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State Appeals Court Says There's An Expectation Of Privacy In Vehicle Data Recorders

from the hands-off-the-black-box dept

An interesting decision has been reached by the Florida Appeals Court as to Fourth Amendment protections for vehicle "black boxes." The black boxes -- which are a mandatory requirement in new vehicles -- record a variety of data in the event of a crash. (h/t FourthAmendment.com)

Charles Worsham Jr. was the driver in a crash in which his passenger was killed. His vehicle was seized and impounded by police. Twelve days later, police accessed the data in the black box without obtaining a warrant. Worsham challenged the lawfulness of the warrantless search. The police maintained the black box was full of third-party records which required no warrant or consent from the vehicle's owner.

The court sees the issue differently. In a relative rarity, the state Appeals Court decides [PDF] to get out ahead of the issue, rather than wait for precedential decisions to trickle down from the federal courts. It looks at the data harvested by the black box and suggests the amount gathered will only increase in the coming years. Rather than wait until then to make a call on the Fourth Amendment merits, it draws the line now.

Citing the Supreme Court's Riley decision (which introduced a warrant requirement for cell phone searches), the court concludes the crash data contained in the black box has an expectation of privacy.

A car’s black box is analogous to other electronic storage devices for which courts have recognized a reasonable expectation of privacy. Modern technology facilitates the storage of large quantities of information on small, portable devices. The emerging trend is to require a warrant to search these devices.

[...]

Although electronic data recorders do not yet store the same quantity of information as a cell phone, nor is it of the same personal nature, the rationale for requiring a warrant to search a cell phone is informative in determining whether a warrant is necessary to search an immobilized vehicle’s data recorder. These recorders document more than what is voluntarily conveyed to the public and the information is inherently different from the tangible “mechanical” parts of a vehicle. Just as cell phones evolved to contain more and more personal information, as the electronic systems in cars have gotten more complex, the data recorders are able to record more information.

Also of importance is the difficulty of extracting the information from the black boxes.

Extracting and interpreting the information from a car’s black box is not like putting a car on a lift and examining the brakes or tires. Because the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impounded vehicle.

Not only that, but recent legislation (the Driver Privacy Act of 2015) specifically states that the contents of data recorders belong to the vehicle's owner, not the manufacturer or any other third party.

The general rule of the statute is that “[d]ata recorded or transmitted by an event data recorder . . . may not be accessed by a person other than an owner . . . of the motor vehicle in which the event data recorder is installed.”

The dissent makes some good points as well concerning the application of the Fourth Amendment to data collected by a device many people aren't aware their vehicles contain. Even if the event data recorder harvests some information not observable from outside the vehicle, the information it collects has no intrinsic value to the vehicle's owner -- at least not at this point.

The data that the government extracted from the vehicle that was owned and driven by Appellee in this case was not information for which Appellee or any other owner/driver had a reasonable expectation of privacy. The data was not personal to Appellee, was not password protected by Appellee, and was not being collected and maintained solely for the benefit of Appellee. The EDR was installed by the vehicle’s manufacturer at the behest of the National Highway Traffic Safety Administration and, as distinct from Jones, the purpose of the data collection is highway and driver safety.

However, not all event recorders are as limited to what driving information they collect. NHTSA regulations only set the baseline. They don't prevent manufacturers from adding more data collection to black boxes. Right now, the recorders are of little use to anyone outside of law enforcement or insurance agencies. Still, it's nice to see a court be proactive on the issue, rather than wait until the Fourth Amendment issue hits critical mass.


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  • icon
    That Anonymous Coward (profile), 6 Apr 2017 @ 3:05pm

    A court not punting?!
    This is my shocked face.

    It would have taken hardly any effort to get a warrant, yet they decided why bother?
    I'm sure the car maker would object to this idea that its their property, because the door to liability would swing open wide against them. People would claim that they should have made sure it was always working if the data wasn't there due to a failure.

    Getting a warrant isn't a huge hassle, and in a majority of the times when they want to obtain data they should just to cover the bases. They spend so much time and effort trying to find ways to get around this because they find the rights citizens have to be bothersome.

    The only time the police seem to support requiring warrants, is when one of their own is on the block & then they are very law and order to the letter of the law. Why should they expect better treatment than everyone should have?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 6 Apr 2017 @ 3:18pm

      Re:

      Yeah, so many of these cases are self-inflicted wounds on the part of the police.

      Time after time(after time) you read about cases where all the police had to do was get a gorram warrant and they would have been fine, yet whether through incompetence and/or indifferent to such a basic requirement they skip it entirely and the case is either dropped if the judge cares about the law, or they get a pass if the judge only cares about allowing the police to do whatever they want.

      At this point I'd say there needs to be a real penalty for not getting a warrant, something with teeth that's regularly and consistently enforced, in addition to a case being dropped if one isn't acquired. Perhaps if the officers in question faced personal penalties they might bother with that pesky 'warrant' process.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Apr 2017 @ 3:32pm

        Re: Re:

        "real penalty for not getting a warrant"

        The penalty is not being able to use the gathered evidence in prosecution.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 6 Apr 2017 @ 3:40pm

          Re: Re: Re:

          As I noted, that should be the minimum penalty for not getting a warrant. If police can't be bothered to follow the law and get a warrant before performing a search they should be held personally responsible for their incompetence/negligence/indifference, with the hopes that personal penalties would encourage them to get a warrant in future cases.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Apr 2017 @ 10:55am

        Re: Re:

        Part of their thinking may very well be that if they ask for a warrant in a case where they think that one really shouldn't be needed, the fact that they asked for a warrant suggests the opposite. That would certainly be brought up by the defense in cases where they didn't get a warrant. Plus they really really don't want to expand the number of situations where a warrant is required. Damn things are such a nuisance.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Apr 2017 @ 3:31pm

      Re:

      "It would have taken hardly any effort to get a warrant, yet they decided why bother?"

      Precedent. Getting a warrant takes some (not unreasonable) effort. LEO would like to follow the path of least resistance. Rulings like this offer the resistance needed to set them on the right path.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2017 @ 3:29pm

    Enough with these piecemeal "driver privacy" acts. Everything is a computer and we should have a reasonable expectation of all computers we use.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2017 @ 5:21am

      Re:

      when there is a switch in cell phones or car black boxes when owner can use to turn on total privacy, then we will be able to argue no expectation of privacy claim.

      first, provide that option altogether. the only reason there is no such option is to aid gov back door activities.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 6 Apr 2017 @ 3:36pm

    Less fishing, more hunting

    So much wasted effort could be saved if the police and government agencies stopped searching everything they could get their hands on, 'just in case' they find something juicy and restricted their efforts for when they have enough justification to get a warrant and perform a targeted search.

    If you don't have enough to justify a warrant, then odds are good you don't have enough to justify a search in the first place. Spend less time on fishing expeditions and more time hunting actual criminals.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2017 @ 3:43pm

    Pretty dirty trick to write a law to require people to carry assorted tracking devices on their vehicles, then claim it's a third party record (mandated by the government) and we (the government) can look whenever we want.

    reply to this | link to this | view in chronology ]

  • icon
    TKnarr (profile), 6 Apr 2017 @ 4:33pm

    For the dissent's position, I'd ask:

    I have a safe in my house. It was there when I bought the house. I didn't install it, I don't know the combination and I have no idea what's in it other than it isn't anything to do with me. Does this mean the police can enter my house, have a locksmith open the safe and riffle through it's contents, all without any warrant?

    If the answer is no then the dissent's position is at best misguided and at odds with existing jurisprudence. Things don't have to have any intrinsic value to belong to me, they don't have to have been created by me to belong to me, and they certainly don't have to have been built and/or installed by me to belong to me. The black boxes were part of the car when I bought it, I paid for the whole car and I've got the title to the whole car, the title applies as much to the black boxes as to any other part of the car.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2017 @ 5:01pm

    Ultimate protection

    I'm starting to think the only real protection against unreasonable search is to wear a transmitter that triggers when I raise my hands above my head. It would set off self destruct on all my electronics from my phone to my doorbell (since it's blue tooth enabled and stores video).

    Guess I'll need to be careful with shrugs if I do that.

    reply to this | link to this | view in chronology ]

  • icon
    CynicalChris (profile), 6 Apr 2017 @ 5:45pm

    Protected Status

    For Flight Data Recorders and Cockpit Voice Recorders, aren't there rules around when the data can be used for prosecution? The primary purpose is for aviation safety, not criminal investigations.

    If similar devices are mandated for vehicles, presumably it was for a similar purpose and similar legal protections should have been put in place.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2017 @ 6:50pm

    Let me see if I understand the dissent's position.

    If the police selected me for special attention, and fixed a GPS device on my vehicle, unbeknownst to me, inaccessible to me, to gather information about me ... then they'd need a warrant, according to the Supreme Court.

    But, if the police coerced the car manufacturer to fix a GPS device on all vehicles, all unbeknownst and inaccessible to any of us ... then they can get that information any time they want, on any of us, without a warrant, according to--whom?

    Apparently, if they can spy on everyone at once, they don't have to get a warrant to spy on anybody.

    Godwin's law enters a new phase, in which any rational discussion of the Spanish Inquisition or the NKVD devolves into trolling when the FBI is mentioned.

    reply to this | link to this | view in chronology ]

  • icon
    vdev (profile), 6 Apr 2017 @ 10:22pm

    There will be an interesting debate when this, as it inevitably will, arrives at the court of appeals.

    And that will be about who owns the device. Did the vehicle purchaser buy the device as part of the vehicle, or is it a separate "facility" of some sort that's owned by the vehicle manufacturer, or some such.

    reply to this | link to this | view in chronology ]

    • identicon
      Matt, 7 Apr 2017 @ 6:09am

      Re:

      Or they will go with the mailbox route where the homeowner has to purchase and maintain the mailbox but it's property of the federal government.

      To be honest I'm surprised they haven't already done that as the government wouldn't need a warrant to access it's own box

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2017 @ 6:49am

      Re:

      This is the Florida Court of Appeals. And this will definitely be upheld by the state's supreme court. Florida has some crazy constitutional provisions around privacy. Everything the government has in their possession is assumed to be public knowledge that must be disclosed except for anything related to medical care, prohibited by federal law, or part of a small class of exempt items defined the constitution.

      The on the personal side of privacy, they can't really regulate abortions because they aren't allowed to ask doctors anything about the procedures as that would be asking for particular medical records according the state supreme court even if the medical records had all personal details stripped out. There are stronger privacy provisions in the state's constitution than for the nation as a whole.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2017 @ 11:05am

    The data in the black box was not password protected by Appellee, but normally the car is locked, limiting physical access to the data port.

    reply to this | link to this | view in chronology ]

  • icon
    SirWired (profile), 7 Apr 2017 @ 11:16am

    What's with the comments about Federal Appeals courts?

    What's with this comment: "In a relative rarity, the state Appeals Court decides [PDF] to get out ahead of the issue, rather than wait for precedential decisions to trickle down from the federal courts."

    Huh? This statement makes no sense at all. If a State appeals court receives a case, they need to issue a decision; that being their job. Certainly a decision might be slow in coming if that exact issue was currently being litigated in a higher court, but other than that, they have to make SOME ruling one way or another; there's very few cases where a court can just throw up it's hands and punt it upwards without ruling.

    reply to this | link to this | view in chronology ]

  • identicon
    ted, 7 Apr 2017 @ 11:55am

    Recorders are of little use to anyone outside of law enforcement or insurance agencies?

    Really? How about the vehicle's owner and their lawyer? How about groups doing safety and environmental studies? This is how VW got caught.

    reply to this | link to this | view in chronology ]


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