The Little Black Box: Who Owns Your Car’s Secrets?

November 19, 2012

By: Thomas G. Wianecki and Roxana Amini

Two years ago, Paul Van Alfen crashed his 2008 Toyota Camry into a stone wall after exiting the highway. The collision claimed the lives of the Mr. Van Alfen and his son’s fiancé. According to the police report, the weather was dry and sunny and the roadway was unobstructed. Mr. Van Alfen’s wife and son, who were also in the Toyota but survived the crash, told police that Mr. Van Alfen tried to brake but couldn’t. After the Van Alfen death, the family filed a wrongful death lawsuit against Toyota.

In response to the Van Alfen lawsuit, Toyota sought information from the Camry’s event data recorder (“EDR”), which is analogous to an airplane’s “black box.” An EDR is installed by the vehicle manufacturer and is made up of tiny microchips that store information collected by the vehicle’s electronic sensors. It records data just prior to a vehicle crash and may include vehicle speed, engine speed, percentage of throttle and braking information.[i]

Toyota inspected Mr. Van Alfen’s black box and reported that Mr. Van Alfen never pushed the brakes before the accident. Toyota probably expected this to end the lawsuit, but U.S. District judge sanctioned the auto manufacturer because it obtained the information without a court order or providing notice to the Van Alfens’ lawyer. The judge noted that Toyota’s actions “cast a cloud of suspicion” over the inspection.

Under California law, a third party like Toyota cannot obtain the information in a vehicle’s black box without consent by the registered owner or a court order. If there is consent or a court order, the information can be released to a third party, such as the vehicle’s manufacturer, the driver’s insurance company, or an investigating public agency.[ii] A public agency may also obtain the information if there is a warrant.[iii]

Mostly likely, there is a black box in your car and it has been disclosed in the owner’s manual.[iv] Be aware that in the event of an accident, your car’s secrets will not necessarily be protected from disclosure.

[i] People v. Ferguson (2011) 194 Cal.App.4th 1070, 1087 (a motorist has a subjective and reasonable expectation of Fourth Amendment privacy rights with regard their vehicle’s digital data).
[ii] Cal.Vehicle Code § 9951
[iii] People v. Xinos (2011) 192 Cal.App.4th 637, 659.
[iv] Cal.Vehicle Code § 9951 (applies only to vehicles “manufactured on or after July 1, 2004”)