as part of discovery in preparation for trial? First, it is import to determine whether private parties (insurance companies, car manufacturers, private litigants, etc.) may obtain EDR data. At the outset, it must be noted that the Fourth Amendment does not govern the actions of private parties; rather, it 60 NHTSA Vehicle Rulemaking Priorities and Supporting Research, Calendar Years 2003-2006, available at http://www.nhtsa.dot.gov/cars/rules/rulings/PriorityPlan/FinalVeh/Index.html (last checked March 28, 2004). 61 The NHTSA includes the following information on EDRs in their latest Vehicle Safety Reports: Information collected by crash data recorders, which are being introduced by some manufacturers, can provide the agency with useful information for crash and crash causation analysis. EDRs allow investigators to gain direct pre-crash and crash information such as pre-impact vehicle acceleration and driver steering and braking, air bag deployment timing, and whether safety belts were buckled. EDRs can provide more specific information to crash investigators, which will lead to a more accurate account of the events leading up to and following a crash. This, in turn, can contribute to more effective safety rulemakings and other safety actions. NHTSA is looking at the future potential for EDRs in crashworthiness evaluations. The agency is conducting a research program in which it collects EDR data from real world crashes to analyze the data's accuracy and to compare it to traditional forensic crash investigation methods. The agency will provide feedback so EDR manufacturers can improve their systems. (For more information on EDRs, see NHTSA’s website at http://www-nrd.nhtsa.dot.gov/edr-site/index.html.)

131 applies exclusively to the actions of governmental authorities.62 Although civil law (e.g. tort law trespass protections) may prevent a private party from obtaining EDR data without the owner’s consent, those parties may nevertheless retrieve the data contained in an EDR without consent as part of discovery. Rule 26(b) of the Federal Rules of Civil Procedure (“FRCP”) states “that a party may obtain discovery regarding any matter, not privileged, that is relevant to the claim.…”63 With respect to the nature of the materials that may be obtained under Rule 26, Rule 34(a)(1) allows for the discovery of “other data compilations.”64 This language has been interpreted to include electronic data, diaries and surveillance equipment.65 While there is no case law that authoritatively endorses the discoverability of EDR data, the data contained in an EDR has been successfully discovered in recent cases.66 If EDRs come to satisfy (as they presumably will) evidentiary standards of reliability and accuracy,67 the information they record will doubtless be admissible at trial. In fact, some commentators have declared their support for the admissibility of EDR data in court.68 As with the adoption of any new technological innovation, however, praise is not 62 U.S. v. Jacobsen, 446 U.S. 109 (1983) (Fourth Amendment’s protection against unreasonable searches and seizures proscribes only governmental action, it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with participation or knowledge of any government official). 63 Fed. R. Civ. Pro. 26(b). 64 Id. 65See, e.g., Daewoo Electronics Co., Ltd. v. U.S.,650 F.Supp. 1003 (1986) (computer files); Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421 (2002) (computer files); Nixon v. Freeman, 670 F.2d 346 (1982) (diary); Tran v. New Rochelle Hosp. Medical Center, 740 N.Y.S.2d 11 (2002) (video surveillance); Congleton v. Shellfish Culture, Inc., 807 So.2d 492 (2002) (video surveillance). 66See, e.g., Cansler v. Mills, 765 N.E.2d 698 (2002) (holding that mechanic should have been able to testify regarding air bag and sufficient evidence was introduced to show air bag was defective); Harris v. General Motors Corp., 201 F.3d. 800 (2001)(evidence regarding air bag defectiveness should have been admitted); Sipes v. General Motors Corp., 946 S.W.2d 143 (2000) (Automobile manufacturer can be held strictly liable for defect that produces injuries even if defect did not cause accident); Anderson-Barahona v. Gen. Motors Corp., No. 99A19714 (Ga., Cobb County Cir. Ct. Apr. 7, 2000). 67 It goes without saying that EDRs must be demonstrated to be both reliable and reasonably accurate before the data they record may be admitted at trial. See, e.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)) (establishing admissibility test for expert scientific testimony). 68 Thomas Michael Kowalick, Proactive Use of Highway Recorded Data via an Event Data Recorder (EDR) to Achieve Nationwide Seat Belt Usage in the 90[th] Percentile by 2002, at http://www.ntsb.gov/events/symp%5Frec/proceedings/authors/kowalick.htm (last visited Jan. 26, 2003). Kowalick explains that: “On the question of whether crash recorder data should be admitted, the main point is whether the recorder is reliable, properly read out, and provides a record of the particular event in question. The data of itself is not dispositive of liability, but merely serves as certain evidence of the event. As indicated earlier in this report, there is good correlation between crash severity a recorder might measure and the extent of crash deformation to the vehicle in which it was installed; and it

132 uniform. Certain industry groups are concerned about the data’s potential misuse in litigation and regulatory enforcement.69 As a consequence, the American Trucking Association (ATA)—itself a target of potential regulations mandating the use of EDRs on commercial trucks—announced the following in a policy statement: In order to benefit from new technologies that can improve highway safety and efficiency, while providing protection against information misuse, the trucking industry supports creation of reliable data parameter standards only if: (1) they are developed and implemented for all vehicles, including passenger cars, concurrently; (2) all vehicle owners and operators are properly protected against the use of electronically-generated data in regulatory enforcement and civil litigation; (3) data are anonymous and used for safety research and trend analysis by a single lead agency or institution; (4) reasonable privacy can be assured regarding access and use of the information; (5) access to data is controlled; (6) data are recorded only for a limited period of time relative to an event; and (7) there is no burden on individual vehicle owners or operators for the reporting or collection of such data at any time.70 One prominent concern is the potential violation of privacy rights posed by the potential use of EDR data. This concern extends not only to the types of data EDRs presently record, but to the types of data EDRs might be able to record and store in the future. While it would be difficult to shield EDR data from civil discovery, legislation could be enacted to control the use the use of such data in evidence. Although no federal statutory scheme directly touches upon EDR use in automobiles, there is a somewhat analogous federal statute that refers to "cockpit recordings and would be difficult to refuse evidence on the crash severity magnitude as interpreted from vehicle deformation. Thus if the recorder provides good evidence of the event, it seems appropriate that the evidence should be admitted. It may be possible to restrict through legislation the admissibility of crash recorder evidence, particularly if the recorders are government-owned and the records are retrieved and interpreted by government employees. Consider, however, the objective of a very simple and widely used integrating accelerometer that is conveniently and readily read by any police accident investigator without special training. It would appear difficult to prevent testimony by a layman - say a tow-truck operator or an auto mechanic-as to what he saw immediately after the accident. In summary, we believe that (1) the data from a crash recorder would be admissible, if it meets necessary qualifications, in a court of law; 2) the data should be admitted if it is good evidence; (3) it will be difficult to prevent admitting crash recorder data, even by Federal law, if the record can be easily read by an untrained person.” Id. (citing Office of Technology Assessment, Automobile Collision Data: An Assessment of Needs and Methods of Acquisition (1975)). 69 U.S. Department of Transportation: Federal Motor Carrier Safety Administration, A Report to Congress on Electronic Control Module Technology for Use in Recording Vehicle Parameters During a Crash, 16 (Sept. 2001) [hereinafter FMCSA Report]; see also American Trucking Associations, Inc., Technology & Maintenance Council, Recommended Practice, Proposed RP 1214(T): Guidelines for Event Data Collection, Storage and Retrieval (2001). 70 Id.

133 transcripts"71 and "surface vehicle recordings and transcripts"72 in the context of use, admissibility, and discovery.73 These statutes prevent the NTSB from publicly disclosing cockpit and surface vehicle voice/video recordings, while leaving disclosure of the transcripts/written depiction of those recordings at the discretion of the NTSB.74 If the NTSB permits public disclosure, parties in a judicial proceeding are free to admit the information into evidence.75 However, if the NTSB denies public disclosure, a party in a judicial proceeding may not use discovery to obtain the information, without a court order.76 There also exist statutory safeguards to prevent public dissemination of the data in the event a court admits otherwise undisclosed data.77 As differentiated from voice/video recordings and transcripts of such recordings, pure event data, collected from a recording device is generally admissible.78 Of course, the policy considerations of prejudice and misinterpretation that may apply to graphic cockpit voice recordings from an airplane crash do not apply to basic factual EDR data. Such data would doubtless be admitted at either civil or a criminal trial unless expressly shielded by legislation. Two cases illustrate the ways in which EDR data has been (and could be) used in civil litigation. In Harris v. General Motors Corporation,79 the district court relied upon testimony from GM's expert witness regarding EDR crash data to grant GM summary judgment in a product liability suit alleging a defect in the airbag.80 The trial judge found that the EDR data (and, presumably, the engineer’s interpretation of that data) established beyond dispute that the airbag had functioned properly. Absent a factual dispute, the court felt obligated to grant GM’s summary judgment motion. The court of appeals reversed the trial judge’s decision to grant GM summary judgment. The appellate court determined that the trial judge erred in accepting the engineer’s interpretation of the EDR 71 National Transportation Safety Board Amendments Act of 2000, 49 U.S.C. 1114(c), 1154(a) (2001). 72 Id. 1114(d), 1154(a). 73 Id. 1114(c)-(d), 1154(a). 74 Id. 1114(c)-(d). 75 Id. 1154(a)(1)(A). 76 Id. 1154(a)(2)-(4). 77 Id. 1154(a)(4)(A)-(B). 78 Donald C. Massey, Discovery of Electronic Data from Motor Carriers - Is Resistance Futile?, 35 Gonz. L. Rev. 145, 173 (2000) (noting that event data collected from train crashes is generally admissible) (citing Stuckey v. Illinois Central R.R. Co., 1998 U.S. Dist. LEXIS 2648 (N.D. Miss. Feb. 10, 1998); National R.R. Passenger Corp. v. H & P, Inc., 949 F. Supp. 1556 (M.D. Ala. 1996)); see also American Trucking Associations Website, Legislative Affairs, Trucking Victory: Truck Recorders Gain Protection Given Airplane Recorders, at http://www.truckline.com/legislative/101800<uscore>truck<uscore>recorders.html (last visited Jan. 26, 2003) (on file with the Rutgers Computer & Technology Law Journal) (explaining that the National Transportation Safety Board Amendments Act of 2000 does not extend its protection to data recorders). 79 201 F.3d 800, 804 (6th Cir. 2000 80 Harris, 201 F.3d at 804.

134 data as an undisputed fact. Indeed, the appellate court raised the issue that the EDR evidence may not even have been admissible at all.81 The Court noted: “[While the plaintiff] did not raise the Daubert [v. Merrell Dow Pharm., Inc.] issue before the district court, we note that on remand, the district court must, consistent with its gate keeping role, perform a Daubert analysis of the proposed testimony of the defense experts, particularly [the EDR expert]. Certainly, nothing in the record as it now exists evinces either the reliability or validity of [the EDR expert's] testimony as to the [EDR]. Our own research did not reveal a single reported case addressing the Daubert issue as to General Motors' automotive "black box."82 As will be discussed later in this paper, the appellate court was referring to the standard district courts must use in determining whether scientific or other expert testimony is admissible. The court did not opine on the reliability of EDR data, it merely held that summary judgment could not be granted on the basis of testimony regarding a novel device that was not subjected to rigorous analysis. First the trial court needed to determine whether the data should be admitted, and then the plaintiffs would have the opportunity to scrutinize the evidence during the course of cross examination and rebuttal. Similarly, in the product liability case of Batiste v. General Motors Corporation,83 a state trial court admitted expert EDR testimony from the same expert that testified in Harris.84 In Batiste, that expert testified: “Based on my years of experience and training and the safety aspects of automobiles, it is my opinion that the evidence in this case demonstrates that the air bag was functioning properly and should not have deployed at the time of this accident. Moreover, if there was a malfunction of the system, it would be evident from the [EDR]. The [EDR] recorded no such malfunction. Accordingly, it is my further opinion that the air bag was not defective in any respect and performed as intended and therefore, did not cause Plaintiff's injuries, if any. Furthermore, it is my opinion that the injuries, if any sustained by Plaintiff, would not have been lessened had the air bag deployed.”85 81 Id. at 804 n.2. 82 Id. (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)) (establishing admissibility test for expert scientific testimony based upon Fed. R. Evid. 702 and a rough framework of criteria focusing on scientific validity, reliability, and relevance). 83 802 So. 2d 686, 688 (La. Ct. App. 2001). 84 Id. at 688. 85 Id.

135 There was little question that the EDR data, as well as the expert witness’ interpretation of that data, should have been admitted. Therefore, as long as the EDR technology can pass the fairly liberal Daubert test, it would appear from these initial cases that EDR data and relevant expert testimony will be admissible in a civil trial. There are a number of other data recording technologies that may be compared to the use of EDR devices. EDR data may, for example, be analogized to the information contained in a diary or that recorded by a surveillance camera. Similarly, EDR data may be compared to information contained in personal computer files, as both represent personal possessions saved in a digital format. It has long been the case that personal diaries, surveillance footage, and computer files (as well as the data contained therein) are discoverable.86 Thus, there is little doubt that (absent special statutory protection) the data contained in an EDR would likewise be discoverable.87 It is often overlooked from a policy perspective that the admissibility of EDR data could be a positive advancement in ensuring the integrity of litigation. Once determined to be a reliable source, EDR data appears to provide credible and objective insight into the facts of a crash. If all relevant parties to litigation are provided initial accessibility to the data, equity will be ensured as all parties would be able to analyze and interpret the same facts. Although this may help an automobile manufacturer demonstrate that an airbag properly deployed or that the plaintiff failed to wear her seatbelt, it will also enable the plaintiff objectively to verify that he was not traveling above the posted speed limit or that the brakes failed. Objective factual determinations will greatly aid litigants and may, in fact, help reduce unnecessary litigation and impede patently fraudulent claims. 5.4.2 May private parties, such as insurance adjusters, private attorneys, and researchers, obtain the data contained in the EDR at the scene of the accident or through pre-trial discovery without the consent of the vehicle owner? The simple answer is no. Private parties likely cannot obtain the information contained in the EDR without the consent of the vehicle’s owner or as part of pre-trial discovery. The owner of property has superior title to all other private parties, and can lawfully refuse possession. The NHTSA and Federal Motor Carrier Safety Administration (“FMCSA”) both take the position that the EDR and its data belong to the vehicle owner. Because the vehicle owner’s possession of the EDR data would be superior to all others, no private party could force the individual to relinquish that data without the owner’s consent. However, private, market-based solutions may address this problem. Specifically, insurance companies, as a condition of writing an automobile insurance policy, may require that owners consent to the retrieval of EDR data. For example, Progressive Insurance, the nation's fifth-largest auto insurer, has placed hundreds of monitoring 86 See note 47, supra. 87 Donald C. Massey, Discovery of Electronic Data from Motor Carriers - Is Resistance Futile?, 35 Gonz. L. Rev. 145 (2000) (explaining that electronically-stored data is universally admitted into evidence).

136 devices in customers' vehicles to measure how, when, and where they drive.88 According to public reports the device's patent describes a system of onboard sensors that could track whether a driver signals before turning, tailgates, or stops so sharply that anti-lock brakes engage. This is in contrast with standard EDRs, which apparently only record the last seconds before a crash. Progressive has also taken a different track in this area in that its test program consists of volunteers.89 Customers can save up to 25% on insurance rates tailored to their individual driving habits. The insurance company expects to benefit by obtaining new business from consumers who are seeking to obtain favorable rates, or who perhaps have teenage drivers in the family whose driving habits they would like to monitor. In any event, the program is entirely voluntary and consumers are alerted to the potential uses to which collected data may be put. Similarly, automobile manufacturers may include as boiler plate language within a sales or lease agreement, a promise by the vehicle’s purchaser or leasee to waive any privacy interest in EDR data in the event that he sues the manufacturer at some later date. Private law solutions such as these may provide adequate coverage in situations in which private parties may need to have access to EDR data and the owner’s consent might not be likely at the time the data is needed. 5.4.3 May Private Parties Obtain and Use EDR Data when Unrelated to Trial Discovery? A different sort of circumstance arises when private parties seek to obtain EDR data for purposes other than formal litigation. For example, in a case of first impression, a car rental customer sued Connecticut-based ACME Rent-A-Car because the company fined him for exceeding the speed limit. The customer’s driving information was discovered by use of an on-board global positioning system (“GPS”).90 The company was able to pinpoint the precise location where the consumer had violated the speed limit.91 The customer sued because he claimed he had not been afforded adequate notice that his driving would be monitored by means of the GPS device. Despite the fact he was merely in temporary control of the vehicle as a renter, he was successful. 92 Rental agencies (at least in Connecticut) may still be able to track their vehicles using GPS devices, but apparently may not issue fines unless adequate notice to the consumer is first given. Indeed, many problems associated with the use of GPS and similar systems could be avoided by disclosing the information to the consumer at the outset. Just as rental car 88Associated Press, Insurer's "Black Box' Monitors Drivers, USA Today .com, at http://www.usatoday.com/life/cyber/tech/review/crg529.htm (Nov. 23, 1999). 89 Id. 90 Rental-car Firm Exceeding the Privacy Limit?, News.com, June 20, 2001, at http://news.com.com/2100- 1040-268747.html?legacy=cnet&tag=tp_pr. 91 Robert Lemos, Car spy pushes privacy limit, ZDNet News, June 19, 2001, http://zdnet.com.com/2100- 11-5301115.html. 92 Using GPS To Catch Speeders Found Illegal, Slashdot, July 3, 2001 at http://slashdot.org/articles/01/07/03/0423218.shtml.

137 companies routinely present information relating to insurance coverage to prospective renters, they could also offer information about EDRs or GPS. Leasing agencies could similarly include as standard language in lease agreements waivers related to the disclosure of recorded EDR data. Any interested party (e.g. banks, lien-holders) could potentially require the car’s principal driver to agree to disclose information in the event of an accident or product liability litigation. Private solutions exist that would enable EDR data to be disclosed, when necessary. 5.5 Does the search of an automobile to obtain the information contained in an EDR raise a Fourth Amendment Question? Important constitutional questions surround the use of, and accessibility to, EDRs devices and their data in the field. In particular, the Fourth Amendment to the Constitution protects individuals from “unreasonable” searches and seizures undertaken by the state.93 Although the state may conduct searches of private property and effect seizures of evidence or contraband uncovered, when probable cause is present, questions arise whenever an individual’s property is searched or seized without a warrant. Of course, no legal difficulty exists if the owner consents to a search.94 However, even where affirmative consent is withheld (or at least not given) if an individual has no expectation of privacy in the thing to be searched, then no “search” has occurred for Fourth Amendment purposes. Accordingly, if the owner of an automobile has no expectation of privacy in the information contained in the EDR, then the acquisition of that data is not a “search,” and no Fourth Amendment concern exists. Aside from the Constitution, the most pertinent federal law governing this area is likely the Privacy Act of 1974 (“Act”), which provides that no federal agency shall disclose any of its records that are contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record falls within certain specified exemptions.95 The Act’s purpose is to balance the government’s need to maintain information about individuals with the right of individuals to be protected against unwarranted invasions of their privacy stemming from federal agencies’ collection and use of personal information.96 While this Act would doubtless affect the use of EDR data, such novel technical innovations have yet to receive full legislative consideration. It is a near-certainty that they will in the future. 93 US. Const. amend. IV. The Fourth Amendment applies both to the federal and the state governments. See, Wolf v. Colorado, 338 U.S. 25, 69 (1949). 94 Schnekloth v. Bustamonte, 412 U.S. 218 (1973) (One exception to the requirement of both a warrant and probable cause is a search that is conducted pursuant to consent.). 95 5 U.S.C. 552(a) (2002). 96 Most states contain analogues to this act, but a full review of those statutes is beyond the purview of this paper.

138 The next section addresses the extent to which the Fourth Amendment will affect the process of obtaining the data contained in EDRs, I will assume arguendo that individuals do have an expectation of privacy in the data contained in their EDRs.97 Even though such a privacy right may exist, however, it is plainly not without limitation. 5.5.1 May police officers seize EDR data during post-accident investigations without a warrant? A slightly more complex, but readily answerable, question is whether police officers (or other government accident scene investigators) may seize data recorded by an EDR at the scene of an accident. A likely scenario is one in which an accident occurs and police officers arrive on the scene in short order to assist the injured and to investigate the crash’s cause. What are their options for retrieving what may be crucial data? The analytical framework evident in the Supreme Court’s Fourth Amendment cases requires that a reviewing court must first assess whether the individual claiming Fourth Amendment protection has a reasonable expectation of privacy in the object searched.98 If there is no such expectation, no “search” occurs for Fourth Amendment purposes. If a privacy right is implicated, the court must next determine whether probable cause existed for the search. Finally, if a search occurred, it must have been executed subject to a valid warrant, or qualified as an exception to the warrant requirement. 5.5.2 Do car owners have reasonable expectation of privacy in EDR devices as a component of their automobile? 1) Fourth Amendment Searches Seizure of an EDR or the data contained therein will only implicate the Fourth Amendment if it constitutes a search into a constitutionally protected area. A “search” does not occur unless the individual manifested a subjective expectation of privacy in the searched object, and society is willing to recognize that expectation as reasonable.99 The nature of “searches” is not quite as clear-cut in today’s world as might be expected. Traditionally, a “search” has required some sort of trespass upon property. Thus, if a 97 Indeed, DOT and the automakers appear to agree that the car’s title-holder owns not only the physical EDR, but the data it collects as well. 98It is important to note that the Fourth Amendment does not act as a restraint on private actors, but only those acting under the color of state law. Thus, the Fourth Amendment does not prevent a private party (like an insurance company) from seizing data recorded by an EDR. 99 Katz v. United States, 389 U.S. 347, 361 (1967) (holding that government's activities in electronically listening to and recording defendant's words spoken into telephone receiver in public telephone booth violated the privacy upon which defendant justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within Fourth Amendment). See also, Minnesota v. Olson, 495 U.S. 91 (1990) (holding that a subjective expectation of privacy, for purposes of the Fourth Amendment, is legitimate if it is one that society is prepared to recognize as reasonable.).

139 police officer merely happened by an open window and, in his plain view, witnessed a crime, no “search” for Fourth Amendment purposes occurred.100 Automobile searches, however, present a different sort of a problem. In United States v. McIver,101 the Ninth Circuit Court of Appeals upheld the warrantless placement of a global positioning system (GPS) tracking device by law enforcement on the undercarriage of a suspect's vehicle.102 The court ruled that the officers’ placement of the device was neither a search nor a seizure. The court held it was not a search because the undercarriage is part of the exterior of the vehicle, and pursuant to the Supreme Court opinion in New York v. Class,103 there is no reasonable expectation of privacy in the exterior of a vehicle. The court determined that no seizure occurred because the device represented only a technical trespass on the automobile, and the device’s placement did not deprive the defendant of dominion and control over his vehicle.104 The actual collection of EDR data may, or may not, require a specific trespass onto the owner’s property. That may ultimately be a distinction without a difference, however, as the Supreme Court has recently considered a similar sort of situation in Kyllo v. United States.105 In Kyllo, a narcotics agent used a thermal imaging scanner to determine whether the defendant was using high intensity lamps to grow marijuana in his home.106 Use of the thermal imaging device did not require law enforcement officers to enter the defendant’s property; rather, they simply had to point the device at the home and record the thermal image.107 The defendant argued that the use of a thermal imaging device in this way constituted a “search” within the meaning of the Fourth Amendment even though the officers were stationed across a public street.108 The Court agreed with the defendant, holding that when the government uses a device that is not in general public 100 California v. Ciraolo, 478 U.S. 1014 (1986) (The Fourth Amendment’s protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on a public thoroughfare.). 101 186 F.3d 1119 (9th Cir. 1999). 102 Id. at 1126-27. 103 475 U.S. 106 (1986). 104 McIver, 186 F.3d at 1127. Cf. Osburn v. Nevada, 44 P.3d 523 (2002) (holding that officers’ placement of a monitoring device to defendant’s vehicle without first obtaining a search warrant was not an unreasonable search under the Nevada Constitution) with Oregon v. Campbell, 759 P.2d 1040 (1988) (holding that officers’ placement of a tracking device to defendant’s vehicle without first obtaining a search warrant constituted an unreasonable search under the Oregon Constitution). These cases demonstrate the differing standards under their respective state constitutions. 105 533 U.S. 27 (2001). 106 Id. 107 Id. at 29. 108 Id.

140 use to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search,” and is presumptively unreasonable without a warrant.109 Thus, while there was no physical “trespass,” the Court nevertheless determined that a search had occurred. It might be possible to conclude that data retrievable through external means (like vehicular speed obtained through the use of a radar gun) may not constitute a search, while data collected by EDRs such as the functioning of air bags, seat belts, or braking, which could only previously have been done during a physical examination of the vehicle, would constitute a Fourth Amendment search. This analogy is difficult to draw, however, because homes have traditionally received far greater constitutional protections than have automobiles.110 The Kyllo Court also suggested that should the use of such devices become routine or available to the general public, the privacy interest might diminish.111 In other words, if such devices become so commonplace that the general public knows of their routine use, the scope of the privacy right itself might change. Presently, of course, anyone who operates a motor vehicle knows that both the license plate and the vehicle identification numbers (“VIN”) are readily accessible to the police (or other on-lookers). Drivers accept the fact that the police can run those identification numbers and find out a great deal about the car’s owner. Physical descriptions, police records, driving records, home addresses, telephone numbers, and a good deal of other personal information is available to law enforcement authorities just by having access to VIN and license plate numbers. Yet, no one demands that the police obtain a warrant before obtaining such otherwise private information. If the general public is willing to accept such warrantless intrusions into their lives, it is possible that should wireless access to EDR data become customary, the public will also become comfortable with the notion of permitting authorities routine access to that data as well. 2) Privacy and the Fourth Amendment It is unquestionable that car owners have a reasonable expectation of privacy in their cars.112 That zone of privacy generally applies to the passenger compartment, but, 109 Id. at 35. 110 See, e.g., Preston v. U.S., 376 U.S. 364 (1964) (Questions involving searches of motor cars or other things readily moved cannot be treated as identical to questions arising out of searches of fixed structures like houses, and what may be a reasonable search of a house may be reasonable in the case of a motor car.), Cady v. Dombrowski, 413 U.S. 433 (1973), (holding that there are Constitutional differences between searches of and seizures from houses and similar structures and from vehicles which stems both from ambulatory character of the latter), California v. Carney, 471 U.S. 386 (1985) (Although defendant’s motor home possessed some attributes of a home, it was readily mobile, and there was a reduced expectation of privacy stemming from pervasive regulation of vehicles capable of traveling). 111 Kyllo 533 U.S at 36. 112 New York v. Class, 475 U.S. 106, 114-115 (1986) (holding that when police officers reached into interior of automobile to remove certain papers obscuring the vehicle identification number it was a search but was sufficiently unintrusive to be constitutionally permissible, thereby justifying officer's seizure of weapon found protruding from underneath driver's seat).

141 depending upon the circumstances, may not extend to cover containers located within the automobile.113 Thus, analogizing EDRs to “containers” that may “hold” evidence, officers investigating car accidents may seize EDRs knowing the device “holds” critical crash data which will assist in the investigation. As the car owner has no privacy interest in the “container,” 114 such a seizure does not implicate the Fourth Amendment.115 However, this is not a particularly satisfactory analogy. A better comparison might be made to other data that is retrievable from the accident scene, such as skid marks or roadway conditions. Essentially, one must consider whether engineering data of this sort is really “owned.” After all, a radar gun deployed by a police officer records data about auto speed. The car’s owner, however, has no privacy interest in the data recorded by that radar gun. This analogy is also tricky, however, because the car’s owner in essence controls the EDR as well, so the fit is a bit odd. In addition, whether a car owner maintains a reasonable expectation of privacy in a car and its component parts after an accident may depend on the owner’s actions. A property owner must manifest some intention to maintain the privacy of the property the police intend to search.116 Analogizing to cases involving so-called “fire searches, ” where property owners take affirmative steps to protect their damaged property, they retain a valid expectation of privacy.117 Similarly, by voluntarily abandoning property, an individual forfeits any reasonable expectation of privacy in the property.118 Thus, if the vehicle is only slightly damaged and can be driven away, and the owner demonstrates an intention to drive the car away, the owner likely retains his or her privacy interest in the automobile and its component parts. However, if the car is damaged beyond reasonable repair, then the owner must make some further effort to secure the car to maintain the privacy interest. If the owner takes no affirmative steps to secure the car, then police officers may conduct a valid search for causal evidence 113 See California v. Acevedo, 500 U.S. 565 (1991) (holding that police may search a container located within an automobile, and need not hold the container pending issuance of a warrant, even though they lack probable cause to search the vehicle as a whole; it is enough that they have probable cause to believe the container itself holds contraband or evidence.) 114 Acevedo, 500 U.S. at 574. 115 Katz, 389 U.S. at 361, Cf. United States v. Jacobsen, 466 U.S. 109, 120 n.17 (1984) (“A container which can support a reasonable expectation of privacy may not be searched, even on probable cause, without a warrant.”) 116 Id. 117 Michigan v. Clifford, 464 U.S. 287 (1984). (Where fire-damaged home was uninhabitable when fire investigator arrived, where personal belongings remained in home, and where owners had arranged to have house secured against intrusion while they were gone, owners retained reasonable privacy interest in fire-damaged residence and fire investigations were subject to warrant requirement). 118 United States v. Oswald, 783 F.2d 663, 666 (6th Cir.1986) (Defendant abandoned property and did not attempt to retrieve in a reasonable time thus did not violate rights against unreasonable search and seizure).

142 without a warrant.119 Similarly, if the driver (and any occupants) is injured or unconscious, the police may be able to retrieve the EDR and any data contained therein during the process of assisting the injured. Finally, if an EDR is regarded as a safety or “other” device required under the Motor Vehicle Safety Act, and the data thereby recorded is considered important in advancing a significant public policy interest, a car owner may not necessarily possess a privacy interest in the data superior to the interest of the public. If one analogizes to the privacy interest that is abrogated by the use of mandatory VINs, it could similarly be argued that a car owner may have no reasonable expectation of privacy in EDR-recorded data. In New York v. Class,120 for example, the Supreme Court stated that because of the important role the VIN plays in the pervasive government regulation of the automobile, and the efforts by the federal government to ensure that the VIN is placed in plain view, there is no reasonable expectation of privacy in the VIN, for Fourth Amendment purposes.121 Thus, if the EDRs are required because they play an important role in government regulation of the automobile industry, there may be no reasonable expectation of privacy in EDR data for Fourth Amendment purposes. 5.5.3 Does a car owner have a reasonable expectation of privacy in the telemetry data provided by EDR devices? Katz defines a legitimate expectation of privacy as one in which both the individual manifests a subjective expectation of privacy in the searched object, and society objectively recognizes the individual’s expectation of privacy as reasonable.122 In pursuing Katz’s second prong, or whether the expectation of privacy is objectively reasonable, the test of legitimacy is not whether the individual chooses to conceal assertedly “private activity,” but whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment.123 Thus, regardless of car owner’s subjective expectations, it is unlikely the courts will validate an objective expectation of privacy in vehicle safety data. In Smith v. Maryland, the Supreme Court held that the installation, at the request of the police, of a pen register124 at the telephone company’s offices to record the telephone numbers dialed on the petitioner’s telephone did not violate the Fourth Amendment.125 119It is important to distinguish searches for causal evidence from searches for evidence of criminal conduct. Causal evidence is subject only to the restraints of an administrative warrant, where the search for criminal evidence requires a criminal obtainable only on a showing of probable cause to believe that relevant evidence will be found on the place searched. Michigan v. Clifford, 464 U.S. 287, 294 (1984). 120 475 U.S. 106 (1986). 121 Id. 122 Katz, 389 U.S. at 361. 123 Oliver v. US, 466 U.S. 170, 182-183 (1984). 124 A pen register is a surveillance device that captures the phone numbers dialed on outgoing telephone calls. See, 18 USC 3121.

143 The petitioner had no legitimate expectation of privacy in the telephone numbers because he voluntarily conveyed them to the telephone company when he used his telephone. “This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”126 Telephone numbers dialed from one’s home arguably raise more significant privacy concerns than the speed of one’s vehicle immediately prior to a crash because vehicle speed could potentially be externally measured. For example, a police officer equipped with a radar gun, standing by the accident’s scene immediately prior to the crash, could have obtained the vehicle speed without threatening the driver’s privacy interest. Telephone numbers dialed from one’s home do not enlist a reasonable expectation of privacy. Thus, it seems unlikely that vehicle safety data will be the subject of an inviolate privacy interest, when such data can be ascertained by means other than EDRs. Although some information, such as the engine’s RPM’s, may not be externally measurable and thus may not fit readily within this analysis. In Oliver v. United States, in which the Supreme Court considered the legitimacy of police officers entering private property in order to gather evidence of criminal conduct, the Court opined that the privacy issue turns on “whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment.”127 While no single consideration has been regarded as dispositive, the Court has “given weight to such factors as the intention of the Framers of the Fourth Amendment, ... the uses to which the individual has put a location, ... and our societal understanding that certain areas deserve the most scrupulous protection from government invasion.”128 It seems unlikely under Oliver that vehicle safety data warrants Fourth Amendment protection. Individuals presently make no use of EDR data. In fact, very few individuals are even aware their automobiles contain such a device. That could, of course, change in the future. Nevertheless, EDRs exist by and large to provide information to third parties, much the same way that a license plate or a registration certificate provides information to other parties. 129 Thus the “uses to which the individual” puts the EDR weighs against a reasonable expectation of privacy. Similarly, it is unlikely that our “societal understanding” supports protection of vehicle safety data. Many forms of data provided by EDRs (speed, brake application, seat belt use, airbag deployment) are readily and regularly gathered as part of accident reconstruction and investigation. This data is gathered without objection because it is not regarded as a search into a constitutionally 125 Smith v. Maryland, 442 U.S. 735 (1979) (The installation and use of the pen register was not a search within the meaning of the Fourth Amendment, and no warrant was required). 126 Id. at 743-744. The standard exceptions to this include information provided to attorneys, treating physicians, or religious counselors. Such information is normally accorded “privileged” status and is not usable in the even of a criminal prosecution. 127 Oliver v. United States, 466 U.S. 170, 182 - 183 (1984). 128 Id. at 178. 129 Even in situations in which individuals might want to use EDR data it seems most likely that it would either be to defend or prosecute legal actions or to permit, for example, parents to monitor the driving habits of their children.

144 protected area. Simply changing the method of collecting this data does not create a privacy interest where none previously existed. Ownership of the vehicle, of course, may be the touchstone for determining when or whether a cognizable privacy interest exists. As a general rule, merely being a passenger in a vehicle does not create a privacy interest either in that vehicle or things contained therein.130 Currently both the NHTSA and the Federal Highway Administration (“FHWA”) have concluded that the vehicle’s owner owns any data recorded by the EDR.131 Specifically, the NHTSA takes the position that: The owner of the subject vehicle owns the data from the EDR. In order to gain access to the data NHTSA must obtain a release for the data from the owner of the vehicle. In crash investigations conducted by NHTSA, the agency assures the owner that all of NHTSA's personal identifiable information will be held confidential pursuant to the Privacy Act (5 U.S.C. 552a) and other statutory authorities which limit disclosure of personal information. Any information derived from the crash investigation, including an EDR, that would lead to personal identifiable information may not be disclosed pursuant to the Privacy Act.132 Similarly, the FHWA’s Office of Chief Counsel observes that: Vehicles are sold to consumers without any vestigial interests retained by the manufacturers... . The problems related to ownership might be resolved by some sort of retention of ownership by manufacturer, by a contractual retention of rights to access the data (perhaps similar to an easement in real property), by a provision in the state motor vehicle licensing laws, or by some other federal regulation that permits public authorities to access the data regardless of ownership.133 In addition to the NHTSA and FHWA, the Federal Motor Carrier Safety Administration ("FMCSA") branch of the Department of Transportation and American Trucking Associations, Inc. ("ATA") has asserted that the owner of a vehicle with an EDR is the exclusive owner of that EDR's data.134 130 Saltzburg & Capra, American Criminal Procedure, 327-331(6th ed. 2000). 131 Event Data Recorders: Summary of Findings by the NHTSA EDR Working Group, Final Report, Aug. 2001, at 8.3, No. NHTSA-99-5218, available at http://www-nrd.nhtsa.dot.gov/edr-site/uploads/edrs- summary<uscore>of <uscore>findings.pdf (last visited Jan. 26, 2003) (recording position of National Highway Traffic Safety Administration regarding EDR data ownership) and 8.3.2 (recording position of Federal Highway Administration regarding EDR data ownership). 132 Id. 133 Id. at 8.3.2. 134 U.S. Department of Transportation: Federal Motor Carrier Safety Administration, A Report to Congress on Electronic Control Module Technology for Use in Recording Vehicle Parameters During a Crash, 23 (Sept. 2001) [hereinafter FMCSA Report]; see also American Trucking Associations, Inc., Technology & Maintenance Council, Recommended Practice, Proposed RP 1214(T): Guidelines for Event Data

145 A potential implication of the ownership issue is that a vehicle owner, if found to be the owner of the EDR data, may preserve her right to withhold or erase the data if that decision is in her self-interest. The FMCSA notes that only the vehicle owner, or a party having the owner's consent, can access the EDR data, unless a law enforcement official has obtained a warrant to investigate a crash. As will be discussed, infra, I do not think this is necessarily correct.135 The data ownership issue is not quite as obvious as it might appear at first blush. It may be the case that no one really “owns” the data recorded by the EDR. To borrow an example from copyright law, it is clear that while original works, whether stored or communicated directly or indirectly with the aid of a machine or a device may be “owned” and therefore copyrighted, “[i]deas or facts . . . are not protected by copyright.”136 The reasoning that stands behind this well-known legal principle accepts that objective facts (like the rate of speed at which an automobile is traveling) may not be owned or otherwise controlled by a private party. Thus, while the data recorder itself is owned by the person who controls the vehicle’s title, the data, which is not original work- product but rather merely factual information, may not be owned. For example, while I may own a piece of real estate, I do not “own” the information contained in the county plat recording its physical boundaries. A person may own an automobile, but she doesn’t own the information relating to that vehicle’s speed as it hurtles down the freeway. The issue may therefore be more one of access to the data, as opposed to ownership of the data itself.137 It therefore seems unlikely that information gathered by EDRs is entitled to protection under the Fourth Amendment. As such, it may be subject to search without the Fourth Amendment’s strictures. 5.5.4 Wireless Communications and Electronically Stored Data An important issue meriting further consideration is the increasing use of wireless means to access electronically stored data. This is true not only in the context of data stored in EDRs, but access to wireless network connections that lead to data contained in hard drives or servers, or wireless connections to the internet where information may be maintained. With respect to EDRs, the issue is whether police need a warrant to access data stored on these devices if they can do so wirelessly—in other words, without directly trespassing on private property. In an early effort to deal with the nascent field of Collection, Storage and Retrieval (2001). While the FMCSA and ATA recommendations pertain to EDR's in trucks, as opposed to non-commercial vehicles, the same data ownership concerns apply. 135 See FMCSA Report, supra note 68. 136See, e.g. Worth v Selchow & Righter Co., 827 F.2d 569 (9th Cir. 1987) (stating common legal maxim that facts are not owned and thus not subject to copyright protections). 137 The Supreme Court’s decision in Kyllo v. United States, 533 U.S. 27 (2001) does not undercut this analysis. In Kyllo, the Court had to decide whether the government’s use of a thermal imaging device constituted a “search” for Fourth Amendment purposes. Although the Court concluded that it did, it did not address the question whether the heat signature left by the defendant’s home was “owned” by him. The Court simply held that the government could not, without a warrant, obtain the home’s thermal data.

146 wireless communications, Congress comprehensively overhauled federal wiretap law with the enactment of the 1986 Electronic Privacy Act (“ECPA”).138 The ECPA, which was designed to protect and secure the privacy of wire and oral communications between individuals, extended the wiretap provisions to include wireless voice communications and electronic communications such as e-mail or other computer-to-computer transmissions.139 Among other things, the ECPA prohibits the willful interception or willful use of "wire" or "oral" communications.140 As previously noted, most courts did not protect such communications. EDR data does not fall within these definitions, but it is useful to see the way in which Congress prohibited the interception of communications where no physical trespass was necessary. Although the interception of all wire communications is prohibited by the ECPA, the expectancy of privacy is a necessary precondition to obtaining the Act’s protection for oral communication. It is important to understand that EPCA only applies to “communications,” fairly narrowly defined, and does not pertain to the wireless downloading of mere data. Arguably, the interception of communications between individuals merits even greater protection than the mere wireless downloading of data. Nevertheless, the majority of federal courts held that individuals had no reasonable expectation of privacy in such wireless communications, whether one or both of the parties communicated by a cordless LAN telephone or cellular telephone.141 If one has no reasonable expectation of privacy 138Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 101-303, 100 Stat. 1848 (codified at 18 U.S.C. 1367, 2510-21, 2701-10, 3121-26). 139 Edwards v. Bardwell, 632 F. Supp. 584, 586-87 (M.D. La.), aff'd, 808 F.2d 54 (5th Cir. 1986); Congressional Findings Act of 1968, Pub. L. No. 90-351, 801, 82 Stat. 211-12 (1968) (observing that wire communications form an interstate network susceptible to substantial eavesdropping and interception of wire, electronic, and oral communications; the purpose of the ECPA is to protect the privacy of such communications). The ECPA defines wire and oral communications as follows: "wire communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception ... furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications .... (2) "oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication. 18 U.S.C. 2510(1)-(2) (1995). 141 See, e.g., United States v. Hall 488 F.2d 193 (9th Cir. 1973) (holding that a communication was protected as a "wire" communication if one party was on a cellular car phone and the other on a land-based line.; United States v. Smith, 978 F.2d 171, 180 (5th Cir. 1992) (holding that the defendant failed to prove that his expectation of privacy in a cordless phone conversation was reasonable under the Fourth Amendment; the court opined in dicta, however, that a more technologically advanced cordless phone may acquire a societal recognition of a reasonable expectation of privacy sufficient for Fourth Amendment protection), cert. denied, 113 S. Ct. 1620 (1993), Tyler v. Berodt, 877 F.2d 705 (8th Cir. 1989), cert. denied, 493 U.S. 1022 (1990). In Tyler, a cordless phone conversation to an unknown receiver was intercepted by one of Tyler's neighbors. Id. at 705. Information heard during the interception subsequently

147 in a telephone call, should one have a reasonable expectation of privacy in factual information recorded by an EDR? This is certainly not a clear-cut situation. Nevertheless, Congress and most states have intervened to ensure the privacy of such communications in light of these federal court decisions. Similarly, Congress (and the individual states) certainly could choose to protect EDR recorded data as well. It is difficult to conclude, however, that EDR data would receive greater privacy protections than those afforded to actual person-to-person communications. Interestingly, the law treats electronically stored data, such as EDR data, quite differently from either data intercepted in real time or data stored in more traditional ways. The ECPA provides protection for e-mail and other forms of "electronic communication" held in "electronic storage," which could arguably include data stored in an EDR. In order for the government to seize any "electronic communications"142 in "electronic storage"143 for 180 days or less requires an ordinary warrant.144 Seizure of electronic communications in storage for more than 180 days145 on an "electronic communications service,"146 requires a subpoena or an order issued pursuant to an offering of "specific and articulable" facts showing reasonable grounds to believe that the contents of an "electronic communication" are relevant to an ongoing criminal investigation.147 Presumably, the government could create different requirements for EDR-stored data as well. provided the basis for the ensuing criminal charges against Tyler. Id. at 706. Although Tyler sued his neighbor for civil violations of the ECPA, the United States Court of Appeals for the Eighth Circuit affirmed the summary judgment against Tyler. Id. at 707; see also United States v. Hoffa, 436 F.2d 1243, 1247 (7th Cir. 1970) (communicating via a cellular car phone provides no reasonable expectation of privacy), cert. denied, 400 U.S. 1000 (1971); United States v. Carr, 805 F. Supp. 1266 (E.D.N.C. 1992) (holding that there is no reasonable expectation of privacy in communications via at least one cordless phone and either a cordless or land-based line). 142 18 U.S.C. § 2510(12) (defining "electronic communication" as, with certain exceptions, "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo optical system that affects interstate or foreign commerce"). 143 18 U.S.C. § 2510(17) (defining "electronic storage" as "(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication"). 144 18 U.S.C. § 2703 (a) (2001). 145 If the communication has been in electronic storage for 180 days or less, the government must obtain a warrant. See 18 U.S.C. § 2703(a) (2001). 146 18 U.S.C. § 2510(15) (2001) (defining ECS as "any service which provides to users thereof the ability to send or receive wire or electronic communications"). 147 18 U.S.C. §§ 2703(a), 2703(b)(1)(B)(ii), 2703(d) (2001).

148 5.6 May police officers obtain the data without the owner’s consent after obtaining a warrant for both criminal and non-criminal investigations? The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and further provides that "no Warrants shall issue, but upon probable cause."148 Clearly, if police were to acquire a warrant they would be able to obtain the information contained in an EDR. Police have been able to obtain computer files, personal diaries, and video surveillance footage with a warrant.149 As described infra, EDRs are comparable to such storage devices for they maintain information that may be relevant for purposes of litigation. Thus, police would be able to obtain the data contained in an EDR by securing a warrant. 5.6.1 May police officers seize EDR information without a warrant? Perhaps the more difficult question is whether the police may obtain the data recorded by the EDRs without a warrant. It has long been the case that courts have consistently recognized exceptions to the warrant requirement. Oftentimes, those exceptions fall within certain narrow categories where the government is able to establish a legitimate need. For example, “the First, Second, and Fourth Congresses … authorized federal officers to conduct warrantless searches” of ships and vessels, to find property that owed duty.150 Assuming arguendo that car owners do have a reasonable expectation of privacy in EDRs or EDR data, police officers may nonetheless seize EDRs without a warrant based on exigent circumstances or “special needs.” If an individual maintains a reasonable expectation of privacy in the object to be searched, then seizure is within the scope of the Fourth Amendment, and is prohibited without a warrant or a valid exception to the warrant requirement. Exceptions to the warrant requirement, founded on the public interest requirement of flexibility in application of the general rule, arise in those cases where the societal costs of obtaining a warrant, such as danger to law officers or risk of loss or destruction of evidence, outweigh reasons for recourse to a neutral magistrate.151 148 U.S. Const. amend. IV. 149 U.S. v. Humphrey, 279 F.3d 372 (2002) (Video Surveillance); U.S. v. Lightfoot, 6 Fed.Appx. 181 (2001) (Video Surveillance); U.S. v. Walton,217 F.3d 443 (2000) (Video Surveillance);. Moyer v. Com, 531 S.E.2d 580 (2000) (Diary); U.S. v. Angevine, 281 F.3d 1130 (2002) (Computer files); U.S. v. Jewell, 16 Fed.Appx. 295 (2001) (Computer Files). 150 Florida v. White, 526 U.S. 559, 564 (1999). 151 United States v. Kreimes, 649 F.2d 1185 (5th Cir. 1981) (holding that police officer was justified in stopping defendant’s truck and the warrantless search of luggage found in truck was justified because officer had probable cause to believe that an armed fugitive was at large).

149 Courts and other commentators often point to Carrol v. U.S as the case that created the so-called “automobile exception” to the Fourth Amendment.152 The “automobile exception” authorizes police officers to stop and search automobiles without a warrant, as long as the police officers have probable cause to believe that there is evidence of criminal activity within the automobile. The rationale behind the decision in Carrol, was that the mobile nature of cars creates an exigent circumstance making a warrant impractical and counter productive to law enforcement. Carrol follows earlier cases that enabled authorities to search carriages and maritime vessels as part of a system of inspections without needing to resort to a warrant. 1) Exigent Circumstances Circumstances that justify warrantless searches include those in which officers reasonably fear for their safety, where firearms are present, where there is risk of criminal suspect's escaping, or fear of destruction of evidence.153 The exigent circumstances doctrine bears special application where the object of the search is damaged property, as in the inspection of burnt homes or businesses. Analysis under the Supreme Court’s line of cases involving “fire searches” is framed by two Supreme Court decisions: Michigan v. Tyler,154 and Michigan v. Clifford.155 In Tyler, a furniture store fire was reduced to “smoldering embers” by the time the local Fire Chief reported to the scene.156 The Chief concluded that the fire was possibly the result of arson, and called a police detective, who took some photographs, but “abandoned his efforts because of the smoke and steam.”157 Four hours later, the Chief returned with the Assistant Chief, whose task it was to determine the origin of all fires in the township. The fire was effectively out when they returned, and the building was empty. The investigators quickly left, returning with the police detective around 9:00 a.m. They found suspicious burn marks, not visible earlier, and took carpet and stair samples. Rejecting the premise that “the exigency justifying a warrantless entry to fight a fire ends, and the need to get a warrant begins, with the dousing of the last flame,” the Court found the two searches conducted on the morning after the fire were constitutionally permitted.158 After noting that the investigation on the night of the fire was hindered by the darkness as well as the steam and smoke, the Court found that the fire officials’ morning-after entries were no more than an actual continuation of the first, valid 152 Carrol v. U.S., 267 U.S. 132 (1925)(federal agents stopped a car they had probable cause to believe contained illegal liquor and immediately subjected it to a warrantless search). 153 United States v. Mendoza-Burciaga, 981 F.2d 192 (5th Cir. 1992). 154 Michigan v. Tyler, 436 U.S. 499 (1978). 155 Michigan v. Clifford, 464 U.S. 287 (1984). 156 Tyler, 436 U.S. at 501. 157 Id. at 502. 158 Id. at 510.

150 search.159 The Tyler Court promulgated a yet-undisturbed rule: “a warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant.” 160 In Clifford, a fire department reported to a residential fire about 5:42 in the morning. The fire was extinguished, and the fire officials and police left the premises at 7:04 a.m. At about 1:00 p.m. that afternoon a fire investigator arrived at the scene, having been informed that the fire department suspected arson. Despite the fact that the house was being boarded up on behalf of the out-of-town owners, the Cliffords, and despite their knowledge that the Cliffords did not plan to return that day, the fire investigator and his partner searched the house. After determining that the fire had been set in the basement, and how, the investigators searched the entire house, taking photographs.161 In finding that the challenged search by the fire investigator was not a continuation of an earlier search, as in Tyler, and in distinguishing between the two cases, the Court explained Between the time the firefighters had extinguished the blaze and left the scene and the arson investigators first arrived . . . the Cliffords had taken steps to secure the privacy interests that remained in their residence against further intrusion. These efforts separate the entry made to extinguish the blaze by that made later by different officers to investigate its origin. Second, the privacy interests in the residence--particularly after the Cliffords had acted--were significantly greater than those in the fire-damaged furniture store [in Tyler ], making the delay between the fire and the mid-day search unreasonable absent a warrant, consent, or exigent circumstances.162 Thus, the Clifford Court laid out three factors for analyzing the constitutionality of warrantless searches of fire-damaged premises: 1) whether there are legitimate privacy interests in the fire-damaged property that are protected by the Fourth Amendment; 2) whether exigent circumstances justify the government intrusion regardless of any reasonable expectation of privacy; and 3) whether the object of the search is to determine the cause of the fire or to gather evidence of criminal activity.163 Clifford thus established the principle that Fire officials need no warrant to enter and remain in a building for reasonable time to investigate the cause of a blaze after it has been extinguished.164 159 Id. at 511. 160 Id. at 509. 161 Clifford, 464 U.S. at 289-91. 162 Id. at 296. 163 Clifford, 464 U.S. at 291. 164 U.S. v. Finnigin, 113 F.3d 1182 (10th Cir. 1997).

151 Should police officers charged with investigating car accidents be afforded the same authority? Perhaps so. Fire officials are charged not only with extinguishing fires, but with finding their causes. Prompt determination of the fire’s origin may be necessary to prevent its recurrence...."165 For this reason, fire officials need no warrant to enter and remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished.166 Accident investigation officials are similarly charged with finding an accident’s cause. EDRs provide data critical to that inquiry. In Commonwealth of Massachusetts v. Mamacos, a defendant, charged with two counts of homicide by negligent operation of a motor vehicle, moved to suppress results of the testing of his truck and all items removed from his truck on the ground that such evidence was obtained without a search warrant.167 After the case was transferred from the Appeals Court, however, the Supreme Judicial Court, Essex County, O'Connor, J., held that: (1) the police department had a right to remove any truck involved in a fatal accident from the scene of the accident and to hold such truck in storage for a reasonable time, and (2) even if the owner of the truck involved in the fatal accident had a subjective expectation of privacy with respect to the truck's brakes, society would not recognize such an expectation of privacy as reasonable when the truck came into possession of the police following the death of the motorists.168 Accordingly, the police officer's examination and testing of the brakes conducted after the owner requested that the truck be returned to him was not a "search" within the meaning of the Fourth Amendment.169 While prompt discovery of an accident’s origin is not necessary to prevent its reoccurrence, a prompt seizure of the EDR may be required to prevent loss of the EDRs critical data. This may be especially true where vehicles are only slightly damaged, and may be driven from the scene by their owners. “[A] warrantless entry by criminal law enforcement officials may be legal when there is a compelling need for official action and no time to secure a warrant.”170 Where a driver may remove a vehicle from the accident scene there exists the possibility that critical evidence may be lost, thus creating a “compelling need for official action.”171 165 Id. at 1185. 166 Id. 167 Massachusetts v. Mamacos, 409 Mass 635 (1991). 168 Id. 169 Id. 170 Michigan v. Tyler, 436 U.S. 499, 509 (1978). 171 Id.

152 Alternatively, police officers may seize EDRs without a warrant during accident investigations because the EDR contains critical evidence of the accident’s potential causes, and may furnish other evidence used to prosecute drivers from criminal offenses. It is well settled that warrantless searches of automobiles are permitted by the Fourth Amendment if the officers have probable cause to believe that the vehicle contains contraband or other evidence of a crime.172 Whether an officer has probable cause to search a vehicle depends on the totality of the circumstances viewed "in light of the observations, knowledge, and training of the law enforcement officers involved in the warrantless search."173 As the Supreme Court stated in Ross, “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”174 Accident investigators, because of their training and experience, may have reason to suspect that drivers involved in accidents have committed a criminal offense or are not answering the officer’s questions regarding potential crimes truthfully. In those instances, police officers may be justified in seizing EDRs because they know or have probable cause to believe that the EDR contains evidence of a crime. A police officer in that situation may seize the EDR without violating the Fourth Amendment. However, the exigent circumstance rationale has been supplemented by subsequent cases such as South Dakota v. Opperman, which held that in addition to the mobile nature of cars, “less rigorous warrant requirements govern because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office.”175 Cady v. Dombrowski, explained that the reduced privacy interest derived “from the pervasive regulation of vehicles capable of traveling on the public highways.”176 Opperman, elaborated on the “pervasive regulation” rationale stating that automobiles are subjected to “continuing governmental regulation and controls including periodic inspection and licensing requirements.”177 Opperman pointed out that cars are subjected to inspections for expired license plates, inspection stickers and for other violations “such as exhaust fumes or excessive noise” and “[defective] headlights or other safety equipment.” 178 Explaining the boundaries of a search conducted without a warrant, U.S. v. Ross held that "if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the 172 See United States v. Ross, 456 U.S. 798, 809-10 (1982); United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir.1993), cert. denied, 510 U.S. 1207 (1994); United States v. Kelly, 961 F.2d 524, 527 (5th Cir.1992). 173 United States v. Muniz-Melchor, 894 F.2d 1430, 1438 (5th Cir.), cert. denied, 495 U.S. 923 (1990). 174 Ross, 456 U.S. at 825. 175 South Dakota v. Opperman, 428 U.S. 364 (1976). 176 Cady v. Dombrowski, 413 U.S.433, 440 (1974). 177 Opperman, 428 U.S. at 368. 178 Opperman, 428 U.S. at 368.

153 search.”179 Ross further held that the search was determined not by the nature of the containers within the car, but by the nature of the evidence searched for.180 When a police officer arrives at the scene of an automobile accident, he is investigating and inspecting both safety and criminal concerns. The police officer will need to assess if there are any safety issues that need to be resolved immediately such as a gas leak or an obstructed lane of traffic. Additionally, the police officer will need to determine whether the cars at the scene are safe to be driven from the scene. As a separate empowering interest, the police officer will have to determine if any of the drivers were committing traffic or other criminal offenses prior to the accident. These offenses could be as (relatively) minor as driving without a license, expired tags, defective tail light, improper or unsafe suspension (such as, but not limited to, an unsafe low-rider, or a truck that is improperly raised), speeding, failing to yield, improper lane change etc. On the other hand, the offenses could also be quite severe, warranting criminal sanctions. Such offenses include driving while intoxicated, driving under the influence, reckless driving, and reckless homicide. The individuals involved in the car accident already have a reduced privacy interest.181 The rationale for this reduced sense of privacy is that society objectively recognizes that cars are already subjected to multiple inspections, safety requirements, and licenses.182 Finally, if a police officer has probable cause to believe that one of the cars involved in the accident was violating criminal laws, or in the alternative that the act of driving away from the scene would violate minimal safety statutes, the police officers can search and inspect the car to the extent necessary to resolve those issues.183 Ross gives police officers the authority to search in any “container” where they have probable cause to believe they will find evidence of the crime or violation they are investigating. By downloading the EDR data, a police officer could quickly evaluate if the brakes are working properly, if the brakes were used at all, if the driver was speeding, if the driver was speeding to the point of being reckless, or if the driver was in an accident of the magnitude that would likely damage a car to the point that it would be unsafe to drive. Depending on the particular EDR, the police may be able to obtain even more information. Thus, pursuant to the Court’s acknowledgment that public safety and the need to conduct prompt investigations may permit officers to conduct warrantless searches in certain narrow circumstances, it is similarly likely that the warrantless seizure of the data contained in an EDR is constitutionally permissible as well. 2) “Special Needs” Exception 179 U.S. v. Ross, 456 U.S. 798 (1982). 180 Id. 181 Cady v. Dombrowski, 413 U.S. 433, 440 (1974). 182 South Dakota v. Opperman, 428 U.S. 364 (1976). 183 U.S. v. Ross, 456 U.S. 798 (1982).

154 Moreover, authority derived from legislative action mandating seizure of EDRs during accident investigations may arise through the “special needs” exception to the Fourth Amendment’s proscription against warrantless searches. A search unsupported by either a warrant or probable cause can be constitutional when special needs other than the normal need for law enforcement provide sufficient justification.184 Under the “special needs doctrine,” a court identifies a special need which makes adherence to the warrant and probable cause requirements impracticable, and then balances the government's interest in conducting a particular search against the individual's privacy interests upon which the search intrudes.185 The “special needs doctrine” allows the state to dispense with the normal warrant and probable cause requirements when two conditions are satisfied. First, the state must show that it has some “special need” or governmental interest beyond normal law enforcement activities that make the search or seizure necessary. Second, the state must show that its interest cannot be achieved or would be frustrated if a court imposed normal warrant and probable cause requirements. If the state satisfies these two conditions, the court then engages in an independent analysis, balancing the state's interest against individual privacy interests. Only if the court is satisfied that the state's interest in the search or seizure outweighs the individual's privacy interest will it uphold the search and dispense with the warrant and probable cause requirements. The Motor Vehicle Safety Act makes clear that the state has a vested interest in highway safety. If EDRs are required in automobiles, it must be that NHTSA found EDRs instrumental in promoting highway safety. Thus it seems likely that the state, in mandating seizure of EDRs during accident investigations, has a special interest beyond normal law enforcement, such as state promotion of safety on highways and the efficiency of the civil tort system.186 Thus, it seems likely that significant state interests would not be achieved if accident investigators are subject to normal warrant and probable cause requirements. Finally, even assuming citizens can claim some privacy interest in an EDR or its data, that interest is likely to be relatively small considering the state’s interest in promoting highway safety and public welfare. Seizure of EDRs thus fulfills the “special needs” 184 Ferguson v. City of Charleston, 532 U.S. 67 (2001) (A S.C. hospital selectively tested pregnant women seeking prenatal care and turned their drug test results over to the police who then arrested a number of the women. The court held that this was a violation of the Fourth Amendment and was not within the special needs exception). 185 Earls ex rel. Earls v. Board of Educ. of Tecumseh Public School Dist., 242 F.3d 1264 (10th Cir. 2001) (Existence of drug problem at public high school constituted a "special need" for purposes of determining whether the school's suspicionless drug testing of students participating in competitive extracurricular activities was reasonable). 186See Edmond v. Goldsmith, 183 F.3d 659 (7th Cir. 1999) (“Randomized or comprehensive searches that have survived the Fourth Amendment are not concerned with catching crooks, but rather with securing the safety or efficiency of the activity in which people who are searched are engaged * * * for example, owners and proprietors (such as state as owner of public roads) have a right to take reasonable measures to protect safety and efficiency of their operations.”)

155 exception, and accident investigators can be authorized by statute187 to seize EDRs and the data contained therein without a warrant. 5.6.2 Additional Considerations Regarding the Use of EDR Data Most of the forgoing discussion dealt with seizure of EDR information at the scene of an accident. Law enforcement authorities have fairly broad authority to secure information from the scene of a crash. Different rules apply when police are simply seeking information related to the prosecution of a crime. But there have been a number of cases in which EDR data was used to prosecute a crime.188 It is clear that the information recorded by EDRs could prove crucial in future criminal prosecutions.189 A recent Florida case highlights the various uses for EDR data. In that case, the defendant was charged with four counts of DUI manslaughter and two counts of vehicular homicide for killing two teenagers in an accident.190 Although a blood test showed that the defendant was intoxicated at the time of the accident, the trial court found the test inadmissible because the defendant had not given voluntary consent. Absent data from the EDR, which measured the defendant’s speed at 114 mph five seconds before the crash and detected that he was pressing the gas pedal at 99 percent of its maximum capacity, it might have been difficult to prosecute the case. Prosecutors are not the only ones who potentially benefit from the use of EDR data. While prosecutors may use the data to bring charges against citizens who violate the law, defendants may also be able to use EDR data to defend themselves against prosecution. In Colorado v. Cain, 191 for example, the state charged the defendant with vehicular homicide, arguing that he was recklessly speeding when the accident occurred. The defendant, however, was able to take advantage of the EDR data stored in his vehicle to successfully defended himself against the charge by using the recorded evidence to show that he was not speeding when the accident occurred. Although a jury may decline to 187 The “special needs” exception may not apply absent a specific statute on point. The Sixth Circuit has held that the government may initiate seizure of property without prior hearing under certain very limited circumstances; in each case, seizure has been directly necessary to secure important governmental or general public interest, there must have been a special need for prompt action, and the person initiating seizure must have been a government official responsible for determining, under standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. First Federal Sav. Bank and Trust v. Ryan, 927 F.2d 1345 (6th Cir. 1991) (emphasis added). 188 See, e.g., Pennsylvania v. Rhodes. Crim. Div. Docket No. 746701 (Montgomery County, Court of Common Pleas) (2002) (defendant pleaded guilty in case where EDR data was admitted to show that when the accident occurred, he was driving in excess of 100 miles per hour); California v. Beeler, Case. No. SCD158974 (San Diego Sup. Ct.) (2002) (EDR data admitted to show that defendant was traveling at excessive speeds in a 45 mph zone—defendant convicted of felony and pleaded guilty to manslaughter). 189 This is particularly true if the type of data EDRs record is expanded to include other information that may be relevant to an accident investigation (such as issues relating to vehicle maintenance or servicing) or if driving data is recorded and stored over a longer period of time. 190 Noah Bierman, Black box gives crash details: Broward traffic-deaths case among first of its kind, Miami Herald, Tuesday, May 6, 2003, http://www.miami.com/mld/miamiherald/5793635.htm. 191 Case No. 01 CR 967 (1st Judicial District Court, Div. 3, Jefferson County) (2003).

156 credit a defendant’s self-serving protestations of innocence, when faced with objective factual evidence of the defendant’s innocence, such statements take on a new light. Presumably, police officers obtained the data in these cases while at the accident scenes. If police officers seek to obtain data from an EDR after the event has occurred and the vehicle has been released into the owner’s custody, then it is clear that they must obtain a search warrant. Of course, the practical difficulty is whether the necessary data would still exist. Unless so ordered, or if involved in litigation, the defendant vehicle owner would be under no obligation to preserve the data unless such a duty were statutorily created. Although no cases have yet addressed the issue of EDR tampering, court rulings in cases involving similar devices in trains and trucks indicate that deliberate erasure or tampering with EDR data will move courts to invoke so-called evidence spoilation remedies.192 In other words, the deliberate destruction of such evidence may lead to sanctions against the despoiling party and judges may permit juries to draw certain negative inferences from such behavior. Perhaps a more interesting question is whether the police could simply download the vehicle’s data via a wireless connection. Under those circumstances, police would not be committing a physical trespass. It might also be argued that to obtain data through those means, police are in effect doing nothing more than that which they do when they use a radar gun to record vehicle speed. The Supreme Court’s opinion in Kyllo v. United States193 provides some instruction here. In that case the Court held that when the government uses a device that is not in general public use to explore details of a private home that would previously have been unknowable absent physical intrusion, a Fourth Amendment “search” has occurred and it is presumptively unreasonable without a warrant. The officers were standing on the other side of the street from the targeted home and used a thermal imaging device to record the home’s heat signature. The Court’s decision turned largely upon the novelty of the device used and the fact that it involved the invasion of one’s privacy at home. Traditionally, the protection of vehicles from the prying eyes of law enforcement is considerably less than that afforded to private homes. Similarly, if EDRs become routinely used by manufacturers, the expectation of privacy that vehicles owners may enjoy might become diminished over time. The courts, therefore, might become more amenable to police use of EDR data as a means of monitoring criminal activity, similar to that of the accepted use of radar guns. 5.7 The Fifth Amendment and EDRs The Constitution’s Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.”194 It has been suggested that the Fifth Amendment’s protection against compelled self-incrimination could be invoked as a 192 See, e.g., Stanton v. Nat’l R.R. Passenger Corp., 849 F. Supp. 1524, 1528(M.D. Ala. 1994); Dennis Donnelly, Black Box Technology in the Courtroom, 38 APR Trial 41 (April, 2002). 193 533 U.S. 27 (2001). 194 U.S. Const. Amend. V.

157 means of preventing the admission of EDR data at trial. This simply represents a misunderstanding of what the amendment was designed to protect. The Fifth Amendment grants an evidentiary privilege that permits an individual to refuse to give testimony that incriminates him. Thus, the privilege applies only to testimony or statements; it does not apply to other forms of evidence.195 In Schmerber v. California,196 the Supreme Court had little difficulty in determining that the state could compel the defendant to produce a blood sample without violating the Fifth Amendment. There, the Court clarified the circumstances in which the self-incrimination protection applies: “[T]he privilege protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.”197 Thus, the protection only exists to shield statements from legal compulsion.198 In other words, in a criminal proceeding, the government may not, in a criminal proceeding, move into evidence statements obtained from the defendant in violation of the Fifth Amendment. While it could certainly be argued (and was by counsel in Schmerber) that the withdrawal of the defendant’s blood over his objection amounted to compelled testimony, the Court refused to extend the Fifth Amendment’s self-incrimination protection to other forms of evidence. Even diaries, business records and journals, all of which may be written by the defendant, are admissible at trial pursuant to the Fifth Amendment.199 The only evidence that is shielded by the privilege against self- incrimination is testimonial evidence made by the defendant to authorities or in the context of a judicial or administrative proceeding of some sort. The admission of EDR data simply does not run afoul of the Fifth Amendment. Moreover, it is well-established that the protection against self-incrimination applies only to criminal, not civil cases.200 Thus, whether in pre-trial discovery or cross-examination at trial, the Fifth Amendment cannot be used to shield testimony or evidence to be used in a civil proceeding. The only caveat is that the defendant may not be forced to make statements in a civil trial that might incriminate him in a future criminal proceeding. For 195 See generally, Allen, Kuhns & Stuntz, Constitutional Criminal Procedure (3rd Ed. 1995); LaFave, Israel & King, Criminal Procedure (3rd Ed. 2000). 196 384 U.S. 757 (1966). 197 Id., at 761. 198 Malloy v. Hogan, 378 U.S. 1 (1964). 199 See Fisher v. United States, 425 U.S. 391 (1970) (reasserting that the Fifth Amendment does not protect written documents). 200 See, e.g., Hoffman v. United States, 341 U.S. 479 (1951) (articulating the standards under which the privilege may be invoked).

158 example, in the celebrated O.J. Simpson civil trial, the plaintiffs were able to put Simpson on the stand and cross-examine him because he had already been acquitted of murder and thus could no longer be subject to criminal prosecution.201 In any event, EDR data would not constitute “testimony” for Fifth Amendment purposes. 5.8 The Federal Rules of Evidence and the Use of EDR Data at Trial The Federal Rules of Evidence (“FRE”) are the rules by which courts control information presented to the fact-finder (normally, the jury).202 These rules determine, among other things, what information is relevant for the jury to hear and to consider. Courts would almost certainly treat information recorded by EDRs no differently than information recorded by other reliable means used for discovery and admission of evidence. Although it is true that discovery criteria and admissibility thresholds vary from jurisdiction to jurisdiction, there appears to be a general consensus that electronically recorded data should be treated no differently from so-called hard copy documents.203 The Federal Rules of Civil Procedure (“FRCP”), which govern the admissibility of evidence in federal court and serve as a model for many of the states, are quite liberal in permitting the introduction of evidence at trial. Pursuant to those rules, "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action."204 Ordinarily, a Rule 34 Request for Production of Documents is the way in which electronically recorded evidence is discovered. It provides: [a]ny party may serve on any other party a request (1) to produce and permit the party making the request . . . to inspect and copy, any designated documents, (including writings . . . and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form)… 205 201 Rufo v. Simpson, 103 Cal.Rptr.2d 492 (Cal. App. Ct., 2001). 202 This applies strictly to federal courts. State courts, of course, have their own rules of evidence; although, as a practical matter the state rules are generally quite similar to those used in federal courts. 203 Donald C. Massey, Proposed On-Board Recorders for Motor Carriers: Fostering Safer Highways or Unfairly Tilting the Litigation Playing Field?, 24 S. Ill. U. L. J. 453 (2000). 204 Fed. R. Civ. P. 26(b)(1). 205 Fed. R. Civ. P. 34. The Advisory Committee on Federal Rule 34 specifically considered evolving technology, and particularly, computer generated documents. It stated: [t]he inclusive description of documents is revised to accord with changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the discovering party only through respondent's devices, respondent may be required to use his devices to translate the devices to translate the data into usable form. In many instances this means that respondent will have to supply a print-out of computer data. Fed. R. Civ. P. 34, 1970 Advisory Committee Note.

159 As part of routine trial preparation, courts will impose a duty on litigants to produce electronic data that is otherwise subject to discovery.206 Indeed, Federal Rule of Evidence (FRE) 1001, expressly observes that written documents may be electronically stored. 207 Whether EDR data would be discoverable and ultimately admissible in a civil proceeding would be governed by the boundaries of what is discoverable and the parameters of admissibility in a given jurisdiction. However, as a general rule, anything that is not privileged and relevant to the subject matter involved in the pending action may be discovered in a civil proceeding.208 It is obvious that such data is not privileged, nor would it be reasonable to argue that the data would be irrelevant. Standards for relevancy are broad. Relevant evidence is simply that which tends to prove or disprove any fact at issue in a case.209 EDR data, generated immediately prior to and contemporaneous with an accident, would plainly be probative of any facts at issue in a trial of this sort. Nevertheless, there are several issues that must be considered. Special rules apply to testimony presented by so-called experts—individuals who were not themselves fact- witnesses, but because of special training and/or experience may be able to assist the jury in its deliberations. A defining feature of expert testimony is that the personal knowledge requirement is suspended. A qualified expert may testify to matters not within the expert’s personal sensory experience, and to opinions not ultimately based on personal knowledge.210 Therefore, not only may experts testify based on hearsay reports of sensory observations made by others but, in principle, experts may also testify to propositions not based on anyone in particular’s sensory observations. The theories that experts may bring to bear are not confined to their particular expertise. Indeed, they may testify as experts only if they can claim scientific, technical, or other specialized knowledge that will help the jury to understand the evidence or determine a fact in issue. Under Fed. R. Evid. 702, this specialized knowledge may be derived from experience, training, or education. The issue of whether the expert possesses specialized knowledge thus derived—i.e., whether the expert is qualified—is decided, in the first instance, by the trial court in its sound discretion. Once qualified, Rule 702 says that experts may offer testimony concerning their expert knowledge “in the form of an opinion or otherwise.”211 The rules permit an expert to testify to general scientific or technical principles, leaving their application to the jury. 5.8.1 The Daubert Test 206 Fed. R. Evid. 1001(1). Rule 1001 provides that a "writing consists of letters, words or numbers, or their equivalent, set down by . . . magnetic impulse, mechanical or electrical recording, or other form of data compilation." Id. Moreover, an original of a writing "is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it . . . ." Id. 207 Id. 208 See Fed. R. Civ. P. 26(b)(1). 209 See generally Fed. R. Evid. 401. 210 See Fed. R. Evid. 702. 211 Fed. R. Evid. 702

160 For many years, the admissibility of expert scientific evidence was governed by a common law rule of thumb known as the Frye test, after a 1923 decision by the United States Court of Appeals for the District of Columbia in which it was first articulated.212 Under the Frye test, expert scientific evidence was admissible only if the principles on which it was based had gained “general acceptance” in the scientific community.213 Despite its widespread adoption by the courts, many viewed this “general acceptance” standard as unduly restrictive because it sometimes operated to bar testimony based on intellectually credible but somewhat novel scientific approaches. In Daubert, the Supreme Court was asked to decide whether the Frye test had been superceded by the adoption, in 1973, of the Federal Rules of Evidence.214 In particular, Fed. R. Evid. 702 broadly governs the admissibility of expert testimony and it simply provides that: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” The majority opinion in Daubert, authored by Justice Blackmun, held that Rule 702 did supersede Frye.215 This did not mean, however, that all expert testimony purporting to be scientific was now admissible. Rather, Rule 702 required that the testimony must be founded on “scientific knowledge.” This implied, according to the Court, that the testimony must be grounded in the methods and procedures of science and would possess the requisite scientific validity to establish evidentiary reliability.216 Furthermore, the Court held that the testimony must be sufficiently tied to the facts of the case.217 5.8.2 EDRs and the Daubert Evidence Admissibility Test Although the data itself recorded by EDRs would be treated no differently than any other document for purposes of discovery, there might be an issue with respect to the data’s accuracy and reliability. In assessing the reliability of scientific expert testimony, the Daubert Court gave future trial courts a number of factors to consider.218 Those factors 212 Frye v. United States, 54 App.D.C. 46, 47 (1923). 213 Id. It is important to note that some states continue to use variations of the Frye test. In Bachman v. Gen. Motors Corp., 332 Ill. App.3d 760 (Ill. 2002), the Appellate Court of Illinois applied the Frye test in permitting the admission at trial of evidence gathered from an air bag sensor. The appellate court concluded that the process of recording and downloading the air-bag sensor data proved no bar to admissibility under Frye. 214 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 215 Id. 216 Daubert, 509 U.S. 579 (1993). 217 Id. It is important to note that many states still use Frye-type tests. 218 See Fed. R. Evid. 702 (Advisory Committee's Note to 2000 Amendment).

161 included (1) whether the expert's technique or theory can be or has been tested-that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community.219 This final factor is essentially a restatement of the Frye rule; although Daubert makes clear that it is only one factor to be subjectively considered by the judge.220 An important element that trial judges must use to determine the admissibility of expert testimony is whether the expert's theory can be challenged in some objective sense.221 Thus, it will be important for EDR manufacturers to make information available concerning the reliability of their devices. If third parties may test the device itself, and if the relevant scientific community accepts the accuracy and reliability of such devices, there should be no legal constraints on the admissibility of EDR data.222 In fact, Rule 702 is sufficiently broad that it may allow contradictory expert testimony that is the product of competing principles or methods in the same field of expertise.223 Thus, while an automobile manufacturer might call an expert to testify to the precision of its data, opposing counsel can attempt to impeach the testimony by offering its own analysis. Rule 702 allows all of this evidence to be adduced at trial, and then permits the trier of fact to determine its legitimacy. In Harris v. General Motors Corporation,224 for example, the United States Court of Appeals for the Sixth Circuit reversed a decision of summary judgment for the defendant because it had been based solely on a GM engineer’s interpretation of crash data collected from an EDR. GM filed a motion for summary judgment relying on the engineer’s testimony that, based upon his interpretation of the EDR data, the air bag had properly deployed. The engineer’s interpretation of the data contradicted both the driver’s and the passenger’s testimony, that the driver was injured because the air bag deployed late. The trial court not only admitted the testimony based on the EDR data, but 219 Daubert, 509 U.S. at 593-94. 220 See generally Daubert, 509 U.S. 579 (1993). 221 See Fed. R. Evid. 702. 222 See Daubert, 509 U.S. at 594 (describing how the varying factors applied by judges were neither exclusive nor dispositive). 223 See generally Fed. R. Evid. 702 (The 2000 Amendment provides that an expert may testify when such testimony is derived from sufficient data.). See, e.g., Heller v. Shaw Indus., Inc., 167 F.3d 146, 160 (3d Cir. 1999) (describing how expert testimony cannot be excluded simply because the expert uses one test rather than another, when both tests are accepted in the field and both reach reliable results); Ruiz-Troche v. Pepsi Cola, 161 F.3d 77, 85 (1st Cir. 1988) (holding that "Daubert neither requires nor empowers trial courts to determine which of several competing scientific theories has the best provenance"). 224 201 F.3d. 800 (2001).

162 granted GM summary judgment on that basis. The lower court applied the “physical facts” rule225 to conclude that the plaintiff’s could not have been correct based upon the indisputable physical facts of the case. Explaining that it had failed to unearth any cases dealing with the interpretation of EDR data, the Court of Appeals held that “the [EDR] data suggests that the air bag deployed properly; it does not establish beyond factual dispute that the airbag could not have deployed belatedly in the manner” the plaintiff contended.226 Because the court found the record devoid of any demonstration that GM had proved the reliability of its engineer’s testimony beyond factual doubt, the court remanded the case to the trial court for a hearing on admissibility. The admissibility of information gathered from EDRs in the courtroom would almost certainly be admissible under the Daubert test. As the Court held in Daubert, any information grounded in the methods and procedures of science that possesses the requisite scientific validity to establish evidentiary reliability pertaining to the case at hand was admissible.227 By way of offering further guidance, the Court noted the availability of other mechanisms of judicial control, including summary judgment and the ability to exclude confusing or prejudicial evidence under Fed. R. Evid. 403, were adequate means to ensure that only relevant, credible evidence would be presented to the jury. 5.9 Conclusion In our opinion, the USDOT may have the authority to require installation of EDRs if it is demonstrated that they improve highway safety or advance other significant public policy interests. Although the legal authority may exist, that does not mean that the public will necessarily accept the implementation of such devices—particularly if it is felt that EDRs trench upon legitimate privacy interests. Although the privacy concerns are doubtless serious, they are not insurmountable. First, police may properly seize EDRs without a warrant during post-accident investigations, either because seizure of a required safety device does not constitute a “search“ implicating the Fourth Amendment or, in the alternative, because seizure of a safety device qualifies under one of the exemptions for conducting warrantless searches. In other, non-emergency situations, however, police may need to obtain a warrant before seizing the data—at least insofar as the data is intended to be used in a criminal investigation and a privacy interest in the data continues to be recognized. It is possible, as the Kyllo Court appears to suggest, that if the downloading and use of EDR data becomes sufficiently widespread and routine, individuals may no longer have a reasonable privacy interest in the data. 225 The so-called physical facts rule disallows testimony “which is opposed to the laws of nature, or which is clearly in conflict with principles of science, [and] is of no probative value . . . .” Lovas v. Gen. Motors Corp., 212 F.2d 805, 808 (6th Cir. 1954). Such testimony, “which is positively contradicted by the physical facts cannot be given probative value by the court.” Ibid. 226 Id., at 804. 227 Daubert, 509 U.S. 579 (1993).

163 Second, although the data (and the recorder itself) is in all likelihood “owned” by the automobile’s owner, it may almost certainly be used as evidence against the owner (or other driver) in either a civil or a criminal case. The Fifth Amendment’s privilege against compelled self-incrimination will not shield the data from being introduced at trial. Nor will it be possible to prevent adverse civil litigants from obtaining the data as a matter of routine pre-trial discovery. Of course, depending upon the nature of the data collected, Congress (or the individual states) could choose to privilege the use of the data, but that seems quite unlikely. In reality, the only real obstacle to the use of EDR data in court would either be a demonstration that the devices themselves, or the decoders used to download the data, were consistently inaccurate and unreliable, or if shown that automobile owners could tamper with the devices, thereby rendering the data unusable. However, courts have a long history of creating remedies for the spoiling of data, and similarly, laws could be created that criminalize the willful destruction or alteration of EDR data. Finally, it is worth noting that some concerns may be mollified if insurance companies or the car manufacturers themselves take active steps to provide individual purchasers / insurers with incentives to waive any interests they may have in the EDR data. For example, insurers could premise policy decisions on whether a consumer agreed to allow the company unimpeded access to the data. Similarly, insurers could provide discounts to such consumers in exchange for their waivers. Automobile manufacturers could require purchasers to agree to permit them to review data in the event of an accident, either for safety engineering purposes or to protect the company from potential lawsuits. Private solutions to these potential problems no doubt exist; these are only a few of the possible avenues that could be taken to ensure that EDR collected data are easily recovered.